Dublin County Council v O'Riordan

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-HC 1156
• Docket Number: No. 2 M.C.A./1985
• Court: High Court
• Date: 01 January 1986

DUBLIN COUNTY COUNCIL v, O'RIORDAN

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

APPLICANT

and

DENIS H. O'RIORDAN

RESPONDENT

1985 WJSC-HC 1156

No. 2 M.C.A./1985

THE HIGH COURT

Synopsis:

LOCAL GOVERNMENT

Planning

Permission - Authorised development - Failure to comply with conditions of permission - Enforcement of compliance with requirements of condition - Planning authority seeking order commanding director of company to complete development - Local Government (Planning & Development) Act, 1976 - (1985 No. 2 MCA - Murphy J. - 23/5/85).

Dublin County Council v. O'Riordan

Citations:

COMPANIES ACTS 1963–1985

DUBLIN CO COUNCIL V ELTON HOMES LTD 1984 ILRM 297

ELLIS V NOLAN UNREP McWILLIAM 6.5.83 1984/4/1300

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

1 Judgement of Mr. Justice Murphy delivered on the 23rd day of May 1985 .

2 This is an application under Section 27 of the Local Government (Planning and Development) Act 1976(the 1976 Act) for an Order directing the respondent (Denis H. Oapos;Riordan) forthwith to complete a residential development known as Finsbury Park, Churchtown in the Country of Dublin, and in particular directing the respondent forthwith to comply with all conditions which attached to certain planning permissions granted by the applicants in respect of the said development.

3 The planning permission with which the applicants are particularly concerned is that granted on the 7th of September, 1971 to one Michael Francis Shanahan in respect of the Finsbury Park Estate, Churchtown, Co. Dublin. The Finsbury Park Estate comprised some 7 ½ acres and was at all material times owned by Churchtown Estates Limited. The said Michael Francis Shanahan was a director of Churchtown Estate Limited (hereinafter referred to as "Churchtown") and the respondent acted as solicitor to that company. The respondent was not a shareholder in or a director of Churchtown. By an agreement in writing dated the 15th day of August, 1971 Churchtown Estates Limited agreed with Irish Residential Estates Limited (hereinafter referred to as I.R.E.) to grant to it or its nominee or licensees a lease or leases of the several plots of building sites comprising the Finsbury Park Estate and numbered 1 to 43 inclusive. It was a term of that agreement that I.R.E. would within the period of two years from the 1st day of October, 1971 erect houses on the forty-three sites comprising the lands the subject matter of that agreement and would "indemnify the licensor (Churchtown) against all liability in respect of any breaches of the said building bye-laws, town planning approval or other statutory requirements". For its part Churchtown agreed to construct and complete on or before the 31st of May, 1972 all necessary roads, sewers, storm water drains and main water-pipes to the public cisterns which would be necessary for the proper use and enjoyment of the dwelling-houses subject to the qualification that in the event of the work agreed to be done by Churchtown costing in excess of £21,000-00 I.R.E. agreed to be responsible for the excess. Subsequently Churchtown sold thirteen of the sites to John J. O'Brien (Churchtown) Limited pursuant to an agreement dated the 6th of July, 1973, and a further unspecified number of sites to Patrick Jackson pursuant to another agreement dated the 2nd day of July, 1973. I.R.E. disposed of a variety of the sites by two agreements dated the 10th day of November, 1980 and the 8th day of May, 1981 to one James Gernon. At the end of the day only thirteen of the forty-three sites were developed by or on behalf of I.R.E. Limited.

4 The conditions on which the planning permission aforesaid was granted were not fully complied with. The outstanding works relate primarly to the landscaping of the site as a whole and to the completion of the installation of the sewage, road works and other public services. In those circumstances proceedings were instituted against Mr. Michael Francis Shanahan under Section 27 aforesaid by Noice of Motion dated the 11th day of March, 1983. In those proceedings an Order was made against Mr. Shanahan on the 2nd day or May, 1983 and on his consent it was ordered that Churchtown and I.R.E. be added as respondents in those proceedings. It was then ordered that all three respondents should comply with the conditions set out in the Schedule to the Order on or before the 2nd day of September, 1983.

5 In the course of the present proceedings Counsel on behalf of the applicants informed the Court that subsequent proceedings for the attachment of Mr. Shanahan and the sequestration of the assets of the two companies were adjourned to enable the present proceedings to be instituted and brought to trial.

6 It appears that the total issued share capital of I.R.E. is £2-00 divided into two shares of £1-00 each, one of which is held by the said Michael Francis Shanahan and the other by the respondent in the present proceedings, Denis H. O'Riordan. Both Mr. Shanahan and Mr. O'Riordan were at all material times directors of I.R.E.and Mr. O'Riordan acted as solicitor on behalf of that company in addition to acting as solicitor as solicitor on behalf of Churchtown.

7 Whilst there is an Order in being directing Churchtown and I.R.E. to complete the outstanding works that Order was made on the consent of Mr. Shanahan, but Mr. O'Riordan, the only other director and shareholder in he company, emphatically denies that he consented to or was consulted in regard to the granting of that consent.

8 I do not think that it is necessary to set out here the relevant provisions of Section 27 of the 1976 Act. The effect of that Section may best be summarised by quoting a passage from the Judgment of Barrington J. in The Country Council of the Country of Dublin and Elton Homes Limited & Ors. delivered on the 19th of May 1983 as follows:-

"The powers conferred on the High Court by the subsection are very wide powers. It may require "any person" specified in the Order to do or no to do or to cease to do as the case may be anything which the Court considers necessary to ensure that the development is carried out in conformity with the permission."

9 However, having expressed his view as to the wide scope of the subsection in question Mr. Justice Barrington went on to comment upon the limits which must be imposed on that Section in its application as follows:-

"One must assume that the subsection was deliberately drafted in wide terms. At the same time the powers conferred on the High Court are not arbitrary powers but must be exercised in accordance with principles which are judicially acceptable."

10 In the Elton case the Court was considering an application for an Order directed to the secondly and thirdly named defendants who were directors of the first...