Dublin County Council v Grealy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1988 No. D 6626]
• Court: High Court

High Court

[1988 No. D 6626]

Dublin County Council v. Grealy

The County Council of the County of Dublin

Plaintiff

and

John Grealy, James Gardiner, Thomas O'Brien and Drummartin Builders Providers Limited

Defendants

Cases mentioned in this report:—

Athlumney, In re, ex p. Wilson [1898] 2 Q.B. 547.

Gardner v. Lucas (1878) 3 App. Cas. 582.

Hamilton v. Hamilton [1982] I.R. 466; [1982] I.L.R.M. 290.

Reid v. Reid (1886) 31 Ch. D.402.

Local government - Planning - Planning control - Open spaces - Power of planning authority to direct maintenance of open spaces - Power of planning authority to compulsorily acquire lands in default of compliance with direction - Pre 1976 development - Whether compulsory acquisition power retrospective - Local Government (Planning and Development) Act, 1976 (No. 20), s. 25.

Statute - Interpretation - Retrospectivity - Planning control - Power of planning authority to direct maintenance of open spaces - Power of planning authority to compulsorily acquire lands in default of compliance with direction - Development pre-dating compulsory acquisition power - Whether power retrospective - Local Government (Planning and Development) Act, 1976 (No. 20), s. 25.

Appeal from the Circuit Court.

The facts have been summarised in the headnote and are set out in the judgment of Blayney J., infra.

By Ejectment Civil Bill on the Title dated the 12th October, 1988, the plaintiff commenced proceedings claiming an order for possession of lands at Drummartin Road, Kilmacud, County Dublin, which the plaintiff had vested in itself pursuant to the powers conferred on it by s. 25 of the Local Government (Planning and Development) Act, 1976, and of which the plaintiff had had itself registered as the owner.

In their defence delivered on the 10th March, 1989, the defendants pleaded,inter alia, that the registration of the plaintiff as the owner of the land was invalid in that the vesting order made by the plaintiff on the 22nd December, 1986, vesting the lands in itself, was ultra vires the powers of the plaintiff under s. 25 in that the power thereby conferred did not extend to development commenced and completed prior to the coming into force of the Act of 1976. The defendants further counterclaimed for a declaration that the vesting order of 22nd December, 1986, was null and void; a declaration that the defendants were the full owners of the lands and an order for the rectification of the register by restoring the defendants as full owners of the lands.

On the 31st July, 1989, His Honour Judge Frank Martin, in a reserved judgment, dismissed the plaintiff's claim and granted the reliefs sought by the defendants in their counterclaim. The plaintiff appealed to the High Court.

Section 25 of the Local Government (Planning and Development) Act, 1976, provides inter alia:—

"25. - (1) Where —

• (a) development . . . has been carried out pursuant to a permission . . . and

• (b) (ii) it was either explicit or implicit in the application for the said permission that land would be provided or maintained as . . . open space, and

• (c) the planning authority have served on the owner of the land a written request that, within a period specified in the request . . . he will provide, level, plant or otherwise adapt or maintain such land in a manner so specified . . . and

• (d) the owner fails to comply or to secure compliance with such request within the period so specified,

• the planning authority may . . . publish . . . a notice . . . of their intention to acquire the land by order under this section."

This section goes on to provide for the possibility of an appeal against such an acquisition notice to An Bord Pleanála and, in default of an appeal within the time allowed or in case the acquisition notice is confirmed on appeal, empowers the planning authority to make an order vesting the lands concerned in itself for all the estate and interest of the owner.

In 1984 the defendants purchased and were registered as joint owners of a plot of ground at K. in County Dublin. The plot was part of a holding which had been developed as a housing development pursuant to a permission granted in 1957. The plans lodged with the application for that permission showed the plot as open space.

The plaintiff planning authority, being dissatisfied with the manner in which the plot was being maintained, served a notice on the defendants pursuant to s. 25 of the Act of 1976 requiring them to level, topsoil, seed and maintain the plot. The defendants failed to comply with that notice and the plaintiff served and published an acquisition notice under the section; vested the property in itself and had itself registered as the owner of the land.

The plaintiff brought ejectment proceedings in the Circuit Court relying on its registered title. The defendants argued that s. 25 of the Act of 1976 only applied to developments completed after the passing of that Act and...