Dublin County Council v Eighty Five Developments Ltd (No. 2)

JurisdictionIreland
JudgeFINLAY C.J.,McCarthy J.,EGAN J.
Judgment Date01 January 1993
CourtSupreme Court
Docket Number[1989 No. 6383P]
Date01 January 1993
DUBLIN CO COUNCIL v. EIGHTY FIVE DEVELOPMENTS LTD
THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN
Plaintiff/
Appellant

and

EIGHTY FIVE DEVELOPMENTS LIMITED
Defendant/
Respondent

1992 WJSC-SC 335

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

285/89

THE SUPREME COURT

Synopsis:

PLANNING

Permission

Refusal - Terms - Construction - Compensation - Exclusion - Terms not identical to exclusionary provisions of statute - Local Government (Planning and Development) Act, 1963, ss. 55, 56 - (285/89 - Supreme Court - 9/4/92) [1993] 2 I.R. 392 [1992] ILRM 815

|Dublin County Council v. Eighty Five Developments Ltd.|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1)(e)

XJS INVESTMENTS LTD V DUBLIN CO COUNCIL 1986 IR 750

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1)(g)

GRANGE DEVELOPMENTS LTD V DUBLIN CO COUNCIL 1986 IR 246

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1)(i)

1

JUDGMENT delivered on the 9th day of April 1992by FINLAY C.J. [Hederman J., O'Flaherty J. conc]

2

This is an appeal brought by the Plaintiff against the dismiss by order of the High Court dated the 26th June 1989, made by Gannon J., of its claim for a declaration.

3

In proceedings instituted in the High Court the Plaintiff claimed

4

1. A declaration that the Defendant was not entitled to compensation pursuant to the provisions of section 55 of the Local Government (Planning and Development) Act 1963, as amended, arising from or as a result of the decision of An Bord Pleanala, whereby the Board decided to refuse permission to the Defendant for site development works for 196 houses, a filling station, shopping centre and primary school at Seapark, Portrane, CountyDublin.

5

2. A declaration that reason number 2 given by the Board for refusing the said permission is one which precludes the payment of compensation pursuant to section 56 of the said Act.

The facts
6

The facts out of which the claim arose were as follows. The Defendant is a property developing company, and in 1988 sought from the Plaintiff planning permission for a proposed site development work for 196 houses, a filling station, shopping centre and primaryschool at Seapark, Portane in the County of Dublin.

7

On the 27th May 1988 the Plaintifff as a planning authority notified its refusal of that application for six reasons. Reasons numbers 1 and 2 related to the contravention of the objective of zoning in the County Development Plan and to the reason that the development would be premature pending a review of the County Development Plan and the preparation of town structure plans and provision of an adequate roadnetwork.

8

The remaining reasons for refusal were as follows.

9

2 "3. There are no public piped sewerage facilities available to serve the proposed development as there is no capacity in the existing treatment plant to serve the proposed development.

10

4. The proposed development would be premature by reason of the said existing deficiency in the provision of public piped sewerage facilities to serve the development, and the period within which such deficiency may reasonably be expected to be made good.

11

5. The proposed development would be premature because road improvement works, including the improvement of the railway bridge in Donabate would be necessitated by the proposed development, and a road layout for the area has not been approved by the planning authority or An Bord Pleanala on appeal.

12

6. The internal road layout does not provide for roundabouts or speed-reducing curves on the central access road. This would give rise to a traffic hazard due to the encouragement of high speed traffic movements on residential roads."

13

Against that decision the Defendant appealed to An Bord Pleanala, and An Bord Pleanala having considered the appeal and held an oral hearing, by order dated the 16th November 1988, refused the application, giving two reasons for its refusal, and they are:

14

2 "1. It is considered that the proposed development would be contrary to the proper planning and development of the area because the site is located in an area zoned "B" in the Dublin County Development Plan, 1983, with the objective "to protect and providefor the development of agriculture" and the proposal would materially contravene this objective, which is considered to bereasonable.

15

2. The proposed development, located on the main Donabate Road which is substandard in width and alignment, would give rise to traffic hazard by reason of the additional turning movements which it wouldgenerate."

The submissions on behalf of the Appellant
16

In short, the Appellants confine their submissions to an assertion that reason number 2 given by An Bord Pleanala in deciding to reject the application on appeal for planning permission comes within the provision contained in section 56(1)(e), which provides that compensation under section 55 of the Act shall not be payable "in respect of the refusal of permission for development if the reason or one of the reasons for the refusal is that the proposed development would endanger public safety by reason of traffic hazard or obstruction of road users or otherwise." The argument put forwardto support this assertion is that, since reason number 2 identifies a taffic hazard as arising from the generation of additional turning movements in a road which is sub-standard in width and alignment, the only possible inference which can be drawn from that description of a traffic hazard is that it is a traffic hazard, the hazard or risk or danger of which is to public safety. It is submitted that the decision of this court in X.J.S. Investments Ltd. v. The Dublin CountyCouncil 1986 IR, 750, does not require the use by the planning authority or by An Bord Pleanala in rejecting an application for planning permission of the precise words of one of the subsections or subclauses of section 56 in the Act, but that what it does require is that the topic or characteristic of the reason provided for in one of these subsections or subclauses should be unambiguously stated in the reason for rejecting the application for permission. Applying that test it is urged that the absence of the use of the words "public safety" could notdefeat the right of the Plaintiff to exclude the Defendant from compensation when the only conceivable conclusion from the words which are used is that what is being protected is public safety.

The Respondents" submissions
17

On behalf of the Respondents it is firstly urged that the decision of this court in the X.J.S. case must be construed as meaning that if a planning authority, or if An Bord Pleanala wishes to, or intends to, refuse an application for planning permission for a non-compensatory reason, that it must actually quote and set out the words of one or other of the subsections or subclauses of section 56 which is such a reason. Whatever may have been the situation prior to the decision of the Supreme Court in the X.J.S. case, it is urged that at the time when the decision was made by An Bord Pleanala in the instant case the Board must have been aware of the decision of the supreme court, and must be taken not to have intended a non-compensatoryrefusal of planning permission. These were the reasons for which the learned trial judge in the court below dismissed the Plaintiff's claim, and the Respondents say he was correct in law and on the facts which he found before him.

The decision
18

I have come to the conclusion that the second reason given by An Bord Pleanala in this case for its refusal of planning permission for site development works in connection with the complex of 196 houses, a filling station, shopping centre and primary school at Seapark, Portrane, County Dublin, was a reason that the proposed development would endanger public safety by reason of traffic hazard, within the meaning of the provisions contained at section 56(1)(e) of the Planning Act 1963.

19

Reason number 2 can be analysed in the following manner.

20

(1) It states that the proposed development would generate additional turning movements of traffic.

21

(2) It states that those turning movements would occur on the main Donabate Road, which is sub-standard in width and alignment.

22

(3) It states that those turning movements on that road would give rise to traffic hazard.

23

It seems to me that it is an inevitable conclusion from that analysis that what the refusal of planning permission based on those reasons is intended to do is to protect the safety of the public using the road. To put the matter in another way, the hazard referred to in that reason can only, having regard to the other factors stated in the reason, be a hazard or danger to public safety.

24

The decision of this court in the X.J.S. case was not, as has been contended, a decision to the effect that a reason for the refusal of planning permission could only be non-compensatory, within the provisions ofsection 56, if it followed the precise wording of one of the subsections or subclauses of that section.

25

In the course of his judgment McCarthy J., in dealing with the disparity between the reasons given by An Bord Pleanala in that case and those which had been previously given by the planning authority in refusing permission, stated as follows, referring to the desirability of using the precise words of the sections:

"Such caution is all the more obviously required when An Bord Pleanala, whilst confirming, in effect, the decision to refuse permission, does so in terms which differ from the reasons adduced by the planning authority, which reasons were expressed in words approximating to the words of the section. (Emphasis added)"

26

The second reason stated by the planning authority might well be held to be within the exclusionary wording of sub-paragraph (g)."

27

The second...

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