Dwyer Nolan Developments Ltd v Dublin County Council

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 21 April 1986
• Neutral Citation: 1987 WJSC-HC 540
• Court: High Court
• Docket Number: [1985 No. 4567P]
• Date: 21 April 1986

1987 WJSC-HC 540

THE HIGH COURT

No. 4567P/1985

DWYER NOLAN DEVELOPMENTS LTD v. DUBLIN COUNTY COUNCIL

BETWEEN

DWYER NOLAN DEVELOPMENTS LIMITED

PLAINTIFF

AND

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

DEFENDANT

Citations:

BARRETT (BUILDERS) V DUBLIN CO COUNCIL UNREP SUPREME 28.07.84 1983/7/1929

F LUCAS & SONS LTD V DORKING & HORLEY RURAL DISTRICT COUNCIL 62 LGR 111

HOLLAND V DUBLIN CO COUNCIL 1979 113 ILTR 1

HORNE V FREENEY UNREP MURPHY 07.07.82 1982/11/2157

PILKINGTON V SECRETARY OF STATE FOR THE ENVIRONMENT & ORS 1973 WLR 1527

READYMIX EIRE LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.07.74

Synopsis:

DAMAGES

Assessment

Builder - Capital outlay - Recoupment - Builder prevented from proceeding with development - Loss of use of money invested in acquisition of site - Damages calculated from times when several parts of development would have been completed - Rate of interest - Assumption that development would have been completed in six months - Estimated recoupment of one-fifth capital outlay at end of second, third, fourth, fifth and sixth month - Rate of interest being average of overdraft and deposit rates - (1985/4567 P - Carroll J. - 21/4/86) - [1986] IR 130

|Dwyer Nolan Developments v. Dublin County Council|

DOCUMENTS

Construction

Ordinary meaning - Planning - Permission - Retention of development - Objective construction - (1985/4567 P - Carroll J. - 21/4/86) - [1986] IR 130

|Dwyer Nolan Developments v. Dublin County Council|

EVIDENCE

Estoppel

Planning - Development - Permission - Avenue, being part of development, was completed by plaintiff builder in reliance upon permission granted by defendant as planning authority - Defendant, as highway authority, interfered with plaintiff's avenue - Plaintiff had obtained permission for variation of original scheme of development - Defendant submitted that first permission was not applicable - Held that defendant was estopped from denying the validity of the first permission - (1985/4567 P - Carroll J. - 21/4/86) - [1986] IR 130

|Dwyer Nolan Developments v. Dublin County Council|

HIGHWAY

Access

Interference - Building site - Trespass - Plaintiff's avenue leading to highway - Avenue cut by defendant and spoil deposited on plaintiff's site - Damages - Removal of spoil - Judgment for plaintiff - (1985/4567 P - Carroll J. - 21/4/86) - [1986] IR 130

|Dwyer Nolan Developments v. Dublin County Council|

PLANNING

Permission

Severance - Development scheme - Two permissions - Partial completion of development by builder pursuant to first permission - Held that second permission not available for completion of balance of development - Held, nevertheless, that partial completion pursuant to the first permission was a permitted development - Interference by defendant with avenue constructed by plaintiff - Spoil deposited by defendant on plaintiff's site - Trespass - (1985/4567 P - Carroll J. - 21/4/86) - [1986] IR 130

|Dwyer Nolan Developments v. Dublin County Council|

1 Judgment of Miss Justice Carroll delivered the 21st day of April 1986

2 The lands of Foxrock House, portion of which now belong to the Plaintiff, adjoin the lands of Loreto Convent, Foxrock. Before any development took place, Foxrock House had its own entrance from Bray Road near the northern end of its grounds and Loreto Convent had a separate entrance close to the southern boundary of Foxrock House.

3 The predecessors in title to the Plaintiff (referred to as the developer) submitted a comprehensive access and land exchange proposal involving the exchange of land with Loreto Convent in order to achieve satisfactory joint access for the convent, Foxrock House and Springfield Park (which adjoined the southern boundary of the convent's lands). This formed the basis of outline permission granted by the Minister on appeal on the 5th of April, 1976, reference H 374 and permission granted by the Defendant (referred to as the Council) by Order P / 47 / 77 on the 7th of January, 1977, reference K1 568.

4 The area comprised in these applications included the present site belonging to the Plaintiff, plus an area which is now a hockey pitch, plus the area of the road reservation for the improvement of the Bray Road fronting both Foxrock House and the convent. It showed joint access coming from the old Bray Road at right angles, the road serving Foxrock House lands turning to the right parallel to Bray Road, the road to Springfield Park turning left parallel to Bray Road and the entrance to the convent on the Springfield Park section almost opposite the common access road.

5 On the 24th of August, 1978 application was made for planning permission ( reference RA 1417 ) for 71 houses on the lands of Foxrock House. The area involved comprised the present site, plus the area now used as a hockey pitch, plus the road reservation area fronting the lands of Foxrock House. The plans submitted did not provide for common access but envisaged an entrance to the estate from the Bray Road situated approximately where the old entrance was.

6 Planning permission was granted on the 10th of November, 1978 for 68 houses subject to 21 conditions. Condition 14 (a) provided

"The permanent access to the development shall be provided by the developer at no expense to the Council by the extension of the cul-de-sac road shown as Pine Avenue on the lodged plans to the Bray Road with the agreement of the adjoining landowners and this access shall be designed and constructed to the requirements of the Roads Department and shall serve as combined access to the development and Loreto Convent before house construction commences."

7 Condition 14 (b) in the event did not arise.

8 Pine Avenue was shown on the plan as a cul-de-sac running near the boundary with the convent and ending at the Bray Road end of the site. This meant that the developer was thrown back to achieve some arrangement with Loreto Convent for a common entrance.

9 Application for building bye - law approval under permission RA 1417 was made on the 30th of March 1979 and was granted on the 28th of May 1979.

10 The developer built the internal road network, the surface water sewers and some ( but not all ) of the foul sewers but he did not complete any part of the roads and sewers in the area now used as a hockey pitch.

11 By now it had emerged that Loreto Convent needed another hockey pitch and it was agreed that an area including the original Pine Avenue would be transferred to the convent.

12 The developer applied for permission (reference SA 1238, lodged on the 18th July, 1979 for a partial revision of RA 1417 for 60 houses allowing for the change of user for the hockey pitch and a new line for Pine Avenue skirting the hockey pitch and coming in at right angles to the joint access road which led to the Bray Road. This access road did not from part of the lands comprised in the application save for a small portion thereof beside the hockey pitch. The submission approximated very closely with the joint access plans approved in 1977 in permission K 1568 save that instead of the internal road running parallel to the Bray Road, it curved around the hockey pitch reservation to the left. This was granted by the Council on the 19th of December, 1979 ( Order PA 3958 / 79 ) but was appealed by a third party.

13 The Plaintiff entered into the contract for the purchase of the lands on the 10th of November, 1980. The lands sold did not include the hockey pitch reservation or the Bray Road reservation fronting the site. The vendor was to furnish full planning permission and bye - law approval for immediate development of portion of the site shown on map A ( being at the nere of the site ) for a specified number of houses and was to provide the same for the balance of the site ( map B ) at a later date. The vendor was to be responsible for the roads, foul water sewers, storm water sewers and water mains and had to comply prior to closing with all conditions contained in planning permissions and bye - law approval.

14 Since the third party appeal against SA 1238 was still pending, the Plaintiff refused to close because there was no planning permission for the revised location of Pine Avenue.

15 By letter dated the 20th of November, 1981 the Council wrote to the developer stating (inter alia) that Condition Number 14 of application RA 1417 had been complied with. It also dealt with the Council's objections to SA 1238. The evidence in relation to this letter was that the developer ( in the person of Mr. Woods ) came in in an agitated manner and said he needed a letter that afternoon or a sale would fall through.

16 Before the appeal came on, the developer wrote on the 7th of May, 1982 to the Council headed, Re: Decision Order Number P / 4585 / 78 ( i.e. RA 1417 ) stating that a temporary builder's road was being constructed along the new line of Pine Avenue to enable them to gain safe vehicular access but that they did not want it to be taken as part of the development which was then under appeal to An Bord Pleanála ( i.e. SA 1238 ).

17 On the 10th of August, 1982 An Bord Pleanála refused permission for SA 1238 for the reasons set out in the Schedule, viz.

"The Board is not satisfied that a safe and adequate access has been or can be provided by the applicants to serve the site and in the absence of such an access the traffic generated by the proposed development would endanger public safety by reason of the serious traffic hazard and obstruction of road users on the adjoining substandard busy and dangerous section of national primary road."

18 Six subsequent applications for a different access layout all lodged on the 26th of August 1982 were refused by the Council, which considered itself bound by the Board's decision.

19 Then the developer applied on the 24th of January, 1983, reference YA 68 for planning permission for this site excluding the hockey pitch area, the Bray...