Ebonwood Ltd v Meath County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 30 April 2003
• Neutral Citation: 2003 WJSC-HC 4672
• Court: High Court
• Docket Number: [2002 No. 366SS]
• Date: 30 April 2003

2003 WJSC-HC 4672

THE HIGH COURT

Record Number 366SS/2002

EBONWOOD LTD v. MEATH CO COUNCIL

IN THE MATTER OF:

THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT

1919

THE PROPERTY VALUES (ARBITRATION & APPEALS) ACT

1960

THE ARBITRATION ACTS 1954 & 1980

THE LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACTS 1963–

1993

BETWEEN:

EBONWOOD LIMITED

Claimant

AND

MEATH COUNTY COUNCIL

Respondent

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S12(1)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCH 3 PAR 11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2(7)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(9)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(1)

TOM CHALKE CARAVANS LTD V LIMERICK CO COUNCIL UNREP FLOOD 20.12.91

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19

XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION 1987 ILRM 659

KEANE LAW OF LOCAL GOVERNMENT IN THE REPUBLIC OF IRELAND 1982 182

DUBLIN CO COUNCIL V EIGHTY FIVE DEVELOPMENTS LTD (NO 2) 1993 2 IR 392 1992 ILRM 815

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S12(1)

O'SULLIVAN & SHEPHERD PLANNING LAW IN IRELAND 2ED PAR 1.101

NOWLAN A GUIDE TO PLANNING LEGISLATION 1988

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 10

SCANNELL ENVIRONMENTAL & PLANNING LAW IN IRELAND 1995 195

MCGARRY, AG V SLIGO CO COUNCIL 1991 1 IR 111

SHORT V DUBLIN CO COUNCIL 1982 ILRM 117

WOOD V WICKLOW CO COUNCIL 1995 1 ILRM 51

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(9)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(9)(B)

TENNYSON V DUN LAOGHAIRE CORPORATION 1991 2 IR 527

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22(1)

Synopsis:

CASE STATED

Arbitration

Planning and development - Development plan - Statutory interpretation - Plain and ordinary meaning of words used - Whether objective in development plan is land use objective - Status of draft development plan - Whether planning authority can refuse permission on grounds that proposed development would contravene land use objective in draft development plan - Local Government (Planning and Development) Act 1963, sections 2, 19 - Local Government (Planning and Development) Act 1990, section 12(1) (2002/366SS - Peart J - 30/4/2003)

Ebonwood Ltd v Meath County Council - [2004] 3 IR 34 - [2004] 1 ILRM 305

Section 12(1)(b) of the Local Government (Planning and Development) Act 1990, when read in conjunction with reason 11 of the third schedule thereto, precludes a property owner from claiming compensation in respect of refusal of permission for any development "if the development would contravene materially a development objective indicated in the development plan...". Section 19(3) of the Planning and Development Act 1963 provides that "...a development plan may indicate objectives ...for the use solely or primarily...of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise)." Section 2(7) of the Act of 1963 provides that . The claimant applied for planning permission to develop its property, which application was refused by the respondent on the grounds that the property in question was within an area of investigation in relation to the re-opening of a rail link set out in the respondent's draft development plan. The claimant then applied for compensation for the alleged reduction in value of the property, which claim was referred to an arbitrator for determination. In the course of the arbitration, the arbitrator referred the question as to whether, as a result of the decision of the planning authority to refuse permission, the claimant was precluded from claiming compensation by virtue of the reason for refusal falling within section 12(1)(b) and paragraph 11 of the third schedule to the Act of 1990, as a case stated to the High Court for determination. The respondent submitted that the claimant was not entitled to compensation as the proposed development would contravene a land use objective in the draft development plan and accordingly fell within the ambit of section 12(1) of the Act of 1990. The claimant submitted that reason 11 in the Act of 1990 referred to "the development plan" and not to the draft development plan. The claimant further submitted that even if the words "development plan" were to be construed as including a "draft development plan" as contended for by the respondent, the reason for the refusal relied upon by the respondent was not a land use objective permitted by section 19(3) of the Act of 1963 but was a "route selection corridor" similar to a road reservation.

Held by Peart J in answering the question posed in the negative that use of the words "or otherwise" in section 19(3) of the Act of 1963 meant that a broad interpretation was to be given to the words used in that section, and the retaining of a route selection corridor for a rail link must come with that broad interpretation as being an objective for the use of a particular area for a particular purpose, in other words, a "land use" objective. However, it was important that the public and in particular, persons seeking to develop their property should have certainty and precision as to the relevant criteria by which any application for permission would be judged and the circumstances in which compensation may or may not be payable by the planning authority. Accordingly, a planning authority can have regard only to the development plan currently in force and not a draft development plan when considering whether a proposed development would contravene a land use objective set out in any such plan.

1 Mr Justice Michael Peart delivered the 30th. day of April 2003

2 This matter comes before this Court by way of a Case Stated dated 29 ^th January 2002 by John R. Shackleton M.R.I.C.S. of 3, The Mall, Lucan in the County of Kildare, Property Arbitrator.

3 As appears therefrom, the Arbitrator was nominated by the Land Values Reference Committee to act as arbitrator between the Claimant and the Respondent in order to determine the amount of compensation, if any, which should be paid by the Respondent to the Claimant pursuant to section 11 of the Local Government (Planning & Development) Act 1990(hereinafter referred to as "the 1990 Act").

4 The factual background to this application is set forth in the said Case Stated, and can be summarized as follows:

5 1. The Claimant is the freehold owner of certain premises later set forth, and that at some date prior to the application for planning permission the subject of this application, the Claimant granted a leasehold interest in the said premises to an associated company, Ashdale Taverns Limited (hereinafter referred to as "Ashdale"). That company at that time was the operating company of the premises, namely the Station House Hotel, Kilmessan, Co. Meath.

6 2. The lease has since expired and the Claimant is now the operating company of the premises described.

7 3. On 5 ^th November 1999 Ashdale lodged an application for planning permission with the Respondent for a development comprising a two storey bedroom wing, dining room extension, reception area, bar, function room and ancillary accommodation, conversion of goods shed to hotel apartments and signal box to hotel shop and for a three storey apartment block with associated car parking and landscaping at Station House Hotel, Kilmessan, Co. Meath (hereinafter referred to as "the premises"). Planning Reference Number 99/2230.

8 4. By Order dated 27 ^th April 2000 the Respondent decided to refuse planning permission for the following reason:

9 1. Having regard to the objective in the Draft Meath County Development Plan 2000 to retain a route selection corridor along the old railway line in order to facilitate the possible future reinstatement of the Navan to Dublin commuter rail link" - Objective KM9 page 78 volume 11, and also having regard to the strategic review currently being carried out by Iarnrod Eireann of railway services in the Greater Dublin Area which all look at the potential for re-opening the former Clonsilla to Navan railway line by virtue of sites' location within an area of investigation in relation to the reopening of this line, the proposed development would be premature pending the completion of the strategic review by Iarnrod Eireann. The proposed development would therefore be contrary to the proper planning and development of the area.

10 5. By letter dated 23 ^rd October 2000 Messrs Hamilton Osborne King on behalf of the Claimant applied to the Respondent for compensation in the sum of IR£4,200,000 pursuant to Section 11 of the 1990 Act, this sum being the alleged reduction in value of the Claimant's interest in the premises by reason of the decision of the Respondent.

11 6. The Claimant, having failed to reach agreement with the Respondent on the amount of compensation, if any, to be paid by the Respondent to them, applied to the Land Values Reference Committee to nominate an Arbitrator to determine such compensation.

12 7. The Land Values Reference Committee by Order dated 20 ^th June 2001 nominated Mr John R. Shackleton to be such Arbitrator, and the hearing of the case duly commenced on 3 ^rdOctober 2001.

13 8. At the hearing, the Respondent submitted that the Claimant was not entitled to compensation, as the reason given in the decision of the Respondent fell within the provisions of Section 12 (l)(b) of the 1990 Act, and paragraph 11 of the Third Schedule of the said Act.

14 9. The Claimant disagreed with this submission because the reason for the refusal:

15 (a) does not refer to the Development Plan...