Eighty Five Developments Ltd v Dublin County Council (No. 1)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 395
• Docket Number: No. 76 ss/1991,[1991 No. 76 S.S.]
• Date: 01 January 1993

1992 WJSC-HC 395

THE HIGH COURT

No. 76 ss/1991

EIGHTY FIVE DEVELOPMENTS LTD v. DUBLIN CO COUNCIL

IN THE MATTER OF THE ACQUISITION OF LAND (ASSESSMENT OF

COMPENSATION) ACT 1919

THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT 1960

THE ARBITRATION ACTS 1954 AND 1980

THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963–

1983

BETWEEN

EIGHTY FIVE DEVELOPMENTS LIMITED

CLAIMANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1983

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S68

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S69

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990

TOWN & REGIONAL PLANNING ACT 1934 S61

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S41

OWENBUE V DUBLIN CO COUNCIL 1982 ILRM 150

BYRNE V DUBLIN CO COUNCIL 1983 ILRM 213

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

CRONIN (INSPECTOR OF TAXES) V CORK & CO PROPERTY LTD 3 ITR 252 1986/5/230

TOWN & REGIONAL PLANNING ACT 1934 S61(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(e)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(h)

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

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHED III

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHED IV

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(2)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED I

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S11

Synopsis:

DAMAGES

Assessment

Planning - Permission - Refusal - Compensation - Applicant's interest in land - Reduction in value of interests - Relevance of subsequent amendment of enactment - (1991/76 SS - Carroll J. - 31/1/92) - [1993] 2 I.R. 378 - [1992] ILRM 815

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

PLANNING

Development

Permission - Refusal - Compensation - Assessment - Method - Applicant's interest in land - Reduction in value of interest - Assessment of reduction - Statute - Interpretation - Enactment - Relevant date for implementation of enactment - Subsequent amendment of enactment - Amendment irrelevant - Local Government (Planning and Development) Act, 1963, ss. 55, 68, 69 - Local Government (Planning and Development) Act, 1980, ss. 3, 11 - (1991/76 SS - Carroll J. - 31/1/92) - 1993 2 I.R.378 1992 ILRM 815

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

STATUTORY INTERPRETATION

Enactment

Terms - Implementation - Point of time - Subsequent amendment - Irrelevance of amendment - (1991/76 SS - Carroll J. - 31/1/92)

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

1 Judgment of Miss Justice Carroll delivered the 31st day of January 1992.

2 This is a Case Stated by the Property Arbitrator in respect of a claim by Eighty Five Developments Limited (the Claimant) against Dublin County Council as Respondent for compensation under Section 55 of the Local Government (Planning and Development) Act 1963(the 1963 Act) as amended by the Local Government (Planning and Development) Acts 1976, 1982, 1983.

3 The planning history of the lands in question (being the lands comprised in Folio 4522 County Dublin) is set out in the Case Stated. An application for planning permission for 329 houses together with outline planning permission for neighbourhood shops was refused on the 16th of September 1987 by the Respondent giving nine reasons (some of which were non-compensatable grounds). The Claimant applied for planning permission for site development works for 196 houses, a Filling Station, Shopping Centre and Primary School which was refused by the Respondent on the 27th of May 1988 on six grounds which included non-compensatable grounds. Building bye-law approval for the development works was granted on the 5th of September 1988 but this has no relevance to the issue to be decided.

4 On appeal against the refusal of the 27th of May 1988 An Bord Pleanala refused permission on the 16th of November 1988 on two grounds as follows:-

5 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 provide for the development of agriculture" and the proposal would materially contravene this objective which is considered to be reasonable.

6 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 traffic turning movements which it would generate."

7 The Claimant applied for compensation amounting to £2,211,000 under Section 55 of the 1963 Act being the alleged reduction in value of the Claimant's interest in the land by reason of the decision of An Bord Pleanala.

8 The County Council failed in the High Court in their application for a declaration that the Defendant was not entitled to compensation because reason number 2 given by the Board for refusing permission was one which precluded compensation under Section 56.

9 Section 56 provides:-

10 2 "(1) Compensation under Section 55 of this Act shall not be payable -

11 ...

12 2 (e) 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. ..."

13 On the 26th of June 1988 Gannon J. refused to make the Order sought as An Bord Pleanala did not choose the wording of the section.

14 It should be noted that refusal of permission because the proposed development would materially contravene the objectives of the area as zoned, is not a ground included in Section 56.

15 The Property Arbitrator was nominated to act as Arbitrator by the Land Values Reference Committee to determine the compensation. As a result of the request of the Respondent, the Property Arbitrator stated a case to the High Court as a special case for the opinion of the High Court in the form of questions, as follows:-

"In determining the Claimant's claim for compensation pursuant to Section 55 of the Local Government (Planning and Development) Act 1963as the result of the refusal of permission to develop land must I determine the reduction (if any) in the value of the Claimant's interest in the subject lands having regard to the provisions of Section 55 (2) and 55 (3) as:"

(a) the open market value of the subject lands prior to the decision of An Bord Pleanala of the 16th of November 1988 with such development potential including the possibility of obtaining planning permission (if any) as may be proved in evidence less the open market value of the subject lands after the said decision? or

(b) the open market value of the subject lands as if the planning permission applied for had been granted less the open market value of the subject lands after the said planning decision? or

(c) the open market value of the subject lands as if planning permission for the full or optimum development of the lands had been granted less the open market value of the subject lands after the said planning decision? or

(d) on a basis other than (a) (b) or (c) above?"

16 Counsel for the Claimant stated that they were not pursuing the third option and the case was argued on the basis that the interpretation was either (a) as contended for by the Respondent or (b) as contended for by the Claimant.

17 Section 55 of the 1963 Act provides:-

18 2 "(1) If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of this Act involving a refusal of permission to develop land or a grant of such permission subject to conditions (other than any such condition as is referred to in paragraph (e), paragraph (g) or paragraph (h) of subsection (2) of section 26 of this Act) the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, such person shall, subject to the provisions of this Part of the Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on on the land.

19 (2) In determining reduction of value for the purposes of this section, regard shall be had -

20 (a) to any permission under this Act to develop the land existing at the time compensation is agreed or determined (as amended, s. 41, 1976 Act)

21 (b) to any undertaking that may be given to grant permission to develop the land in the event of application being made under this Act in that behalf, and

22 (c) to the fact that exempted development may be carried out on the land,

23 and, in a case in which there has been a refusal of permission, the calculation shall be made on the basis that, if the permission had been granted, any conditions which might reasonably have been imposed in relation to matters referred to in paragraphs (e), (g) and (h) of subsection (2) of section 26 and paragraph (c) of subsection (1) of section 56 of this Act (but no other conditions) would have been...