Fingal County Council v William P. Keeling & Sons Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IESC 55
• Docket Number: [SC No. 148 of 2002]
• Court: Supreme Court
• Date: 29 July 2005

Fingal County Council v. William P. Keeling & Sons Limited

Between:

Fingal County Council

Plaintiff/ Respondent

AND

William P. Keeling & Sons Limited

Defendant/ Appellant

[2005] IESC 55

Murray CJ

Denham J

McGuinness J

Hardiman J

Fennelly J

148/02

THE SUPREME COURT

1 Mr Justice Fennelly delivered the 29th day of July, 2005

2 This appeal requires the Court to reconsider part of its judgment in County Council of the County of Dublin v Tallaght Block Company Limited [Supreme Court unreported 17th May 1983, per Hederman J, hereinafter " Tallaght Block"]. The Court there appears to have decided the following. Where a developer applies unsuccessfully for retention planning permission, he is estopped by that fact alone from resisting a later application for an order pursuant to section 27 of the Local Government (Planning and Development) Act, 1976on the basis that the development was exempted development. Section 27 is now, of course, replaced by section 160 of the Planning and Development Act 2000.

3 The Respondent applied in October 2001 pursuant to section 27 for an order that the Appellant demolish forthwith a partially completed bungalow constructed on lands at Killeek Lane, Killeek, County Dublin and to carry out site clearance works following the demolition.

4 It is not in dispute that the Appellant had not obtained any permission for the development in question before it was carried out. Thus the development was unauthorised unless it enjoyed the benefit of the relevant Exempted Development Regulations. The Appellant's contention that the development is exempt appears to be based on the existence on the site of an old disused cottage, but I do not wish to say anything whatever about the merits of that argument, which has not yet been explored by the High Court.

5 The Respondent caused an inspection of the site to take place and complained that unauthorised development had taken place. The Appellant applied on three occasions for permission to retain the development but each application was refused.

6 In answer to the application for an order pursuant to section 27, the Appellant argued that the development was exempt.

7 McKechnie J ordered that a preliminary issue be determined " as to whether or not an exemption could be claimed for a development in respect of which an application for planning permission had been lodged."

8 The agreed note of the ex tempore judgment of McKechnie J determining that issue states:

" The Applicant relying on the judgment of the Supreme Court in[Tallaght Block], argues that the Respondent is now estopped from raising a defence in these proceedings that the work carried out to the property is exempted development. The Applicant submits that the Respondent cannot now argue that the works do not require planning permission as the Respondent lodged planning applications for the works on three occasions and is bound to accept in those circumstances that the works constitute development for the purposes of Part IV of the Local Government (Planning and Development) Act, 1963."

9 McKechnie J concluded that:

" ...were it not for the decision in the Tallaght Block case, this Court would have great difficulty in holding that the Respondent is not entitled to raise the defence of exempt development. The facts of this case are not so distinguishable from the facts of the Tallaght Block case and the decision of Costello J is persuasive. The decision of the Supreme Court, of course, binds this Court."

10 Consequently, McKechnie J determined the preliminary issue against the Appellant. The sole issue on the appeal is whether McKechnie J correctly determined the preliminary issue and, consequently, whether, following the decision in Tallaght Block, the Appellant was estopped from raising the issue of exempted development.

11 Having regard to the doctrine of stare decisis, this Court has consistently stated that it will not depart from a fully considered earlier decision in the absence of compelling argument showing the decision was clearly wrong. That principle does not apply if the earlier statement is not truly a decision in the sense of forming part of the ratio decedendi of the decision of the Court. The statement most relevant to the present appeal is that of Henchy J, with whom Budd and Griffin JJ agreed, in Mogul of Ireland v Tipperary (N.R.) County Council [1976] IR 260 at 272:

" A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion."

12 It is necessary, therefore, to consider whether the Tallaght Blockdecision falls within that description.

13 The High Court judgment in Tallaght Block was that of Costello J. It is reported at [1982] ILRM 534. The development involved the construction of a manufacturing facility for concrete blocks. Costello J described the issues in the case, at page 535, as being, in effect, whether, in respect of part of the site, the development was...