Frescati Estates v Walker

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1975
• Date: 01 January 1975
• Docket Number: [1973. No. 2937 P]

High Court

Supreme Court

[1973. No. 2937 P]

Frescati Estates v. Walker

Frescati Estates Limited

Plaintiff

and

Marie Walker

Defendant.

Local Government - Planning - Permission - Status of applicant - Outline application - Whether applicant must have estate in land specified in application - Local Government (Planning and Development) Act, 1963, (Permission), Regulations, 1964 (S.I. No. 221), Arts. 2-4 - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 24-26.

Motion on Notice.

The plaintiffs were owners in fee simple of Frescati House and adjoining land at Blackrock in the County of Dublin. They made four applications to the Corporation of Dún Laoghaire (the planning authority) pursuant to the Local Government (Planning and Development) Act, 1963, for permission to develop their property in various ways. One of the plaintiff's proposed developments was the erection of a retail departmental store and the provision of a car park on their property; this plan involved the demolition of Frescati House and it aroused wide public interest and some opposition because of the house's association with the life of Lord Edward Fitzgerald (1763-1798). The defendant did not have any estate or interest in the plaintiff's property but she was the honorary secretary of the Frescati and Blackrock Protection Society, which was a voluntary association of people who wished to preserve Frescati House.

The plaintiffs' planning applications were refused by the planning authority and the plaintiffs appealed to the Minister for Local Government from those refusals under the Act of 1963. By a letter dated the 28th November, 1972, the plaintiffs withdrew their planning appeals and on the 12th December, 1972, they claimed from the planning authority the sum of £1,309,972 under s. 55 of the Act of 1963 as compensation for the authority's refusal of permission to develop the plaintiffs' property as a retail departmental store and car park. On the 4th October, 1973, the planning authority invoked s. 57 of the Act of 1963 and gave an undertaking to grant permission "for all or any of the following developments" subject to certain conditions. The planning authority stated that, in view of their undertaking, the payment of the compensation claimed by the plaintiffs was excluded by s. 57 of the Act of 1963.

In August, 1973, the defendant made several applications to the same planning authority for outline permission for the development of the plaintiffs' property. On the 23rd November, 1973, the planning authority decided to grant to the defendant outline permission for the development of the plaintiffs' property for "retention of Frescati, Frescati Road, Blackrock, for residential purposes and erection of a three-storey office block on part of the lands attached thereto." The planning authority also decided to grant the other applications of the defendant, and on the 30th November, 1973, the plaintiffs appealed to the Minister for Local Government from the authority's decisions in favour of the defendant. On the 12th November, 1973, the plaintiffs issued their plenary summons in this action.

Section 24, sub-ss. 1 and 2, in Part IV of the Act of 1963 provides:—

"(1) Subject to the provisions of this Act, permission shall be required under this Part of this Act—

• (a) in respect of any development of land, being neither exempted development nor development commenced before the appointed day . . .

(2) A person shall not carry out any development in respect of which permission is required by subsection (1) of this section save under and in accordance with a permission granted under this Part of this Act."

Section 25, sub-ss. 1 and 2, of the Act of 1963 provides:—

"(1) The Minister shall by regulations (in this Act referred to as permission regulations) provide for—

• (a) the grant of permissions for the development of land . . .

and such permissions may be granted on an application in that behalf made to the planning authority in accordance with the provisions of the regulations and subject to any requirements of or made pursuant to the regulations being complied with by the applicant.

(2) Regulations under this section may, in particular and without prejudice to the generality of the foregoing subsection, make provision for—

• (a) applications, expressed to be outline applications, for permissions for development subject to the subsequent approval of the planning authority . . .

• (d) requiring any applicants to submit any further information relative to their applications (including any information as to any estate or interest in or right over land) . . ."

Article 5(4) of the Local Government (Planning and Development) Act, 1963 (Permission) Regulations, 1964, states:—"An outline permission shall not operate so as to authorise the carrying out of any development until—(a) an approval has been granted consequent on an application under sub-article (2) of this article, or . . ."

The plaintiffs' motion for interlocutory injunctions was heard by Kenny J. on the 26th November, 1973.

The plaintiffs' appeal to the Supreme Court from the judgment and order of the High Court was heard on the 1st-3rd April, 1974.

The Local Government (Planning and Development) Act, 1963, requires permission under the Act to be obtained for any development of land; the Act contains a definition of the word "owner" in relation to land. Section 26, sub-s. 1, of the Act provides for applications being made to planning authorities in accordance with permission regulations for the development of land, and for the granting of permissions subject to conditions. Section 25, sub-s. 1, of the Act states that the appropriate Minister of State shall provide, by permission regulations, for the granting of permissions for the development of land; and sub-s. 2 states that such regulations may make provision (a) for applications, expressed to be outline applications, for permissions for development subject to the subsequent approval of the planning authority, and (b) requiring "any applicants" to submit any information "as to any estate or interest in or right over land." The regulations made pursuant to the Act state at article 3 that an application for permission to develop land shall be accompanied by "particulars of the interest held in the land or structure by the applicant," and state at article 5(4) that outline permission does not operate to authorise the carrying out of any development until a further approval has been granted.

The relevant planning authority decided to grant the defendant's application for outline permission to develop the plaintiffs' land, in which the defendant had no estate or interest, and the plaintiffs appealed against that decision. The plaintiffs also issued a summons in the High Court and claimed injunctions restraining the defendant from proceeding with her application and directing her to withdraw that application. The plaintiffs brought a motion for interlocutory injunctions. The planning appeal was lodged after the hearing of the motion in the High Court.

Held by Kenny J., in refusing the motion, 1, that the defendant had applied for outline permission to develop the plaintiffs lands without the intention of acquiring any estate in those lands, and as part of a campaign to prevent the plaintiffs developing the lands.

2. Nevertheless, it was not necessary for the defendant, as an applicant for outline permission, to have an interest in the land mentioned in the application as the Act made a clear distinction between "owner" and "applicant" and consistently used the latter term to describe the person seeking such permission. Hanily v.Minister of Local Government[1952] 2 Q.B. 444 considered.

On appeal by the plaintiffs it was

Held by the Supreme Court (FitzGerald C.J., Walsh, Budd, Henchy and Griffin JJ.), in disallowing the appeal, 1, that, although the Act of 1963 did not require the defendant to have an estate or interest in the property described in her application, the general scheme and the operation of the Act did require that her application should have been approved by the owner of an estate in the property sufficient to...