Glenkerrin Homes v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke,MR. JUSTICE CLARKE
• Judgment Date: 26 April 2007
• Neutral Citation: [2007] IEHC 298,[2006] IEHC 413
• Docket Number: [2006 No. 5574
• Court: High Court
• Date: 26 April 2007

[2006] IEHC 413

THE HIGH COURT

DUBLIN

[No. 5574P/2006]

GLENKERRIN HOMES v DUN LAOGHAIRE-RATHDOWN CO COUNCIL

GLENKERRIN HOMES

PLAINTIFFS

v.

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

DEFENDANTS

NO CITATIONS IN THIS JUDGMENT

PLANNING AND ENVIRONMENTAL LAW:

Letters of compliance

Administrative practice - Issuance of letters - Financial contributions - Social and affordable houses - Ministerial guidelines - Whether legal obligation to issue letters -whether enforceable - Whether substantial question to be tried - Plaintiff granted relief (2006/5574P - Clarke J - 6/12/2006) [2006] IEHC 413

Glenkerrin Homes v Dun Laoghaire-Rathdown County Council

The plaintiff sought an interlocutory injunction, which essentially was a mandatory order directing the defendant to furnish to the plaintiff company letters of compliance in respect of the payment of financial contributions attached to specific planning permissions which were granted by the defendant in respect of a residential development. The defendant refused to furnish the letters on the basis of a new policy, whereby such letters were not granted where other outstanding issues had not been resolved.

Held by Clarke J. in refusing the application: That notwithstanding the fact that a fair issue to be tried had been made out by the plaintiff and damages would not be an adequate remedy the injunction sought would in substance bring an end to the proceedings and ought not to be granted having regard to the fact that this was not a very clear case and there weighty contentions put forward by the defendant to the effect that it could not be obliged to give an unqualified certificate of compliance with one element of a planning permission where issues existed regarding compliance with other aspects of the permission.

Reporter: L.O'S.

1 MR. JUSTICE CLARKEDELIVERED ON 6TH DECEMBER 2006

2 THE JUDGMENT OF THE COURT WAS GIVEN BY MR. JUSTICE CLARKE, AS FOLLOWS:

3 MR. JUSTICE CLARKE: This matter comes before the court on foot of an application for an interlocutory injunction brought on behalf of the Plaintiff Company in which it seeks an Order which, in substance, is a mandatory order directing the Defendant County Council to furnish the Plaintiff Company with letters of compliance in respect of the payment of financial contributions attached to specific planning permissions which were granted by the County Council in respect of a residential development at Ballinteer Avenue.

4 The issues which arise between the parties in these proceedings are relatively net, although they raise important and, to some extent, difficult issues for resolution.

5 It would appear on the evidence placed before the Court on Affidavit that a practice has grown up over the years as a result of which planning authorities are prepared to issue to developers so-called letters of compliance in respect of the conditions set out in planning permissions concerning the making of financial contributions, under a variety of headings, to the Local Authority.

6 The fact that that practice has grown up and become established has, in turn, led to such letters of compliance coming to be regarded as the appropriate evidence to be furnished on completion by solicitors acting on behalf of developers to those acting on behalf of the purchasers of properties developed and, indeed, the relevant Law Society recommendations in respect of proper conveyancing practice recognises that fact.

7 The background to these proceedings is, therefore, that established practice and the fact that such letters of compliance have come to be regarded as being an important part of the necessary documentation to be handed over on completion of the sale of newly constructed property and, indeed, to remain part of the title to such property when subsequent sale transactions occur.

8 Against that background, it is necessary to refer to recent developments involving the Defendant County Council and the law generally.

9 Firstly, it should be noted that there was no Statutory basis for letters of compliance and that the practice grew up as an administrative rather than a formal statutory process. Secondly, additional statutory intervention has led to a number of other matters becoming standard or required conditions in planning permissions, including, and of particular relevance to the dispute between the parties in this case, the obligations now placed upon developers to make available an appropriate percentage of land in respect of which planning permission for development is sought to the Local Authority to enable the Local Authorty to provide for social and affordable housing.

10 In the relevant statutory scheme, there is an alternative provision allowing an agreement to be reached whereby, in lieu of land being handed over on foot of terms of the scheme to the Local Authority, other arrangements, including the handing over of developed units, the handing over of cash, or a combination of both, can be agreed as an alternative.

11 Planning permission is subject to compliance with those arrangements and it would appear that it has also become common practice for an express provision to be contained by way of condition in the planning permission dealing with those matters.

12 In that way, a condition was imposed on the facts of this case and the situation as it has developed leads to a situation where there have been protracted negotiations as to the manner in which the Plaintiff might comply with its obligations, which negotiations have not reached a conclusion. There have been attempts to refer the dispute to an appropriate form of determination or arbitration, though there is a difference between the parties as to whether the issues which arise are more properly to be dealt with with An Bord Pleanala or by the property arbitrator.

13 But it remains the case that, on any view, the elevant agreement has not been reached between the Local Authority and the Plaintiff as to the precise manner n which the Plaintiff Company's obligations in respect f social and affordable housing should be met.

14 It also needs to be noted that it would appear that Dun Laoghaire Rathdown County Council came to a Decision towards the middle of this year to the effect that it would no longer issue letters of compliance with financial contributions in circumstances where there were outstanding issues between it and the developer concerned in relation to other matters and, in particular, matters arising under the legislation concerning social and affordable housing.

15 In that context, the issues between the parties not having been brought to agreement, the Council took the view that it would cease to issue letters of compliance to the Plaintiff Company, although it would, as a fact, appear to be the case that at least some letters of compliance in favour of the Plaintiff were issued after the general policy decision was taken by the Defendant to the effect that it would not issue such letters while there were other outstanding issues.

16 Against that background, the County Council has declined to issue letters of compliance with financial contributions in response to a particular request concerning part of the development concerned.

17 I should note that it would appear to be part of the general practice which I have identified that local authorities, in their capacity as planning authorities, will ordinarily issue what I might call partial letters of compliance where there is a requirement to make an overall financial contribution and where portions of those contributions can appropriately be attributed to different parts of the development, so that some of the letters of compliance in this case would appear to relate to the appropriate proportion of the overall financial contribution required that was attributable to certain portions of the development.

18 Be that as it may, the dispute which now squarely lies between the Plaintiff Company and the County Council directly concerns the question of whether there is a legal obligation on Dun Laoghaire Rathdown County Council in all the circumstances of the case to issue letters of compliance. Before going on to deal with that legal issue and the issue of whether it is possible or appropriate to deal with that legal issue in the way sought in this interlocutory injunction, it is also important to note that, without prejudice to its contention that it has no legal obligations of the sort claimed to the Plaintiff, the County Council has, in the course of these proceedings, indicated that it is willing to furnish a letter which confirms that the relevant financial contributions have been made, provided that that letter also makes reference to the fact that the agreement contemplated by the planning permission in respect of social and affordable housing has not in fact been completed. Therefore, the net issue which really arises in practice between the parties is as to whether the Plaintiff is entitled to what I might call an unconditional letter of compliance, or whether it is sufficient to meet any legal requirements on the County Council and, as I have noted, it does not accept that it has any legal obligation but, nonetheless, whether it would be sufficient to meet any legal obligation which does rest on it if a conditional letter of compliance in the form which it suggests is to be issued.

19 That is the net legal question that arises between the parties and it is as against that background that I must approach the question of whether it is appropriate to grant an interlocutory injunction.

20 The first issue which must always arise in such circumstances is to ask whether the Plaintiff has made out an arguable case that it may be entitled to the relief sought and, if it has, whether the Defendant has made out an arguable case to the contrary.

21 There are a number of important and...