Grange Developments Ltd v Dublin County Council

• Jurisdiction: Ireland
• Judge: McCARTHY J.,FINLAY C.J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 730
• Court: Supreme Court
• Docket Number: [S.C. No. 78 of 1984]
• Date: 01 January 1987

1986 WJSC-SC 730

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

78/84

GRANGE DEVELOPMENTS LTD v. DUBLIN COUNTY COUNCIL

IN THE MATTER OF THE ACQUISITION OF LAND

(ASSESSMENT OF COMPENSATION ACT) 1919

AND IN THE MATTER OF THE PROPERTY VALUES

(ARBITRATION AND APPEALS) ACT 1960

AND IN THE MATTER OF THE LOCAL GOVERNMENT

(PLANNING AND DEVELOPMENT) ACTS 1963TO 1982

AND IN THE MATTER OF GRANGE DEVELOPMENTS

LIMITED AND THE COUNTY COUNCIL OF THE

COUNTY OF DUBLIN

AND IN THE MATTER OF A CASE STATED BY

SEAN McDERMOTT, PROPERTY ARBITRATOR

GRANGE DEVELOPMENTS LIMITED

Appellant/

Claimant

and

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Respondent/

Planning Authority

Citations:

GRANGE DEVELOPMENTS LTD V DUBLIN CO COUNCIL UNREP MCWILLIAM 28.02.84 1984/4/1342

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART VI

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(6)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57(2)

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

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S58

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S58(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S39

STANFORD, STATE V DUN LAOGHAIRE CORPORATION UNREP SUPREME 20.02.81 1981/8/1312

Synopsis:

PLANNING

Permission

Refusal - Claim to compensation - Undertaking by planning authority to grant planning permission - Whether undertaking validly given- Right to compensation excluded by statute if undertaking valid - Delay - Undertaking given to developer after expiry of two months allowed to developer for application to Minister of State for order declaring that prevention of payment of compensation would be unjust and unreasonable - Payment of compensation permissible if declaratory order made by Minister - Held that undertaking of planning authority void since it had not been given in sufficient time to enable developer to apply to Minister for a declaratory order under s.58 of Act of 1963 - Decision of High Court (28/2/84) reversed - Held also that the undertaking was invalid because it lacked precision in describing the nature of the development which would be authorised, and that such precision was required by ss.26 and 58 of the Act of 1963 - Held also that the undertaking was invalid because its implementation would involve a material contravention of the development plan - Held also that the development plan which was relevant to the appeal was the plan which was operative when the issues had been determined by the High Court - ~Quaere~ : Whether interested persons are entitled to be heard before an undertaking is given pursuant to s.57(3) of the Act of 1963 - Local Government (Planning & Development) Act, 1963 - (78/84 - Supreme Court - 13/5/86) - [1986] IR 246 - [1987] ILRM 245

|Grange Developments v. Dublin C.C.|

STATUTORY INTERPRETATION

Implication

Necessity - Purposive construction - Supplying omission from scheme of enactment - Undertaking given by planning authority - Right of applicant to apply to Minister of State for order reversing effect of undertaking - Application to be made within specified period - Undertaking given after expiry of period - Applicant unable to apply to Minister - Statutory scheme frustrated - Necessary implication that undertaking must be given in sufficient time to enable applicant to apply to Minister within specified period - ~See~ Planning, permission - (78/84 - Supreme Court - 13/5/86) - [1986] IR 246 - [1987] ILRM 245

|Grange Developments v. Dublin C.C.|

1 JUDGMENT delivered on the 13th day of May1986by FINLAY C.J. [HENCHY GRIFFIN HEDERMAN CONCURRING]

2 This is an appeal by the Claimant against the Order and Judgment in the High Court of McWilliam J. delivered and made on the 28th February 1984 answering a question stated by way of Special Case Stated for the opinion of the High Court by the Property Arbitrator Mr. McDermott.The question arose in the course of an application by the Claimant to the Arbitrator for compensation which he alleged was due to him by reason of the ultimate refusal by An Bord Pleanala of permission for him for a housing development near Swords in the County of Dublin. The question was as to whether an undertaking dated the 19th January 1983 was a valid undertaking in accordance with the provisions of Section 57 of the Act of 1963 so as to preclude the Arbitrator from awarding compensation. The learned High Court Judge answered that question in the affirmative and it is from that decision that this appeal isbrought.

The facts

3 The Claimant applied in February 1980 to the Dublin County Council, as the Planning Authority involved, for permission to develop 56.7 acres of land at Malahide Road, Swords, for the erection of 500 dwellinghouses. This application was refused on the 17th April 1980 for a number of reasons which included reasons contained in Section 56 of the Act of 1963 and, accordingly, thatrefusal did not give to the Claimant any right to compensation. The Claimant appealed against that refusal and his appeal was dealt with by An Bord Pleanala who, on the 8th June 1981, decided to refuse the application for three reasons set out in the Schedule to their Order. None of those reasons was a reason within the provisions of Section 56 of the Act of 1963 and, therefore, that refusal prima faciegave to the Claimant a right to claim compensation pursuant to the provisions of Section 55 of the Act of 1963. On the 10th July 1981 the Solicitors for the Claimant made to the Respondents/Planning Authority a claim for compensation in the sum of £5,888,000.

4 On the 19th January 1983 the Assistant City and County Manager made an Order in the following terms:

"I hereby undertake to grant permission for the construction of industrial buildings, hotel or structures for the purpose of entertainment or any combination thereof on lands to which Planning Application TA.322 relates, subject to conditions 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 the 1963Act."

5 This decision and order was obviously made and, on the face of it, was made in anticipation of the hearing of the Claimant's claim for compensation by the Property Arbitrator which was due to commence on the 20th January 1983. At that hearing, however, it would appear that it was discovered that the Claimant had not got title to the entire of the lands in respect of which the claim for compensation was being made and furthermore that a permission had been granted with regard to one portion of the lands which would therefore not be the subject matter of a claim for compensation and the arbitration was adjourned in order to permit the Claimant to amend his claim and the Respondents to meet the amended claim. The undertaking contained in the Order of the 19th January 1983 was therefore not communicated to the Claimant or his Solicitor. The amended claim came before the Arbitrator on the 7th March of 1983 at an adjourned hearing and the amendments to the claim were then allowed. Subsequently on the same date the undertaking executed by way of Order on the 19th January 1983 was communicated to the Claimant and tothe Property Arbitrator. This case was then stated by the Property Arbitrator at the request of the Claimant.

Appellants" submissions

6 The validity of the undertaking was challenged on behalf of the Claimant on three separate grounds.

7 1. It was submitted that an undertaking was not valid to defeat, pursuant to the provisions of Section 57 a claim for compensation under Section 55 unless it was communicated to the Claimant in sufficient time to permit the Claimant to apply to the Minister, pursuant to the provisions of Section 58 to be dispensed from the consequence of the undertaking, the time limit for that application being fixed by statute without the power to extend it as being two months from the date of the refusal giving rise to the claim for compensation.

8 2. That the undertaking was bad for uncertainty or imprecision and to be valid would require to have the same particularity and detail as an actual grant of permission.

9 3. That the undertaking was void because it purported to be an undertaking to grant a permission which would haveconstituted a material contravention of the development plan for the area, notwithstanding the fact that the Assistant City Manager who gave the undertaking had no power to make a grant of such a permission, that power being reserved to the elected members of the Local Authority by Section 39 of the Act of 1976.

Statutory provisions

10 The relevant statutory provisions are as follows:

Section 57(1):

"Compensation under Section 55 of this Act shall not be payable in respect of a decision whereby permission to develop land is refused if notwithstanding that refusal there is available with respect to that land permission for development to which this Sectionapplies......."

Section 57(2):

"Where permission for development to which this Section applies is available with respect to part only of the land, this Section shall have effect only in so far as the interest subsists in that part."

Section 57(3):

"Where a claim for compensation under this part of this Act is made in respect of an interest in land,permission for development of which this Section applies, shall be taken for the purposes of this Section to be available with regard to that land or a part thereof, if there is in force with respect to that land or part a grant of or an undertaking to...