Grange Developments Ltd v Dublin County Council (No. 4)

• Jurisdiction: Ireland
• Judge: MR JUSTICE FRANK MURPHY
• Judgment Date: 14 March 1989
• Neutral Citation: 1989 WJSC-HC 329
• Docket Number: [1988 No. 772 Sp]
• Court: High Court
• Date: 14 March 1989

1989 WJSC-HC 329

THE HIGH COURT

No.772Sp/1988

GRANGE DEVELOPMENTS LTD v. DUBLIN CO COUNCIL

IN THE MATTER OF THE ACQUISITION OF LAND (ASSESSMENT OF

COMPENSATION) ACT 1919

THE PROPERTY VALUES (ARBITRATION AND APPEALS) ACT 1960

THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963

TO 1983

THE ARBITRATION ACTS 1954 AND 1980

AND IN THE MATTER OF THE ARBITRATION BETWEEN GRANGE

DEVELOPMENTS LIMITED, CLAIMANT, AND THE COUNTY COUNCIL

OF THE COUNTY OF DUBLIN, RESPONDENT, RELATING TO LANDS AT

MOUNTGORRY AND DRINAN, MALAHIDE ROAD, COUNTY DUBLIN

BETWEEN

GRANGE DEVELOPMENTS LIMITED

PLAINTIFFS

AND

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

DEFENDANTS

Citations:

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

MIDDLEMISS & GOULD V HARTLEPOOL CORPORATION 1973 1 AER 172

BOKS & CO V PETERS, RUSHTON & CO LTD 1919 1 KB 491

ARBITRATION ACT 1954 S41

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

PESCA VALENTIA LTD V MIN FISHERIES & FORESTRY 1985 IR 193, 1986 ILRM 68

COOKE V MIN COMMUNICATIONS IRISH TIMES 20.02.89

NOVA MEDIA SERVICES LTD V MIN POSTS & TELEGRAPHS & ORS 1984 ILRM 161

SUNSHINE RADIO PRODUCTIONS LTD V AG & ORS 1984 ILRM 170

STAUNTON V VHI UNREP MURPHY HIGH 23.02.89

Synopsis:

PRACTICE

Order

Stay of execution - Arbitrator - Award - Enforcement - Award made seven years after claim to compensation - Leave to enforce award granted by order of court - Right to compensation conferred by statute - Respondent claiming statute unconstitutional - Stay of one week placed on execution of order - ~See~ Arbitration, award - (1988/772 Sp - Murphy J. - 14/3/89)

|Grange Developments Ltd. v. Dublin County Council|

STATUTE

Application

Relief - Postponement - Refusal - Compensation - Right to compensation conferred by enactment - Compensation claimed in 1981 and assessed by arbitrator in 1988 - Action claiming declaration that enactment unconstitutional institued a week later - Application for leave to enforce award of arbitrator - Leave granted notwithstanding pending action - ~See~ Arbitration, award - (1988/772 Sp - Murphy J. - 14/3/89)

|Grange Developments Ltd. v. Dublin County Council|

ARBITRATION

Award

Enforcement - Leave of court - Application - Protracted litigation - Compensation awarded to landowner for refusal of planning permission - Statute conferring right to compensation - Award made after seven years litigation - Enforcement of award resisted by planning authority on ground of recent claim that statute unconstitional - Action raising claim not yet tried - Order granted giving landowner liberty to enforce award as a judgment - Stay of seven days placed on execution of order - On 20/7/88 a property arbitrator made an interim award by which he awarded the applicants #1,754,6O0 compensation under s. 55 of the Act of 1963 for the reduction in the value of the applicants" interest in their lands resulting from a refusal of the planning board on 8/6/81 to grant to the applicants permission to develop their lands - The refusal of planning permission and the applicants" claim to compensation were the subject matter of several decisions of the High Court and the Supreme Court, including the judgment of Murphy J. dated 2/12/88 - In that judgment the validity of a third undertaking given by the respondent planning authority was upheld, thereby excluding the payment by the respondents of compensation additional to the said sum comprised in the interim award - The applicants here applied to the High Court pursuant to s. 41 of the Act of 1963 for an order giving them liberty to enforce the interim award in the same manner as a judgment to the like effect - The respondents opposed the application on the ground that the applicants had not yet proved their title to the lands described in their application for planning permission - The respondents also opposed the application on the ground that on 28/7/88 they had instituted proceedings in the High Court in which they claimed a declaration that the provisions of s. 55 of the Act of 1963 were invalid having regard to the provisions of the Constitution, which action had not yet been tried - Held that there was no substance to the respondents" contention that the applicants" title to the said lands had not yet been established - Held that, in the circumstances, the existence of the respondents" action claiming the said declaration was not a ground for preventing the applicants from enforcing an award of compensation, to which they had been entitled since 1981 under the provisions of an enactment which were presumed to be in accordance with the Constitution: ~Pesca Valentia Ltd. v. Minister for Fisheries~ [1985] I.R. 193; ~Nova Media Services v. Minister for Posts and Telegraphs~ [1984] ILRM 161 and ~Sunshine Radio Productions v. The Attorney General~ [1984] ILRM 170 considered - Held that the court would order that the applicants be at liberty to enforce the award as a judgment with interest thereon at the rate of 11% from the date thereof to 23/1/89 and at the rate of 8% thereafter - Held that the court would place a stay of one week on the execution of its order - Arbitration Act, 1954, s. 41 - Local Government (Planning and Development) Act, 1963, s. 55 - (1988/772 Sp - Murphy J.- 14/3/89)

|Grange Developments Ltd. v. Dublin County Council|

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE HONOURABLE MR JUSTICE FRANK MURPHY ON 14TH MARCH 1989

APPEARANCES

For the Plaintiff:

Niall Fennelly, SC

Roger Kenny, BL

Instructed by

Miley & Miley

12 South Frederick Street

Dublin 2

For the Defendants:

T. C. Smyth, SC

Hugh O'Flaherty, SC

John Gallagher, BL

Instructed by

Dermot Loftus,

Law Agent,

Dublin County Council,

2/3 Parnell Square

Dublin 1

2 This is an application by the Plaintiffs, Grange Developments Limited, for an order under section 41 of the Arbitration Act 1954that the Plaintiffs may have leave to enforce the interim award dated 20th July 1988 of Sean E McDermott, Property Arbitrator, appointed by the Land Values Reference Committee in the above mentioned arbitration in the same manner as a judgment or order to the same effect.

3 I accept that the principles to be applied in granting or withholding such an order are correctly set out in a short passage (indeed, a sentence) from the judgment of Lord Denning in Middlemiss & Gould v Hartlepool Corporation [1973] 1 All ER 172 at 175 where the learned Master of the Rolls says as follows:

"Once an award has been made...(reads)...a counterclaim or anything of that sort."

4 Counsel on behalf of the Defendants referred me to another authority, Boks & Co. v Peters, Rushton & Co. Ltd [1919] 1 KB 491,and in particular to a passage of the then Master of the Rolls, Swinfen Eady, which in fact forms the headnote of the case:

"Where there is no objection to an award...(reads)...under the award."

5 The observations of Swinfen Eady, M.R. were not in fact challenged or criticised in the subsequent decision of Lord Denning, but I think it is important to recognise the actual context in which the Boks case was decided. It was a matter of unusual complexity. It involved a shipping transaction shortly following, indeed, towards the conclusion of, the First World War. It appears that one party was induced to enter into the contract in the belief that a necessary licence had been granted and, subsequent to the arbitration, it emerged that no such licence had been granted so that the transaction was illegal or may have been illegal. There are a number of other complexities in relation to the arbitration; indeed, the conclusion of the award appears to have contained a sentence that the payments directed to be made were "without prejudice to the rights of either party which may thereafter arise under any clauses of the said contract in regard to any balance or any adjustments or cancellation or otherwise." There was indeed an application to the Divisional Court to set aside the award but that application was refused on the grounds that the whole matter was tainted with illegality and, accordingly, the Court would not intervene.

6 So when one comes to consider the situation of the Court of Appeal on the issue of whether or not to allow the award to proceed as a judgment, one must recognise that it was in the most unusual and disturbing circumstances that the application arose. It seems to me that those are the kind of facts which the Master of the Rolls had in mind when he was referring to matters which may gravely affect the validity of the award.

7 In my view there are not such facts in the present case when one understands the facts in respect of which the dispute does indeed exist between the parties. Here there is no doubt about Mr McDermott's award. It is expressed in the clearest possible terms and is made without any possible ambiguity. In fact, one might be considered churlish or facetious if one were to say that he had had the advantage of drafting and re-drafting his award because it was the third time...