J. Wood Company Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-HC 3153
• Court: High Court
• Docket Number: 1994 - 314 S. S.
• Date: 01 January 1995

1994 WJSC-HC 3153

THE HIGH COURT

1994 - 314 S. S.

J WOOD & CO LTD v. WICKLOW CO COUNCIL

J. WOOD AND COMPANY LTD.

APPLICANT

AND

WICKLOW COUNTY COUNCIL

RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S13

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART VI

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S3

INTERPRETATION ACT 1937 S21(1)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(3)

EIGHTY-FIVE DEVELOPMENTS LTD V DUBLIN CO COUNCIL 1993 2 IR 378

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

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

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

NATIONAL MONUMENTS (AMDT) ACT 1987 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

Synopsis:

PLANNING

Permission

Refusal - Terms - Construction - Compensation - Exclusion - Terms not equivalent to exclusionary provisions of statute - Compensation not excluded - Right to apply for compensation - Right only arises when adverse decision has been made - Amending statute applicable to application - Local Government (Planning and Development) Act, 1963, Part VI - Local Government (Planning and Development) Act, 1990, ss. 3, 11, 12 3rd schedule No. 10 - (1994/314 SS - Costello J. - 20/7/94) [1995] 1 ILRM 51

|J. Wood Co. Ltd. v. Wicklow County Council|

1 Judgment of Mr. Justice Costello. Delivered the20th day of July 1994.

INTRODUCTION

2 J. Wood and Company Limited ("the claimants") have claimed compensation against the Wicklow County Council ("The Council") arising from a refusal of permission to develop a site at Greystones County Wicklow comprising 10.7 acres. Their claim was submitted to arbitration and the Arbitrator has stated a case for the opinion of the High Court in which he has raised four questions for determination by the court. The facts relevant to the issues raised are as follows.

3 (1) On the 16th June 1989 a company called Shalebrook Limited applied for permission to develop the site involving the erection of, inter alia, 91 dwellinghouses. Further information was, sought by the Council and the application was re-advertised on the 13th June 1990.

4 (2) On the 13th March 1990 Shalebrook Limited sold their interest in the site to the claimants. The purchase price was £965,000 and the land was sold with the benefit of an existing planning permission for 119 houses which had been granted on the 1 May 1985. This permission expired and is not relevant for the purposes of this case.

5 (3) On the 25 July 1990 the Council decided to grant permission subject to conditions for the development proposed in the application of the 16 June 1989.

6 (4) The Council's decision was appealed and on the 1 July 1991 An Bord Pleannala refused permission. Prior to this the claimants had informed the Board that it had purchased Shalebrook's interest in the lands.

7 (5) The Local Government (Planning and Development) Act 1990 had come into operation on the 10 June 1990, that is prior to the Council's decision of the 25 July 1990 to grant permission. So, when the Act came into force an application for development permission existed but no decision on it had been made. On the 21 October 1991 the claimants made a claim for compensation under section 55 of the Local Government (Planning and Development) Act 1963 on the assumption that the compensation provisions of that Act applied and on the following day an application for compensation under section 11 of the 1990 Act was made on the basis that compensation should be assessed under the later Act.

8 (6) On the 20 January 1992 the Council had served a notice on the claimants pursuant to section 13 of the 1990 Act indicating that notwithstanding the refusal of permission to develop the land the land was in the opinion of the Council capable of other development. On the 11 June 1992 the claimants made an application for permission to develop the lands in accordance with the details furnished in conjunction with the section 30 notice. On the 11 October 1992 the Council decided to grant permission for the said development subject to conditions but this decision was appealed to An Bord Pleannala who on the 4 June 1993 refused permission for the said development. No claim for compensation arises in respect of this refusal but one of the grounds of refusal is relevant to this case for reasons I will explain later.

QUESTION 1.

9 The first question asked in the Case Stated is whether the claimants "have a valid claim pursuant to section 55 (1) of the Act of 1963?" This question arises because the claimants have claimed that their right to compensation is to be determined under section 55 of the 1963 Act whereas the Planning Authority claims that the claimants right to compensation is to be determined under the provisions of the 1990 Act.

10 My conclusion on the issues that arise on this question are as follows:-

11 (a) Part VI of the 1963 Act (of which section 55 forms part) was repealed by section 3 of the 1990 Act. New provisions for determining the right to and the amount of compensation payable when a decision to refuse permission to develop is made (either by the Planning Authority or An Bord Pleanala) by the 1990 Act. The 1990 Act in no way affected the relevant provisions of Part IV of the 1963 Act (as amended) relating to the general obligation to obtain permission for development and the decisions to be taken by Planning Authorities (and, on appeal, by An Bord Pleanala) under that Part. It seems to me to be clear, therefore, that when the new Act came into operation on the 10 June 1990 any decision made after that date refusing permission to develop (either by a Planning Authority or An Bord Pleanala) would be subject to the new compensation provisions of the 1990 Act. And this is so whether the application to which the decision related had been made before or after the new Act had come into force, the relevant law being the law in force when the decision was made. Until a decision is made no statutory right to compensation could arise.

12 (b) I do not consider, as was submitted on the applicants behalf, that the Interpretation Act 1937 assists the applicants case. Section 21(1)(c) of the, 1937 Act provides that when the Oireachtas repeals a portion of a previous Statute then, unless the contrary intention appears, such repeal shall not affect any right acquired under the portion of the Statute so repealed. As I have said, an applicant who has applied for development permission under Part IV of the 1963 Act (as amended) had acquired no right to compensation under the 1963 Act until a decision on the application had been made. It follows, therefore, that applicants who had on the 10 June 1990 applied for development permission but in respect of whose application no decision had yet been made had acquired on that date no right to compensation under the 1963 Act. Their right to compensation only arose when the decision to refuse permission was made, at which time Part VI of the 1963 Act was repealed and the 1990 Act was in force.

13 I must therefore answer the first question raised by stating that the claimant has no valid claim pursuant to section 55 (1) of the Act of 1963 - their claim to compensation must be heard and determined under the relevant provisions of the 1990 Act.

QUESTION 2.

14 Questions 2 and 3 raise issues on the assumption that the claimants claim for compensation should be determined under the 1963 Act. In view of the conclusions which I have reached on question 1 these questions would not arise. However, I have been asked to answer them as, in the event of an appeal, it was considered desirable that a determination on all issues raised should be made in the High Court.

15 The second question concerns the manner in which the value of the claimant's interest in the lands is to be made having regard to section 55(2) and section 55(3) of the 1963 Act.

16 Section 55 (1) provides:-

"If...it is shown that, as a result of a decision under Part IV...involving a refusal of permission to develop land...the value of an interest of any person in the land...is reduced...such person shall be entitled to be paid...by way of compensation...the amount of such reduction...".

17 Sub-section (2) provides that in determining reduction of value regard shall be had to (a) any permission to develop existing at the time of the decision, (b) any...