Jackson way Properties Ltd v Dun Laoghaire/Rathdown County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 09 October 2015 |
| Neutral Citation | [2015] IEHC 619 |
| Court | High Court |
| Date | 09 October 2015 |
[2015] IEHC 619
THE HIGH COURT
BETWEEN:
and
Local Government – Acquisition of lands – Monetary compensation – S.41 of the Arbitration Act, 1954 – Mandatory injunction – Enforcement of award – Acquisition of Land (Assessment of Compensation) Act, 1919
Facts: The plaintiff by way of mandatory injunction sought leave to enforce the award of arbitrator pursuant to the arbitration agreement between the plaintiff and the defendant in lieu of compulsory acquisition of lands of the plaintiff by the defendant. The defendant sought an order to set aside the aforesaid award and the remittal of the award to the property arbitrator under the Acquisition of Land (Assessment of Compensation) Act, 1919.
Mr. Justice Binchy dismissed the application of the plaintiff. The Court held that the award of the arbitrator was made upon fulfilling the condition of submitting the proof of release of covenant restriction in relation to the title of the relevant lands, which the plaintiff had failed to do. The Court observed that since the clearance of title of the plaintiff was dependent upon the outcome of the proceedings that the plaintiff had initiated against the title holders, the grant of mandatory injunction to the plaintiff would be inappropriate. The Court found that there had been considerable delay in the initiation of relevant proceedings by the plaintiff.
1. This is an application for a mandatory injunction, requiring the defendant to pay the plaintiff the sum of €7,010,700.00 arising out of the compulsory acquisition of lands by the defendant from the plaintiff pursuant to a compulsory purchase order made by the defendant on 19 th October, 1998. The effect of the application, if granted, would be to give summary judgment to the plaintiff of the amount claimed, which forms part of the total sum of €12,860,700.00 claimed by the plaintiff from the defendant in the proceedings. The plaintiff maintains that the amount now claimed pursuant to the notice of motion in this interlocutory application is beyond dispute by reason of developments that have taken place since the issue of these proceedings by way of special summons on 31 st July, 2008.
2. In order to deal with this application it is necessary to set out in summary form the very long and detailed history of the matters giving rise to these proceedings. This may be broken down under a number of headings.
3. The plaintiff is the owner of lands contained in Folio 4940 County Dublin comprising (on the face of the folio exhibited in the proceedings) 43.951 hectares. The ownership is subject to a number of burdens registered under the folio, one of which is a covenant not to erect any buildings on the lands described in the folio (entry number 4), which covenant is stated to be modified to the extent specified in an instrument described at entry number 5 on the folio.
4. On 19 th October, 1998, the defendant made the Dun Laoghaire/Rathdown County Council South-eastern Motorway Scheme, by which the defendant was authorised to acquire 8.168 hectares of lands belonging to the plaintiff (herinafter "the lands").
5. On 14 th June, 2000, the defendant served notice to treat in connection with the acquisition of the lands, which notice to treat required the defendant, in the usual way, to give particulars of the defendant's title and also particulars of the defendant's claim for compensation in connection with the acquisition.
6. On 27 th June, 2001, Messrs. Hamilton Osborne King, as agents of the plaintiff, submitted a claim for compensation in the sum of IR£72,700,000.00 in connection with the acquisition of the lands. On 17 September, 2001, the defendants served notices of entry on the plaintiff, and on 3 rd October, 2011 the defendant took possession of the lands. Subsequently, the defendant constructed a portion of the M50 motorway through the lands.
7. On 11 th October, 2001, the plaintiff applied to the Reference Committee to nominate a property arbitrator, and Mr. John R. Shackleton was nominated as arbitrator to hear and determine the dispute in relation to the compensation to be paid by the defendant to the plaintiff in connection with the acquisition of the lands. Soon afterwards, Mr. Shackleton wrote to the parties proposing the date of 14 th January, 2002 as the start date for the hearing of the arbitration.
8. On 19 th November, 2001, the law agent on behalf of the defendant wrote to the arbitrator requesting that he should not fix a date for hearing for procedural and substantive legal, factual and public policy reasons. These related to allegations (then under investigation by the Tribunal of Inquiry into Certain Planning Matters and Payments) that certain lands, including the lands of the plaintiff, may have been rezoned for development improperly. The plaintiff opposed this application and the arbitrator in reply confirmed that he was satisfied that he had been correctly appointed and that he intended to proceed with the arbitration on the proposed date of 14 th January, 2002.
9. By a further letter of 17 th day of December, 2001, the law agent for the defendant notified the Criminal Assets Bureau of the plaintiff's claim for compensation and the pending arbitration in case the Bureau might wish to investigate the matter and on 20 th of December, 2001 the Chief Bureau Officer replied to the defendants law agent to confirm a willingness to meet to discuss the matter.
10. On 7 th January, 2002 the defendant issued proceedings purporting to stay the arbitration. The motion for an interlocutory injunction came before the Court on 21 st January, 2002. Mr. Justice O'Sullivan granted an order restraining the hearing of the arbitration. The plaintiff appealed this decision to the Supreme Court, which delivered its decision on 17 th June, 2002. In allowing the appeal, Keane C.J. stated that in his opinion the injunction should not have been granted and furthermore, there was no factual or legal basis put forward to justify the issue of proceedings in the first place.
11. Correspondence then followed between the parties in preparation for the arbitration, which was rescheduled for hearing on 19 October, 2002. The defendant's solicitors sent a notice for particulars in connection with the claim to the solicitors for the plaintiff which notice, inter alia, raised an enquiry in relation to burden numbers 4 and 5 on the plaintiff's folio as well as other queries of a title nature and some queries relating to the ownership/structure of the plaintiff. The plaintiff declined to reply to this notice for particulars and the arbitrator declined to the defendant's request to convene a preliminary hearing in relation to this issue. In a letter to the arbitrator dated 2 nd September, 2002, the plaintiff's then solicitor stated the following in relation to the notice for particulars:
"There is nothing whatsoever in the purported notice which falls within your jurisdiction. The notice breaks down into two parts, the first of which seeks to identify the beneficial owner of the claimant company and the second of which seeks to carry out a title investigation. Insofar as the former is concerned the claimant is a legal entity and its beneficial ownership does not come within your remit. In the latter case the claimant says its interest in the property is a freehold free from encumbrances and this is the basis upon which the claim is made. It is submitted it is a matter for you to adjudicate the claim upon this basis and should the claimant not be able to vouch for the title claimed following publication of your award it would then be open to either party to seek to have the matter remitted to you for the purpose of adjusting your award."
12. On 13 th September, 2002, and on the basis that the plaintiff held a freehold and unencumbered title to the property being acquired, the council made an unconditional offer to the plaintiff in the sum of €9,499,987.00 in full and final settlement of the plaintiff's claim.
13. On 19 th September, 2002, the solicitors for the plaintiff wrote to the law agent of the defendant enclosing an up-to-date copy of Folio 4940 County Dublin to vouch their client's title. In the same letter they stated that "we understand the burdens at entry numbers 2, 3, 4, 5 and 6 no longer affect the property and this will be vouched in due course following publication of the property arbitrator's award in the course of the conveyancing aspect of the matter."
14. The arbitration proceeded on 9 th October, 2002, and concluded on 8 th November, 2002. The arbitration proceeded on the basis that the title of the lands to be valued was an unencumbered freehold title subject only to certain easements and without any regard to possible restrictions upon the development of the lands being acquired i.e. on the basis that the restrictions referred to at entry numbers 4 and 5 of Folio 4940 County Dublin did not affect the lands being acquired.
15. On 18 th December, 2002, Messrs. Smith Foy and Partners, solicitors, wrote to the defendant apparently in reply to a letter sent by the defendant on 2 nd December, 2002 to Messrs. Smith Foy whereby the defendant made certain enquiries about the restrictive covenant upon the title of the plaintiffs. In their reply. Messrs. Smith Foy claimed, on behalf of their clients (Mr. and Mrs. T.K. Smith, Mr. Smith being one of the principals, of the firm) that the dwelling house occupied by Mr. and Mrs. Smith benefited from the burden i.e. the restrictive covenant registered on the lands of the plaintiff. In this letter, Mr. Smith...
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Jackson way Properties Ltd v Smith
...to their lands of the covenant over the Jackson Way lands in Folio DN4049; see Jackson Way Properties Ltd v Dún Laoighaire Rathdown C.C. [2015] IEHC 619 (Unreported, High Court (Binchy J), 9th October, 2015). 28 No doubt it was by reference to some or all of the circumstances I have just de......