Killiney and Ballybrack Development Association Ltd v Minister for Local Government

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 01 January 1978
• Neutral Citation: 1977 WJSC-HC 935
• Docket Number: 970 P/1975
• Court: High Court
• Date: 01 January 1978

1977 WJSC-HC 935

THE HIGH COURT

970 P/1975

KILLINEY AND BALLYBRACK DEVELOPMENT ASSOCIATION v. MINISTER FOR LOCAL GOVERNMENT

BAR

KILLINEY AND BALLYBRACK DEVELOPMENT ASSOCIATIONLIMITED

- v -

THE MINISTER FOR LOCAL GOVERNMENT

and

TEMPLEFIN ESTATES LIMITED

AFFIRMED SUPREME-24.4.78

1 Judgment of Mr. Justice McWilliamdelivered the 1st day of April 1977.

2 The Plaintiff's claim in this case is for a declaration that permission given to Templefinn Estates Limited by the Minister for Local Government for housing development at Hacketsland, Killiney, Co. Dublin, is invalid, null and void, of no legal force and effect, ultra vires the provisions of the Local Government (Planning and Development) Act, 1963, and made in disregard of judicial principles and the principles of constitutional justice.

3 The Plaintiff's case is based on a consideration of a condition subject to which the permission for development was given in conjunction with the reason stated in the Order of the Minister for imposing this condition. The relevant condition is No. 10, which reads asfollows:-

"No houses shall be constructed on the part of the site to the south of the culverted stream before the expiration of three years from the date of this Order." The reason given for this condition reads as follows:-

"To control and regulate the development so as to ensure thatsewagedisposal facilities are satisfactory in relation to residential development on the site."

4 There is a long history of opposition to this development by the Plaintiff who, throughout, has made the case that the provision for sewage disposal is inadequate. A previous Order of the Minister granting permission for the development was declared invalid by the President of the High Court on grounds which are irrelevant to the present case, but the President's judgment makes it clear that the alleged inadequacy of the sewage disposal arrangements and the pollution of the foreshore have been the main grounds of objection by the Plaintiff from thebeginning.

5 Against this background, it is argued on behalf of the Plaintiff that the imposition of a delay of three years in respect of part of the proposed development so as to ensure that sewage disposal facilities are satisfactory necessarily leads to the conclusion that the Minister decided that the sewage disposal facilities at the time of the making of the Order were not satisfactory for the proposed development, that the condition imposed was not effective to ensure that the sewage disposal facilities would be satisfactory when the development was completed and, therefore, that the condition was bad as not being effective to attain the object for which it was imposed.

6 It was then argued that, if I accepted this contention, the whole permission was bad and must be set aside as the condition withregard to the sewage was fundamental to the granting of the permission for the development.

7 On the first aspect of the case, I was referred to Sections 26 and 19 of the 1963 Act. Section 26 provides as follows at subsection (1):- Where-

8 (a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations and

9 (b) any requirements relating to the application of or made under such regulations are complied with,

10 the authority may decide to grant the permission or approval...