Killiney and Ballybrack Development Association Ltd v Minister for Local Government

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 24 April 1978
• Neutral Citation: 1978 WJSC-SC 1668
• Court: Supreme Court
• Date: 24 April 1978

1978 WJSC-SC 1668

THE SUPREME COURT

Henchy J.

Griffin J.

Warke J.

No. 970P./1975

113/1974

KILLINEY & BALLYBRACK DEVELOPMENT ASSOCIATION v. MIN FOR LOCAL GOVERNMENT

AFFIRMING HIGH - 1.4.77

KILLLINEY AND BALLYBRACK DEVELOPMENT ASSOCIATION LTD

v.

MINISTER FOR LOCAL GOVERNMENT

and

TEMPLEFIN ESTATES LTD.

1 Judgment of Henchy J. delivered the 24th April 1978

2 In this case the plaintiffs question the validity of a development permission. They are an Industrial and Provident Society formed by a group of residents and householders in the area of Killiney and Ballybrack, Co, Dublin. For years they have been fighting the efforts of Templefin Estates Ltd. ("the developers") to get development permission under the Local Government (Planning and Development) Act, 1963, to build houses at Hackettaland, Kllliney. In April 1971, the planning authority, Dun Laoghaíre Borough Council, gave development permission for 188 houses. The plaintiffs appealed to the Minister against that decision. After an oral hearing the Minister also granted permission to the developers to build the 188 houses. The plaintiffs then brought proceedings in the High Court to have that permission declared bad, on the ground that correct procedures had not been observed in connection with the hearing of the appeal. The plaintiffs were successful. As a result; a fresh oral hearing had to be held. That led to the present development permission which the Minister gave in February 1975, allowing the developers to build 185 houses.

3 The plaintiffs have now instituted a second High Court action, in which they seek a declaration that this permission is invalid. This time, they challenge the Minister's permission on the ground that it contains an invalidating condition. That challenge failed in the High Court. There the judge held that the condition in question was not invalid, so he refused to make a declaration that the permission given by the Minister is bad. From that Judgment the plaintiffs now appeal to this Court.

4 The attachment of conditions to a development permission is allowed by s. 26 of the Act. S. 26(l) has the effect that in granting a development permission the pi*twi4ftj authority (or the Minister the ease of an appeal)

"shall be restricted to considering the proper planning and development of the area of the authority (including the preservation and Improvement of the amenities thereof), regard being had to the provisions of the development plan, the provisions of any special amenity area order relating to the said area and the matters referred to in subsection (2) of this section"

5 Subs. (2) consists of a series of sample conditions the purpose in each of which is that the developer is to do or refrain from doing a specified act. Subs, (8) requires that a statement be given specifying the reason for any condition imposed.

6 It will be seen, therefore, that the power to impose a condition in a development permission must be exercised within the limitations imposed by s. 26. In deciding whether the grantor of the permission has kept within those limitations, it is necessary to look not only at the terms of the condition but also at the reason which the section requires to be given in support of it. If the reason given cannot fairly and reasonably be held to...