Liam Campion v South Tipperary County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IESC 79
• Docket Number: [Appeal No. 042/2013],[S.C. No. 42 of 2013]
• Court: Supreme Court
• Date: 31 July 2015

Between

Liam Campion, Josephine Campion, Campion Concrete Products Limited and Voran House Limited

Plaintiffs/Respondents

and

South Tipperary County Council

Defendant/Appellant

[2015] IESC 79

McKechnie J.

Clarke J.

Laffoy J.

[Appeal No. 042/2013]

THE SUPREME COURT

Planning and development - Breach of planning permission - Preliminary issues - Appellant seeking to have questions determined as preliminary issues - Whether trial judge erred in law and in fact in refusing the relief claimed

Facts: The first plaintiff/respondent, Mr Campion, is a developer and is together with his wife, the second plaintiff/respondent, the registered owner of lands situated at Ballypadeen, Cashel, Co. Tipperary. The third and fourth plaintiffs/respondents, Campion Concrete Products Ltd and Voran House Ltd, are companies with limited liability and are connected to Mr Campion. In November, 2004, the defendant/appellant, South Tipperary County Council, granted planning permission to Mr Campion for the carrying out of a specified development, to wit the construction of an international trade centre, an international arbitration centre, a hotel comprising 120 bedrooms complete with restaurants, lounge/bars, conference rooms and function rooms, a leisure centre and swimming pools, 52 self-contained cottages, underground car-parking and ancillary site works, all on the aforesaid lands. In July, 2006, a meeting took place at the offices of the Council to discuss proposed amendments to the original plans, so as to progress the implementation of the development which had yet to commence. A senior planner with the Council, Mr O'Mahony, agreed that as some of the proposed amendments constituted in planning terms minor changes only, the development could proceed in accordance therewith, but that those concerning external alternations to the hotel did not. Accordingly, he insisted that in respect of the latter, a revised planning application would have to be submitted. The plaintiffs would claim that they duly accepted the planner's position on each of these matters. Acting on foot of what was alleged to have been agreed and on what they had been advised were the legal consequences thereof, the plaintiffs duly commenced the development in its altered form and thereafter proceeded with it in a manner which reflected the revised plans, allegedly so agreed at the said meeting. The Council however as planning authority, had a different perspective and came to the conclusion that the ongoing development was in breach of the only planning permission which existed. Accordingly, a May, 2007 Enforcement Notice was served on the plaintiffs, pursuant to s.154 of the Planning and Development Act 2000, in which it was alleged that the works being carried out were in breach of the said planning permission. Furthermore, the notice directed the plaintiffs to cease all activity on the site by the 4th May, 2007 (save that as prescribed by the notice) and no later than the 21st June, 2007, to remove the unauthorised development and restore the lands to the condition which existed, prior to the commencement of such development. High Court proceedings were instituted. By notice of motion dated the 23rd May, 2012, an application was moved, seeking to have six specified questions determined as preliminary issues, prior to embarking upon the substantive hearing of the full action. In October, 2012, the High Court refused the application. The defendant appealed to the Supreme Court against this High Court order on the grounds that the trial judge erred in law and in fact in refusing the relief claimed.

Held by McKechnie J that if the issues were determined by way of a preliminary hearing, either party, if aggrieved by the result, may undertake an appeal in respect thereof to the Supreme Court or to the Court of Appeal, referring to Duffy v Newsgroup Newspapers Limited (No.2) [1994] 3 IR 63; the whole point of setting down a preliminary point of law is to save in time and costs.

McKechnie J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 31st day of July, 2015

Background:

1 This is an appeal from an order of the High Court (Charleton J.) made and perfected on the 22nd October, 2012, in which the learned judge, on an application made by South Tipperary County Council, refused to have certain specified questions determined as preliminary issues, prior to embarking upon the substantive hearing of the full action. The background to such application can briefly be described as follows.

2 The first named plaintiff is a developer and is together with his wife the second named plaintiff, the registered owner of the lands hereinafter mentioned. The third and fourth named plaintiffs are companies with limited liability and are connected to Mr. Campion. All of the plaintiffs collectively were involved in or otherwise were associated with the development, which is the subject matter of these proceedings.

3 The defendant/appellant is a local authority for the administrative area under its control and as such, is also the planning authority for that area. It has its main offices at the County Hall, Clonmel, County Tipperary.

4 On the 25th November, 2004, the defendant Council, in accordance with certain plans and particulars, granted planning permission to Mr. Campion (Ref No. 01/908) for the carrying out of a specified development, to wit the construction of an international trade centre, an international arbitration centre, aparthotel comprising 120 bedrooms complete with restaurants, lounge/bars, conference rooms and function rooms, a leisure centre and swimming pools, 52 self contained cottages, underground car-parking and ancillary site works: all on the aforesaid lands which are situated at Ballypadeen, Cashel, County Tipperary: (Folio 207212F Register of Freeholders in the County of Tipperary).

5 On the 18th July, 2006, a meeting took place at the offices of the Council which was attended by Mr. Liam Campion, the first named plaintiff, Mr. Greg Bell, the plaintiffs' architect, Mr. Liam Ahern, an elected member of the defendant local authority who convened the meeting and Mr. James O'Mahony, a senior planner with the Council. Whilst there is some dispute about what gave rise to this meeting, it is clear that its purpose was to discuss proposed amendments to the original plans, so as to progress the implementation of the development which at the date thereof, had yet to commence.

6 During the course of the meeting the architect, Mr. Bell, produced a number of revised drawings which were used to facilitate the discussion that followed. During that discussion the following changes or amendments to the development were sought, on behalf of the plaintiffs:

(a) Change in location of the 52 holiday cottages to accommodate the widening of the roadways and hammerheads to facilitate compliance with Condition 6 of the said planning permission,

(b) Change in house type of the 52 holiday cottages from semi-detached houses to terraced houses,

(c) Alterations to the hotel internal plan layouts in order to improve circulation and operation of function rooms, restaurant, reception, business suites, kitchen service areas and, repositioning of the swimming pool, and

(d) External alternations to hotel, to include replacement of bar canvas roof with copper or zinc sheet roofing, replacement of sloping glass and timber cladding to entrance with a more traditional fenestration similar to the western elevation of the hotel and, a proposal to make the entrance clearer at the hotel approach.

7 It is claimed that having reviewed such drawings and having considered what was proposed by Mr. Bell and others present, the senior planner, Mr. O'Mahony, agreed that as the amendments referred to at subparas. (a), (b) and (c) above, constituted in planning terms minor changes only, the development could proceed in accordance therewith, but that those set out at subpara. (d) did not. Accordingly, he insisted that in respect of the latter, a revised planning application would have to be submitted. The plaintiffs say that they duly accepted the planner's position on each of these matters.

8 Acting on foot of what is alleged to have been agreed and on what they had been advised were the legal consequences thereof, the plaintiffs duly commenced the development in its altered form and thereafter proceeded with it in a manner which reflected the revised plans, allegedly so agreed at the said meeting.

District Court Proceedings:

9 The Council however as planning authority, had quite a different perspective and came to the conclusion that the development, as then ongoing, was in breach of the only planning permission which existed (Ref No. 01/908). Accordingly, an Enforcement Notice dated the 3rd May, 2007, was served on the plaintiffs, pursuant to s.154 of the Planning and Development Act 2000 ('the 2000 Act'), in which it was alleged that, in the detailed manner as specified, the works being carried out were in breach of the said planning permission. The notice reads as follows:-

'The said development has not been carried out in conformity (with Condition No. 1 of the planning permission 01/908) in that:

'(i) Cottages No's 14–15, 16–17, 37–38 and 51–52 have been constructed as terraced rather than semi-detached cottages, as required by Condition No. 1 of planning permission reference 01/908:

(ii) The layout, location and configuration of cottage footprints and car-parking arrangements are not in accordance with the plans submitted with the planning application of the 25th October, 2001 and other documentation subsequently submitted as outlined above, as required by Condition No. 1 of planning permission reference 01/908 and:

(iii) Construction works facilitating...