McDonagh & Sons Ltd v Galway Corporation

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1995
• Neutral Citation: 1993 WJSC-SC 2422
• Docket Number: [S.C. No. 350 of 1992]
• Court: Supreme Court
• Date: 01 January 1995

1993 WJSC-SC 2422

THE SUPREME COURT

Finlay C.J.

Hederman J.

O'Flaherty J.

Egan J.

Denham J.

350/92

MCDONAGH & SONS LTD v. GALWAY CORPORATION

IN THE MATTER OF JUDICIAL REVIEW 1992 No. 81 JR

BETWEEN

THOMAS McDONAGH & SONS LIMITED AND McDONAGH FERTILISERSLIMITED

Applicants/

Respondents

and

THE MAYOR, ALDERMEN AND BURGESSES OF THE COUNTY BOROUGH OFGALWAY

Respondents/

Appellants

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(f)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(7)

Synopsis:

PLANNING

Permission

Condition - Car parks - Provision - Extent - Requirement that area in excess of immediate needs of development be provided - Whether local authority obliged to make contribution towards provision of car park - Local Government (Planning and Development) Act, 1963, s. 26 - (350/92 - Supreme Court - 17/5/93)

|Thomas McDonagh & Sons Ltd. v. Corporation of Galway|

1 JUDGMENT delivered on the 17th day of May 1993by FINLAY C.J. [NEM DISS]

2 This is an appeal brought by the Respondents (the Corporation) against an order made by Blayney J. in the High Court on the 1st May 1992, whereby in proceedings brought by the Applicants (the Developers) for judicial review he granted to them the following declarations.

3 1. That the conditions 2 and 6 of the decision to grant planning permission to the Applicants by the Respondents on the 2nd day of August 1991 and numbered 329/91 are conditions falling within the meaning of section 26(2)(f) of the Local Government (Planning and Development) Act 1963.

4 2. That upon the completion by the Applicants, their servants, agents or assignees of the construction of five upper levels of a multi-storey car park, to be constructed in the County Borough of Galway in accordance with the terms of a planning permission granted to the Applicants by the Respondents, consequent upon the said decision made on the 2nd day of August 1991 and numbered 329/91 (recte 330/91) that the Respondents will be obliged to make such contribution to the Applicants in respect of the said works as is decided in accordance with the provisions of section 26(7) of the Local Government (Planning and Development) Act 1963as amended.

The facts

5 In 1991 the Developers were anxious to make a comprehensive redevelopment with a mixture of uses on a site formerly McDonagh Chemicals worksite, which was facing onto a fishmarket along the river Corrib in Galway. The development consisted of a hotel with 126 bedrooms, with restaurant, function room and bars, and together with retail units. The site on which this development was proposed was zoned in the development plan for the provision of a car park, and theDevelopers" architect had been at all times informed that any development on the site would have to be designed in such a way that a car park could be provided on the site. In one application which was numbered 329/91, the Developers applied for permission to erect the hotel with bar, function room, restaurant and retail units, together with a three-storeyed car park with car parking spaces for 158cars.

6 Simultaneously, they sought planning permission for a five-storey car park, in an application numbered 330/91, to be built on top of the three-storey car park the subject of the application 329/91. Submitting these two applications, their architect informed in writing the planning authority that they did not consider that the additional five-storey car park was a viable proposition at that time and that they would not intend to build it until such time as they were satisfied it wasviable.

7 Both these planning applications were granted by the Corporation on the 2nd August 1991, but a number of conditions were attached to the grant of the application for the hotel (329/91) of which the following is relevant to the issues.

"No. 2. Before the hotel or any retail units are opened for business or before such later date as the Corporation may agree in writing, the developers shall commence and complete withoutundue delay construction of the upper floors of the multi-storey car park as provided for under Application PL Reg. Ref. No. 330/91, and shall within twelve months of commencement or such longer period as the Corporation may agree in writing, complete the said car park and make the entire eight-level car park available for use by customers and staff of the hotel and retail units and members of the public, subject to such charges, if any, that the developer or operator of the car park may make for the use of the said car park."

8 The reason for this condition is stated to be as follows:

"The site the subject matter of planning applications PL Reg. Ref. Nos. 329/91 and 330/91, is designated in the 1991 Galway County Borough Development Plan for the provision of a public car park. Construction of a hotel and retail units on the site would not, therefore, be in accordance with the proper planning and development of the area or in accordance with the provisions of the development plan unless the hotel and retail units form part of an integrated development which ensures that the public car park (PL Reg. Ref. No. 330/91) for which the applicant seeks permissionis constructed by the developer as part of and in conjunction with the hotel and retail complex."

9 Upon the granting of the planning permission subject to the conditions and, in particular, to this condition, the Developers appealed to An Bord Pleanala against the imposition of this condition. They subsequently withdrew this appeal; it is asserted on their behalf because it could not be determined in sufficient time to permit them to complete the development of the hotel and other units so as to meet certain tax exemptions and benefits with a fixed time attached tothem.

10 Counsel have informed us at the hearing of the appeal that in fact both the developments provided for in 329/91 application and 330/91 application are now complete and finished.

The statutory provisions involved

11 Section 26(2)(f) of the Act of 1963 provides as follows:

12 (2) Conditions under subsection (1) of this section may without prejudice to the generality of that subsection, include all or any of the following conditions:

13 .......

14 (f) Conditions for requiring roads, open spaces, car parks, sewers, water mains or drains in excess of the immediate needs of the proposeddevelopment."

15 Section 26(7) of the Act of 1963 provides as follows:

"In a case in which a condition referred to in paragraph (f) of subsection (2) of this section is attached to any permission or approval granted under this section, a contribution towards such of the relevant roads, open spaces, car parks, sewers, water mains or drains as are constructed shall be made by the local authority, who will be responsible for their maintenance, and the contribution shall be such as may be agreed upon between that local authority and the person carrying out the works, or in default of agreement, as may be determined by theMinister."

16 Section 25 of the Act of 1963 provides power to the Minister by regulations, to be referred to aspermission regulations, to provide for the grant of permission for the development of land, and for the matters that must be dealt with in applications therefor. Applications under these regulations include a requirement that the owner of the lands be stated.

The issues arising on this appeal

17 Three issues arose on the hearing of this appeal which are the same three issues as arose and were determined by Blayney J. in the High Court, and they are as follows.

18 1. Does Condition 2 of the Planning Permission No. 329/91 for a hotel and retail complex require car parks in excess of the immediate needs of the proposed development within the meaning of section 26(2)(f)?

19 2. If the said Condition No....