McKone Estates Ltd v Kildare County Council

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1984 WJSC-HC 550,1983 WJSC-HC 3076
• Docket Number: No. 6251 P/1983
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 3076

THE HIGH COURT

No. 592 SS./ 1982

McKONE ESTATES LTD. v. KILDARE CO. COUNCIL.

BETWEEN/

IN THE MATTER OF AH ARBITRATION

McKINE ESTATES LIMITED

AND

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE

AND IN THE MATTER OF SECTION 55 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1963.

Subject Headings:

PLANNING: permission

1 Judgment by O'Hanlon J. the 24th June. 1983.

2 On the 8th October, 1982, Mr. Sean McDermott, in his capacity as Arbitrator, referred by Case Stated, a number of questions of law to the High Court for determination. The Case Stated was in the following terms "CASE STATED.

3 On the 30th day of October, 1981, I sat as property arbitrator at the County Council offices at Naas, in the County of Kildare, for the purpose of hearing and determining a claim for compensation brought by MoKone Estates Ltd. (hereinafter referred to as "the Claimant") against the County Council of the County of Kildare (hereinafter referred to as "the Kildare County Council") pursuant to the provisions of Section 55 of the Local Government (Planning and Development) Act, 1963(hereinafter referred to as "the Act of 1963") arising out of a decision of An Bord Pleanala refusing to grant permission for a development described as "the laying of a sewage pipeline at Leixlip to serve proposed housing and ancilliary development at Cooldrinagh, County Dublin". At the commencement of the arbitration it was submitted by Mr. Hugh Geoghegan S. C. who appeared for the Kildare Council instructed by Messrs. Brown and McCann, Solicitors, Naas, that I had no jurisdiction to entertain the claim for compensation for the following reasons:-

4 a A. There was no valid claim for compensation before me because the letter of the 23rd February, 1981, sent to the Kildare Council by the Claimant's Solicitors and which constituted the claim before me related only to the lands owned by the Claimant at Cooldrinagh, County Dublin and no other lands, or alternatively related to the said lands at Cooldrinagh aforesaid and the adjacent property of the Claimant in the County of Kildare hereinafter referred to but was not confined to the said property in County Kildare which was the subject of the application for Planning Permission. A copy of the said letter of the 24th February, 1981 is annexed to this Case Stated and marked Exhibit A.

5 b B. A claim for compensation is excluded by virtue of the provisions of Section 56 (l) (b) of the Act of 1963.

6 After hearing the submissions of Mr. E. M. Walsh S.C. who appeared on behalf of the Claimant instructed by Messrs. Gerard J. Quinn & Co., Solicitors, I held that there was a valid claim for compensation before me which was not excluded by the said Section 56 (l) (b) of the Act of 1963 and I proceeded to hear the evidence on behalf of the Claimant and the Kildare Council and the submissions of Counsel on the said 30th day of October, 1981, and on the 4th and 7th days of December, 1981.

7 The following facts were either agreed or proved to my satisfaction during the course of the hearing.

8 1. On the 14th day of March, 1977, the Minister for Local Government granted permission on Appeal for a development comprising 455 houses, a shopping site, a school site and open space on approximately sixty acres of land at Cooldrinagh in the County of Dublin, in close proximity to the treatment works on the Kildare side of the river Liffey. The said permission was granted subject to five conditions including a condition which would have required the discharge of sewage from the completed development to the said treatment works at Leixlip. Copies of the said permission and of the refusal by Dublin County Council appealed against are annexed hereto (Exhibit B).

9 2. The said lands at Cooldrinagh were subsequently acquired by the Claimant in fee simple and the Claimant was at all times material to the arbitration the owner of the said lands.

10 3. On the 18th day of May, 1979, the Claimant purchased a property known as the Toll House at leixlip, in the County of Kildare, comprising a dwellinghouse on 0.3 acres of land close to the said lands of Cooldrinagh but on the opposite side of the river Liffey in County Kildare. The Claimant was at all times material to the arbitration the freehold owner of the Toll House.

11 4. On the 3rd and 7th days of August, 1979, the Claimant applied to the Kildare County Council and to Dublin County Council respectively for permission to construct a foul sewer to connect the already conditionally approved development at Cooldrinagh with the treatment works at Leixlip and for a surface water drain from the development to the river Liffey in County Dublin. The application to Dublin County Council simply involved laying a pipe along the public road from the lands of Cooldrinagh to the Salmon Weir Bridge across the river Liffey. The line took a defined route as far as the bridge and it was then proposed to attach a pipe to the structure of the bridge. The application to the Kildare Council involved three alternative pipe lines from the bridge to the treatment works. The first alternative involved a road excavation and the laying of a pipe on the grounds of Toll House where it would connect with the main County Kildare sewer leading to the treatment works. The second alternative proposed laying a pipe entirely on the public road to a point where it would connect with the said main sewer. The third alternative proposed laying a pipe until it connected with the main sewer in land not owned by the Claimant. Both applications for planning permission proposed a temporary connection to the treatment works at Leixlip and an ultimate permanent connection to piped services in the County of Dublin on a date to be agreed between the Kildare Council and Dublin County Council. This was made clear in the letter of application and accompanying notes. The said letter and accompanying notes and extract from the drawings i.e., the large scale enlargements of the drains to cross the bridge are marked Exhibit C.

12 5. The County boundary is the centre of the river Liffey and the Salmon Weir bridge is owned as to one half by the County Council of the County of Dublin and as to the other half by the Kildare Council.

13 6. The Kildare Council and the County Council of the County of Dublin duly issued notifications of decisions to refuse permission, copies whereof are annexed hereto (Exhibits D. & E).

14 7. The Claimant appealed to An. Bord Pleanala against both decisions and following an oral hearing at which both appeals were considered together An. Bord Pleanala refused permission for the proposed development. Attached hereto is a copy of the letter of Appeal to in Bord Pleanala and the decision of An Bord Pleanala in the case of the application to the Kildare Council (Exhibit F). The decision of An Bord Pleanala on the application to the County Council of the County of Dublin was in identical terms.

15 8. The treatment works at Leixlip is designed for a population of 20,000 and in the view of the Planning Authority that capacity has been fully absorbed. As of March, 1977, and also as of October, 1979 the existing treatment works would not have been fully absorbed but the sewerage from the Cooldrinagh development could only have been taken in place of a corresponding reduction of projected development in the County of Kildare. It is proposed to carry out works which will increase the capacity of the treatment works at Leixlip to 45,000 at the next stage and ultimately to 93,000 beyond which figure the capacity cannot be increased because of the absorption capacity of the river Liffey. The Planning Authority accepts that the treatment works will have a spare capacity from 1984 to 1995 or at the latest to the year 2000, but the Kildare Council has earmarked in its development plan that spare capacity for projected further development in the administrative County of Kildare which it anticipates will use up the entire capacity of the treatment works between 1995 and 2000. If so entitled, the Kildare Council as sanitary authority would have refused to enter into an agreement with the Claimant under Section 24 of the Public Health (Ireland) Act 1878.

16 9. It was established at the oral hearing hereinbefore referred to that the County Council of the County of Dublin was not prepared to extend its piped services at any future time so as to accommodate the proposed development at Cooldrinagh and that the development could only proceed on the basis of a permanent connection with the treatment works at leixlip.

17 10. On the 24th day of June, 1981, in the course of an arbitration in which the present Claimant claimed against it in the sum of three million pounds for reduction in value of the Claimant's interest in the Cooldrinagh lands by reason of refusal of permission to lay the mains referred to at 4 above the County Council of the County of Dublin undertook to grant Planning Permission to the Claimant to enable the sewage from the development at Cooldrinagh to be discharged into the treatment works at Leixlip subject to certain conditions and a copy of the said undertaking is annexed hereto (Exhibit G).

18 11. As a result of the decision of An Bord Pleanala to refuse permission for a connection from the proposed development at Cooldrinagh to the treatment works at Leixlip there was a diminution in the value of the said lands at Cooldrinagh.

19 On the application of Counsel for Kildare Council I agreed to state a consultative case for the opinion of the High Court and to adjourn the further nearing of the arbitration pending the decision of the High Court on the questions raised in the Case Stated. The questions which I respectively formulate for the opinion of the High Court are as follows:

20 1. Was I correct in law in refusing to accede to the argument of Counsel for the Kildare Council that I should decline...