McKone Estates Ltd v Dublin County Council

• Jurisdiction: Ireland
• Judge: BLAYNEY J
• Judgment Date: 01 June 1995
• Neutral Citation: 1995 WJSC-SC 2858
• Docket Number: 155/93
• Court: Supreme Court
• Date: 01 June 1995

1995 WJSC-SC 2858

THE SUPREME COURT

Egan J.

Blayney J.

Denham J.

155/93

MCKONE ESTATES LTD v. DUBLIN CO COUNCIL

BETWEEN/

McKONE ESTATES LIMITED

Applicant/Respondent

and

THE COUNTY COUNCIL OF THE COUNTY OFDUBLIN

Citations:

COURTS OF JUSTICE ACT 1936 S38(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 PART III

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(6)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

WOOD & CO LTD V WICKLOW CO COUNCIL 1995 1 ILRM 51

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S11

INTERPRETATION ACT 1937 S21(1)

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

INTERPRETATION ACT 1937 S21(1)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART VI

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

Synopsis:

PLANNING

Permission

Refusal - Compensation - Application - Delay - Time limit - Extension - Application for extension authorised by Part VI of Act of 1963 - Part VI of that Act repealed by Act of 1990 before refusal of permission - Whether extension granted pursuant to Act of 1963 was a valid extension - Right to compensation under Act of 1963 repealed before right accrued - Interpretation Act, 1937, s. 21 - Local Government (Planning and Development) Act, 1963, s. 55 - Local Government (Planning and Development) Act, 1990, s. 3 - (155/93 - Supreme Court - 1/6/95) - [1995] 2 ILRM 283

|McKone Estates Ltd. v. Dublin County Council|

STATUTE

Repeal

Effect - Right - Accrual - Potentiality - Determination of planning appeal pending when enactment repealed - Accrual of right on refusal of permission - Permission refused after repeal of enactment conferring right - (155/93 - Supreme Court - 1/6/95) - [1995] 2 ILRM 283

|McKone Estates Ltd v Dublin County Council|

1 JUDGMENT delivered on the 1st day of June 1995by BLAYNEY J . [NEM DISS]

2 This is a case stated in which the opinion of the Court is sought on a question posed by Morris J. pursuant to the provisions of s. 38(3) of the Courts of Justice Act, 1936.

3 The facts set out in the case stated may be summarised as follows:-

4 1. The applicant/respondent, McKone Estates Limited (hereinafter referred to as McKone Estates) are theowners of a forty acre holding of land at Cooldrinagh, Leixlip, within the functional area of the County Council of South Dublin (formerly part of the functional area of the County Council of Dublin).

5 2. On or about the 15th December 1989 McKone Estates applied to Dublin County Council for planning permission for a development consisting of 252 two-storey houses on the said holding, and on the 25th April 1990 Dublin County Council issued a notice of a decision to grant permission for the said development subject to thirty-one conditions pursuant to the provisions of s. 26 of the Local Government (Planning and Development) Act, 1963(hereinafter referred to as the 1963 Act).

6 3. A number of third parties appealed to An Bord Pleanala against the said decision and McKone Estates also appealed against it, and all such appeals were lodged with An Bord Pleanala by the 25th May1990.

7 4. The Local Government (Planning and Development) Act, 1990(hereinafter referred to as the 1990 Act) was enacted by the Oireachtas on the 10th June 1990 and came into force on that date. s. 3 of the 1990 Act repealed Part VI of the 1963 Act, being the Part of the 1963 Act containing the sections dealing with compensation in relation to decisions under Part IV of the 1963 Act, and new sections dealing with compensation in substitution for the repealed Part VI were enacted in Part III of the 1990 Act.

8 5. On the 31st January 1991 An Bord Pleanala reversed the decision of Dublin County Council and decided to refuse to grant permission for the development for which McKone Estates had applied.

9 6. On the 30th July 1991 McKone Estates submitted a claim to Dublin County Council under Part III of the 1990 Act for compensation in respect of the reduction in value of the holding of forty acres by reason of thedecision of An Bord Pleanala of the 31st January 1991.

10 7. On the 26th May 1992 McKone Estates applied to the Circuit Court in Dublin under s. 55 of the 1963 Act for an extension of the time within which to make a claim for compensation under Part VI of the 1963 Act, and this application was granted, the time being extended by fourteen days from the 26th May 1992.

11 8. Dublin County Council appealed to the High Court against that order and the appeal was heard by Morris J. on the 7th and 8th December 1992. At the request of counsel for the Dublin County Council Morris J. has referred the following question of law for the opinion of this Court and in the meantime has adjourned his decision on the appeal.

"Having regard to my findings of fact as set out in paragraph 14 supra and to the repeal of part VI of the 1963 Act by s. 3(1) of the 1990 Act as from the 10th June 1990 did the learned President of the Circuit Court or indeed do I have powerpursuant to the provisions of s. 55(6) of the 1963 Act, to extend the time for a submission of a claim for compensation under the 1963 Act arising from the decision of An Bord Pleanala of the 31st of January1991?"

12 The findings of fact in paragraph 14 of the case stated were asfollows:

"14. Findings of fact."

13 (1) The application by the applicant to Dublin County Council for planning permission pursuant to the Local Government (Planning and Development) Acts, 1963to 1983was submitted on 15th day of December 1989.

14 (2) By resolution dated the 9th day of April 1990 Dublin County Council decided to materially contravene its development plan.

15 (3) On 25th day of April 1990 Dublin County Council issued to the applicant a decision to grant planning permission.

16 (4) The decision of Dublin County Council was appealed to An Bord Pleanala on or about the 25th day of May 1990.

17 (5) On the 10th day of June 1990 the Local Government (Planning and Development) Act, 1990(the 1990 Act) became law.

18 (6) On the 31st day of January 1991 An Bord Pleanala issued a refusal to grant planning permission in relation to the saidapplication."

19 The issue raised by the question posed in the case stated is a limited one. It might be summarised as follows. Since part VI of the 1963 Act - which Part includes s. 55 - was repealed on the 10th June 1990 by the 1990 Act, can the application of McKone Estates brought under s. 55(6) of the 1963 Act be entertained by the High Court? S. 55(1) of the 1963 Act made the following provision in regard to compensation:

"55(1) If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of this Act involving a refusal of permission to develop land or a grant of such permission subject to conditions (other than any such condition as is referred to in paragraph (e), paragraph (g) or paragraph (h) ofsubsection (2) of section 26 of this Act) the value of an interest of any person existing in the land to which the decision relates at the time of...