Mountbrook Homes Ltd v Oldcourt Developments Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 22 April 2005
• Neutral Citation: [2005] IEHC 171
• Court: High Court
• Docket Number: Record Number: No. 46 MCA/2004
• Date: 22 April 2005

[2005] IEHC 171

THE HIGH COURT

Record Number: No. 46 MCA/2004

MOUNTBROOK HOMES LTD v OLDCOURT DEVELOPMENTS LTD

IN THE MATTER OF SECTION 160 OF THE PLANNING ACT 2000

AND IN THE MATTER OF AN APPLICATION

BETWEEN:

MOUNTBROOK HOMES LIMITED

Applicant

AND

OLDCOURT DEVELOPMENTS LIMITED

Respondent

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S132

PLANNING & DEVELOPMENT ACT 2000 S137

PLANNING & DEVELOPMENT ACT 2000 S160(1)

O'CONNELL v DUNGARVAN ENERGY LTD UNREP FINNEGAN 27.2.2000 2001/18/5119

EIRCELL LTD v BERNSTOFF UNREP BARR 18.2.2000 2000/6/2314

WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374

AVENUE PROPERTIES LTD v FARRELL HOMES LTD 1982 ILRM 21

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

GRIMES v PUNCHESTOWN DEVELOPMENT CO LTD 2002 1 ILRM 409

LEEN v AER RIANTA 2003 4 IR 394

DUBLIN CORPORATION v MCGOWAN 1993 1 IR 405

PLANNING & DEVELOPMENT ACT 2000 S152(1)

PLANNING & ENVIRONMENTAL LAW

Injunction

Pre-commencement conditions - Non compliance with conditions - Onus of proof -Motivation of applicant - Discretionary nature of remedy - Whether substantial compliance with terms of conditions - Whether non compliance with pre-commencement condition renders entire development unlawful - Application refused (2004/46MCA - Peart - 22/4/2005) [2005] IEHC 171

MOUNTBROOK HOMES LTD v OLDCOURT DEVELOPMENTS LTD

Facts: The applicant sought certain orders pursuant to s.160 of the Act of 2000 directing the respondent company to comply with specific conditions of a planning permission granted to it for the construction of a distributor road, and/or to carry out that development in conformity with the planning permission, as well as an injunction to restrain further road development works until those conditions were complied with.

Held by Peart J. in refusing the relief sought: That despite the respondent’s failure to comply with certain conditions of the planning permission in a timely manner, in the circumstances of this case it was not appropriate for the court to intervene by way of making an order to cease development under the provisions of s.160 of the 2000 Act.

Reporter: L.O’S.

Judgment of

Mr Justice Michael Peart

1 By Notice of Motion herein dated 12th November 2004, the applicant herein seeks certain orders pursuant to s. 160 of the Planning and Development Act,2000 ("the 2000 Act") to direct the respondent company to comply with conditions 2,4,5,6,7 and 8 of a planning permission granted to it for the development of its land, and/or to carry out that development in conformity with the planning permission, as well as an injunction to restrain further road development works until the said numbered conditions have been complied with.

2 The application concerns principally road development works between Ballycullen Road and Stocking Lane in south County Dublin, whereby the respondent is in the course of constructing a distributor road (2.5km in length) which will connect the Ballycullen Road in the west with Stocking Lane in the east.

3 The applicant, through one of its directors, Peter Halpenny, has averred that it is a development company which has carried out a number of developments in and around

4 County Dublin in the last number of years, and that it intends to do so again on lands which are situated immediately south of the respondent's lands on which this distributor road is being constructed. There are a number of junctions to be placed in this distributor road, according to the planning permission granted to the respondent, but the one of major concern to the applicant is that referred to in Condition 6 of the permission, as it is this junction from which the respondent is required to construct another road which ultimately would enable the applicant's own development on its lands in the future to connect with the distributor road the subject of the planning permission. Condition 6 of the planning permission states as follows:

"6. Prior to commencement of development, revised drawings shall be submitted for the written agreement of the planning authority, which indicate the road, shown at CH.093.117/2100.00 on drawing number 013017-277B, extended from the roundabout, south to the boundary of site H as shown in the Ballycullen-Oldcourt Action Area Plan 2000.

Reason: To ensure the achievement of the objectives of the current Development Plan for the area and the Ballycullen-Oldcourt Area Plan in relation to the development of these lands in a coherent manner and in the interest of proper planning and sustainable development."

5 Site H referred to is immediately to the north of the applicant's lands which are referred to on the Action Area Plan as site J. Clearly, the existence of a road leading from the distributor road to the southern boundary of site H (which abuts the north boundary of site J) is essential if the applicant's lands at J are not to be landlocked. Counsel for the applicant has referred the Court to Item 11 contained in the "Record of Executive Business and Manager's Orders dated 14th February 2003 which states:

"The applicant states in the cover latter that “it has always been the intention…to avoid any situation, subject to agreement, where a landholder of lands within the Action Area, would find themselves landlocked”. It is agreed that this is an issue of concern to the Planning Authority. The applicant has shown indicative road linkages to the proposed distribution road in drawings 229 and 230. It is noted that these linkages would be subject to future detailed design and dependent on planning approval of housing layouts. The Planning Authority is not satisfied that this proposal provides sufficient certainty to ensure that land parcels noted as Nos. J & K in the Ballycullen - Oldcourt Action Area Plan, can access the proposed public road network. To ensure that coherent and orderly development of these zoned lands occurs a condition to address this issue is recommended………"

6 This paragraph is clearly the genesis of Condition 6. The applicant has averred that these revised drawings showing the road referred to in Condition 6 have not been submitted. It is alleged that while some revised drawings have been submitted, each shows the extension road terminating short of the boundary with the applicant's lands, thereby depriving it of access to the distributor road. The respondent disputes this.

7 Behind this application is an apprehension, to put it no more strongly for the moment, that the respondent will not be timely in meeting its obligations in this regard, and that the applicant will be thereby disadvantaged in its own development plans for its own lands in the future by becoming landlocked, without any access to the distributor road. The applicant also fears that its own proposed application for planning permission will be hampered if this connecting road to the distributor road is not in place by the time it makes its own application for permission to develop its lands.

8 The applicant claims that it is clear from the terms of the planning permission granted to the respondents that it was granted in the context of the overall plan for the Ballycullen/Oldcourt Action Area Plan. Mr Halpenny refers to the Action Area Plan and says that it was expressly stated in the plan that a key component of then plan was that there would be an east-west link (the distributor road) through the entire area, which would tie the whole area together, and that the permission which the respondent obtained was intended also to facilitate the development of other lands in the area, and in this regard he refers to the fact that under Condition 2 of the planning permission the respondent was required to construct the distributor road on foot of one single contract from Ballycullen Road to Stocking Lane.

9 It is also averred on behalf of the applicant that the applicant's lands are clearly identified in the Ballycullen/Oldcourt Action Area Plan as lands to be developed for residential purposes, and that the extension of the distributor road to these lands is essential if the objectives of the Plan are to be achieved. For this reason the applicant contends that it has a sufficient interest for the purpose of this application, in order to ensure that the respondent complies with the terms of the permission granted to it.

10 Mr Halpenny points out a further concern on the part of the applicants. That concern is that another company, Elier Limited which is a member of the consortium which makes up the respondent company, has submitted a planning application which is inconsistent with the road layout envisaged in the Action Area Plan. Specifically, it is alleged that this application excludes the roundabout which is located at the point on the distributor road from which the extension road would travel southwards to the boundary of the applicant's lands, and that this roundabout is an essential pre-requisite to compliance with Condition 6 of the respondent's planning permission.

11 Mr Halpenny avers that in view of these concerns the applicant's Consultant Architect, Mr Feargall Kenny wrote on the applicant's behalf to the Planning Enforcement Section of the South Dublin County Council by letter dated 3rd September 2004. That letter enclosed a Planning Enforcement Complaint Sheet which sets out the nature of the complaint as:

"Works commenced without compliance with conditions requiring compliance before commencement (conditions Nos. 4–8 inclusive of planning permission granted by Bord Pleanala on 9/10/03."

12 Condition 4 required the submission of "a detailed landscape plan, including specific details of boundary treatments, with full works specification (including timescale for implementation and bill of quantities) for the treatment of the roadside strips/margins………"

13 Condition 5 deals with water and...