Noel O'Driscoll, Nora O'Driscoll, Noel O'Driscoll Jnr, Joseph O'Driscoll, Michael O'Driscoll, Denis O'Driscoll, Donal O'Driscoll, John O'Driscoll and Helen O'Driscoll Carrying on Business Together Under the Style and Title of the Levis Quay Partnership v Cork County Council (Formerly Skibbereen Town Council)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 22 June 2021 |
| Neutral Citation | [2021] IEHC 504 |
| Court | High Court |
| Docket Number | [2019. No 1398 S.S.] |
In the Matter of the Acquisition of Land (Assessment of Compenstion) Act 1919
And in the Matter of the Property Values (Arbitration and Appeals Act) 1960,
And in the Matter of Part V of the Planning and Development Act 2000 (As Amended)
And in the Matter of an Arbitration
[2021] IEHC 504
[2019. No 1398 S.S.]
THE HIGH COURT
Arbitration – Points of law – Case stated – Property arbitrator stating a special case for the opinion of the High Court – Whether the property arbitrator was entitled to award interest to the claimants
Facts: The claimants, the O’Driscolls, delivered a Statement of Claim dated the 6th September, 2019 and the respondent, Cork County Council, delivered a reply dated the 22nd October, 2019. The respondent in its reply referred to four points of law and pleaded that if the claimants did not accept the points of law, then each point was a real and substantial issue of law which required to be decided for the purposes of completing the arbitration. The respondent requested the property arbitrator, Mr Goode, to state a special case for the opinion of the High Court on each point of law. By written legal submissions to the property arbitrator, the respondent raised a fifth point of law. The claimants consented to the property arbitrator stating the special case for the opinion of the High Court. The questions for the High Court as set out by the property arbitrator were as follows: (1) whether a planning authority can accept the transfer of zero units in satisfaction of a determination of An Bord Pleanála pursuant to s. 96 of the Planning and Development Act 2000, that a developer shall enter into a Part V agreement with a planning authority for the transfer of an unspecified number of onsite social and affordable units; (2) whether a property arbitrator, in an arbitration for the purposes of s. 96 (7) of the 2000 Act, is required to have regard to the development plan (a) as of the date of the grant of the planning permission contained in the planning condition giving rise to the arbitration, (b) as at the date of the Board’s order, or (c) as of the date of the commencement of the arbitral proceedings; (3) whether a Part V agreement must provide for the transfer to the planning authority of the same percentage of lands or units in the development as is specified in the policy objectives set out in the relevant development plan as being required to be reserved for the purposes of social and affordable housing; (4) whether a property arbitrator calculating the compensation payable upon transfer of units in accordance with s. 96 of the 2000 Act should calculate the site costs on the basis of the provisions of the 2000 Act in force at the time of (a) the grant of the planning permission, (b) the date of the Board’s order, or (c) the commencement of the arbitral proceedings; (5) whether a property arbitrator in an arbitration for the purposes of s. 96 (7) of the 2000 Act may award interest as compensation in respect of the costs of retaining ownership since their completion of any units which the arbitrator orders to be transferred to the respondent by his award.
Held by Creedon J that it was not within the jurisdiction of the property arbitrator to find that the agreement should be for the transfer of zero units and such a finding would be ultra vires his function. The Court found that the answer to question (1) is “no”. The Court was satisfied that the property arbitrator is bound to determine matters by reference to the law in force at the date of the Board’s order which law is the same as was in force at the date of the planning permission. The Court determined that the answer to question (2) is (a) or in the alternative (b) but not (c). Creedon J held that it was not within the jurisdiction of the property arbitrator to alter the determination of the Board as to the percentage of lands or units to be transferred; accordingly, the answer to question (3) is “yes”. The Court determined that the provisions of the Urban Regeneration and Housing Act 2015 could not be applied by the property arbitrator and accordingly the answer to question (4) is either (a) or (b), which amount to the same thing, but not (c).
Creedon J held that, in circumstances where there had been considerable delay in proceeding with this case and where there is no statutory provision which allows for interest in the terms claimed by the claimants, the answer to question (5) is “no”.
Case stated.
Decision of Ms. Justice Creedon, delivered on the 22nd day of June, 2021
Paul Goode, arbitrator in the above entitled arbitration (hereinafter referred to as the arbitration), was appointed pursuant to the Property Values (Arbitration and Appeals) Act 1960 by the Reference Committee on the 31st July 2019.
The claimants have delivered a Statement of Claim dated the 6th September, 2019 and the Respondents have delivered a reply dated the 22nd October, 2019.
The respondent in its reply, referred to four points of law and pleaded at paras. 7, 9, 19 and 23 of that reply that if the claimants do not accept the points of law as stated by the respondent, then each point is a real and substantial issue of law which requires to be decided for the purposes of completing the arbitration. On this basis, the respondent requested the property arbitrator, Mr. Paul Goode, to state a special case for the opinion of the High Court on each said point of law. In addition, by their written legal submissions to the property arbitrator, the respondents raised a fifth point of law concerning the property arbitrator's entitlement to award interest to the claimants.
The claimants, while contesting the respondent's view of the said points of law, have consented to the property arbitrator stating this special case for the opinion of the High Court.
The property arbitrator has not entered upon the hearing of the arbitration but confirm that the following facts are agreed between the parties, whilst the following issues are agreed as being in dispute between them, the resolution of which will require a decision on the points of law herein stated for the opinion of the High Court.
The claimants state that they are the owners of certain lands at Levis Quay off of Main Street, Skibbereen in the County of Cork and while the Respondent has required proof of such ownership by its reply, it accepts that ownership for the purposes of this special case.
The Respondent is the planning authority for inter alia, the town of Skibbereen, Co. Cork and is the successor planning authority to Skibbereen Town Council.
In 2004, planning permission was granted by Skibbereen Town Council for a mixed residential and commercial/retail development including inter alia 42 apartments, a restaurant/public house at ground/terrace level, retail units and offices, reconstruction of part of the existing buildings and the development of open urban spaces at their premises at Levis Quay, off of Main Street Skibbereen Co. Cork by planning permission, reference number 19/03 dated the 6th November 2003, as varied by planning permission reference no. 04/ 57014 dated the 13th August 2004 (the planning permission).
Condition 49 of the planning permission states as follows:-
“49. The applicant or any other person with an interest in land to which this application relates shall enter into an agreement with the planning authority providing for the transfer of land or houses or partially or fully serviced sites to the planning authority or persons nominated by the planning authority in accordance with Part V of the Planning and Development Act 2000. Before any development commences and preferably within eight weeks of the grant of this permission provision to this effect shall be embodied in an agreement between the Applicant (or other person with an interest in land to which this Application relates) and the planning authority in accordance with ss. 96 and 47 of the Planning and Development Act 2000”.
The reason given for this condition is stated in the second column to the planning permission as follows:-
“49. To ensure compliance with the policy objectives of the joint housing strategy which have been included in the development plan”.
Condition 49 was not complied with prior to the commencement, or, completion of the development the subject of the planning permission. The development was completed in or about 2007.
The parties failed to reach a concluded agreement for the purpose of condition 49 and in or about 2013, the claimants referred the issue of compliance with condition 49 to An Bord Pleanála (hereinafter the Board) pursuant to s. 96 (5) of the Planning and Development Act 2000 as amended (the PDA).
By order, dated the 5th September, 2013, the Board determined that compliance with condition 49 required the transfer of onsite social and affordable housing units at the claimant's development and directed the claimants to enter into an agreement with the respondent pursuant to s. 96 of the Planning and Development Act 2000 (the PDA), within 8 weeks of the date of the said determination, providing for the transfer to the respondent of the said onsite social and affordable housing units.
The agreement as required by the said order has not been entered into and in 2019 the claimants applied to the Land Values Reference Committee for the appointment of a Property Arbitrator...
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