Owen Carty and Carty Construction Ltd v Fingal County Council

• Jurisdiction: Ireland
• Judge: Keane, J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 25
• Date: 01 January 2000
• Court: Supreme Court
• Docket Number: [1988 No. 11670P; S.C. No. 303 of 1996]

CARTY v. FINGAL CO COUNCIL

BETWEEN

OWEN CARTY v CARTY CONSTRUCTION COMPANY LIMITED

Plaintiffs/Appellants

AND

FINGAL COUNTY COUNCIL

Defendant/Respondent

[1999] IESC 25

303/96

THE SUPREME COURT

Synopsis

Planning

Planning; planning permission; outline permission; application for outline permission refused because of inadequate water and sewage facilities; on appeal, Minister for Local Government, in whom the appellate functions under the legislation then vested, granted outline permission subject inter alia to condition that applicants make financial contribution towards the council's expenditure on the provision of public water supply and sewage facilities; application for full permission refused; on appeal to An Bord Pleanala permission granted with condition identical to that contained in earlier grant of outline permission by minister; clear that Board felt constrained by Minister's earlier decision to grant permission sought; application to council for building bye law approval refused; further application two years later for bye law approval made and granted by Council; whether Council acted wrongly and in abuse of statutory powers in refusing the original application for building bye law approval; whether letter constituted consent of Corporation to circumstances which removed obstacle to grant of bye law approval; whether decision to refuse bye law approval could be impugned because it prohibited a development which had been the subject of a grant of permission; whether council in dealing with application for bye law approval were acting under a different, distinct statutory code.

Held: Appeal dismissed; grant of permission by Board did not of itself authorise the appellants to proceed with the development; obligation to obtain building bye law approval remained; application had to be determined by council under a distinct statutory scheme.

Carty Construction v. Fingal County Council - Supreme Court: Keane J., Murphy J., Lynch J. - 05/02/99 - [1999] 3 IR 593 - [2000] 1 ILRM 64

While the Local Government (Planning and Development) Act 1963 to 1993 and the Local Government (Sanitary Services) Act 1878 to 1964 were two distinct statutory codes, the obligation on Dublin County Council, the statutory predecessors of the respondent, when an application was made to them in their capacity as sanitary authority for approval of certain works in accordance with the building bye-laws made by them pursuant to the 1878 Act, was to consider the application fairly, reasonably and on its merits. However, if the contention of the appellants was well founded, it would mean that the sanitary authority were precluded from considering whether the capacity of the sewers into which the development of six bungalows was to discharge was overloaded. The appellants had claimed that the council acted wrongfully and in abuse of their statutory powers in refusing their application for building bye-law approval in 1983 after being granted planning permission on appeal by An Bord Pleanala. They claimed that as a result of the council's refusal they had suffered damage. The decision to grant permission did not of itself authorise the appellants to proceed with the development. Their obligation to obtain bye-law approval remained and their application had to be determined by the council in accordance with the circumstances then prevailing. It was so determined by the council. The Supreme Court so held in refusing the relief claimed.

Citations:

PUBLIC HEALTH (IRL) ACT 1878 S23

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(11)

FOXROCK CONSTRUCTION CO LTD, STATE V DUBLIN CO COUNCIL UNREP FINLAY 5.2.1980 1983/6/1663

PINE VALLEY DEVELOPMENTS LTD, STATE V DUBLIN CO COUNCIL 1984 IR 407

BALLYBAY MEATS EXPORTS LTD V MONAGHAN CO COUNCIL 1990 ILRM 864

SHORT V DUBLIN CO COUNCIL 1982 ILRM 117

KEANE V BORD PLEANALA 1998 2 ILRM 241

PUBLIC HEALTH (IRL) ACT 1878 S41

PUBLIC HEALTH (IRL) ACT 1878 S41(5)

PUBLIC HEALTH (IRL) ACT 1878 S42

BUILDING BYE-LAWS REG 109

MOLLOY V GRAY 1889–1890 24 LRI 258

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S25(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1993

LOCAL GOVT (SANITARY SERVICES) ACTS 1878 – 1964

1 5th day of February 1999 by Keane, J. [Nem diss]

The Factual Background

2 The long and complex planning history of the relatively small site at Sandpits, Castleknock which is at the centre of this case began with the grant of outline permission for the erection of two bungalows with septic tank drainage facilities to the appellants' predecessors in title in 1971. The appellants then applied to the respondent's statutory predecessors, Dublin Country Council (hereafter 'the Council') for an outline permission for the erection of six houses on the site and this was refused by the Council on the 12th March 1976. A number of reasons were given for the decision, including a statement that the development would be in conflict with the zoning objects in the development plan. Two of the reasons are of reasons are of particular relevance in the context of the present litigation, viz:-

3 2 "3. No foul sewer drainage facilities are available to serve the proposed development.

4 4. The proposed development would be premature by reason of the said existing deficiency in the provision of public piped sewerage facilities and the period within which such deficiency may reasonably be expected to be made good."

5 The uncontested evidence in the High Court in this case on the question of sewerage disposal was as follows. There was a pipe adjoining the site connecting to a private drain on lands belonging to Lord Moyne, which was subsequently taken in charge by the Council and hence became in law a sewer. That sewer in turn discharged into the Lucan/Chapelizod sewer which was vested in the adjoining sanitary authority, i.e. Dublin Corporation (hereafter "the Corporation"). In 1958, an agreement had been entered into between the Corporation and the Council pursuant to the Public Health (Ireland) Act 1878 (hereafter "the 1878 Act") under which the Corporation agreed to the connection of the sewers laid by the Council in an area described in the agreement as "the drainage area" with the sewers of the Corporation,including the Lucan/Chapelized sewer, on the terms and conditions set out in the agreement. The sewer adjoining the site was not within the drainage area as so defined.

6 The evidence also established that, with the increase in the population of the Lucan area from the 1950s onwards, the sewers in the Chapeizod/Lucan area generally were seriously overloaded, resulting in the pollution by raw sewage of the River Liffey on frequent occasions.

7 It was in these circumstances that the Council decided to refuse the application for outline permission for the reasons quoted. The applicants appealed and, although the factual situation remained the same, the parliamentary secretary to the Minister for Local Government, in whom the appellate functions under the legislation were then vested, granted the outline permission sought, inter alia to a condition that the applicants should make a financial contribution towards the Council's expenditure on the provision of a public water supply and piped sewerage facilities. The amount of the contribution, in default of agreement, was to be as determined by the Minister.

8 Two further applicants for permission on the outline permission (what is usually referred to as a "full permission"), were made, both of which applications were refused. The reasons for the second refusal were similar to those which I have already quoted, save that the first ground referred expressly to the agreement between the Corporation and the Council and the lack of capacity in the Corporation sewer. There was again an appeal and An Bord Pleanala (hereafter "the Board") decided to grant the permission sought on the 4th January 1980. They stated their reasons to be as follows:-

"The principle of the proposed development has already been established by the outline permission granted by the parliamentary secretary to the Minister for Local Government by Order dated 9th February 1977. (Planning Register Reference: No. K59.) No objection is seen to the details of development, the subject of the application which gave rise to the appeal provided the conditions specified in the Second Schedule hereto are complied with."

9 The specified conditions included one requiring the payment of a contribution in indentical terms to that contained in the earlier grant of outline permission.

10 Again, the uncontested evidence was that the sewers in the area were still overloaded when this permission was granted, but it is clear from the reasons given that the Board felt constrained by the earlier decision to grant the permission sought.

11 There were in force at the time building bye-laws made by the Council pursuant to the 1878 Act. An application having been made by the appellants for approval pursuant to the bye-laws of their plans for the development, they were disapproved of by the Council on the 19th October 1983 on two grounds as follows:-

12 2 ldquo;(1) The proposals re foul drainage are not acceptable.

13 (2) Insufficient information has been submitted;

14 NOTE: The applicant is advised to consult with; the Sanitary Services Department (Address given)."

15 Shortly before this Notice of Disapproval was issued, the Council accepted the payment by the appellants to them of a sum of £1,025 as being in compliance with the condition as to the payment of a contribution contained in the Board's order.

16 The appellants took the view that the Council, in refusing to grant building bye-law approval on the grounds which I have quoted, were seeking to frustrate the decision of the Board to grant permission and, accordingly, they instituted proceedings in the High Court claiming inter alia a mandatory...