Owenabue Ltd v Dublin County Council

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 1332
• Date: 01 January 1982
• Court: High Court

1982 WJSC-HC 1332

OWENABUE LTD. V.DUBLIN CO.CO.

IN THE MATTER OF THE ACQUISITION OF LAND ASSESSMENT

OF COMPENSATION ACT, 1919

AND IN THE MATTER OF THE PROPERTY VALUES ARBITRATION

AND APPEALS ACT, 1960

AND IN THE MATTER OF THE LOCAL GOVERNMENT PLANNING

AND DEVELOPMENT ACTS, 1963 and 1976

BETWEEN:

OWENABUE LIMITED

Claimant

and

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Respondent

1 Judgment delivered on the 18th day of December 1981 by Finlay P.

2 This is a special case stated for the opinion of the High Court by Sean McDermott, one of the Property Arbitrators, nominated by the Land Values Reference Committee to act as Arbitrator between the Claimant and the Respondent herein. It concerns the interpretation of Section 55 of the Local Government Planning and Development Act, 1963.

3 The facts out of which it arises as stated in the case before me are as follows. The Claimants are owners in fee simple of an area of land of over 18 acres situate near Kingswood Heights, Belgard Road in the County of Dublin On or about the 13th of March 1980 they applied to the Respondents for outline planning permission for the erection of three houses on that location indicating on a map accompanying the application the position of the houses which were situated on the borders of the property. This application was refused by the Planning Authority on a number of grounds which in the event have become irrelevant to the matters in issue before me. The decision of the Planning Authority was appealed by the Claimants and by decision dated 10th September 1980 An Bord Pleanála refused outline permission for the erection of the three houses on one single ground, namely, "the land is expected to be required by the Planning Authority for or in connection with the construction of section of a major new road which is regarded as an essential element in the road network required to serve the new town of Tallaght".

4 By reason of that refusal on those grounds, it is agreed that the Claimants became entitled to compensation from the Respondents pursuant to the provisions of Section 55 of the Local Government Planning and Development Act, 1963. Mr. McDermott having been appointed as the Arbitrator to assess that compensation, and issue as to the interpretation of the Section arose before him as a preliminary matter and was stated by him for the opinion of the court in a manner which neatly summarises what apparently were the contentions made on behalf of the Claimant and Respondent before him and indeed before me as well. The question raised by the Arbitrator is as follows:

5 1. Is the contention of the Claimant that I may consider evidence of the probabilities of obtaining permission for schemes of development not limited to three houses correct?

6 2. Is the contention of the Respondent that I may only consider evidence relating to the proposed development of three houses correct?

7 The material provisions of Section 55 of the Act of 1963 are as follows: "(i) If on a claim made to the Planning Authority it is shown that as a result of a decision under Part 4 of this Act involving a refusal of permission to develop land ..... the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, such person shall subject to the provisions of this part of this Act be entitled to be paid by the Planning Authority by way of compensation the amount of such reduction in value..…".

8 Sub-paragraph 2 provides

"In determining reduction of value for the purposes of this Section regard shall be had"

(a) to any permission under this Act to develop the land existing at the time of the decision,

(b) to any undertaking that may be given to grant permission to develop the land in the event of application being made under this Act in that behalf and

(c) to the fact that exempted development may be carried out on the land ……".

9 Sub-paragraph 3 provides as follows:

"In determining...