Pine Valley Developments v Minister for the Environment

• Jurisdiction: Ireland
• Judgment Date: 01 January 1987
• Date: 01 January 1987
• Docket Number: [1983 No. 1715P]
• Court: Supreme Court

High Court

Supreme Court

[1983 No. 1715P]

Pine Valley Developments v. Minister for the Environment

Pine Valley Developments Limited, Healy Holdings Limited and Daniel Healy

Plaintiffs

and

The Minister for the Environment, Ireland and The Attorney General

Defendants

Cases mentioned in this report:—

The State (Pine Valley) v. Dublin County Council [1984] I.R. 407; [1982] I.L.R.M. 169.

O'Neill v. Clare County Council [1983] I.L.R.M. 141.

The State (Abenglen Properties) v. Dublin Corporation [1984] I.R. 381; [1982] I.L.R.M. 590.

Dunlop v. Woollahra Municipal Council [1982] A.C. 158; [1981] 2 W.L.R. 693; [1981] 1 All E.R. 1202.

Mogul Steamship Co. Ltd. v. McGregor Gow & Co. [1892] A.C. 25.

Abbott v. Sullivan [1952] 1 K.B. 189; [1952] 1 All E.R. 226; [1952] 1 T.L.R. 133.

McC. v. Mullan [1985] A.C. 528; [1984] 3 W.L.R. 1227; (1985) 81 Cr. App. R. 54; [1984] 3 All E.R. 908.

Houlden v. Smith (1850) 117 E.R. 323.

Roche v. Peilow [1985] I.R. 246; [1986] I.L.R.M. 177.

Sirros v. Moore [1975] Q.B. 118; [1974] 3 W.L.R. 459; [1974] 3 All E.R. 776.

Fellowes v. Rother District Council [1983] 1 All E.R. 513.

McGillivray v. Kimber (1915) 26 D.L.R. 164.

Marshalsea Case Cokes Reps. Parts 9 and 10 Vol. 5, 369.

Anns v. London Borough of Merton [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492.

Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689.

Readymix (Eire) Ltd. v. Dublin County Council (Unreported, Supreme Court, 30th July, 1974).

Home Office v. Dorset Yacht Co. Ltd. [1970] A.C. 1004; [1970] 2 W.L.R. 1140; [1970] 1 Lloyds Rep. 453; [1970] 2 All E.R. 294.

Buckley and Others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67.

Everett v. Griffiths [1921] 1 A.C. 631; [1920] 3 K.B. 163.

Bourgoin S. A. v. Minister for Agriculture [1985] 3 W.L.R. 1027; [1985] 3 All E.R. 585.

R. v. Secretary of State for the Environment (Ex Parte Hackney London Borough Council) [1984] 1 W.L.R. 592; [1984] 1 All E.R. 956.

Siney v. Dublin Corporation [1980] I.R. 400.

Murphy v. Dublin Corporation [1976] I.R. 143.

Lonhro Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] A.C. 173; [1981] 3 W.L.R. 33; [1981] 2 All E.R. 456.

Johnston v. Meldon (1891) 30 L.R. Ir. 15.

Beaudesert Shire Council v. Smith (1966) 120 C.L.R. 145.

Moynihan v. Greensmyth [1977] I.R. 55.

Planning - Grant of outline planning permission by minister - Permission subsequently held invalid - Diminution in value of land - Whether action maintainable by the plaintiffs to recover damages for negligence, negligent misrepresentation, breach of statutory duty and for infringement of plaintiff's constitutional rights - Conveyancing and Law of Property Act, 1881 (44 & 45 Vict., c. 41), s. 7 - Local Government (Planning and Development) Act, 1963 (No. 28), s. 26 - Local Government (Planning and Development) Act, 1982 (No. 21), s. 6 - Constitution of Ireland, 1937, Article 40.

Plenary Summons.

In The State (Pine Valley) v. Dublin County Council [1984] I.R. 407 the outline planning permission which had been granted by the first defendant to the plaintiffs' predecessors in title, was held to be invalid. This caused a diminution in the value of the plaintiffs' land. On the 10th March, 1983, the plaintiffs issued a plenary summons claiming damages against the first defendant for breach of statutory duty, negligence and negligent misrepresentation. The plaintiffs claimed damages against the second and third defendants for failure to vindicate their property rights pursuant to the provisions of Article 40 of the Constitution of Ireland. An order was made, with the consent of the parties, by the High Court (O'Hanlon J.) that the question whether any action for damages was maintainable in the circumstances should be tried as a preliminary issue before a judge without a jury. The agreed points of law which were to be determined are set out in the judgment of Finlay C.J. The preliminary issue was heard by the High Court (McMahon J.) on the 29th and 30th January, 1985.

Article 40, s. 3 of the Constitution provides:—

"

• 1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

• 2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

Section 26, sub-s. 3 of the Local Government (Planning and Development) Act, 1963, provides:—

"(a) A Planning authority shall not, in a case in which the development concerned would contravene materially the development plan or any special amenity area Order relating to the area decide to grant a permission under this section save with the consent of the Minister.

(b) Where an application made to the Minister for a consent under this sub-section, any person may furnish to the Minister in writing objections to the grant of the consent, and the Minister shall, before granting the consent, consider any such objections which he received within twenty-one days after the receipt of the application."

Section 6 of the Local Government (Planning and Development) Act, 1982, provides:—

"(1). A permission or approval granted on appeal under Part IV of the principal Act prior to the 15th day of March, 1977, shall not be, and shall not be regarded as ever having been, invalid by reason only of the fact that the development concerned contravened, or would contravene, materially the development plan relating to the area of the Planning authority to whose decision the appeal related.

(2). If, because of any or all of its provisions, sub-section (1) of this Section would, but for this section, conflict with a constitutional right of any person, the provisions of that sub-section shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect."

The plaintiffs appealed to the Supreme Court against the judgment and order of the High Court. The appeal was heard on 22nd January, 1986.

In 1977 the first defendant granted outline planning permission to P.T. for the development of certain lands situate in Clondalkin, County Dublin, for industrial buildings. The plaintiffs purchased the land from P.T. together with the benefit of the outline planning permission. In 1980, the County Council refused to grant approval for the development in the terms of the outline planning permission. The plaintiff sought an order of mandamus in the High Court. An absolute order was granted in the High Court but on appeal to the Supreme Court it was discharged on the ground that the grant of outline planning permission was ultra vires and was a nullity. The plaintiffs then brought an action claiming damages against the first defendant for breach of statutory duty, negligence and negligent misrepresentation. They further claimed damages against the second defendant for failure to vindicate their property rights and for failure in its laws to respect and as far as practicable to defend and vindicate their property rights. It was agreed between the parties that it should be determined as a preliminary issue whether any action for damages was maintainable in the circumstances.

At the trial of the preliminary issue it was held by the High Court (McMahon J.) in dismissing the plaintiffs' claim, 1, that the first defendant in reaching his decision to grant outline planning permission had acted bona fide on the advice of his legal advisers and accordingly he was not guilty of negligence or negligent misrepresentation.

2. That the plaintiffs were not entitled to damages for breach of statutory duty by the first defendant because although the decision was invalid it was not unlawful.

3. That the plaintiffs' claim under Article 40, s. 3 of the Constitution could not be sustained because they had not established that any injustice had been done to their property rights, as the Minister's decision did not contain any implied representation as to its validity.

On appeal by the plaintiffs it was

Held by the Supreme Court, (Finlay C.J., Henchy, Griffin, Hederman and Lardner JJ.) in dismissing the appeal, 1, that in reaching his decision to grant outline planning permission the first defendant had acted bona fide in pursuance of the advice which he had been given by the department's senior legal adviser, therefore he was not guilty of negligence or negligent misrepresentation.

2. That where a minister is exercising a public statutory duty he will not be liable in damages for an ultra vires action unless the exercise of the power involves the commission of a tort, or is actuated by malice, or unless the authority knew that it did not possess the power which it purported to exercise. In this case the first defendant believed that he possessed the power which he purported to exercise, thus his decision to grant outline planning permission, although an ultra vires act, was not actionable.

3. That the grant of outline planning permission by the first defendant was not intended as a limitation of the owner's property rights but rather as an enlargement and enhancement of these rights. The purchase of the lands by the plaintiffs for development purposes must be seen as the taking by them of a speculative risk, and the subsequent invalidity of the first defendant's decision, although probably contributing towards a diminution in value of those lands, could not be seen as an unjust attack on the plaintiffs' property rights.

4. That the fact that the plaintiffs were not entitled to compensation for the diminution in value of the land was not an unjust attack on the plaintiffs' property rights as it could be seen as a requirement of the common good that immunity from claims for compensation be granted to people who exercise statutory powers of decision where they acted bona fide and without negligence.

Per Henchy J. — That Article 40, s. 3, sub-s. 1 was not...