Portland Estates (Limerick) Ltd v Limerick Corporation

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 27 March 1980
• Neutral Citation: 1980 WJSC-SC 1673
• Court: Supreme Court
• Date: 27 March 1980

1980 WJSC-SC 1673

THE SUPREME COURT

(181/1979)

PORTLAND ESTATES (LIMERICK) LTD. v. LIMERICK CORPORATION

PORTLAND ESTATES (LIMERICK) LTD.

Respondents

and

LIMERICK CORPORATION

Appellants

1 JUDGMENT delivered the 27th day of March1980by O'HIGGINS C.J. [nem. Diss]

2 Section 29 of the Local Government (Planning and Development Act 1963(which I will hereinafter refer to as "the Planning Act") imposes an obligation on a Planning Authority in certain cases to purchase land in respect of which planning permission has been refused on appeal or granted subject to conditions. Where the Section applies the owner is empowered to serve on the Planning Authority a purchase notice requiring that Authority to purchase his interest in the lands in accordance with the Section. The Authority has three months in which either to comply or to refuse to comply with the notice. If it refuses to comply the matter is automatically referred to the Minister who may (a) overrule the refusal and confirm the purchase notice or (b) grant the permission originally applied for or (c) grant permission for analternativedevelopment. Sub-section (3) applies when the Authority serves on the owner a notice indicating its willingness to comply with the purchase notice. It provides as follows:

"Where the Planning Authority upon whom a purchase notice is served under this Section have serve on the owner by whom the purchase notice was served a notice in accordance with paragraph (a) of sub-section (2) of this Section, it shall be the duty of the Authority to acquire the interest of the owner and, for that purpose, the latter notice shall have the like effect as if it were a compulsory purchase order in respect of that interest which, consequent upon a decision made by the Planning Authority pursuant to sub-section (1) of Section 10 of the Local Government (No. 2) Act, 1960, had been duly made and confirmed."

3 In this case the Respondents were the owners of land for which development permission was refused by the Minister on appeal by decision dated 27th August 1975. On the 26th February 1976 the Respondents served a purchase notice on the Appellants pursuant to Section 29 of the Planning Act. On the 21st May 1976 the Appellants served on the Respondents, as owners, a notice pursuant to Section 29 (2) (a) of the Planning Act to the effect thatthey were willing to comply with the purchase notice. The parties, having failed to agree on a price, the Respondents on the 23rd May 1977 applied to the Land Values Reference Committee for the nomination of an arbitrator to determine the price to be paid by the Appellants for such acquisition, pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919. Mr. Owen MacCarthy was by order of the Committee dated the 10th June 1977 duly nominated as arbitrator. Mr. MacCarthy commenced the arbitration on the 26th October 1977 and continued the hearing on the 24th and 25th November and on the 5th and 6th June 1978. At the arbitration it was contended on behalf of the Respondents that the relevant date as of which the land should be valued was the last day of taking evidence at the arbitration, namely, the 6th January 1978. It was contended on behalf of the Appellants that the appropriate date was the date of the notice of compliance with the purchase notice, namely, the 21st May 1976. The arbitrator made a finding of the value of the lands oneach of the dates contended for and sent a special case to the High Court to determine which date was correct.

4 This special case came on for hearing in the High Court before Mr. Justice Butler who decided the date in relation to which the value or price should be determined was the last day of the arbitration hearing. Against that decision this appeal has been brought.

5 In deciding as he did in the High Court Mr. Justice Butler was guided by and followed the decision of the English Court of Appeal in Birmingham Corporation v. West Midland Baptist Trust 1969 3 A.E.R. 172. He did so on the basis that the statutory provision in the Housing Act 1966(Section 84) under which a time is specified in relation to which the value of land is to be assessed did not apply in this case. In my view, he was in error in this respect.

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