Re Grange Developments Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 02 December 1988
• Neutral Citation: 1987 WJSC-HC 1698
• Court: High Court
• Docket Number: No.44S.S/1987,1988/639 S.S
• Date: 02 December 1988

1987 WJSC-HC 1698

THE HIGH COURT

No.44S.S/1987

GRANGE DEVELOPMENTS LTD v. DUBLIN CO COUNCIL

IN THE MATTER OF THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

AND

IN THE MATTER OF THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT 1960

AND

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963– 1982

AND

IN THE MATTER OF GRANGE DEVELOPMENTS LIMITED AND THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 49

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 50

FRESCATI ESTATES LTD V WALKER 1975 IR 177

MCCABE V HARDING INVESTMENTS LTD 1984 ILRM 105

MCINERNEY & CO LTD, STATE V DUBLIN CO COUNCIL 1985 IR 1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57

TEMPANY V HYNES 1976 IR 101

VESEY V ELWOOD 1842 DR & WR 74

WYLIE CONVEYANCING P521

BYRNE V DUBLIN CO COUNCIL 1983 ILRM 213

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S19(7)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S57(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(e)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)(h)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(1)(c)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56(3)

GRANGE DEVELOPMENTS LTD V DUBLIN CO COUNCIL 1987 ILRM 245, 1986 IR 246

Synopsis:

PLANNING

Permission

Refusal - Compensation - Reduction - Exclusion - Nature of applicant's interest in the land - Distinction between interest as applicant for planning permission and as applicant for compensation - Having failed in the High Court (28/2/84), the applicants succeeded in the Supreme Court (13/5/86) in their claim that an undertaking dated 19/1/83 did not preclude them from receiving compensation for reductions in the values of the applicants" interests in seven parcels of land - The reductions in value were due to the rejection by the Planning Board on 8/6/81 (the relevant date) of the applicants" appeal from a refusal of the respondent planning authority to grant the applicants" application for planning permission for a proposed development of 500 houses on the seven parcels - On the resumption of the hearing before the property arbitrator after the decision of the Supreme Court, the applicants conceded that they did not have a sufficient estate in the seventh parcel on the relevant date to ground their application for compensation in relation to that parcel; and the respondents produced an undertaking to grant permission for a residential development - On the relevant date portions of the remaining six parcels were the subject of three planning permissions which expired on 31/10/83 - On the relevant date the applicants were the registered owners of four of those parcels - At the resumed hearing, the arbitrator stated a Case for the determination by the High Court of further questions of law - Held that the fact that a claimant for compensation pursuant to s.55 of the Act of 1963 did not have on the relevant date a compensatable interest in part of the lands described in his claim does not affect his claim to compensation for the reduction of the value of his interest in the balance of those lands - Held that the applicants had a compensatable interest on the relevant date in the fifth parcel since they had paid to the registered owner thereof before that date three eighths of the purchase price of that parcel pursuant to a contract of sale of that parcel dated 23/5/79 - Held that the applicants had a compensatable interest on the relevant date in the sixth parcel since the registered owners thereof on 19/1/83 executed a declaration that they had held the sixth parcel in trust for the applicants since 11/4/80 - Held that the second undertaking to grant planning permission was invalid since its implementation would contravene the 1983 Development Plan and since para. 3.1.10 of that plan, which purported to authorise such contravention, was not a lawful provision - Held that two of the planning permissions given before the relevant date related to development works for an industrial estate and, therefore, were not permissions to which ss.1 and 4 of s.57 of the Act of 1963 applied so as to preclude the payment of compensation - Held that the respondents had not established that all of the conditions attached to the third of the said permissions were within the category of conditions specified in s.57(3) of the Act of 1963 and that, therefore, the existence of the third permission on the relevant date did not preclude the arbitrator from assessing compensation pursuant to s.55 of the Act - Local Government (Planning & Development) Act, 1963, ss.55, 57 - (1987/44 SS - Murphy J. - 22/5/87) [1989] IR 296 - [1987] ILRM 733

|Grange Development v. Dublin County Council|

1 Judgment of Mr. Justice Murphy delivered the 22nd day of May 1987.

2 The full facts concerning this troublesome and protracted matter are set out with admirable clarity in the Case Stated by Sean M. McDermott, the property arbitrator, and dated the 2nd December 1986. Accordingly, it is only necessary for me to set out so much of the relevant facts as are necessary to explain the arguments addressed to the Court and my decision thereon.

3 On the 22nd of February 1980 Grange Developments Limited (The Claimants) applied to the County Council of County of Dublin (the Planning Authority) for planning permission for a proposed development of 500 houses on lands having an area of approximately 73.5 acres at Mountgorry and Drinan, Malahide Road, Co. Dublin. In the planning application form the Claimants at paragraph 3 thereof and in response to the standard requirement imposed thereby to "state applicant's interest in site (i.e. freehold, leasehold etc.)" set out the word "owner".

4 In fact the 73.5 acres the subject matter of the application comprised some seven different plots of land every one of which was registered under an appropriate folio number in the Register County Dublin. Four of these plots were registered in the name of the Claimants and the interest (or want of interest) of the Claimants in the remaining three plots was established by the arbitrator (at paragraph 17 of the Case Stated) in the following terms:-

"The position in relation to the three other titles were as follows:-"

(i) Folio 198 F County Dublin. Registered owner P.M.P.A. Insurance Company Limited. There is an agreement for sale dated the 23rd May 1979 P.M.P.A. Insurance Company Limited to the Claimant and 3/8 of the purchase price had been paid by the Claimant on the relevant date. This sale had not been completed by the 1st August 1986 but I am informed by the Claimant that it has been completed since that date and prior to the date of signing this Case Stated.

(ii) Folio 28501 F County Dublin Registered owner: Swords Developments Limited. Swords Developments Limited which was first registered as owner of the lands on the 4th day of February 1974 made a declaration of trust dated the 19th January 1983 in favour of the Claimants. I heard oral evidence that Swords Developments Limited in a wholly owned subsiduary of the Claimants, that the purchase money, together with costs and expenses, for the purchase of this land, was provided by the Claimants, that the land appears as an asset in the Claimant's Balance Sheet, and that Swords Developments Limited does not have a Bank account nor has it traded. I find accordingly.

(iii) Folio 7496 County Dublin. Registered owner: Crampton Housing Limited. The Claimant states that it does not have and did not on the relevant date have a sufficient interest in this land to sustain a claim in respect of it. However, I am satisfied that the Claimant had an adequate interest in this land to make the planning application upon which the claim for compensation is based".

5 By Order dated the 17th of April 1980 the Planning Authority decided to refuse permission for the proposed development. An Appeal from that refusal was rejected by An Bord Pleanala by Order dated the 8th of June 1981 (and that date was in the Case Stated and is hereinafter referred to as "the relevant date"). Two of the reasons for refusing the permission were stated in the Order of An Bord Pleanala in the following terms:-

"The site is located in an area for which the zoning objectives, as expressed in the development plan, are to provide partly for light industrial development and partly for the further development of agriculture. These objectives are considered reasonable and attainable, and the proposed development would be in conflict with them.

The proposed development will extend significantly into the area of open countryside separation Swords from Malahide and will therefore be at variance with the Council's policy, as stated in the development plan, to preserve the character and individuality of Swords and Malahide by maintaining an area of open countryside between them. This policy is considered reasonable".

6 By letter dated the 10th of July 1981 the Claimants applied to the Planning Authority for compensation in the sum of £5.888 million pursuant to section 55 of the Act of 1963 this being the alleged reduction in the value of the Claimants" interest in the lands the subject matter of the Appeal by reason of the decision by An Bord Pleanala already referred to. The property arbitrator was duly appointed and he sat on the 20th of January 1983 to determine the claim. The matter was adjourned to the 7th of March 1983. On that date the Claimants sought to amend their claim by excluding from it the reduction in value attributable to...