Re Viscount Securities Ltd

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1978
• Neutral Citation: 1976 WJSC-HC 1390
• Docket Number: 1976/229 S.S.
• Court: High Court
• Date: 01 January 1978

1976 WJSC-HC 1390

THE HIGH COURT

1976/229 S.S.

VISCOUNT SECURITIES LTD, IN RE

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

THE PROPERTY VALUES (ARBITRATION AND APPEALS) ACT 1960

THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963

THE HOUSING ACT 1966

CLAIM OF VISCOUNT SECURITIES LIMITED

Special Case Stated

1 Judgment delivered 21.12.1976 Finlay P.

2 This is a special case stated by Owen McCarthy B.E. B.Sc. C.E.N.G. M.I.E.I. the Property Arbitrator duly nominated to act as Arbitrator between Viscount Securities Limited whom I will hereinafter call the Claimants and Dublin County Council whom I will hereinafter call the Planning Authority to determine the amount of compensation, if any, which should be paid by the Planning Authority to the Claimants pursuant to section 55 of the Local Government (Planning and Development) Act 1963. The facts found on the case stated by the Arbitrator out of which the question for determination by this Court arises may be summarized asfollows.

3 The Claimants applied to the Planning Authority for permission to develop certain lands at Kingston Ballinteer Road, County Dublin the description of the development being the erection of 288 four bedroomed houses. In the planning application formthe Claimants answered query number 11 which was: "if application is in respect of a material change of user state

4 (a) the prevent use when last used and

5 (b) the proposed use"

6 as respectively "agricultural" and"residential".

7 By a decision dated the 16th of March 1973 the Planning Authority refused the application for permission upon the following grounds

8 1. That the site was located in an area which was soned in the development plan to provide for the further development of agriculture and that the development proposed would be in conflict with that objective and would not be in accordance with the proper planning and development of the area.

9 2. The public piped services were not available to serve theproposal.

10 3. That the proposed development would be premature by reason of the existing deficiency in the provision of water supply and sewagefacilities.

11 4. That the portion of the site was seriously affected by the southern cross route motorway.

12 Against that decision of the Planning Authority the Claimants appealed to the Minister and by a decision dated the 15th day of July 1974 the Minister refused planning permissionupon the grounds

13 1. That the site of the proposed development was located in an area in which it is the policy of the Planning Authority as expressed in their development plan to provide for the further development of agriculture and to provide for recreational open space and ancillary structures and that that objective was considered reasonable and the proposed housing development would be in conflict with it.

14 2. That portion of the site was seriously affected by land reservations required for the proposed southern cross routemotorway.

15 The Claimants then applied to the Arbitrator to determine the amount, if any, of compensation which should be paid to them by the Planning Authority pursuant to section 55 of the Local Government Planning and Development Act 1963which I will hereinafter call the Act of 1963 by reason of the said refusal of planning permission.

16 At the hearing before the Arbitrator the application for planning permission, the refusal, the appeal and its refusal were proved and it was established and not challenged by the Planning Authority that the value of the Claimant's fee simple interest in the land the subject matter of the application was reduced as a result of the decision of thePlanningAuthority and of the Minister on appeal. It was further established and agreed before the Arbitrator that at the date of the refusal of permission by the Planning Authority the land the subject matter of the application was used for the purposed of one private residence and for agriculture. Arising out of these facts the net question submitted to the Court for its opinion at the request of the Planning Authority was whether the Arbitrator was precluded from awarding compensation to the Claimants for the reduction in value pursuant to section 55 of the Act of 1963 by virtue of the provisions of sub section 1 (a) of section 56 of that Act.

17 Section 55 of the Act of 1963 provides that if on a claim made to the Planning Authority it is shown that as a result of a decision under Part IV of the 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 is reduced such a person shall subject to the provisions of that part of the Act be entitled to be paid by the Planning Authority by way of compensation the amount of such reduction in value.

18 Section 56 1 (a) of the Act of 1963 provides as follows

19 "Compensation under section 55 of this Act shall not be payable (a) in respect of the refusal of permission for anydevelopment that consists of or includes the making of any material change in the use of any structures or other land."

20 By section 2 of the Act of 1963 use in relation to land does not include the use of the land for the carrying out of any works thereon and works includes any act or operation of construction, excavation, demolition, extension, alteration repair or renewal. By section 3 of the Act of 1963 development in the Act means save where the context otherwise requires the carrying out of any works on, in or under the land or the making of any material change in the use of any structures or other land.

21 From the...