Re XJS Investments Ltd

• Jurisdiction: Ireland
• Judge: MCCARTHY J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 1935
• Court: Supreme Court
• Docket Number: [S.C. No. 295 of 1984]
• Date: 01 January 1987

In re XJS INVESTMENTS LTD

IN THE MATTER OF THE ACQUISITION OF LANDS (ASSESSMENT OF COMPENSATION) ACT, 1919

IN THE MATTER OF THE PROPERTY VALUES ARBITRATION AND APPEALS ACT, 1960

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 AND 1983

IN THE MATTER OF THE CLAIM OF X. J. S. INVESTMENTS LTD.

AND

CORPORATION OF DUN LAOGHAIRE

1986 WJSC-SC 1935

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

THE SUPREME COURT

Synopsis:

DOCUMENTS

Construction

Ordinary meaning - Planning - Permission - Refusal - Terms of refusal to be construed in accordance with the ordinary meaning of those terms - (295/84 - Supreme Court - 11/12/86) - [1986] IR 750 - [1987] ILRM 659

|In re X.J.S. Investments Ltd.|

EVIDENCE

Onus of proof

Compensation - Exclusion - Refusal of application for permission to develop land - Applicant prima facie entitled to compensation for reduction in value of his interest - Planning authority contended that compensation not payable - Planning authority bound to establish that ground of refusal was one of the grounds specified by legislature as excluding right to compensation - Local Government (Planning & Development) Act, 1963, s.56 - (295/84 - Supreme Court - 11/12/86) - [1986] IR 750 - [1987] ILRM 659

|In re X.J.S. Investments Ltd.|

PLANNING

Permission

Refusal - Grounds - Compensation - Exclusion - Refusal resulting in reduction in value of applicant's land - Permission for applicant's proposed development refused by planning authority and, on appeal, by Bord Pleanala - Statute provided that appeal should be decided by Bord Pleanala as if application had been made to appeal board in first instance - Grounds of board's refusal stated in the refusal in terms other than those employed by legislature in s.56 of Act of 1963 in specifying list of grounds of refusal which attract exclusion of compensation - Held that appropriate compensation was payable by planning authority to applicant pursuant to s.55 of Act of 1963 - Local Government (Planning & Development) Act, 1963, ss.26, 55, 56 - Local Government (Planning & Development) Act, 1976, s.14 - (295/84 - Supreme Court - 11/12/86) - [1986] IR 750 - [1987] ILRM 659

|In re X.J.S. Investments Ltd.|

Citations:

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

KEANE LAW OF LOCAL GOVERNMENT IN THE REPUBLIC OF IRELAND P198

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56

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

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

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

1 JUDGMENT OF MCCARTHY J. delivered on the 11th December 1986 [NEM. DISS]

2 The claimant ("X.J.S."), by indenture made the 28th May 1981, completed the purchase for the sum of £40,000 24.4 acres of land at Roches Hill, Killiney, Co. Dublin and duly applied to Dun Laoghaire Corporation, the relevant Planning Authority, for permission for a residential development on the lands. This application was refused for the reasons which I shall set out hereafter and X.J.S. appealed to An Bord Pleanala against such refusal. The appeal, which was, in accordance with the provisions of the legislation in the title hereof treated as an application to An Bord Pleanala, was determined by a refusal of permission for the reasons stated in the notice of refusal to which I shall also refer. In accordance with s. 55 of the 1963 Act, X.J.S. clained conpensation from the Planning Authority and measured the compensation in the sum of £2,375,000. The claim was duly referred by the Land Values Reference Conmittee to Mr. John Shackleton, property arbitrator, who, having heard evidence on behalf of the Planning Authority and submissions from both parties, stated a special case for the opinion of the High Court on two questions as set out in the Special Case Stated. Assuming that the amount of the claim, £2,375,000 bears a real relationship to the award that may be made by the arbitrator, it will be seen that X.J.S. may anticipate a profit of over £2,000,000 on an investment of £l40,000 in a period of 5 years. Such profit will be at the expense of the ratepayers of Dun Laoghaire. I allude to this alarming circumstance, not because of any argument based thereon, but so as to direct attention to the question as to whether or not legislation which appears to authorise such a use of public funds is constitutionally proper. On that question, I express no view.

"The site for the proposed development is in an area zoned for Cpen Space in the Development Plan; the proposed development is contrary to the zoning objective for the area and its implementation would be contrary to the proper planning and development of the area.

The site of the proposal is an elevated one with steep contours with high scenic and amenity values and portions of the development would be clearly seen from long distances. Implementation of the proposal would therefore seriously interfere with the visual and recreational amenities of the area."

The Planning History

23rd November 1982	Application for permission[for residential development at Roches Hill between Claremont Road, and Qereim Read, Killiney received by the Planning Aitharity.
19th January 1983	Notification of decision to refuse permission for the following reasons:-

3 I draw attention to the use of the word "objective" in the singular in the first stated reason.

16th February 1983 Notice of appeal against the decision of the Planning Authority sent to An Bord Pleanala.

4 Shortly before this date, on 8th February 1983, An Taisce, a body expressly recognised in the planning legislation, had appealed against the decision on the ground that "the decision is not strong enough and that the conflict of the development with views and prospects in the surrounding area, the traffic hazard which would be generated and the lack of availability of piped services should also have been cited as reasons for refusal."

" AN BORD PLEANALA . LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963TO 1983"

5th July 1983	Oral hearing of the planning appeals.
14th December 1983	Notification of the decision by An Bord Pleanala

5 Borough of Dun Laoghaire Planning Register Reference Number: 12,652/82

6 APPEAL by An Taisce care of Pauline Geoghegan, "Carlton", Torca Road,Dal)cey and others against the decision made on the 19th day of January, 1983, by the Corporation of Dun Laoghaire to refuse permission to X.J.S. Investments Limited care of 40, Lower Fitzwilliam Street, Dublin for...