State (F.P.H. Properties S.A.) v an Bord Pleanála

• Jurisdiction: Ireland
• Judgment Date: 17 December 1987
• Date: 17 December 1987
• Docket Number: [1985 No. 448 SS]
• Court: Supreme Court

State (F.P.H. Properties S.A) v. An Bord Pleanála

The State (at the Prosecution of F.P.H. Properties S.A.)

and

An Bord Pleanála

[1985 No. 448 SS]

High Court

Supreme Court

Local government - Planning - Development - Application for planning permission - House of architectural and historic interest owned by applicant adjacent to area of proposed development - An Bord Pleanála granting permission subject to condition that house be retained and restored - Whether condition ultra vires - Whether power to impose condition requiring restoration of structure outside area of development - Whether condition unreasonable or void for uncertainty - Whether condition severable from rest of permission - Local Government (Planning and Development) Act, 1963, (No. 28), s. 26.

Section 26, sub-s. 1 of the Act of 1963 provides that a planning authority may grant planning permission or approval subject to, or without, conditions. Sub-section 2 of that section provides that conditions under sub-s. 1 may, without prejudice to the generality of that sub-section, include (at para. (a)) conditions for regulating the development or use of any land adjacent to the land to be developed and which is under the control of the applicant, so far as appears to the planning authority to be expedient for the purposes of or in connection with the development authorised by the permission and (at para. (b)) conditions for requiring the carrying out of works (including the provision of car parks) which the planning authority consider are required for the purposes of the development authorised by the permission.

The prosecutor applied for planning permission to develop certain lands. The planning authority granted permission subject, inter alia, to the condition that the prosecutor take certain steps in relation to the preservation of a house of historic, artistic and architectural interest adjacent to the lands and under the control of the prosecutor. On appeal, the respondents substituted a condition that the entire house "or alternatively the early eighteenth century core of the house . . ." was to be retained and restored and that the internal elements of the house were to be preserved, conserved or replaced in facsimile as their condition warranted and further that no other internal or external structural alterations were be carried out without planning permission, and that the house was to remain in residential use.

The prosecutor obtained a conditional order of certiorari in relation to the above condition on the grounds that it was ultra vires the powers of the respondents; that it was ambiguous and uncertain; that it did not relate to the sought or permitted development and that it was unreasonable. On the prosecutor's motion to make the conditional order absolute it was argued on its behalf that s. 26, sub-s. 2 (a) did not entitle the respondents to require the prosecutor to do anything positive such as carrying out development works and that there was no power in the respondents to impose a financial burden relating to lands not within the area for development.

Held by Lynch J., in allowing the cause shown and discharging the conditional order, 1, that the effect of sub-ss. 1 and 2 (a) of s. 26 when read together was to give power to the planning authorities to impose a condition of the type here, provided that it was expedient for the purposes of or in connection with the development authorised. The narrow construction of s. 26 contended for by the prosecutor would entitle developers to evade works which would obviously be required for the purposes of a development, i.e., the clearing away of eyesores and the proper landscaping of grounds surrounding the actual site of the development, by excluding such grounds and eyesores from the area of development.

Dun Laoghaire Corporation v. Frescati Estates Ltd. [1982] I.L.R.M. 469 considered.

2. That the respondents could reasonably have taken the view that the preservation of the house was expedient for the purposes of and in connection with the development authorised in that it would improve the visual attractiveness of the whole area and preserve for low density residential purposes the house itself and its site. By reason of this the prosecutor's contention that the condition did not relate to the sought or permitted development also failed.

3. That the option in the condition did not render the condition void for uncertainty or ambiguity since the option was in ease of the prosecutor enabling it to fulfill its obligations under the condition by retaining and restoring the house in one or other of the ways indicated.

4. That the condition was not unreasonable because the sum required for restoration work could be covered by the addition of approximately £3,000 to the price of each of the buildings in the development and the prosecutor at the end of the restoration work would have in addition a valuable house which could provide apartment accommodation and which would also add to the visual attractiveness of the whole development.

On appeal by the prosecutor it was

Held by the Supreme Court (Finlay C.J., Walsh and McCarthy JJ.) in allowing the appeal, 1, that since the requirement for planning permission constitutes an encroachment on property rights the statutory provisions in question were to be strictly construed. The impugned condition could not be regarded as one for "regulating the development or use" of the house and neither could its imposition be regarded as "expedient for the purposes of or in connection with the development authorised by the permission."

2. That the provision in s. 26, sub-s. 2 (b) for conditions requiring the "carrying out of works" meant, having regard to the statutory context, works on the lands the subject of the application for permission.

3. That neither could the general opening words of sub-s. 2 be relied upon as conferring a power to impose a condition of the type here; such a power would require expression in the clearest statutory terms.

4. That as it could not be shown that the respondents, had they been advised that the impugned condition was invalid, would have granted the remainder of the permission without it, the invalid condition was not severable from the rest of the permission.

Per McCarthy J. Without seeking to delimit the type of conditions envisaged by s. 26, sub-s. 2 (a) the power under that provision would be appropriate for example to conditions which sterilise adjoining land as an integral part of the amenity of a particular development.

Cases mentioned in this report:—

Jack Barrett (Builders) Ltd. v. Dublin County Council (Unreported, Supreme Court, 28th July, 1983).

Pyx Granite Company Ltd. v. Ministry of Housing and Local Government[1958] 1 Q.B. 554; [1958] 2 W.L.R. 371; [1958] 1 All E.R. 625 (C.A.); [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1 (H.L.).

Dun Laoghaire Corporation v. Frescati Estates Ltd. [1982] I.L.R.M. 469 (H.C.); (Supreme Court, Ex tempore, 21st December, 1982).

Frescati Estates Limited v. Walker [1975] I.R. 177.

In re Viscount Securities Ltd. (1976) 112 I.L.T.R. 17.

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

In re X.J.S. Investments Ltd. [1986] I.R. 750; [1987] I.L.R.M. 659.

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590 (S.C.); [1981] I.L.R.M. 54 (H.C.).

Bradford City Metropolitan Council v. Secretary of State for the Environment(1977) 35 P. & C.R. 387; [1978] J.P.L. 177.

Brighton Borough Council v. Secretary of State for the Environment(1978) 39 P. & C.R. 46; (1978) 249 E.G. 747; [1979] J.P.L. 173.

Grampian Regional Council v. City of Aberdeen District Council (1983) 47 P. & C.R. 633.

Niarchos (London) Ltd. v. Secretary of State for the Environment(1977) 35 P. & C.R. 259; (1977) 76 L.G.R. 480; [1977] J.P.L. 247.

Bord na Móna v. An Bord Pleanála [1985] I.R. 205.

Kingsway Investments (Kent) Ltd. v. Kent County Council [1971] A.C. 72; [1970] 2 W.L.R. 397; [1970] 1 All E.R. 70.

Potato Marketing Board v. Merricks [1958] 2 Q.B. 316; [1958] 3 W.L.R. 135; [1958] 2 All E.R. 538.

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

Newbury District Council v. Secretary of State for the Environment[1981] A.C. 578; [1980] 2 W.L.R. 379; [1980] 1 All E.R. 731.

Peak Park Joint Planning Board v. Secretary of State for the Environment(1979) 39 P. & C.R. 361; [1980] J.P.L. 114.

O'Brien v. Bord na Mona [1983] I.R. 255; [1983] I.L.R.M. 314.

The State (Tern Houses) v. An Bord Pleanála [1985] I.R. 725.

The State (Genport Ltd.) v. An Bord Pleanála [1983] I.L.R.M. 12.

The State (Boyd) v. An Bord Pleanála (Unreported, High Court, Murphy J., 18th...