Strategic Capital Investment Fund Plc v Naughton
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 12 May 2017 |
| Neutral Citation | [2017] IEHC 381 |
| Docket Number | [2016 No. 256 MCA] |
| Court | High Court |
| Date | 12 May 2017 |
[2017] IEHC 381
THE HIGH COURT
Faherty J.
[2016 No. 256 MCA]
IN THE MATTER OF SECTION 160 OF THE PLANNING
AND DEVELOPMENT ACT 2000 AS INSERTED BY
SECTION 13 OF THE PLANNING AND DEVELOPMENT
(STRATEGY INFRASTRUCTURE) ACT 2006
Environment, Construction & Planning – S. 160 of the Planning and Development Act 2000 as inserted by s. 13 of the Planning and Development (Strategy Infrastructure) Act 2006 – Unauthorised construction – Exempted development
Facts: The applicants sought an order pursuant to s. 160 of the Planning and Development Act 2000 for directing the respondents to cease all the unauthorised developments of lands at the subject property/hotel. The respondents contended that the car park of the hotel was situated on the lands adjacent to the hotel of the respondents who were the owners, and thus, they were at liberty to construct anything on their lands. The applicants averred that the respondents' agents had constructed an access route between the hotel and the regional road, and the large area of grassland was covered by hardcore material in order to facilitate the construction of that access route for which some works were being carried on the hotel's lands. The applicants claimed that such construction work was in fact a ‘development’ within the ambit of the Act of 2000 and thus, required the planning permission while the respondents claimed that to be the exempted development.
Ms. Justice Faherty directed the respondents to cease all works pertaining to the construction of a vehicular access to the regional road and asked the respondents to restore the hard standing area to its pre-development conditions. The Court held that the unauthorised development was not trivial in nature. The Court found that the entrance constructed to the regional road was not a temporary structure to allow the respondents to construct a fence on the adjacent land. The Court noted that the respondents had created an access onto a public highway, which was not an exempted development, and thus, the respondents had breached the provisions of the 2000 Act.
In the within proceedings, the applicant seeks:
(1) An order pursuant to s. 160 of the Planning and Development Act 2000 (‘the 2000 Act’) requiring the respondents, their servants or agents, or all persons acting in concert with them, to cease all unauthorised development of lands at the Diamond Coast Hotel, Enniscrone, Co. Sligo; and
(2) An order directing the respondents their servants or agents, or all persons acting in concert to them, to restore the lands to their condition prior to the commencement of the unauthorised development.
The applicant is the owner of the Diamond Coast Hotel (‘the hotel’) located in Enniscrone, Co. Sligo. It was previously owned by Mr. Liam Scott, father of the second and third named respondents herein. The applicant purchased the hotel from David Hughes (‘the Receiver’) who was appointed by virtue of Deeds of Appointment dated 7th January, 2009 and 9th April, 2009, by ACC Loan Management Limited (formerly ACC Bank Plc) to be a Receiver of all assets referred to and comprised and charged by the mortgage/charge dated 6th April, 2005, between Liam Scott and the Bank, being the hotel, holidays homes and adjoining lands. The contract for the sale of the Hotel by the Receiver to the applicant was executed on 23rd December, 2015 and the sale was completed on or about 16th March, 2016.
The hotel is adjacent to lands comprised in folio SL9442 (‘the adjacent lands’) which were historically owned by a Mr. James Cawley. The adjacent lands are now owned by the respondents to these proceedings.
It is not in dispute in the present proceedings but that portion of the car park of the hotel is situate on the adjacent lands. It appears that this was not a matter of any great controversy between 2005 and 2012; the evidence suggesting that Mr. Liam Scott had entered into an agreement with Mr. James Cawley in 2005 that portion of the car park would be built on the adjacent lands. However, on 24th January, 2013, solicitors for Mr. Fergal Cawley, son of Mr. James Cawley and the successor in title to the adjacent lands, wrote to the Receiver to the effect that the hotel's encroachment on the adjacent lands would have to be resolved and that ‘there should be a full and proper consideration paid by the hotel’ to Mr. Cawley on foot of a transfer by him of the adjacent lands to the appropriate entity.
Accordingly, upon learning that the car park was partly situate on lands not comprised within the hotel lands, and prior to any sale of the lands, the Receiver sought to purchase the adjacent lands and apparently reached an informal agreement with Mr. Fergal Cawley to purchase the adjacent lands for the sum of €50,000. The applicant claims that Mr. Cawley subsequently refused to complete the transaction and that he sought a sum of €250,000 for the lands, which was not agreed to by the Receiver.
According to the replying affidavit sworn on 6th October, 2016, by the first named respondent, Mr. Michael Naughton, the respondents' ownership of the adjacent lands came about in the following circumstances: Mr. Naughton, who is the General Manager of the McGettigan Hotel Group based in Letterkenny, was originally employed by Mr. Liam Scott, the developer of the hotel, when it was first built in or around the year 2005. On that basis he was familiar with the layout of the hotel, albeit he had no active role in the hotel since the time of its construction. According to Mr. Naughton, he first became aware that the hotel was being offered for sale by the Receiver in or about October, 2015. He was interested in acquiring it. He was also aware of the issues surrounding the title to the hotel grounds, namely that part of the car park was situate on the adjacent lands. Accordingly, he duly approached Mr. Fergal Cawley to ascertain whether he would be interested in purchasing the hotel jointly with Mr. Naughton, on the basis that Mr. Cawley's ownership of the adjacent lands would reduce the price that the Receiver would accept. Mr. Cawley was not interested in purchasing the hotel. He advised Mr. Naughton of the offer that the Receiver had made to him to purchase the adjacent lands. Ultimately, Mr. Naughton reached agreement with Mr. Cawley to acquire the adjacent lands for €120,000.
It is common case that the adjacent lands were purchased in trust by Mr. Naughton's then solicitor Mr. Thomas Kelly. The identity of the beneficial owners of the adjacent lands was not disclosed to the applicant, either for the purpose of the within proceedings (or indeed earlier injunction proceedings) or otherwise, until in or about October, 2016. I do not believe that anything in particular turns on this.
As deposed to by Mr. Naughton on affidavit, he purchased the adjacent lands as a ‘strategic move’ with the aim of securing the purchase of the hotel from the Receiver. While Mr. Naughton believed the purchase of the adjacent lands left him in the ‘driving seat’ as far as the purchase of the hotel was concerned, ultimately his efforts to acquire the hotel from the Receiver were unsuccessful.
Mr. Naughton further confirms that he considered the adjacent lands to be a ‘ransom’ insofar as they impacted on approximately forty six car parking spaces used by the hotel, and Mr. Naughton ‘did not believe that the hotel could be sold and good title obtained without’ ownership of the adjacent lands vesting in the hotel. Mr. Naughton's belief in this regard was not borne out, as the sale to the applicant evidences.
The genesis of the present proceedings is set out in the affidavit sworn on 16th July, 2016, by Mr. Brian Pierson, General Manager of the hotel. He avers that on Wednesday 27th January, 2016, workmen entered the hotel lands, without permission, in order to commence works on the adjacent lands. It is averred that a JCB digger and a van carrying machinery proceeded to paint a ‘boundary line’ across the hotel car park and flower beds while another van crossed into the hotel lands with a delivery of wooden frames and steel fencing. Mr. Pearson avers that the fencing works that were carried out in January – February, 2016 had a significant negative effect on the business of the hotel. It is his belief that the work which was carried out, on behalf of the respondents, was with a view to maximising visual damage and interruption to the orderly access and convenience of the hotel. He avers that two types of fences were erected: the first was a galvanised steel fabrication and the second a timber post structure with timber posts anchored in concrete. Mr. Pierson avers that the fencing gave the impression that the hotel was closed for business. According to Mr. Pierson, this led the speculation at the time among customers and staff that the hotel would be closing in the near future.
On 28th January, 2016, (prior to the completion of the purchase of the hotel by the applicant), the Receiver instituted proceedings by way of plenary summons seeking an injunction compelling Mr. Kelly (the then named purchaser of the adjacent lands) to vacate the hotel lands and to immediately remove the fencing erected on the hotel lands and/or the adjacent lands. In light of the urgency of the matter and the potential threat posed by the works for the trade of the hotel, the Receiver sought an interlocutory injunction before Gilligan J. on 19th February, 2016. Following the partial hearing of the interlocutory application in the Receiver's proceedings, the proceedings were adjourned with a view to allowing the parties to conclude an arrangement without the necessity for further steps in the legal...
To continue reading
Request your trial