Sunderland v Louth County Council

• Jurisdiction: Ireland
• Judge: [NEM DISS],McCarthy J.,
• Judgment Date: 04 April 1990
• Neutral Citation: 1990 WJSC-SC 1303
• Date: 04 April 1990
• Docket Number: (290/291/85)
• Court: Supreme Court

SUNDERLAND v. LOUTH CO COUNCIL

BETWEEN

ROBERT AND MARY SUNDERLAND

PLAINTIFFS/APPELLANTS

AND

THE COUNTY COUNCIL OF THE COUNTY OF LOUTH

DEFENDANTS/RESPONDENTS

MICHAEL McGREAVEY, FERGUS FLYNN-ROGERS

DEFENDANTS/NON-RESPONDENTS

1990 WJSC-SC 1303

(290/291/85)

THE SUPREME COURT

Synopsis:

ACTION

Cause

Existence - Statute - Buildings - Construction - Regulation - Planning Acts - Dwelling built - Dwelling uninhabitable - Retention permission granted by planning authority - Authority not liable for loss incurred by purchaser - (290-91/85 - Supreme Court - 4/4/90) - [1990] ILRM 658

|Sunderland v. McGreavey|

PLANNING

Planning authority

Negligence - Duty of care - House - Construction - Dwelling uninhabitable - Retention permission granted by planning authority - Authority not liable for purchaser's loss - (290- 91/85 - Supreme Court - 4/4/90) - [1990] ILRM 658

|Sunderland v. McGreavey|

NEGLIGENCE

Local authority

Planning authority - Development - Dwelling-house - Erection - Permission granted - House erected on wrong site - Retention permission granted - House uninhabitable - Planning authority not liable for loss incurred by purchaser of house - Local Government (Planning and Development) Act, 1963, ss. 26, 28 - (290-91/85 - Supreme Court - 4/4/90) - [1990] ILRM 658

|Sunderland v. McGreavey|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

DORSET YACHT CO LTD V HOME OFFICE 1970 AC 1004

TOWN & REGIONAL PLANNING ACT 1934

TOWN & REGIONAL PLANNING ACT 1939

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

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

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

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(11)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(1)

SINEY V DUBLIN CORPORATION 1980 IR 400

PUBLIC HEALTH ACT 1937 (UK)

LONDON GOVT ACT 1963 (UK)

DUTTON V BOGNOR REGIS UDC 1972 1 QB 374

ANNS V MERTON LONDON BOROUGH 1978 AC 728

PEABODY TRUST V SIR LINDSAY PARKINSON LTD 1985 AC 210

INVESTORS IN INDUSTRY LTD V SOUTH BEDFORDSHIRE DC 1986 1 AER 787

WEIR V DUN LAOGHAIRE CORPORATION 1983 IR 242

PINE VALLEY DEVELOPMENTS LTD, STATE V DUBLIN CO COUNCIL 1982 ILRM 169

READY MIX LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.07.74

REID V RUSH & TOMPKINS 1989 3 AER 228

RICHARDSON V WEST LINDSEY DC 1990 1 AER 296

CARPARO INDUSTRIES PLC V DICKMAN & ORS 1989 1 AER 798

FARRELL V NORTHERN IRELAND ELECTRIC 1977 NI 39

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28

HOUSING ACT 1966

1 Judgement of McCarthy J., delivered the 4th day of April, 1990 [NEM DISS]

The Relevant Facts

2 On 11th November 1976, the County Council, pursuant to the Local Government (Planning and Development) Act, 1963(the Planning Act) granted to Michael McGreavey permission for the erection of a dwelling house at Mooretown, Dromiskin, Co. Louth, subject to conditions which are not relevant. Mr. McGreavey, who is an Electrician employed by the E.S.B., and had no previous building experience, built a house with the aid of direct labour. He carried out no check on the suitability of the site and, when the house was built, he decided to sell it. He then discovered that the planning permission did not apply to the site on which he had built the house and, pursuant to Section 28 of the Planning Act, obtained a permission for retention of the dwelling house on the 24th July 1978. Mr. and Mrs. Sunderland, the plaintiffs, saw the house and had received a report on its condition from Fergus Flynn-Rogers, an Architect. This was following on an inspection not a survey. The County Council confirmed to the Plaintiffs" Solicitors

"That in general the conditions of the planning permission granted have been complied with."

3 (Letter of 9th April 1979)

4 The Plaintiffs bought the house for £27,000; they also bought disaster. In late December 1979, following rain, the garden became flooded; the flooding continued until April 1980; sewage from the septic tank manhole began to escape into the garden and to float around the house; the lavatory bowl in the bathroom rose and at times the lavatory could not be used; water from the washing machine in the kitchen would not empty through the waste pipe except over a long period; the washing machine could not be used; the back garden could not be cultivated; there was a constant smell of dampness in the rooms. Pumping the water was useless; the fire brigade could do nothing. Flooding recurred in later years though to a lesser extent. Because of the refusal of an adjoining landowner to co-operate, the situation effectively cannot be remedied. The house is uninhabitable. The Plaintiffs sued the builder and obtained a decree for £27,000; the builder is no mark. They sued the Architect; the Trial Judge held that Mr. Flynn-Rogers had done what he was engaged to do; that he had no responsibility to examine ordnance survey maps or the documents of the planning application or the planning permission; he was held not to be negligent and the action against him was dismissed.

5 The Plaintiffs sued the County Council as the Planning (and Housing, Sanitary and Health) Authority for the administrative area in which the dwelling house is situated; the claim was dismissed and the Plaintiffs appealed.

The Grounds of Appeal

6 The Plaintiffs submit that

7 (a) It is just and reasonable that a duty to the occupier should attach to the County Council - see Ward -v- McMaster (1)

8 (b) A sufficient relationship exists between the Plaintiffs and the County Council to create such a duty - see Dorset Yacht Co. Ltd -v- Home Office. (2)

9 (c) Damage can be foreseen to result from a want of care by the County Council and there is no compelling exemption based on public policy.

10 By way of elaboration the Plaintiffs argued that the grant of planning permission implies that the development will

11 (a) Comply with the County Development Plan, or, at least, not be at variance with it.

12 (b) Not be in fundamental terms insanitary.

13 (c) Not in fundamental terms amount to a public nuisance.

14 (d) Not be an environmental hazard.

15 (e) Not be de facto a health hazard.

16 (f) Follow after a view of the premises for securing the foregoing

17 The essential proposition is that a planning authority giving planning permission encompasses a duty of care to any person who may be affected and, in particular, a duty of

care to an occupier. The authority, it is said, should have refused planning permission on the grounds that there was no effective drainage

18 The County Council denies that there is any such duty to a prospective occupier. The Council argues that:-

19 (a) The initial duty is on the developer.

20 (b) The grant of planning permission doesn't necessarily mean compliance by the developer; it only means that the Council has considered the application and its own plan; the grant of permission is not a green light to proceed.

21 The Council further argues that, since inspection by the Plaintiffs" Architect, did not reveal the defect, there could be no fault on the part of the planning authority in a like failure. Further, by analogy with Ward -v- McMaster, the Plaintiffs did not rely upon the planning permission.

The Planning Act

22 It is a principle of statutory interpretation to look to the objects and purpose of a statute. The Planning Act is:-

"An Act to make provision, in the interests of the common good, for the proper planning and development of cities, towns and other areas, whether urban or rural (including the preservation and improvement of the amenities thereof), to make certain provisions with respect to acquisition of land, to repeal the Town and Regional Planning Acts, 1934and 1939, and certain other enactments and to make provision for other matters connected with the matters aforesaid."

23 Further relevant provisions of the Planning Act appear to be as follows:-

24 Section 26 "(1) Where -

25 (a) Application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and

26 (b) Any requirements relating to the application of or made under such regulations are complied with, the authority may decide to grant the permission or approval subject to or without conditions or to refuse it; and in dealing with any such...