The State (Mcinerney Company Ltd) v Dublin County Council

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1985
• Neutral Citation: 1985 WJSC-HC 522
• Court: High Court
• Docket Number: [1984 No. 403 SS],No. 403 s.s./1984
• Date: 01 January 1985

McINERNEY LTD v. DUBLIN CO COUNCILS

BETWEEN

THE STATE AT THE PROSECUTION OF THOMAS MCINERNEY AND COMPANYLIMITED

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

RESPONDENT

1985 WJSC-HC 522

No. 403 s.s./1984

THE HIGH COURT

Synopsis:

LOCAL GOVERNMENT

Planning

Permission - Refusal - Purchase notice - Notice to be served by owner - Date of service - Failure of planning authority to serve on owner notice of purchase decision within three months of date of service of purchase decision - Owner obliged to serve second purchase notice - Mandamus - Exhustion of alternative remedies - Failure of enactment to provide for obvious contingency - Mandamus refused - (1984 No. 403 SS - Carroll J. - 12/12/84).

The State (McInerney Ltd.) v. Dublin C.C.

NOTICE

Service

Date - Postal delivery - Statute authorising service of notice - Notice served on date of delivery - Delay between delivery and receipt by department of recipient addressee - (1984 No. 403 SS - Carroll J. - 12/12/84).

The State (McInerney Ltd.) v. Dublin C.C.

STATUTE

Interpretation

Procedure - Contingency - Failure to make provision - Function of court - (1984 No. 403 SS - Carroll J. - 12/12/84).

The State (McInerney Ltd.) v. Dublin C.C.

WORDS & PHRASES

"Owner"

Local Government - Planning - Service of purchase notice - Service by unpaid grantor of property - Grantor not the owner - (1984 No. 403 SS - Carroll J. - 12/12/84).

The State (McInerney Ltd.) v. Dublin C.C.

Citations:

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381, 1982 ILRM 590

CREEDON V DUBLIN CORPORATION 1983 ILRM 339

DHN FOOD DISTRS LTD V TOWER HAMLETS LONDON BORO CNCL 1976 1 WLR 852

HAROLD HOLDSWORTH & CO (WAKEFIELD) LTD V CADDIES 1955 1 WLR 352

LISTOWEL UDC V MCDONAGH 1968 IR 312

LOCAL GOVT (NO 2) ACT 1960 S10(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S29

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S29(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S29(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S29(4)b

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S29(5)b

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(5)

SMITH STONE & KNIGHT LTD V BIRMINGHAM CORPO 1939 4 AER 116

1 JUDGMENT of Miss Justice Carrolldelivered the 12th day of December 1984

2 On the 26th of January 1982, Thomas McInerney and Company Limited (the Applicant) entered into a contract to buy the lands comprised in Folio 1170 County Dublin comprising a property known as Cappagh House and approximately fifteen acres of land for £750,000.00. The Applicant is a wholly owned subsidiary of McInerney Properties Limited (referred to as the parent company). An application for planning permission was made on the 9th of March 1982. The sale of the property was completed on the 15th of April, 1982 and the property was conveyed at the direction of the Applicant to McInerney Construction Limited (referred to as the registered owner) which was another wholly owned subsidiary of the parent company. Planning permission was refused on the 4th of June 1982. An appeal against refusalto An Bord Pleanála (the Board) was refused on the 12th of March1984.

3 A purchase notice dated the 4th of April 1984 was served by the Applicant by registered post addressed to the County Manager at the principal office of the Respondent (the County Council) in O'Connell Street, Dublin and was delivered on the 5th of April 1984. It was received in the Planning Department of the County Council on the 9th of April 1984. The Planning Department, by letter dated the 10th of April, acknowledged having received the notice on the 9th of April. The County Council served notice on the 6th of July 1984 refusing to purchase theland.

4 The Applicant's case is that the County Council had only three months from the service of the purchase notice to serve a notice refusing to purchase. Since they did not do so in time, they must now purchase thelands.

5 The Applicant obtained a Conditional Order of Mandamus on the 27th of July 1984. The County Council have showed cause by Affidavit. A number of supporting Affidavits were filed by both parties.

6 The relevant section is Section 29 of the Local Government (Planning and Development) Act 1963as amended by Section 14(5) of the Local Government (Planning and Development) Act 1976which transferred the functions of the Minister under Section 29 to the Board. Section 29 (as amended) provides:-

7 (1) Where, in a case determined on an appeal under this Part of this Act, permission to develop any land has been refused or has been granted subject to conditions, then, if the owner of the land claims -

8 (a) that the land has become incapable of reasonably beneficial use in its existing state, and

9 (b) that the land cannot be rendered capable of reasonablybeneficial use by the carrying out of any other development for which permission has been granted under this Part of this Act, or for which the planning authority have undertaken to grant such permission,and

10 (c) in a case where permission to develop the land was granted as aforesaid subject to conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions,

11 he may, at any time, within the period of six months after the decision (or such longer period as the Board may allow), serve on the planning authority a notice (hereafter in this section referred to as a purchase notice) requiring the planning authority to purchase his interest in the land in accordance with the provisions of thissection.

12 (2) The planning authority on whom a purchase notice is served under this section shall, before the end of the period of three months beginning with the date of the service of that notice, serve on the owner by whom the purchase notice was served a notice stating either-

13 (a) that the authority are willing to comply with the purchase notice, or

14 (b) that, for reasons specified in the notice under this subsection, the authority are not willing to comply with the purchase notice and that they have transmitted a copy of the purchase notice and a copy of the notice under this subsection to the Board.

15 (3) Where the planning authority upon whom a purchase noticeis served under this section have served on the owner by whom the purchase notice was served a notice in accordance with paragraph (a) of subsection (2) of this section, it shall be the duty of the authority to acquire the interest of the owner and, for that purpose, the latter notice shall have the like effect as if it were a compulsory purchase order in respect of that interest which, consequent upon a decision made by the planning authority pursuant to subsection (1) of section 10 of the Local Government (No. 2) Act, 1960, had been duly made and confirmed.

16 (4) Where a purchase notice is served on a planning authority under this section and the authority propose to serve on the owner a notice in accordance with paragraph (b) of subsection (2) of this section, they shall transmit a copy of that notice and copy of the purchase notice to the Board, and subject to the following provisions of this section the Board shall, if it is satisfied that the conditions specified in paragraphs (a) to (c) or paragraphs (a) and (b) (as may be appropriate) of subsection (1) of this section are fulfilled, confirm the purchase notice, and thereupon it shall be the duty of the planning authority to acquire the interest of the owner, and for that purpose, -

17 (a) the planning authority shall serve on the owner a notice stating that they propose to comply with the purchase notice, and

18 (b) the notice so served shall have the like effect as if it were a compulsory purchase order in respect of that interest which, consequent upon a decision by the planning authority pursuant to subsection (1) of section 10 ofthe Local Government (No. 2) Act 1960, had been duly made and confirmed:

19 Provided that:

20 (i) if it appears to the Board to be expedient so to do, it may, in lieu of confirming the purchase notice, grant permission for the development in respect of which the application was made or, where permission for that development was granted subject to conditions, revoke or amend the conditions so far as appears to it to be required in order to enable the land to be rendered capable of reasonably beneficial use by the carrying out of thatdevelopment;

21 (ii) if it appears to the Board, that the land, or any part of the land, could be rendered capable of reasonably beneficial use within a reasonable time by the carrying out of any other development for which permission ought to be granted, it may, in lieu of confirming the notice, or in lieu of confirming it so far as it relates to that part of the land, as the case may be, direct that such permission shall, subject to the provisions of this Act, be granted in the event of an application being made in that behalf.

22 (5) It within the period of six months from the end of the period specified in subsection (2) of this section, or the date on which a copy of the purchase notice is transmitted to the Board, whichever is the earlier, the Board has neither confirmed the notice nor taken any such other action as is mentioned in paragraph (i) or paragraph (ii) of the proviso to subsection (4) of this section not notified the owner by whom the notice was served that it doesnotpropose to confirm the notice, the notice shall be deemed to be confirmed at the expiration of that period, and it shall be the duty of the planning authority on whom the notice was served to acquire the interest of the owner and, for that purpose, -

23 (a) the planning authority shall serve on the owner a notice stating that they propose to comply with the purchase notice, and

24 (b) the notice so served shall have the like effect as if it...