White Maple Developments Ltd & Castlewin Properties Ltd v Donegal County Council & Bundoran Town Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 26 February 2013
• Neutral Citation: [2013] IEHC 83
• Docket Number: [2011 No. 1165 JR],[No. 1165 J.R./2011]
• Court: High Court
• Date: 26 February 2013

White Maple Developments Ltd & Castlewin Properties Ltd v Donegal Co Council & Bundoran Town Council

IN THE MATTER OF SECTION 180 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

WHITE MAPLE DEVELOPMENTS LIMITED AND CASTLEWIN PROPERTIES LIMITED

APPLICANTS

AND

DONEGAL COUNTY COUNCIL AND BUNDORAN TOWN COUNCIL

RESPONDENTS

[2013] IEHC 83

[No. 1165 J.R./2011]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Public authority

Housing developments - Taking in charge - Request that estates be taken in charge - Non-statutory scheme operating in parallel with statutory scheme -Whether application to have estates taken in charge made pursuant to statute - Planning and Development Act 2000 (No 30), s 180(1) - Constitution of Ireland 1937, Articles 15.2.1 and 28A.2 - Relief granted (2011/1165JR - Hogan J - 26/2/2013) [2013] IEHC 83

White Maple Developments Ltd v Donegal County Council

Facts: The applicants sought an order of mandamus compelling the respondents to take in charge certain housing developments pursuant to s. 180 Planning and Development Act 2000, as amended. The applicants were development companies and sought to have various developments completed in 2006 taken in charge by the respondent Council.

Held by Hogan J. that tax-payers were entitled to suppose that their applications would be dealt with by the Council in accordance with law and not by reference to non-statutory schemes which the Council had created itself. The Council had been asked unambiguously to discharge its legal obligations and had not done so. The Court found itself coerced to make an order of mandamus compelling the Council take steps to initiate the s. 180 procedure.

PLANNING & DEVELOPMENT ACT 2000 S180

PLANNING & DEVELOPMENT ACT 2000 S180(1)

ROADS ACT 1993 S11

CONSTITUTION ART 15.2.1

CONSTITUTION ART 28(A)(2)

Mr. Justice Hogan

1 In these judicial review proceedings the applicants seek an order ofmandamus compelling the respondents to take in charge certain housing developments under the provisions of s. 180 of the Planning and Development Act 2000 (as amended) ("the 2000 Act"). The applicants are development companies and they were involved in the construction of some 167 houses in two separate developments, Maple Drive and Ross View, in Magheracar, Bundoran, Co. Donegal. These developments were completed in 2006.

2 The companies then sought to have the developments taken in charge and engaged for this purpose with senior local authority personnel attached to Bundoran Town Council. The Town Council's engineer identified certain further works that required to be carried out and these matters were then duly attended to by the applicants to the Council's satisfaction.

3 At that point, the applicants then applied in May 2010 for the two developments to be taken in charge. It should be said that no issue has been raised by the respondants as would suggest that the requirements specified by s.180(1) (such as, for example, compliance with the terms of the various planning permissions) have not otherwise been satisfied by the applicants: the only question is whether the applicants have actually applied to the Council to have the estates taken in chargepursuant to s. 180(1).

4 The applicants formally applied for the housing estates to be taken in charge on 27^th May, 2010. As it happens, this application was made pursuant to a non-statutory scheme which the Council operates for this purpose in parallel to the statutory scheme, If the extent to which the applicants realised the potential significance of this is to some degree unclear, the pre-printed form which was completed and signed on their behalf provided:-

"I hereby apply for the above services to be taken in charge of the local authority, Donegal County Council. I am aware that the takeover if agreed will be subject to the terms as detailed overleaf and such further terms as may be determined by the local authority."

5 The final page of the form set out a number of general terms and conditions including condition No. 10:-

"It is acknowledged that this application for takeover is not made in accordance with the provisions of s. 180 of the Planning and Development Act2000. Any application for takeover in accordance with that provision [should] be made separately thereunder and will be processed in accordance with the terms thereof."

6 In passing, it may be observed that the Council does not actually have a pre-printed form for applications under s. 180, and all applications for housing schemes to be taken in charge are apparently processed pursuant to the non-statutory scheme unless a specific request is made that the application be treated as an application under s. 180.

7 On the 1^st June, 2010, the applicants' solicitor wrote to Donegal County Council indicating its preparedness to transfer the title to the services to the Council as part of the taking in charge procedure.

8 Section 180(1) of the...