Arklow Town Council says it will press ahead with a €35 million sewage treatment scheme for Arklow after winning a 12-year legal battle with the owners of a local holiday caravan park.
The legal dispute went right to the Supreme Court, which cleared the last legal hurdle when it upheld a decision of the High Court to reject the judicial review of the An Bord Pleanála decision brought by caravan park owners Arklow Holidays Ltd. Arklow Holidays is opposed to the plant being located at Seabank, near its caravan park facility.
Town clerk Des Nichols said the council would update contract documents. “There’s now light at the end of the tunnel and Arklow could see a treatment scheme for its sewage in two to three years’ time,” he said.
Irish Times
www.buckplanning.ie
Showing posts with label Supreme Court and planning. Show all posts
Showing posts with label Supreme Court and planning. Show all posts
Sunday, 14 August 2011
Monday, 1 March 2010
High Court must consider issue of EIS assessment
Abbeydrive Development Ltd -v- Kildare County Council. Supreme Court Judgment was delivered by Mr Justice Nicholas Kearns on February 18th, 2010; Ms Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Geoghegan and Mr Justice Nial Fennelly concurring.
Judgment
A previous Supreme Court judgment, that a planning permission was deemed to have been granted by Kildare County Council, which had failed to give a decision within the prescribed period, should be remitted to the High Court to consider the issue of an Environmental Impact Assessment, which should have been considered under an EU directive.
The Supreme Court also ruled that An Taisce should be heard at any hearing that might take place.
Background
The case concerned a “default” planning permission which was deemed to have been obtained by the appellants on appeal of a decision of the High Court.
The Supreme Court had ruled the applicant was entitled to a declaration under the 2000 Planning and Development Act that the planning authority, the county council, having failed to make a decision on the applicant’s application within the prescribed period, be deemed to have given such decision on the last day of that period.
The original planning application in 2002 was accompanied by an environment impact statement (EIS).
An Taisce, as a prescribed body under the 2000 Act, was notified of the application and made a submission. It received no further correspondence until January 2007 when it was informed that the planning application had been deemed withdrawn. In fact, this was not so and the letters stating this were totally misleading.
Therefore An Taisce was totally unaware of the proceedings relating to the default permission in either the High Court or the Supreme Court until it was reported in a newspaper in July 2009.
It sought to appeal to An Bord Pleanála but the appeal was deemed invalid because it was outside the permitted period for making an appeal.
An Taisce was strongly of the view that the grant of default planning permission, where there was an EIS as required by council directive 85/337/EEC (the EIA directive), was contrary to European law. It therefore sought to be heard before any final orders were made.
While not seeking to reopen the judgment, it sought to be heard on the grounds that the issue raised was of such importance that it should be adjudicated upon and/or that an appeal by An Taisce should be permitted as part of the court’s order.
Counsel for An Taisce cited European Court of Justice jurisprudence in support of its contention that developments that are subject to the requirements of the EIA directive could not be authorised by way of tacit permission or refusal and that the planning authority therefore did not have the authority to make the decision.
Neither the High Court nor the Supreme Court had been made aware of the environment impact statement. Counsel for the applicant argued that the matter was now res judicia and could not be reopened. Counsel for the respondents frankly conceded that no consideration had been given by the council to the EIS issue.
Decision
Mr Justice Kearns first stressed that ordinarily, a decision of the court was final and conclusive, except in the most exceptional circumstances. In this case, no final order had been made. It would greatly weaken the case of An Taisce if its point could have been raised by the county council.
He pointed to ECJ case-law stating that tacit approval could not be compatible with the requirements of a directive requiring an assessment procedure preceding the grant of authorisation.
The council should have been aware of it, as it was spelled out in the seminal authority on planning law by Prof Yvonne Scannell, and by Garrett Simons’s book on planning and development law, he said. The latter was also highly critical of the default mechanism.
Mr Justice Kearns said that the point raised by An Taisce – that the failure to carry out an assessment of the EIS went to the very heart of the decision to grant permission – was one of substance.
He said he would leave to the High Court the issue of whether the council could argue that a decision to grant permission by default should not be deemed to have been made, where it was arguing for the effectiveness of community law.
He said that despite a reluctance to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case left the court with no alternative if it was to do justice.
The only proper course for the court to adopt was to defer making any final order until the issue in relation to the EIS was determined by the High Court, to which the case was remitted on that issue alone. He also acceded to An Taisce’s request that it be heard any hearing there.
The full judgment is on www.courts.ie
Michael Collins SC and Garret Simons BL, instructed by A L Goodbody, for the applicant; John Lylmer and Deirdre Hughes BL, for the respondent; Colm Mac hEochaidh BL, for An Taisce.
Irish Times
www.buckplanning.ie
Judgment
A previous Supreme Court judgment, that a planning permission was deemed to have been granted by Kildare County Council, which had failed to give a decision within the prescribed period, should be remitted to the High Court to consider the issue of an Environmental Impact Assessment, which should have been considered under an EU directive.
The Supreme Court also ruled that An Taisce should be heard at any hearing that might take place.
Background
The case concerned a “default” planning permission which was deemed to have been obtained by the appellants on appeal of a decision of the High Court.
The Supreme Court had ruled the applicant was entitled to a declaration under the 2000 Planning and Development Act that the planning authority, the county council, having failed to make a decision on the applicant’s application within the prescribed period, be deemed to have given such decision on the last day of that period.
The original planning application in 2002 was accompanied by an environment impact statement (EIS).
An Taisce, as a prescribed body under the 2000 Act, was notified of the application and made a submission. It received no further correspondence until January 2007 when it was informed that the planning application had been deemed withdrawn. In fact, this was not so and the letters stating this were totally misleading.
Therefore An Taisce was totally unaware of the proceedings relating to the default permission in either the High Court or the Supreme Court until it was reported in a newspaper in July 2009.
It sought to appeal to An Bord Pleanála but the appeal was deemed invalid because it was outside the permitted period for making an appeal.
An Taisce was strongly of the view that the grant of default planning permission, where there was an EIS as required by council directive 85/337/EEC (the EIA directive), was contrary to European law. It therefore sought to be heard before any final orders were made.
While not seeking to reopen the judgment, it sought to be heard on the grounds that the issue raised was of such importance that it should be adjudicated upon and/or that an appeal by An Taisce should be permitted as part of the court’s order.
Counsel for An Taisce cited European Court of Justice jurisprudence in support of its contention that developments that are subject to the requirements of the EIA directive could not be authorised by way of tacit permission or refusal and that the planning authority therefore did not have the authority to make the decision.
Neither the High Court nor the Supreme Court had been made aware of the environment impact statement. Counsel for the applicant argued that the matter was now res judicia and could not be reopened. Counsel for the respondents frankly conceded that no consideration had been given by the council to the EIS issue.
Decision
Mr Justice Kearns first stressed that ordinarily, a decision of the court was final and conclusive, except in the most exceptional circumstances. In this case, no final order had been made. It would greatly weaken the case of An Taisce if its point could have been raised by the county council.
He pointed to ECJ case-law stating that tacit approval could not be compatible with the requirements of a directive requiring an assessment procedure preceding the grant of authorisation.
The council should have been aware of it, as it was spelled out in the seminal authority on planning law by Prof Yvonne Scannell, and by Garrett Simons’s book on planning and development law, he said. The latter was also highly critical of the default mechanism.
Mr Justice Kearns said that the point raised by An Taisce – that the failure to carry out an assessment of the EIS went to the very heart of the decision to grant permission – was one of substance.
He said he would leave to the High Court the issue of whether the council could argue that a decision to grant permission by default should not be deemed to have been made, where it was arguing for the effectiveness of community law.
He said that despite a reluctance to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case left the court with no alternative if it was to do justice.
The only proper course for the court to adopt was to defer making any final order until the issue in relation to the EIS was determined by the High Court, to which the case was remitted on that issue alone. He also acceded to An Taisce’s request that it be heard any hearing there.
The full judgment is on www.courts.ie
Michael Collins SC and Garret Simons BL, instructed by A L Goodbody, for the applicant; John Lylmer and Deirdre Hughes BL, for the respondent; Colm Mac hEochaidh BL, for An Taisce.
Irish Times
www.buckplanning.ie
High Court must consider issue of EIS assessment
Abbeydrive Development Ltd -v- Kildare County Council. Supreme Court Judgment was delivered by Mr Justice Nicholas Kearns on February 18th, 2010; Ms Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Geoghegan and Mr Justice Nial Fennelly concurring.
Judgment
A previous Supreme Court judgment, that a planning permission was deemed to have been granted by Kildare County Council, which had failed to give a decision within the prescribed period, should be remitted to the High Court to consider the issue of an Environmental Impact Assessment, which should have been considered under an EU directive.
The Supreme Court also ruled that An Taisce should be heard at any hearing that might take place.
Background
The case concerned a “default” planning permission which was deemed to have been obtained by the appellants on appeal of a decision of the High Court.
The Supreme Court had ruled the applicant was entitled to a declaration under the 2000 Planning and Development Act that the planning authority, the county council, having failed to make a decision on the applicant’s application within the prescribed period, be deemed to have given such decision on the last day of that period.
The original planning application in 2002 was accompanied by an environment impact statement (EIS).
An Taisce, as a prescribed body under the 2000 Act, was notified of the application and made a submission. It received no further correspondence until January 2007 when it was informed that the planning application had been deemed withdrawn. In fact, this was not so and the letters stating this were totally misleading.
Therefore An Taisce was totally unaware of the proceedings relating to the default permission in either the High Court or the Supreme Court until it was reported in a newspaper in July 2009.
It sought to appeal to An Bord Pleanála but the appeal was deemed invalid because it was outside the permitted period for making an appeal.
An Taisce was strongly of the view that the grant of default planning permission, where there was an EIS as required by council directive 85/337/EEC (the EIA directive), was contrary to European law. It therefore sought to be heard before any final orders were made.
While not seeking to reopen the judgment, it sought to be heard on the grounds that the issue raised was of such importance that it should be adjudicated upon and/or that an appeal by An Taisce should be permitted as part of the court’s order.
Counsel for An Taisce cited European Court of Justice jurisprudence in support of its contention that developments that are subject to the requirements of the EIA directive could not be authorised by way of tacit permission or refusal and that the planning authority therefore did not have the authority to make the decision.
Neither the High Court nor the Supreme Court had been made aware of the environment impact statement. Counsel for the applicant argued that the matter was now res judicia and could not be reopened. Counsel for the respondents frankly conceded that no consideration had been given by the council to the EIS issue.
Decision
Mr Justice Kearns first stressed that ordinarily, a decision of the court was final and conclusive, except in the most exceptional circumstances. In this case, no final order had been made. It would greatly weaken the case of An Taisce if its point could have been raised by the county council.
He pointed to ECJ case-law stating that tacit approval could not be compatible with the requirements of a directive requiring an assessment procedure preceding the grant of authorisation.
The council should have been aware of it, as it was spelled out in the seminal authority on planning law by Prof Yvonne Scannell, and by Garrett Simons’s book on planning and development law, he said. The latter was also highly critical of the default mechanism.
Mr Justice Kearns said that the point raised by An Taisce – that the failure to carry out an assessment of the EIS went to the very heart of the decision to grant permission – was one of substance.
He said he would leave to the High Court the issue of whether the council could argue that a decision to grant permission by default should not be deemed to have been made, where it was arguing for the effectiveness of community law.
He said that despite a reluctance to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case left the court with no alternative if it was to do justice.
The only proper course for the court to adopt was to defer making any final order until the issue in relation to the EIS was determined by the High Court, to which the case was remitted on that issue alone. He also acceded to An Taisce’s request that it be heard any hearing there.
The full judgment is on www.courts.ie
Michael Collins SC and Garret Simons BL, instructed by A L Goodbody, for the applicant; John Lylmer and Deirdre Hughes BL, for the respondent; Colm Mac hEochaidh BL, for An Taisce.
Irish Times
www.buckplanning.ie
Judgment
A previous Supreme Court judgment, that a planning permission was deemed to have been granted by Kildare County Council, which had failed to give a decision within the prescribed period, should be remitted to the High Court to consider the issue of an Environmental Impact Assessment, which should have been considered under an EU directive.
The Supreme Court also ruled that An Taisce should be heard at any hearing that might take place.
Background
The case concerned a “default” planning permission which was deemed to have been obtained by the appellants on appeal of a decision of the High Court.
The Supreme Court had ruled the applicant was entitled to a declaration under the 2000 Planning and Development Act that the planning authority, the county council, having failed to make a decision on the applicant’s application within the prescribed period, be deemed to have given such decision on the last day of that period.
The original planning application in 2002 was accompanied by an environment impact statement (EIS).
An Taisce, as a prescribed body under the 2000 Act, was notified of the application and made a submission. It received no further correspondence until January 2007 when it was informed that the planning application had been deemed withdrawn. In fact, this was not so and the letters stating this were totally misleading.
Therefore An Taisce was totally unaware of the proceedings relating to the default permission in either the High Court or the Supreme Court until it was reported in a newspaper in July 2009.
It sought to appeal to An Bord Pleanála but the appeal was deemed invalid because it was outside the permitted period for making an appeal.
An Taisce was strongly of the view that the grant of default planning permission, where there was an EIS as required by council directive 85/337/EEC (the EIA directive), was contrary to European law. It therefore sought to be heard before any final orders were made.
While not seeking to reopen the judgment, it sought to be heard on the grounds that the issue raised was of such importance that it should be adjudicated upon and/or that an appeal by An Taisce should be permitted as part of the court’s order.
Counsel for An Taisce cited European Court of Justice jurisprudence in support of its contention that developments that are subject to the requirements of the EIA directive could not be authorised by way of tacit permission or refusal and that the planning authority therefore did not have the authority to make the decision.
Neither the High Court nor the Supreme Court had been made aware of the environment impact statement. Counsel for the applicant argued that the matter was now res judicia and could not be reopened. Counsel for the respondents frankly conceded that no consideration had been given by the council to the EIS issue.
Decision
Mr Justice Kearns first stressed that ordinarily, a decision of the court was final and conclusive, except in the most exceptional circumstances. In this case, no final order had been made. It would greatly weaken the case of An Taisce if its point could have been raised by the county council.
He pointed to ECJ case-law stating that tacit approval could not be compatible with the requirements of a directive requiring an assessment procedure preceding the grant of authorisation.
The council should have been aware of it, as it was spelled out in the seminal authority on planning law by Prof Yvonne Scannell, and by Garrett Simons’s book on planning and development law, he said. The latter was also highly critical of the default mechanism.
Mr Justice Kearns said that the point raised by An Taisce – that the failure to carry out an assessment of the EIS went to the very heart of the decision to grant permission – was one of substance.
He said he would leave to the High Court the issue of whether the council could argue that a decision to grant permission by default should not be deemed to have been made, where it was arguing for the effectiveness of community law.
He said that despite a reluctance to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case left the court with no alternative if it was to do justice.
The only proper course for the court to adopt was to defer making any final order until the issue in relation to the EIS was determined by the High Court, to which the case was remitted on that issue alone. He also acceded to An Taisce’s request that it be heard any hearing there.
The full judgment is on www.courts.ie
Michael Collins SC and Garret Simons BL, instructed by A L Goodbody, for the applicant; John Lylmer and Deirdre Hughes BL, for the respondent; Colm Mac hEochaidh BL, for An Taisce.
Irish Times
www.buckplanning.ie
Thursday, 23 July 2009
Ballymore Eustace scheme cleared in court to go ahead
THE SUPREME Court has cleared the way for a development of houses, shops, a creche and a medical centre at Ballymore Eustace, Co Kildare.
The five-judge court yesterday upheld arguments by Abbeydrive Developments Ltd that it was entitled to a default planning permission for the proposed development because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.
Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.
Abbeydrive argued in the High Court that the council’s failure to decide within the eight-week period entitled it to default permission but Mr Justice Roderick Murphy rejected that argument.
Abbeydrive appealed that 2005 judgment to the Supreme Court which yesterday allowed the appeal. It adjourned the issue of what order should be made in the case.
Mr Justice Nial Fennelly said the dispute in the appeal arose from the nature of the proposed development. While almost entirely residential, it also included a very small two-storey community facility comprising a creche, neighbourhood shops and a medical centre. That facility represented some 0.2 per cent of the total floor area of the proposed development.
The judge noted the relevant zoning area in the Co Kildare development plan 1999 was described as “solely residential” but the council’s senior planner had accepted this proposed development was “open for consideration”. The judge said Article 34.8 of the Planning Act 2000 provided a default that permission could be granted where a planning authority had failed to make a decision within eight weeks.
Mr Justice Fennelly ruled that the High Court had erred as a valid permission could have been granted through an exercise of discretion by the council in favour of Abbeydrive. It was not open to the High Court to impose a limitation on the effect of Article 34.8, except on the basis of legal power.
Irish Times
www.buckplanning.ie
The five-judge court yesterday upheld arguments by Abbeydrive Developments Ltd that it was entitled to a default planning permission for the proposed development because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.
Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.
Abbeydrive argued in the High Court that the council’s failure to decide within the eight-week period entitled it to default permission but Mr Justice Roderick Murphy rejected that argument.
Abbeydrive appealed that 2005 judgment to the Supreme Court which yesterday allowed the appeal. It adjourned the issue of what order should be made in the case.
Mr Justice Nial Fennelly said the dispute in the appeal arose from the nature of the proposed development. While almost entirely residential, it also included a very small two-storey community facility comprising a creche, neighbourhood shops and a medical centre. That facility represented some 0.2 per cent of the total floor area of the proposed development.
The judge noted the relevant zoning area in the Co Kildare development plan 1999 was described as “solely residential” but the council’s senior planner had accepted this proposed development was “open for consideration”. The judge said Article 34.8 of the Planning Act 2000 provided a default that permission could be granted where a planning authority had failed to make a decision within eight weeks.
Mr Justice Fennelly ruled that the High Court had erred as a valid permission could have been granted through an exercise of discretion by the council in favour of Abbeydrive. It was not open to the High Court to impose a limitation on the effect of Article 34.8, except on the basis of legal power.
Irish Times
www.buckplanning.ie
Monday, 16 March 2009
Agreement to give land to Kildare county council is void
McHugh -v- Kildare County Council.
Supreme Court
Judgment was given by Mr Justice Adrian Hardiman on February 24th, 2009, the Chief Justice, Mr Justice John Murray, Mrs Justice Susan Denham, Mr Justice Hugh Geoghegan and Mr Justice Nial Fennelly concurring.
Judgment
An agreement on the part of Kildare County Council and the plaintiff that he would transfer some land to the council in the event of other land being rezoned was not an agreement within the meaning of section 38 of the Local Government (Planning and Development) Act 1963, as amended by the Act of 1976, and was ultra vires the council. It was therefore void.
Background
In the late 1990s, Mr McHugh was the owner of 47 acres of land in Co Kildare, near an interchange on the main road. He considered it suitable for zoning for industrial use and he applied to Kildare County Council, the planning authority for the area, for such zoning. Discussions on the matter took place between him, his solicitor and engineer, and the council.
As a result, an agreement was entered into to the effect that he would cede to the council 20 per cent of the land if his land was rezoned for industrial use. The agreement also stated that this assertion was a matter incidental to the grant of rezoning.
It was common case that the form of the agreement came from the defendant (the county council) although the suggestion came from the plaintiff, who signed it. No one signed it on behalf of the defendant, though the council relies on it.
In the case in the High Court, the plaintiff said he had been required to sign the letter. However, in the Supreme Court appeal against the High Court order in favour of the council, the plaintiff did not suggest any coercion and instead argued that the agreement was not capable of being an agreement within the meaning of section 38 of the 1963 Act and was unenforceable, even though he had benefited from the rezoning.
The county council insisted that the agreement was enforceable under section 38 of the Act.
It had begun proceedings for the transfer of the lands in 2005, but had not progressed them and they formed no part of this case, even though minutes of council meetings showed that all the landowners who sought rezoning of their lands “coincidentally or otherwise” agreed to cede some of their lands in the event of rezoning being approved.
The issue in this case was therefore a very narrow technical issue – whether the agreement was enforceable under the Act or not.
“The court has not been invited to consider the validity in administrative law of an arrangement whereby a statutory decision maker will derive a benefit if he, she or it decides in one way rather than another and it may be important to stress that that issue simply does not arise in the present proceedings,” Mr Justice Hardiman said.
The trial judge in the High Court had found that a consideration moved from the council to the plaintiff and it appeared he considered this to have been the rezoning. However, in the appeal, the council strongly denied that this was a consideration which moved from it to the plaintiff.
Decision
Mr Justice Hardiman examined section 38 of the 1963 Act, as amended, which states that a planning authority may enter into an agreement with any person “for the purpose of restricting or regulating the development or use of the land either permanently or during such period as may be specified”.
The purported agreement with Mr McHugh stated that he “hereby irrevocably covenant(s) and agree(s) with the said council that in the event of the lands, the subject matter of my above application being rezoned . . . I will transfer to the council free of charge or expense the lands [as indicated on a plan]”.
This was clearly a covenant to transfer lands, he said.
“It seems to me that section 38 simply does not contemplate an agreement for the transfer of lands at all. Restricting or regulating the development or use of lands is something of a quite different nature to transferring their ownership.
“The recitation, in the purported agreement, of section 38 of the Act of 1963 cannot in and of itself make the purported agreement of 13th May 1999 an agreement of the sort envisaged by section 38.”
Counsel for the defendant had argued that because the whole transaction had taken place within the context of a proposed rezoning for industrial use and because the local authority could only use the land in accordance with the development plan to be amended by the rezoning, this was an agreement to “regulate or restrict development”.
Mr Justice Hardiman said that the purpose of an agreement under section 38 was to regulate the use of land while it remained in the ownership of the person who arrived at the agreement or anyone to whom he sold the land, not to allow the transfer of the land to the council itself.
If it was transferred to the council there would be no need for an agreement to restrict its use, which the council could do as owner.
If the agreement was not an agreement within the meaning of section 38 it appeared to be ultra vires the council, which had not been given a power to acquire land by the means envisaged in the purported agreement.
Counsel for the defendant had said this decision would allow Mr McHugh to refuse to “stick to his bargain”. Counsel however had great difficulty in articulating what this bargain was and had said that the transfer was not in consideration of rezoning, but of his proposal being placed before the councillors.
The councillors would have been obliged to consider the application anyway.
The judge in the High Court case had understood that the consideration for the land transfer was the rezoning, but the defendant had flatly denied this. Mr Justice Hardiman allowed the appeal and declared the agreement to be void.
The full judgment is on www.courts.ie
Gavin Ralston SC, Eamon Galligan SC and Mark Dunne BL, instructed by Coughlan, White O’Toole, Newbridge, for the appellant; Pat Butler SC and John Doherty BL, instructed by R A Osbourne, Athy, for the respondent.
Irish Times
www.buckplanning.ie
Supreme Court
Judgment was given by Mr Justice Adrian Hardiman on February 24th, 2009, the Chief Justice, Mr Justice John Murray, Mrs Justice Susan Denham, Mr Justice Hugh Geoghegan and Mr Justice Nial Fennelly concurring.
Judgment
An agreement on the part of Kildare County Council and the plaintiff that he would transfer some land to the council in the event of other land being rezoned was not an agreement within the meaning of section 38 of the Local Government (Planning and Development) Act 1963, as amended by the Act of 1976, and was ultra vires the council. It was therefore void.
Background
In the late 1990s, Mr McHugh was the owner of 47 acres of land in Co Kildare, near an interchange on the main road. He considered it suitable for zoning for industrial use and he applied to Kildare County Council, the planning authority for the area, for such zoning. Discussions on the matter took place between him, his solicitor and engineer, and the council.
As a result, an agreement was entered into to the effect that he would cede to the council 20 per cent of the land if his land was rezoned for industrial use. The agreement also stated that this assertion was a matter incidental to the grant of rezoning.
It was common case that the form of the agreement came from the defendant (the county council) although the suggestion came from the plaintiff, who signed it. No one signed it on behalf of the defendant, though the council relies on it.
In the case in the High Court, the plaintiff said he had been required to sign the letter. However, in the Supreme Court appeal against the High Court order in favour of the council, the plaintiff did not suggest any coercion and instead argued that the agreement was not capable of being an agreement within the meaning of section 38 of the 1963 Act and was unenforceable, even though he had benefited from the rezoning.
The county council insisted that the agreement was enforceable under section 38 of the Act.
It had begun proceedings for the transfer of the lands in 2005, but had not progressed them and they formed no part of this case, even though minutes of council meetings showed that all the landowners who sought rezoning of their lands “coincidentally or otherwise” agreed to cede some of their lands in the event of rezoning being approved.
The issue in this case was therefore a very narrow technical issue – whether the agreement was enforceable under the Act or not.
“The court has not been invited to consider the validity in administrative law of an arrangement whereby a statutory decision maker will derive a benefit if he, she or it decides in one way rather than another and it may be important to stress that that issue simply does not arise in the present proceedings,” Mr Justice Hardiman said.
The trial judge in the High Court had found that a consideration moved from the council to the plaintiff and it appeared he considered this to have been the rezoning. However, in the appeal, the council strongly denied that this was a consideration which moved from it to the plaintiff.
Decision
Mr Justice Hardiman examined section 38 of the 1963 Act, as amended, which states that a planning authority may enter into an agreement with any person “for the purpose of restricting or regulating the development or use of the land either permanently or during such period as may be specified”.
The purported agreement with Mr McHugh stated that he “hereby irrevocably covenant(s) and agree(s) with the said council that in the event of the lands, the subject matter of my above application being rezoned . . . I will transfer to the council free of charge or expense the lands [as indicated on a plan]”.
This was clearly a covenant to transfer lands, he said.
“It seems to me that section 38 simply does not contemplate an agreement for the transfer of lands at all. Restricting or regulating the development or use of lands is something of a quite different nature to transferring their ownership.
“The recitation, in the purported agreement, of section 38 of the Act of 1963 cannot in and of itself make the purported agreement of 13th May 1999 an agreement of the sort envisaged by section 38.”
Counsel for the defendant had argued that because the whole transaction had taken place within the context of a proposed rezoning for industrial use and because the local authority could only use the land in accordance with the development plan to be amended by the rezoning, this was an agreement to “regulate or restrict development”.
Mr Justice Hardiman said that the purpose of an agreement under section 38 was to regulate the use of land while it remained in the ownership of the person who arrived at the agreement or anyone to whom he sold the land, not to allow the transfer of the land to the council itself.
If it was transferred to the council there would be no need for an agreement to restrict its use, which the council could do as owner.
If the agreement was not an agreement within the meaning of section 38 it appeared to be ultra vires the council, which had not been given a power to acquire land by the means envisaged in the purported agreement.
Counsel for the defendant had said this decision would allow Mr McHugh to refuse to “stick to his bargain”. Counsel however had great difficulty in articulating what this bargain was and had said that the transfer was not in consideration of rezoning, but of his proposal being placed before the councillors.
The councillors would have been obliged to consider the application anyway.
The judge in the High Court case had understood that the consideration for the land transfer was the rezoning, but the defendant had flatly denied this. Mr Justice Hardiman allowed the appeal and declared the agreement to be void.
The full judgment is on www.courts.ie
Gavin Ralston SC, Eamon Galligan SC and Mark Dunne BL, instructed by Coughlan, White O’Toole, Newbridge, for the appellant; Pat Butler SC and John Doherty BL, instructed by R A Osbourne, Athy, for the respondent.
Irish Times
www.buckplanning.ie
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