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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Holland v. Dublin County Council & Anor [1987] IEHC 34 (3 April 1987)
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Cite as: [1987] IEHC 34
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Holland v. Dublin County Council & Anor [1987] IEHC 34 (3 April 1987)\
1986 No. 667Sp.
IN THE MATTER OF THE LOCAL GOVERNMENT (ROADS AND MOTORWAYS)
ACT 1974
AND IN THE MATTER OF THE HOUSING ACT 1966 AND IN THE MATTER OF THE DUBLIN COUNTY COUNCIL (WESTERN PARKWAY, TALLAGHT ROAD/GALWAY ROAD MOTORWAYS SCHEME 1985
BETWEEN
HELEN HOLLAND
PLAINTIFF
AND
THE COUNTY COUNCIL FOR THE COUNTY OF DUBLIN
AND
THE MINISTER FOR THE ENVIRONMENT
DEFENDANTS
Judgment of Mr. Justice Murphy delivered the 3rd day of April 1987.
The special summons herein, as amended, claims an Order that the Western Parkway, Tallaght Road/Galway Road Motorway Scheme 1985 made by the first named Defendant (the County Council) and approved by Order of the secondly named Defendant (the Minister) on the 27th day of May 1986 and published on the 28th day of June 1986 is invalid and ultra vires the powers of both Defendants on a number of grounds but the only ground relied upon at the hearing of the summons was that introduced by way of amendment in the following terms, namely,:
"Alternatively upon the grounds that the Plaintiff through her advisers and representatives was misled into believing that the first named Respondent would provide access for industrial purposes to lands remaining in her ownership after execution of the then proposed compulsory purchase order whereby the said representatives were misled into abandoning or curtailing their objection to the confirmation by the second named Respondent of the said Order so that the same was confirmed in breach of statutory duty and in breach of the principles of natural and constitutional justice".
The matter arose in this way. The Plaintiff was the owner of a plot of land on the northside of the Naas Dual Carriageway. As only a small part of the lands actually adjoins the carriageway it appears that whilst there is access to the lands at that point that it would not be suitable or practicable to use such access if the lands were to be used for the industrial purposes for which they are zoned.
The motorway scheme in question involved the acquisition of two parcels of land out of the Plaintiff's holding. First a parcel designated 26C/1 at the Southern end of the holding and secondly a parcel designated 26C/2 comprising approximately 2 acres situate at the northern boundary of the holding. The Plaintiff objected to the acquisition of those parcels by the County Council and at a public local inquiry held on the 25th of November 1985 by John B. Switzer to hear the objections of the Plaintiff (among others) to the scheme. The Plaintiff was represented at the inquiry by Mr. T.C. Gerard O'Mahony. In an affidavit sworn by him Mr. O'Mahony exhibited pages 48 to 51 inclusive of the transcript of the evidence taken at the inquiry and in an affidavit sworn by Mr. Tobin on behalf of the County Council additional material from the transcript, namely pages 84 to 87 inclusive, was exhibited. There is, therefore, an agreed record as to what was said at the inquiry conducted by Mr. Switzer. There is however a considerable difference of opinion between the parties as to how it should be interpreted-It appears from Mr. O'Mahony's cross-examination of Mr. Neville Davin, an official in the County Council, that it had been established or was known by that stage of the inquiry that the County Council were proposing to acquire parcel 26C/2 to provide access to an adjoining estate, The Cullen Estate, (parcel 27 Bl but sometimes erroneously referred to as 26 Bl). It was clear that the purpose of Mr. O'Mahony's questions was to ascertain whether it would be necessary for the County Council to acquire further land in addition to 27 Bl to complete the access from the Cullen Estate to the public road. This seemed an entirely reasonable line of inquiry. Clearly one might hope to support the objection by showing that the acquisition of part of the Holland land would not achieve the intended purpose of providing access to the Cullen Estate. In addition to making that case it would be understandable that Mr. O'Mahony would wish to obtain as much information as possible with regard to the County Council's plans in relation to the area at the northern boundary of his client's property particularly as his clients had been, as the evidence indicates, exploring the possibility of acquiring in that area a type of access which would be appropriate to the user of the entire holding for industrial purposes. However, whatever may have been in Mr. O'Mahony mind Mr. Davin, with the assistance of Counsel for the County Council identified another plot of land, plot number 32C, as being the area which would have to be r acquired by the County Council to connect the Holland Estate with "the Western Contractors Main Road". It is at that stage that Mr. Davin restates the County Council's position with the utmost clarity in the following terms:
"The purpose of acquiring plot number 32 C is to provide access to the Holland lands and it is also intended to acquire plot number 26 C2 in fact to provide access to plot 27 Bl on the CPL drawing. This is to provide an access to the latter plot so that it is not land-locked by the motorway scheme".
Mr. O'Mahony then went on to query whether the Western Industrial Estate's roadway had been taken over by the County Council so as to provide a right-of-way on to the main or public road "for either the Holland Estate and presumably the Cullen Estate" and indeed one might add for every member of the public. Mr. Davin indicated that he believed that such a right-of-way could be obtained by the local authority and in relation to that Mr. O'Mahony appears to have sought some assurance. The assuarance given was to the effect that the scheme I could not proceed unless such a right of way was in fact obtained. It was put this way in the form of a question by Counsel to Mr. Davin:
"Well do I take it that in fact before any loss of facility of I access could arise to Mr. O'Mahony's clients or those whom he is interested in this alternative would first of course have to be provided for in the Act?"
To that the answer was:
"Yes indeed".
The matter was further explained by the remaining question and answer of Counsel as follows:
Question: "You can't close off one without providing another first?"
Answer: "That is correct".
Mr. O'Mahony then took up the questioning and passed to a matter of timing in the following question and answer:
Question: "Just further on that Inspector I am wondering at what stage can we get that agreement, is it premature to try to agree that now at this stage?"
Answer: "Sorry I don't know that the Council can agree anything at the inquiry but we are obliged under the Act as you well know sir that we cannot cut off or leave these people high and dry without first providing alternative access or means of egress from their estate that is provided for under the Act and that must be provided for before we can —".
At that point Mr. O'Mahony concluded his examination of Mr. Davin and thereafter the Inspector and Counsel raised a series of questions which were posed and answered as follows:
Question: "Could I ask Mr. Davin please, these two strips 32 C and 262 are required for the purpose of providing access to 27 Bl. Are there any other parcels to which this would give access?"
Answer; "I don't think so Inspector, no,"
Question: "Right, well then perhaps Mr. Smith might be able to clarify either here or under evidence or privately with Mr. O'Mahony the mechanics of the legal aspects of the access?"
Mr. Smith: "Well I mean quite clearly Sir there is an informal arrangement which would have to be given legal effect to and implemented before we could leave Mr. O'Mahony1s clients or those he is interested in devoid of the access under the Act because that is in fact an obligation on us."
Inspector: "So you are giving Mr. O'Mahony that assurance?"
Answer: "Yes the statutory obligation will be carried out."
Question: "Is that satisfactory Mr. O'Mahony?"
Mr. O'Mahony: "Well subject to a time limit Inspector."
Mr. Smith: "Well we can't do one without first doing the other". It seems to me that the examination of Mr. Davin by the various i parties and the interjections by the Inspector and Counsel on behalf m of the County Council make it clear:
First, that the purpose of the County Council in acquiring parcel 26C/2 from the Holland Estate is to give access to the Cullen Estate.
Secondly, that to complete the access from the Cullen Estate to the Public Road it would be necessary to acquire a small additional plot of land number 32C and perhaps certain other rights through the Western Industrial Estates.
Thirdly, that the additional property (and additional rights if any) would be acquired by the County Council and necessarily would be m acquired by the County Council prior to the implementation of the scheme because they were bound to provide access to the Cullen Estate which, unlike the Holland Estate, would have been devoid of access on the implementation of the scheme.
Fourthly, that the County Council whilst unwilling to enter into any agreements were happy to give to the objector an undertaking or assurance that they would perform their statutory obligations, namely, that they would not leave the Cullen Estate land-locked.
This information was material to Mr. O'Mahony and his client Ms. Holland insofar as it overcame an objection which he might otherwise have maintained and it was also material in as much as the need to satisfy the Cullen Estate would result in the construction and linkage of facilities which might wellbeof assistance to the Holland Estate. However, there was nothing in the evidence given as I read it or on the basis of any reasonable interpretation of it on which I could conclude or infer that the County Council through Mr. Davin were guaranteeing to the owners of the Holland Estate an access into the northern boundary of the residue of the holding remaining after the proposed compulsory acquisition.
The extracts from the transcript put in evidence by the County Council include a series of questions and answers from the examination by Mr. O'Mahony of a witness, Mr. Wilfred Raftery, architect, who was, apparently, called to give evidence on behalf of Ms. Holland. There is one question and answer to which attention was directed in particular, namely,
Question: And Mr. Smith actually made the point earlier that the County Council are under statutory obligation to provide the necessary access. I think our problem at the present time would be when would that be provided, I would urge that, any such access and the provision of vehicular access with the necessary facilities, roads and services be made simultaneously with the acquisition of this portion of land for us. Otherwise I am authorised and instructed to state, Inspector, that we have no objection to the plan subject to that reservation, that we get adequate access for vehicular traffic to the roads and other services to enable us to operate our zoned industrial estate in due course and of course furthermore to appropriate compensation being made available for any land taken or any amenities that we are deprived of. Would that be what you also understand to be the position?
Answer: Yes, I think it is. We just stress that in actual fact Western Contractors did obtain a planning permission for bringing a road with services right up to the boundary of our site and that same area that the Council apparently now proposes to acquire on the Western Industrial Estate so that we could have negotiated directly with that Estate for access to our site but now if this piece of land is taken between us we would be dependent on the County Council to give us access".
The answer by the architect is perfectly clear. He explains that his client had been in negotiation with Western Contractors with a view to obtaining access to the site but if the scheme was implemented that access would be dependent on the County Council rather than on Western Contractors. That seems to me clear.
It seems to me that the only doubt that arises at all comes from the rather lengthy question posed by the Solicitor. The statement or the reservation that the objectors should "get adequate access for vehicular traffic to the roads and other services to enable us to operate our zoned Industrial Estate in due course" may well indicate that Mr. O'Mahony was under the impression that the course being adopted by the County Council as part of their statutory duty was " of more value to his clients than was the case.
In an affidavit sworn by him on the 8th of February 1986 Mr. O'Mahony in describing the position he had taken up at the public local inquiry stated as follows:
"As instructed by the Plaintiff I stated that she would withdraw " her said objection on condition that the first named Defendant in addition to fully compensating her in the ordinary ; way for the acquisition of the said two portions of her land would also provide full rights of access and recess to the public road at Knockmitten lane (for all purposes consistent) with the use of the remainder of her land for industrial or other permitted purposes) to the remainder of her land.
In reply to the said last mentioned submission Mr. Davin on behalf of the first named Defendant gave an assurance that the first named Defendant would provide the said access in advance of any Ministerial Order relating to the Plaintiff's lands. "Relying on that assurance and in pursuance of my instructions from the Plaintiff I did not pursue her objection any further at the said inquiry.”
Mr. James Holland, a son of the Plaintiff, swore an affidavit incorporating similar statements. I am satisfied that there is no reasonable interpretation of the agreed transcript of the evidence given which supports those statements.
The particular passages from the transcript dealing with the evidence given by Mr. Davin and exhibited by Mr. O'Mahony make it clear, as I have already pointed out, that the right of access is, what I may call the statutory right of access, to the Cullen's Estate which would have been otherwise deprived of any access. I can find nothing which would support the contention that Mr. Davin or any other official of the County Council undertook to provide the Holland Estate with an access to the remainder of their lands for industrial or other purposes.
It may have been that Mr. O'Mahony was under a misapprehension as to the effect of the implementation of the scheme or as to the nature of the very limited assurance given by the County Council and indeed that would be regrettable but if there was any such misapprehension I do not think that it was caused or contributed to in any way by the officials of the County Council or Counsel acting on their behalf. Furthermore, the transcript gives me the impression that the Inspector, Mr. Switzer, conducted the inquiry with very considerable skill, care and courtesy. Indeed it was the Inspector who pursued the point raised by Mr. O'Mahony to its final conclusion and extracted such assurance as was given.
If the Plaintiff or her Solicitor are under the mistaken impression that they had achieved a valuable benefit by way of concession from the official giving evidence on behalf of the County Council then I can understand their disappointment. On the other hand, I think it is fair to say that it seems unlikely that the concession which Mr. O'Mahony believes he made by not pursuing the objection further was of any materiality. On the face of it the evidence given by Mr. Davin would appear to justify the intended acquisition of the northern part of the Plaintiff's lands and it is very difficult to conceive any argument which might have been made in relation to that part of the scheme which could have altered the views of the Minister. Indeed in that regard it must be remembered that the Minister did have the advantage of considering the entire of the transcript before confirming the Order. However, it is not on that basis that I rest my judgment. It is my view that neither of the Defendants or their officers or any persons acting on their behalf in any way misled the Plaintiff or her advisers or contributed to any misunderstandings which she or they may have had. In the circumstances there is no justification for granting the relief sought.