2004 177 CA
2005 IEHC 320
THE HIGH COURT
WEXFORD COUNTY COUNCIL
APPLICANT
DANIEL HANLEY
RESPONDENT
AND OTHERS
NOTICE PARTIES
Note of Judgment delivered on the 29th July 2005
The onus on this application rests on Wexford County Council the Applicant. The facts as outlined in the application are unclear due to what I can only describe as a web of misinformation created by the Respondent in his dealings with the Applicant on his several planning applications and applications for retention and a plea of guilty on a prosecution under the planning code.
However I am satisfied that the Respondent's course of conduct should not create an estoppel in the circumstances of this case. The reason for that is that estoppel is an equitable principle and to apply it here would be detrimental to the interests of innocent third parties namely the Notice Parties herein, the individual site owners or site occupiers who would suffer serious loss if I were to apply estoppel and they would also be denied the opportunity which the Court gave them to make their case in relation to this application.
I propose, with great reluctance, having regard to the Respondent's conduct to accept that the various applications for retention and planning permission were in effect a tissue of lies and bore no relationship to what was actually on the site at the relevant times. In these circumstances the best evidence I have is the Affidavit sworn by the Respondent and notwithstanding his history of untruthfulness in his dealings with the Applicant I propose to accept the evidence in his Affidavit sworn on the 16th June 2004 at paragraph 3. and 4.
In those paragraphs he deposes as follows –
"The history of the works and the lands is that in around 1994 I borrowed from AIB Bank to establish the second phase of the site. A bulldozer levelled the bank in the field and filled in a marl hole. A hard core drive was installed to service the park. Services were installed, namely water, lighting and sewage to facilitate 35 mobile homes at this time. The first housing shed was also constructed to house services. The services for the balance of the other 29 units were installed, mostly in 1997 and some in 1998. I would estimate that I have invested either by myself or through my building company, approximately €436,630 in the park and I have invested the entire income from the park every year since 1994 in the development and maintenance of the park."
I fully appreciate the difficulty with which the Applicant was faced in putting together sufficient evidence that would persuade me to accept what may well be the case but unfortunately I have not managed to discharge the onus. The result of that, it seems to me, is as follows. Firstly I take it that the planning unit with which I am concerned is the site outlined on the maps accompanying planning applications 2001 No. 3067 and 2003 No. 3205. The remainder of the Respondent's lands are outside that planning unit.
Secondly I find that by the relevant date the planning unit had to a significant extent been developed and used as a caravan park. 35 units and services were in situ by the date with which I am concerned which is the 10th March 1997. In 1997 and 1998 a further 20 units were installed. Taking the evidence that I was given that the season starts on St. Patrick's Day I think it likely that some number of these were installed before the 10th March 1997.
In these circumstances I propose applying Dublin County Council v Carthy Building Company Limited 1987 I.R. 255 and I determine that the increase in actual numbers from something in excess of 35 up to the number of 64 was not a material development by way of intensification. It is, however, so close to an intensification that I would be of opinion if there were any further development of any sort it would place the Respondent over the limit with all the consequences that would flow from that.
In all the circumstances the Applicant having failed to satisfy me I refuse the reliefs sought.
Costs
I am satisfied that the Respondent's dealings with the Applicant were reprehensible and that he intentionally misled them on his planning applications and by his plea of guilty in the District Court. As a result of his conduct the Applicant was delayed in bringing this application. His conduct was without regard for the effect of the same upon innocent third parties namely the Notice Parties who had invested significant sums in the belief that the Applicant had planning permission. The Applicant by his conduct has made a significant gain in the increase in the value of his lands. I do not think it appropriate that these proceedings should be at the expense of the Applicant and the ratepayers of Wicklow. I do not think it appropriate that the Notice Parties should be required to bear the costs of seeking to protect their position in these proceedings. Had the Applicant behaved properly and been forthcoming in his applications to Wicklow County Council this situation would never have arisen. Had he dealt honestly with the Notice Parties there would have been no necessity for them to attend on these proceedings.
In these circumstances the Order as to costs which I propose to make is that the Applicant should be responsible for the costs of both the Applicant and the Notice Parties to be taxed in default of agreement.
Approved: Finnegan P.