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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Cooper -v- Cork City Council [2006] IEHC 353 (08 November 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H353.html
Cite as: [2006] IEHC 353
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Judgment Title: Cooper -v- Cork City Council Composition of Court: Murphy J. Judgment by: Murphy J. Status of Judgment: Approved |
Neutral Citation Number: [2006] IEHC 353 THE HIGH COURT [2004/1955 SS] IN THE MATTER OF THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT, 1919,THE ARBITRATION ACTS, 1954 AND 1980, THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT, 1960, THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963-1999 AND Judgment of Mr. Justice Roderick Murphy dated the 8th day of November, 2006IN THE MATTER OF SEAN COOPER v. CORK CITY COUNCIL (FORMERLY CORK CORPORATION) 1. Outline This is a case stated on the net point of construction of a condition in a planning permission which relates to a claim for compensation under the Local Government (Planning and Development) Act, 1990 (the Act of 1990). The applicant owned land at Douglas Hall, Cork which is situate on the sea side of the M55. The site consisted of 0.83 hectares out of a larger site of 1.4 hectares. Previous applications for planning permission for development of 42 units had been refused. On 28th July, 1999 planning permission was granted for 33 apartment units. This was appealed to An Bord Pleanála. On 15th March, 2000, the Board granted permission for 33 units subject to twelve conditions. The units have since been constructed. A claim was made to the Property Arbitrator on 11th September, 2000 for the loss of the eight apartments pursuant to s. 11 of the Act of 1990. 2. Legislative provisions Section 11 of the Act of1990 provides as follows:
(b) in the absence of agreement, the amount of such reduction in value, determined in accordance with the First Schedule, and (c) in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried out on the land.” The First Schedule details rules for the determination of the amount of compensation, s. 12 of the Act provides that such compensation shall not be payable in respect of any development of a class or description set out in the Second Schedule or for a reason or reasons set out in the Third Schedule or for the imposition of conditions on the granting of permission which conditions are of a class or description set out in the Fourth Schedule.
… (b) building lines, site coverage and the space about dwellings or other structures;
(a) the disposition or layout of structures or structures of any specified class (including the reservation of reasonable open space in relation to the number, class and character of structures in any particular development proposal); (b) the manner in which any land is to be laid out for the purpose of development, including requirements as to road layout, landscaping, planting; … 12 – Any condition relating to the layout of the proposed development, including density, spacing, grouping and orientation of structures in relation to roads, open spaces, and other structures. … 18 – Any condition relating to the preservation of views and prospects and of amenities of places and features of natural beauty or interest. 19 – Any condition relating to the preservation and protection of trees, shrubs, plants and flowers.” The subsequent Planning and Development Act, 2000 and the Third, Fourth and Fifth Schedules of that Act considerably reduce the circumstances in which compensation can be claimed and also considerably reduce the likely amount of such claims. The principle of compensation following adverse planning decisions is retained but the entitlement is virtually eliminated in case of developments which would have unduly interfered with the general amenities of the public or neighbourhood or with public safety or environmental well being. 3. Case Stated Mr. Eoin O Buachalla, property arbitrator, made an award in the form of a special case stated for the opinion of the High Court on 14th October, 2004. At the request of the respondent (Cork City Council) he submitted the following question for the decision of the High Court:-
If the answer of the court to the question set is in the affirmative that the compensation be paid by the respondent to the claimant as nil and that the claimant and the respondent bear their own costs of and incidental to the reference to arbitration and to the taking up of the award. 4. Conditions relating to permission granted The decision of 15th March, 2000 to grant permission for the development of apartments on the claimant’s lands was subject to 12 conditions. The effect of condition number 1 was to reduce the number of apartments to 33. The notice of claim served on the respondents on 11th September, 2000 was for the sum of IR£850,000 (£600,000 for loss of eight apartment units and £250,000 for loss of amenity) in respect of the alleged reduction in the value of the claimant’s interests in the subject lands as a result of the aforesaid condition. By amended notice of claim dated 16th November, 2001, the amount of the reduced claim was £280,000 and was confined to the alleged reduction in the value of the claimant’s interests in the subject lands as a result of condition number 5 of the decision of An Bord Pleanála. Condition number 5 is as follows:-
Reason: in the interest of amenity.” 5. Planning Inspector’s Report By report dated 13th March, 2000, Paddy Keogh, inspector, referred to his site visit on 6th January, 2000 and to the description and context thereof. He referred to the proposal, planning history and planning authority department reports. He referred particularly to a report from the planning authority parks department dated 25th June, 1999 which expressed the opinion that the proposed development would seriously contravene the Cork City Development Plan Review of 1998 zoning for the site. All of block 5 in the 30-bay car park fell within the designated amenity area in which development may be restricted or prevented to protect the visual amenity and habitat for wild flora and fauna. It stated that further reduction in the size and scale of the development should be sought to reduce the impact of the development on the amenity area. He also referred to conditions 2 and 3 of the planning authority decision of 28th July, 1999 which corresponded to part of condition 5 of An Bord Pleanála. The applicant’s appeal related, inter alia, to the planning authority’s conditions. The applicant had said as follows:
To screen the development in the area from the south ring road might be best be achieved by a line of trees along the river bank and an extension of the existing line of trees southward to the boundary of the site. The Inspector recommended that planning permission for the proposed development be granted subject to certain conditions including condition 8:
Reason: In the interest of visual amenity.” 6. Cork City Development Plan Review, 1998 Chapter 4 of the review deals with environmental policy. Paragraph 4.2.8 addresses nature conservation and identifies the Douglas estuary on the western part of Lough Mahon adjacent to the subject lands which is referred to as a significant area of salt marsh, reed bed and inter-tidal mudflat holding international important numbers of waders. That part of Cork harbour had also been designated as a special protection area for wild birds (SPA) under the European Communities (Conservation of Wild Birds) Regulations, 1994. Chapter 6 on development policies outside the central area refers to amenity in paras. 6.6 and 6.7. It notes to the continuous process of land development in the city, having reduced woodland areas and other amenity land, including land available for active and passive recreation. Nonetheless, substantial areas are zoned as areas in which development may be restricted or prevented for a range of amenity reasons which were outlined. The objective is to preserve the essential amenity characteristics of the land. The areas zoned are divided into five categories based on their essential amenity characteristics including land with amenity value which has potential for development as an open space; and areas which provide a habitat for wild flora or fauna. The Douglas estuary is referred to in para. 6.27 where it is stated that a section of the shore remains relatively undeveloped and is zoned as a restricted development area because of its amenity value. Only modest development for recreational purposes which would promote the wild life function, or not be incompatible with it, is envisaged. 7. Authorities The following cases with regard to the interpretation of planning permissions were referred to: 7.1 In Re X.J.S. Investments Ltd. (1986) I.R. 750 at 756 was relied upon in relation to the principles of construction. In that case McCarthy J. had stated:
8. Applicant’s submission Mr. Galligan, counsel for the claimant, submitted a reason which fits within the precise wording of the section should be expressed in the words of that section. If a condition is to exclude compensation it must fall squarely within the paragraph of the Fourth Schedule. The term “relating to” is used in the preamble to paragraph 6 of the Fourth Schedule. The words “relating to” in the context of the Fourth Schedule essentially means “concerned with”. A “rolled up” paragraph dealing with a myriad of different requirements or conditions relating to a grant of permission to develop land could be used as a device to defeat a claim for compensation in certain circumstances. It is wider than a specific paragraph relating to an imposed condition which would not attract compensation. Such an approach to the interpretation of the Schedule would not accord with the legislative intention. The respondent had sought to rely on paragraph 6(b) of the Fourth Schedule of the Act of 1990 which refers to any condition relating to all or any of the following matters: building lines, site coverage and the space about dwellings and other structures. The claimant was not aware of the basis of the respondent’s contention that condition 5 of the decision of the Board falls within the scope of that paragraph. The condition is patently not concerned with either building lines, site coverage or the space about dwellings or other structures. In relation to paragraph 10 of the Fourth Schedule there is no development on the eastern side. It is submitted that condition 5 of the permission is not concerned with paragraph 10(a) of the Fourth Schedule the purpose of which is to ensure that no development takes place on the specified portion of the site which is to be retained in its “natural undeveloped state” and the proposed car parking spaces are to be removed from this location. The primary purpose is the protection of the amenity of the area to the east of the beech trees it is not concerned with the disposition of or layout of structures but the reservation of reasonable open spaces. Furthermore the condition makes it quite clear that “no gardens or other development shall be placed in this area”. Condition 5 goes considerably further than the disposition of layout of structures and does not fall within the scope of paragraph 10(a). The condition has the effect of precluding all forms of exempted development insofar as the prohibition on development is absolute in the area east of the beech trees. Neither is condition 5 of the permission relevant to paragraph 10(b) – the manner in which any land is to be laid out for the purpose of development, including requirements as to the road layout, landscaping and planting etc. The condition is in the interests of amenity only. In relation to the contention that the purpose of the condition may have been to preserve a place of wildlife importance or interest, such places are not referred to in the context of the paragraphs of the Fourth Schedule. By contrast, conditions relating to the preservation of sites of archaeological, geological or historical interests are protected under paragraph 17 of the Fourth Schedule and places of natural beauty or interest under paragraph 18. A condition relating to the preservation and protection of trees, shrubs, plants and flowers in paragraph 19 of the Fourth Schedule does not include the words “or wildlife”. Paragraph 12 refers to the layout of the proposed development. None of the requirements or conditions of condition 5 relate thereto. Paragraphs 18 and 19 relate to the preservation of views and prospects or places and views of natural beauty and the preservation and protection of trees, shrubs, plants and flowers which is conjunctive to the preservation of use and amenities. There is no specific reference to any of these elements in condition 5. Accordingly it is submitted that paragraphs 18 and 19 do not apply. A condition which on its face is not related to the preservation of views and prospects could not be deemed to fall within the wording of paragraph 18. Counsel for the claimant submitted that condition 18 in the Fourth Schedule of the 1990 Act was not included in the inspector’s report nor, indeed, in the An Bord Pleanála decision. He referred to condition 19 of the Fifth Schedule to the Act of 2000 which reads:
Counsel believed that the respondent was asking the court to speculate beyond the provisions of condition 5 as encompassing amenities of property. In relation to paragraph 18, which, counsel says, should be read conjunctively, he stresses that in other paragraphs such as 17 the disjunctive term “or” is used. In the circumstances the claimant submits that the answer to the question submitted from the arbitrator should be in the negative. 9. Submissions on behalf of the respondent. Mr. Morris Collins SC and Mr. Declan McGrath BL contend that condition 5 of the decision of the Board comes within one or more of the relevant paragraphs in the Fourth Schedule. There was no requirement in the 1990 Act that any condition should invoke one or more paragraphs of that schedule. There is a distinction between the position of refusal of planning permission as in X.J.S. and the present case where permission is granted subject to conditions. Section 12(2) refers to any condition of a class or description set out in the Fourth Schedule. Counsel submitted that the proper approach to the interpretation of the Act is to give to the words of the statutory provision or provisions in issue their natural and ordinary meaning; Howard v. The Commissions of Public Works in Ireland [1994] 1 I.R 101 applies. That case does not dictate that the enactments must always be given a literal meaning, irrespective of the result. The courts can and ought to have regard to the purpose of the provisions being construed and, where the purpose is clear and where it is reasonably open on the language of the provision at issue, give the provisions a construction that advances, rather than frustrates, that purpose. He referred to D.P.P. (Ivers) v. Murphy [1999] 1 I.R. 91 at 109 – 111 regarding the purposeful approach. Having referred to the dictum of Griffiths L.J. in Pepper v. Hart [1993] AC 593 at 617 regarding such approach, Denham J. states at 111:
The purpose of the 1990 Act was acknowledged by Fennelly J. in Ballymac Designer Village Ltd. v. Louth County Council [2002] 3 IR 247 at 256 where he referred to the scheme of compensation having been modified and, in some respects, restricted over the years. It was submitted that there was no constitutional presumption in favour of compensation. It was not required for every restriction of property rights and the absence of compensation would not have itself mean that a particular restriction constituted an unjust attack on property rights. This was particularly so where the restriction did not expropriate property or the rights of private ownership but merely regulated the exercise of those rights. He referred to O’Callaghan v. Commissioners of Public Works [1985] ILRM 364 (O’Higgins C.J.) in relation to the preservation of a national monument and to the decision of Kenny J. in Central Dublin Development Association v. Attorney General [1975] 109 ILTR 69 in relation to town planning as an attempt to reconcile the exercise of property rights for the demands of the common good being not an unjust attack on those property rights. Counsel referred to article 26 in the Planning and Development Bill 1999 [2000] 2 IR 321. The decision of the Supreme Court was that the granted planning permission is an enhancement of the value of property rights and, accordingly, a planning authority is entitled to impose conditions which regulate the development for which permission has been granted even if these conditions have the effect that a person does not obtain the full increase in value consistent with a grant of that permission. He referred to the judgment of Keane C.J. at 353:
The purchase of land for development purposes is manifestly a major example of a speculative or risk commercial enterprise. Changes in market values or economic forces, changes in decisions of planning authorities and the rescission of them, and many other factors, indeed, may make the land more or less valuable in the hands of its purchasers.’ [Emphasis added]
The form of wording required to exclude compensation, considered in X.J.S. Investments Ltd. and Dublin County Council v. Eighty Five Developments Ltd. (No. 2), already referred to. Finlay C.J. in the latter case referred to X.J.S. at 398 as follows:
McCarthy J., in the same case stated at 402 that:
The Cork City Development Plan Review of 1998 recognises the Douglas Estuary area as significant. As noted above it has been designated as a special protection for wild birds area under the European Communities (Conservation of Wild Birds) Regulations of 1994. Paragraphs 6.6, 6.7 and 6.27 referred to the objective of preserving the essential amenity characteristic of the area. The condition and the reason for condition 5 mirror that contained in the Inspector’s Report and Recommendation “in the interests of amenity”. There cannot be any doubt but that condition 5 falls within both paragraphs 18 and 19 of the Fourth Schedule, that is:
Any condition relating to the preservation and protection of trees, shrubs, plants and flowers.” [Emphasis added] It is submitted that the question stated by the arbitrator should be answered in the affirmative. 10. Decision of the Courts. Section 11 of the Local Government ( Planning and Development) Act, 1990 gives a right to compensation where a claim is made to the planning authority and it is shown that as a result of a decision involving a refusal of permission to develop land or a grant of such permission subject to conditions, the value of an interest of any persons existing in the land to which the decision relates at the time of that decision is reduced, that person shall, subject to the provisions of this part, be entitled to be paid compensation representing the reduction of value or the damage (if any) to a claimants trade, business or profession carried out on the land. Section 12 restricts compensation in respect of the refusal of permission for any development of a class or description set out in the Second Schedule and for the reason one of the reasons for the refusal set out in the Third Schedule. Many of the cases referred to by the claimant are cases which result from the refusal of permission. It is clear that the reasons should be stated with certain concision. Notwithstanding that, McCarthy J. in Eighty Five Developments Limited referred to the Board being reluctant to use the precise wording of the relevant portion of the section for the very reason that it might be thought that the reason was being advanced in order to defeat a claim for compensation. In effect, an allegation of bad faith could arise. There is, of course, a distinction between compensation for the refusal of permission and compensation in respect of the imposition, on the granting of permission to develop land, of any condition of a class or description as set out in the Fourth Schedule. The addition of the words “of a class or description” seems in the view of the court to be wider and more flexible then the use of the words “a reason as set out in the Third Schedule”. It seems to this court that the principles of interpretation relied upon by each party are not at significant variance with one another. A purposive approach is clearly permitted as is clear from s. 5 of the Interpretation Act, 2005, that best reflects the plain intention of the parliament where that intention can be ascertained from the Act as a whole. This is also clear from the decision of Howard v. The Commissioners for Public Works in Ireland [1994] 1 I.R. 101 and in the judgment of Denham J. of the Supreme Court in D.P.P. (Ivers) v. Murphy [1999] 1 I.R. 91 at 109, approving Pepper v. Hart [1993] AC 593 at 617. The courts now adopt a purposive approach and seek to give the true effect to the purpose of legislation. It is significant that different rules apply, as is clear, from the strict interpretation of revenue legislation and provisions that relate to the imposition of a penal or other sanction. There is no sanction involved in the interpretation of the 1990 Act. Rather there is a question of compensation for refusal or, as in this case conditions attached to the granting of permission. It is clear from the decision of Finlay C.J. in Eighty Five Developments Ltd. at 398 that:
The Supreme Court decision in re article 26 in the matter of the Planning and Development Bill 1999 [2000] 2 IR 321 at 353 referred to restrictions which the general law of planning imposes on the use of property in the public interest. Finlay C.J. in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23 at 37 referred to decisions to grant outline planning permission as being not intended as any form of delimitation or invasion of the rights of owners of lands but was rather intended as an enlargement and enhancement of those rights. The thrust of the present case is, of course, more focused on the references to the conditions excluding compensation in the Fourth Schedule to the Act. It is clear that the 1990 Act increased the number of conditions which might be imposed without compensation just as the 2000 Act has further increased the number of conditions from the Act in relation to which this claim is being made. It seems to this court that the reference to “any condition of a class or description set out in the Fourth Schedule” is necessarily broader than the reference to “reasons for the refusal is a reason set out in the Third Schedule” in relation to the refusal planning permission. More specifically it seems clear that condition 5 of the Board’s decision following on the recommendation of the inspector, relates to the preservation and protection of trees, shrubs, plants and flowers (paragraph 19 of the Fourth Schedule of the Act of 1990) and, notwithstanding the amendment thereto in the Fifth Schedule to the 2000 Act, falls within a condition of a class or description in paragraph 18 of the Fourth Schedule of the Act of 1990. It does not seem to me that it is necessary to read the condition disjunctively once its any condition or a class or description as set out therein, Condition 6(b) relates to the west part of the site. Condition 10(a) and (b) both refer to the layout of developments. Neither appears to be relevant. Accordingly it would seem to the court that the question posed by the arbitrator in the case stated should be answered in the negative. The Arbitrator is not precluded by s. 12(2) of the Act of 1990 from awarding compensation pursuant to s. 11 of that Act. |