Supreme Court of Ireland Decisions

1. The long and complex planning history of the relatively small site at Sandpits, Castleknock which is at the centre of this case began with the grant of outline permission for the erection of two bungalows with septic tank drainage facilities to the appellants’ predecessors in title in 1971. The appellants then applied to the respondent’s statutory predecessors, Dublin County Council (hereafter “the Council”) for an outline permission for the erection of six houses on the site and this was refused by the Council on the 12th March 1976.

2. A number of reasons were given for the decision, including a statement that the development would be in conflict with the zoning objectives in the development plan. Two of the reasons are of particular relevance in the context of the present litigation, viz:-

3. The uncontested evidence in the High Court in this case on the question of sewerage disposal was as follows. There was a pipe adjoining the site connecting to a private drain on lands belonging to Lord Moyne, which was subsequently taken in charge by the Council and hence became in law a sewer. That sewer in turn discharged into the Lucan/Chapelizod sewer which was vested in the adjoining sanitary authority, i.e. Dublin Corporation (hereafter “the Corporation”). In 1958, an agreement had been entered into between the Corporation and the Council pursuant to the Public Health (Ireland) Act 1878

4. The evidence also established that, with the increase in the population of the Lucan area from the 1950s onwards, the sewers in the Chapelizod/Lucan area generally were seriously overloaded, resulting in the pollution by raw sewage of the River Liffey on frequent occasions.

5. It was in these circumstances that the Council decided to refuse the application for outline permission for the reasons quoted. The applicants appealed and, although the factual situation remained the same, the parliamentary secretary to the Minister for Local Government, in whom the appellate functions under the legislation were then vested, granted the outline permission sought, subject inter alia to a condition that the applicants should make a financial contribution towards the Council’s expenditure on the provision of a public water supply and piped sewerage facilities. The amount of the contribution, in default of agreement, was to be as determined by the Minister.

6. Two further applications for permission on foot of the outline permission (what is usually referred to as a “full permission”), were made, both of which applications were refused. The reasons for the second refusal were similar to those which I have already quoted, save that the first ground referred expressly to the agreement between the Corporation and the Council and the lack of capacity in the Corporation sewer. There was again an appeal and An Bord Pleanala (hereafter “the Board”) decided to grant the permission sought on the 4th January 1980. They stated their reasons to be as follows:-

7. The specified conditions included one requiring the payment of a contribution in identical terms to that contained in the earlier grant of outline permission.

8. Again, the uncontested evidence was that the sewers in the area were still overloaded when this permission was granted, but it is clear from the reasons given that the Board felt constrained by the earlier decision to grant the permission sought.

9. There were in force at the time building bye-laws made by the Council pursuant to the 1878 Act. An application having been made by the appellants for approval pursuant to the bye-laws of their plans for the development, they were disapproved of by the Council on the 19th October 1983 on two grounds as follows:-

10. Shortly before this Notice of Disapproval was issued, the Council accepted the payment by the appellants to them of a sum of £1,025 as being in compliance with the condition as to the payment of a contribution contained in the Board’s order.

11. The appellants took the view that the Council, in refusing to grant building bye-law approval on the grounds which I have quoted, were seeking to frustrate the decision of the Board to grant permission and, accordingly, they instituted proceedings in the High Court claiming inter alia a mandatory injunction directing the respondents to issue forthwith a notice of approval under the building bye-laws. An application for an interlocutory injunction granting this relief having been made to Barrington J, who refused the relief sought, those proceedings were discontinued.

12. On the 6th September 1985, a further application for building bye-law approval was made and this was granted by the Council on the 5th November of that year. The position as to the sewerage had improved with a decision to proceed with the construction of a pumping station at Lucan and, in addition, the appellants had come to an agreement with the Council to cede certain lands to the Council which they required for a particular purpose.

13. The present proceedings, in which the appellants claim that the Council acted wrongfully and in abuse of their statutory powers in refusing the application for building bye-law approval in 1983 and as a result of which they say they suffered damage, were begun in December 1988. The Council, in the course of the proceedings, discovered internal correspondence which had taken place in 1980 between officials of the Corporation and the County Council. These included a letter from Mr. Kevin O’Donnell, then the Dublin Chief

14. Engineer in charge of engineering services, dated the 16th July 1980. in which he responded to a query from the planning department of the Council as to what the position was regarding the drainage arrangements for the six bungalow development on the appellants’ site and the amount of the contribution which should be sought. In his letter, Mr O’Donnell said:-

15. In a reserved judgment, Costello P. said that there were two issues which the court had to resolve.

16. As to the first issue, the learned President said that he could not accept the construction sought to be placed on the letter from Mr. O’Donnell and was satisfied that it could not be regarded as a consent by the Corporation to the proposed connection.

17. As to the second issue, the learned President said that he was satisfied that a local authority, in considering an application for building bye-law approval as a sanitary authority, was exercising its discretion under an entirely different code from the planning code and was not bound to exercise its discretion in the same way as the Board. He also held that, since s.26( 11) of the 1963 Act specifically provided that a person should not be entitled solely by reason of an approval under the section to carry out any development, a decision to refuse bye-law approval could not be impugned because it prohibited a development to take place which had been the subject of a grant of permission.

18. He accordingly dismissed the appellants’ claim. From that decision, they have now appealed to this court.

19. On behalf of the appellants, Mr. Macken, S.C., submitted that the inferences drawn by the learned President from the letter from Mr. O’Donnell and his evidence at the hearing were erroneous: the correspondence between

20. As to the second issue, Mr. Macken submitted that the Board, in deciding to grant permission for the development, had in effect overruled the Council’s decision that it could not proceed because of the deficiency in sewage services. It was not open to the Council to reopen that issue and effectively set aside the Board’s decision by refusing bye-law approval. In support of these propositions, he referred to the unreported decision of Finlay P, as he then was, in The State (Foxrock Construction Company Limited) v. Dublin County Council judgment delivered 5th February 1980; (O’Sullivan and Sheppard,

21. Irish Planning Law and Practice para. 3.71); and The State (Pine Valley Developments Limited) v. Dublin County Council [1984] IR 407.

22. Mr. Macken further submitted that, at the time the council refused the application for building bye-law approval, the law was that a person who had been granted planning permission to erect a dwelling had a statutory right to cause his drains to empty into the sewer of a sanitary authority, this being the effect of s.23 of the 1878 Act as construed in Ballybay Meat Exports Limited v. Monaghan County Council: [1990] ILRM 864 and Short v. Dublin County Council [1982] ILRM 117.

23. On behalf of the Council Mr. McKechnie, S.C. submitted that the trial judge was correct in not treating the letter of Mr. O’Donnell as constituting the consent of the Corporation to the discharge of the sewage of this development into the Corporation sewers. As to the second issue, he submitted that the case made on behalf of the appellants amounted to a contention that the Council were effectively deprived by the decision of the Board of their statutory power to grant or withhold building bye-law approval. He urged that this submission wholly disregarded the fact that the Council, in dealing with an application for building bye-law approval, were acting as a sanitary authority under a different legislative code. He further submitted that s.26(11) of the 1963 Act made it clear that a grant of a planning permission did no more than assure the applicant that, quoad the planning legislation, development would be lawful

24. It is not in dispute that the Council and the Corporation are sanitary authorities within the meaning of these provisions and that the former made bye-laws with respect to the matters set out in s. 41.

25. Regulation 109 provided that every person who proposed to construct a new building to which the bye-laws related was required to give to the Council notice of such intention, the nature of the proposed building, its purpose, the materials of which it was to be constructed and “the proposed mode of drainage and the means of water supply”. The applicant was required to deliver plans which showed “the position and level of the out-fall of the drains and the position of any sewer with which the drainage is intended to be connected”.

26. Section 23 of the 1878 Act provides that:-

27. It has been held in a number of cases that this section confers on the owner or occupier of a premises an absolute right to cause his drains to empty into the sewer of a sanitary authority, provided he gives the notice required by the section and complies with any relevant conditions: see Molloy v. Gray [1889-90] 24 LR (Ir.) 258; Ballybay Meat Exports Limited v. Monaghan County Council and Short v. Dublin County Council. It should be observed, however, that in none of those cases did the question arise as to whether the right could be exercised where the sewers were overloaded and the sanitary authority had issued a notice of disapproval of the works under s.42 for that reason. Thus, in Short v. Dublin County Council , the facts were that an existing sewer, although under 50% in use, was “pre-empted for future development on other lands”. The decision of McMahon J. in the High Court that the fact that the sanitary authority intended a sewer to serve future developments in the area, as well as existing developments, did not affect the

28. Since the events which have given rise to the present litigation, the law has been changed by s.25 of the Local Government (Planning and Development) Act, 1990, subsection 3 of which provides that the owner or occupier is not to be entitled to connect his drains to any sewer of the sanitary authority except with their consent, but that the grant of a planning permission or of approval under bye-laws is to be taken to include the consent of a sanitary authority to the connection of the structure to the appropriate sewer. That provision was not, however, in force at the time when the Board granted permission for this development.

29. Section 26(11) of the 1963 Act provides that:-

30. It is, accordingly, clear that a person who is granted permission under the 1963 Act for a particular development may be unable to proceed with the

31. The Local Government (Planning and Development) Acts 1963 to 1993 and the Local Government (Sanitary Services) Act 1878 to 1964 (of which the 1878 Act forms part) are two distinct statutory codes. The obligation on the Council in the present case, when an application was made to them in their capacity as sanitary authority for approval of the works in accordance with the building bye-laws made by them pursuant to the 1878 Act, was to consider the application fairly, reasonably and on its merits. However, if the contention of the appellants in the present case was well founded, it would mean that the sanitary authority were precluded from considering whether the capacity of the sewers into which the development was to discharge was overloaded. Were it not for the existence of the Board’s permission, that contention would be clearly unsustainable: the sanitary authority dealing with such an application was bound to have regard to whether granting the approval sought would result in the further overloading of a system already unable to cope with existing pressures. That would be the case whether it was the sanitary authority’s own sewers which were overloaded or - as here - the sewers of an adjoining sanitary authority into which the effluent ultimately, by agreement, was discharged.

32. In the present case, the Board granted permission for the development because it had already been approved in principle at an earlier stage when the outline permission was granted. Undoubtedly, the reason given by the Council for refusing the application, i.e. that it would be premature because of the absence of piped water and sewage facilities, was no longer of any validity in planning terms following the decision of the Board to grant full permission. But, for the reasons already stated, that did not of itself authorise the appellants to proceed with the development: their obligation to obtain building bye-law approval remained and their application had to be determined by the Council in accordance with the circumstances then prevailing. In my opinion, it was so determined by them. That decision did not call into question the validity of the permission granted by the Board: it remained a valid permission but one which could not be implemented unless and until the Council, in their capacity as a sanitary authority, were satisfied that they could, consistently with their statutory duties and responsibilities, grant approval under the bye-laws.

33. Different considerations would arise if, for example, the appellants had for some reason decided not to proceed with the original development and submitted revised plans for a residential development of the same type. If the Council had refused that application on the ground that the development was premature because of the absence of sewage facilities, their decision could undoubtedly have been set aside as being an unlawful attempt on their part to

34. The conclusion I have reached is also not affected by the fact that the Council were paid, and accepted, the appropriate contribution by the appellants required by the terms of the Board’s permission. The appellants were obliged by the condition in question to pay the amount of the agreed contribution to the Council: the fact that they did so, and that the Council accepted the payment, did not relieve them of the obligation to obtain any other necessary permissions or consents, including approval under the building bye-laws, before beginning the development.

35. I have dealt with this issue first since, as was accepted by Counsel, it was the principal issue in the case. I am also satisfied that the decision of the learned President as to the letter from Mr. O’Donnell was correct. While the latter accepted that there was no point in the Corporation “making a fuss” about the decision of the Board (and, presumably, the earlier decision of the parliamentary secretary to the Minister) to grant permission, there is nothing in the terms of the letter to suggest that he was giving a formal consent on behalf of the Corporation to the connection in question. On the contrary, in his oral evidence - which was not challenged - he made it clear that he would not have granted building bye-law approval for the development, a position which he could hardly have adopted if he had already expressly consented on behalf of

36. I would dismiss the appeal.