The High Court 

Arthur v Kerry County Council

1999/277 JR 

9 February 2000 

MCGUINNESS J: 

This case concerns the interpretation of Section 13 and other relevant sections of the Local Government (Planning and Development) Act, 1990. In his Judicial Review proceedings the Applicant seeks the following reliefs 

(I) Certiorari by way of an application for Judicial Review in respect of the Respondent's Notice dated the 21 May 1999, under Section 13 of the Local Government (Planning and Development) Act, 1990 whereby the Respondent purported to notify the Applicant that notwithstanding the decision of An Bord Pleanala to refuse permission for development of all that and those the lands the subject of planning application register ref no 846/1995 PL 08.100353 situate at Reenagappul, Kenmare in the County of Kerry, the lands in question were capable of other development for which permission under Part IV of the Local Government (Planning and Development) Act, 1963 as amended ought to be granted and specifying the nature of such other development. 

(II) A declaration by way of an application for Judicial Review that the said Notice dated the 21 May, 1999 served by the Respondent upon the Applicant under Section 13 of the Local Government (Planning and Development) Act, 1990 is ultra vires, void and of no effect. 

(III) A declaration by way of an application for Judicial Review that the earlier Notice, dated the 22 October, 1997 served by the Respondent upon the Applicant under Section 13 of the Local Government (Planning and Development) Act, 1990 is and was annulled and is no longer in force by reason of the decision of An Bord Pleanala dated the 24 February, 1999. 

(IV) A declaration by way of an application for Judicial Review that the compensation claim which was made by the Applicant under Section 11 of the Local Government (Planning and Development) Act, 1990 for such compensation as is mentioned in the said section in respect of the decision of An Bord Pleanala of the 3 April, 1997 refusing planning permission sought for the Respondent's lands at Reenagappul, Kenmare, Co Kerry is in force and falls to be considered by the Respondent. 

(V) Mandamus by way of an application for Judicial Review directing the Respondent to consider and determine in accordance with law [and in particular in accordance with parts II and III of the Local Government (Planning and Development) Act, 1990 and the Local Government (Planning and Development) Regulations, 1990], the claim for compensation made by the Applicant made under Section 11 of the said Act of 1990 in respect of a decision of An Bord Pleanala of the 3 April, 1997 refusing planning permission sought for the applicant's lands at Reenagappul, Kenmare, Co Kerry. 

Factual Background 

No issue arises between the parties as to the factual background, which may be summarised as follows. In 1996 the Applicant applied for outline planning permission to develop his lands at Reenagappul, Kenmare, Co Kerry by the construction of ten dwelling houses and other ancillary works. On 16 September, 1996 the Respondent County Council by order decided to grant outline planning permission for the Applicant's development. An Taisce appealed to An Bord Pleanala against this grant of outline planning permission and on 3 April, 1997 An Bord Pleanala refused outline planning permission for the said development. On 24 July, 1997 the Applicant served on the Respondent a claim for compensation pursuant to Section 11 of the Local Government (Planning and Development) Act, 1990 in respect of the diminution in value of his lands which resulted from the decision of An Bord Pleanala. 

On 22 October, 1997 the Respondent served on the Applicant a counter Notice preventing compensation pursuant to Section 13 of the Local Government (Planning and Development) Act, 1990, this Notice indicating inter alia that the said lands were in the opinion of the Respondent capable of development comprising a maximum of eight dwellings as provided in the Notice. The Applicant then applied for planning permission in accordance with the Notice which had been served on him. On 30 June, 1998 the Respondent by order granted outline planning permission for seven dwelling houses together with ancillary work on the Applicant's lands. Once again An Taisce appealed against this planning permission and on 24 February, 1999 An Bord Pleanala refused outline planning permission in respect of the development of seven dwelling houses. The reason given by An Bord Pleanala for its refusal of outline planning permission is set out in the schedule to its order of 24 February, 1999 as follows 

"The proposed development is located in a prominent and visually sensitive location adjacent to areas of special amenity and at a considerable distance from the existing built up area. It is considered that the development of the site of the proposed development, prior to the development of the lands closer to the built up area and in the absence of adequate information regarding how these lands can be developed, would be premature and would constitute piecemeal development. The proposed development would, therefore, be contrary to the proper planning and development of the area." 

On 9 April, 1999 the Applicant wrote to the Respondent asking the Respondent to move immediately to the assessment of compensation on account of the refusal of the planning permission by An Bord Pleanala. On 21 May, 1999 the Respondent served on the Applicant a further Notice which was stated to be pursuant to Section 13 of the Local Government (Planning and Development) Act, 1990. This Notice asserted that the Applicant's said lands were in the opinion of the Respondent capable of development by a development comprising a maximum number of eight dwelling houses. The content of this new Notice was virtually the same as that of the previous Notice except that there was an additional paragraph stating as follows 

"An agreed schedule or time scale for the development of lands through which the access road serving this site traverses ie the lands between the built area of the town and the centre boundary of the site to be submitted in support of the development." 

One must presume that this paragraph was included to endeavour to meet the objections of An Bord Pleanala to the previous proposed development. The Applicant states as regards this condition that it is virtually impossible for him to put it into effect since some of the lands referred to are owned jointly by himself and his brother but other of the lands lying between his own proposed development and the built up area of the town of Kenmare are owned by other parties and he has no interest in those lands. 

It is the validity of this second Notice dated 21 May, 1999 that is in question in these proceedings. 

The Statutory Provisions 

The Applicant's claim against the Respondent for compensation falls to be determined under Part III of the Local Government (Planning and Development) Act, 1990, which replaced the former Part VI of the Local Government (Planning and Development) Act, 1963 in regard to the payment of compensation to landowners subsequent to the refusal of planning permission. The relevant sections of the Local Government (Planning and Development) Act, 1990 ("the 1990 Act") are Sections 11, 12 and 13. These sections provide (where relevant) as follow: 

"11. If on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of the principal Act involving a refusal of permission to develop land or a grant of such permission subject to conditions, the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, that person shall, subject to the provisions of this Part, be entitled to be paid by the planning authority by way of compensation -- 

(a) such amount, representing the reduction in value, as may be agreed, 

(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. 

12.(1) Compensation under Section 11 shall not be payable in respect of the refusal of permission for any development -- 

(a) of a class or description set out in the Second Schedule, or 

(b) if the reason or one of the reasons for the refusal is a reason set out in the Third Schedule. 

(2) Compensation under Section 11 shall not be payable in respect of the imposition, on the granting of permission to develop land, of any condition of a class or description set out in the Fourth Schedule. 

(3) . . . 

(4) . . . 

13.(1) When a claim for compensation is made under Section 11, the planning authority concerned may, not later than three months after the claim is received and having regard to all the circumstances of the case, serve a Notice in such form as may be prescribed on the person by whom or on behalf of whom a claim has been made stating that, notwithstanding the refusal of permission to develop land or the grant of such permission subject to conditions, the land in question is in their Opinion capable of other development for which permission under Part IV ought to be granted. 

(2) For the purpose of subsection (1), other development means development of a residential, commercial or industrial character, consisting wholly or mainly of the construction of houses, flats, shops or office premises, hotels, garages and petrol filling stations, theatres or structures for the purpose of entertainment, or industrial buildings (including warehouses), or any combination thereof 

(3) A Notice under subsection (1) shall continue in force for a period of five years commencing on the day of service of the Notice unless before the expiration of that period -- 

(a) the notice is withdrawn by the planning authority, 

(b) a permission is granted under Part IV of the Principal Act to develop the land to which the Notice relates in a manner consistent with the other development specified in the Notice, subject to no conditions or to conditions of a class or description set out in the Fourth Schedule, or 

(c) the Notice is annulled by virtue of subsection (5). 

(4) Compensation shall not be payable on a claim made under Section ii where -- 

(a) a Notice under subsection (1) is in force in relation to that claim, or 

(b) a Notice under subsection (1) was in force in relation to that claim but has ceased to be in force by reason of the expiration of the period mentioned in subsection (3) and an application for permission under Part IV of the Principal Act to develop to which the Notice relates in a manner consistent with the other development specified in the Notice has not been made within the said period, or 

(c) a Notice under subsection (1) was in force in relation to the claim but has ceased to be in force by virtue of paragraph (b) of subsection (3). 

(5) A Notice under subsection (1) shall be annulled where, upon an application for permission under Part IV of the Principal Act to develop the land to which the Notice relates in a manner consistent with the other developments specified in the Notice, such permission is refused or is granted subject to conditions other than conditions of a class or description set out in the Fourth Schedule. 

(6) . . . 

(7) . . ." 

It will be seen that Section 11 provides a general right to compensation, Section 12 restricts the payment of compensation in certain cases and Section 13 deals with the way in which a local authority can issue and serve a Notice preventing compensation. In his application the Applicant relies in particular on Section 13(1) and Section 13(5) of the 1990 Act. 

Submissions of Counsel 

Senior Counsel for the Applicant, Mr Leonard, submitted that subsequent to the Applicant serving his claim for compensation dated 24 July, 1997 the Respondent had duly served a notice dated 22 October, 1997 under Section 13 of the Act of 1990. This Notice was served within the three month time limit and had the effect of preventing the Applicant proceeding with his claim for compensation at that time. However, the Notice dated the 22 October, 1997 was annulled by virtue of the refusal of An Bord Pleanala to grant planning permission by its order dated 24 February, 1999. Accordingly, the Applicant's original claim for compensation now falls to be considered and determined by the Respondent pursuant to the provisions of Section 11 of the Act of 1990. Since the Applicant's original claim was dated 24 July, 1997, the second Notice issued by the Respondent on 21 May, 1999 was well outside the three month time limit set by Section 13(1). There was no provision in the statute for the service of a notice outside the three month period, or for a new three month period to start to run subsequent to the annulment of the first Notice. Mr Leonard submitted that the wording of Section 13 was clear; it was neither necessary nor desirable for the Court to construe the statutory provision concerned as containing any implied power granting the local authority concerned power to issue and serve a second notice outside the time frame expressly delimited by statute. If a second notice were to be permitted then there would be nothing to prevent the Respondent from issuing a third notice, and so on ad infinitum, thus permanently preventing the Applicant -- and other similar developers -- from ever exercising their right to compensation. 

He referred to the principle established in the case of Dublin Corporation v Smithwick and Ors [1976-7] ILRM 280 in which the learned Finlay P (as he then was) stated that he was satisfied "as to the principle of interpretation of this statute, that I should not put by implication a restriction or condition on a right to compensation unless I am forced to do so." (page 284). While the learned Finlay P was dealing with the previous legislation under the 1963 Act, Counsel submitted that the same principle of interpretation should apply in the case of the 1990 Act. He pointed out that the same principle was again affirmed by the High Court (Denham J) in the case of Hoburn Homes Limited and Gortalough Holding Limited v An Bord Pleanala [1993] ILRM 368. In that case the learned Denham J had stated (at page 374) "In coming to this conclusion I am also influenced in construction by the fact that compensation is a statutory right, and it should only be removed in clear precise cases." 

While the main thrust of the Applicant's case was that the second Notice served by the Respondent was null and void as having been served outside the time limit clearly set out in the statute, Mr Leonard also referred to an alternative or supplemental submission in regard to the additional requirement (already quoted above) which was included in the Respondent's purported Notice of 21 May, 1999. In this regard he submitted that firstly the lands in question in the additional requirement were not under the control of the Applicant. Secondly, the requirements suffered from a lack of precision of a type which had been condemned in the case of Grange Developments Limited v Dublin County Council [1986] IR 246 where (at page 254) the learned Finlay CJ stated that "On this separate basis I conclude that an undertaking to grant permission would require to be precise." Thirdly the requirement would involve making an application for the development of land other than those described in Section 13(1) as "the land in question" and this would not be permissible. 

Counsel for the Respondent, Mr Flanagan, argued that the interpretation of Section 13 put forward by the Applicant would, in practice, have the effect that the Respondent could never serve a second Notice. If, on receipt of the first Notice, a developer applied for the relevant planning permission as set out in the Notice, the consideration of his application by the planning authority together with the process of an appeal to An Bord Pleanala (if such arose) would be bound to take a period in excess of three months from the date the original claim for compensation was received. Mr Flanagan submitted that Section 13 should be interpreted as providing that the Applicant's claim for compensation dated 24 July, 1997 was put in abeyance when the County Council issued the first Notice on 22 October, 1997. The claim for compensation would only revive when the first Notice was annulled by the decision of An Bord Pleanala on 24 February, 1999 to refuse permission. From that date a new limitation period would run thus enabling the Respondent in a proper case to serve a second Notice. Mr Flanagan accepted that, in theory, this interpretation would allow the Respondent to issue continuing Notices in perpetuity, thus cutting off the Applicant from his right to compensation altogether. However, he submitted that an unjust or unreasonable persistence in issuing of Notices would indeed be open to Judicial Review or to other remedy on the part of the Applicant. He also drew attention to Section 14(3) of the 1990 Act which provides as follows: 

"14(3) Where in a case in which a Notice has been served under Section 13(1) . . ., upon a subsequent application for permission under Part IV of the Principal Act to develop the land to which the Notice relates in a manner consistent with the other development specified in the Notice, such permission is granted subject to any condition relating to any of the matters set out in paragraphs 8 and 9 of the fourth Schedule, then nothing contained in Section 12 or Section 13 shall prevent compensation being paid if an application being paid if an application having been made in that behalf within (but not after) two months after the notification of the decision, the Minister makes an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of Section 12 or Section 13." 

This, Counsel suggested, would provide a remedy for a developer whose right to compensation was threatened by the serving of repeated Section 13 Notices. 

With regard to the Applicant's supplemental submission Counsel for the Respondent submitted that the Applicant's limited "estate or interest" in the lands which lay between the Applicant's own lands and the built up urban area of Kenmare was sufficient to permit him to apply for planning permission in respect of those lands. He relied on Keane v An Bord Pleanala [1998] ILRM 241 where in his judgment Keane J (as he then was) in the Supreme Court reviewed the decision in Frescati v Walker [1975] IR 177 which, the learned Judge stated, should be "understood in the context of its particular facts" (page 247). Keane J went on to quote the well known dicta of Henchy J in the Frescati case (at page 190):- 

"To sum up while the intention of the Act is that persons with no legal interest [such as would-be purchasers] may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word 'applicant' in the relevant sections is not given a restricted connotation. The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interests of the common good, for proper planning and development. 

Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question. There will thus be sufficient privity between the applicant [if he is not a person entitled] and the person entitled to enable the applicant to be treated, for practical purposes, as a person entitled". 

Keane J continued:- 

"It may be that the ratio of this decision is to be found in the first paragraph of this passage and that the second paragraph, to the extent that it suggests that an application for planning permission can only be made by or with the consent of a person entitled to a legal estate or interest sufficient to enable him to carry out the proposed development, should properly be regarded as obiter. One could readily envisage circumstances in which an application could be made by some other person which could not possibly be described as either 'unnecessary' or 'vexatious'." 

Counsel for the Respondent submitted that the facts in the instant case provided an example of just such a situation. 

CONCLUSIONS 

Counsel for the parties in this case agree that the main issue before the Court is the interpretation of Section 13 of the 1990 Act. They are also at one in informing the Court that to their knowledge there has been no previous interpretation of Section 13 either by this Court or by the Supreme Court. For this reason, since the operation of the section is of wide application to parties other than the applicant in the instant case, and to planning authorities generally, I decided to reserve my judgment and to set out both the arguments of Counsel and the reasons for my decision. 

On its face, Section 13 of the 1990 Act makes no specific provision for the putting into abeyance and subsequent revival of a claim for compensation under Section 11. Nor does it explicitly provide for a second three month period of limitation within which a second notice may be served. I can well appreciate the practical difficulties which could arise for either developers or planning authorities out of the operation of Sections 11 to 13 as put forward by Counsel on both sides. If Section 13 is to be interpreted literally, as canvassed by the Applicant, it will, on a practical level, be impossible for the planning authority to issue a second notice even in a case where it might clearly be proper to do so. On the other hand, if one accepts the interpretation by implication put forward by the Respondent, there is a danger that a developer may be unjustly denied compensation (or that compensation may be unduly delayed) by the issue of repeated notices. The practical problems are clear, but the statute is silent as to their solution. 

Some guidance, however, may be found in previously decided cases on the compensation provisions under the earlier legislation -- Part VI of the Local Government (Planning and Development) Act, 1963. In general both this Court and the Supreme Court seem to have favoured the upholding of the right to compensation unless it was strictly and specifically limited or excluded by statute. 

I have already referred to the dictum of Finlay P in Dublin Corporation v Smithwick and Others ILRM 280 where he held that the Court should not put by implication a restriction or condition on a right to compensation unless it was forced to do so. 

I have also referred to the further dictum of Denham J in this Court in Hoburn Homes Limited and Gortalough Holding Limited v An Bord Pleanala [1993] ILRM 368:- 

"In coming to this conclusion I am also influenced in construction by the fact that compensation is a statutory right, and it should only be removed in clear precise cases". 

In Grange Developments Limited v Dublin County Council IR 246 the learned McCarthy J in the Supreme Court set out even more clearly the requirement of strict construction and the reasons which lay behind it, as follows:- 

"Part VI of the Act seeks to provide a comprehensive scheme for the payment of compensation where it is considered appropriate. Prima facie, where the value of an interest in land is reduced, the owner of that interest is entitled to be paid by the planning authority by way of compensation the amount of such reduction in value. It may have been thought to have been constitutionally vulnerable to have a blanket restriction on the development of land without any corresponding, if qualified, right to compensation. I emphasise, however, that the compensation scheme in the Act begins with the declaration of entitlement, subject, of course, to the provisions of Part VI of the Act. Since the Act of 1963 effects an interference with a personal right, it must be strictly construed; so much the more, where the interference is being lessened or ameliorated by compensation, must any exclusion or qualification of the right to compensation be, itself so construed". 

While all of these decisions and the dicta of the various learned Judges arise from the construction of the relevant sections of the 1963 Act, they must, it seems to me, also apply to the parallel, though amended, sections of the 1990 Act. They are statements of principle rather than detailed analysis of the text, and the legislative scheme of first establishing the right to compensation and then setting limits on it is followed in the 1990 statute as much as it is in the 1963 statute. 

While I accept that a literal interpretation of Section 13 creates an unsatisfactory situation for planning authorities, I do not consider that this should lead this Court to adopt a strained interpretation of the section. 

In Howard v Commissioners of Public Works [1994] 1 IR 101 the Supreme Court held that if words used in a statute were clear and unambiguous, the statute must be enforced, even if such enforcement led to an incongruous or absurd result. The learned Denham J, having surveyed the historical background of the interpretation of statutes involving the State, referred (at page 163) to Halsbury's Law of England (4th Edition Volume 4) as follows:- 

"Speculation as to Parliament's intention is not permissible. If the results of the interpretations of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the Courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the legislature must have intended". 

The learned Denham J concluded:- 

"The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The Court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of the statute then the Court should not speculate but rather construe the Act as enacted". 

Bearing in mind these statements of principle, and in particular the dicta of the learned McCarthy J in the Grange Developments case, it seems to me that I must give a strict interpretation to Section 13(1) and 13(5) of the 1990 Act. This will have the effect of rendering void the Notice issued by the Respondent on the 21 May, 1999. Having thus held on the main issue, I do not consider it necessary to deal with the subsidiary issue raised by the Applicant. I will therefore grant the reliefs sought by the Applicant at paragraphs 1(i), (ii), (iii) and (iv) of the notice of Motion. In the circumstances I feel sure that the Respondent will proceed to deal with the Applicant's claim for compensation as is proper, and I do not find it necessary to grant the Order of Mandamus as sought by the Applicant.