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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Clinton -v- An Bord Pleanána [2007] IESC 19 (02 May 2007)
URL: http://www.bailii.org/ie/cases/IESC/2007/S19.html
Cite as: [2007] 2 ILRM 81, [2007] 4 IR 701, [2007] IESC 19

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Judgment Title: Clinton -v- An Bord Pleanána

Neutral Citation: [2007] IESC 19

Supreme Court Record Number: 347 & 348/05

High Court Record Number: 2003 184 JR

Date of Delivery: 02 May 2007

Court: Supreme Court


Composition of Court: Denham J., Geoghegan J., Fennelly J., Kearns J., Macken J.

Judgment by: Geoghegan J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Geoghegan J.
Appeal dismissed
Denham J., Fennelly J., Kearns J., Macken J.


Outcome: Dismiss



- 30 -



THE SUPREME COURT

347 & 348/05
Denham J.
Geoghegan J.
Fennelly J.
Kearns J.
Macken J.


BETWEEN/
PAUL CLINTON

Applicant/Appellant
and

AN BORD PLEANÁLA, DUBLIN CITY COUNCIL
AND BY ORDER THE ATTORNEY GENERAL

Respondents
and

RICHARD QUIRKE, DUBLIN POOL AND
JUKE BOX COMPANY LIMITED, BAYCROSS
DEVELOPMENTS LIMITED, CARROLLS OF
DUBLIN LIMITED, COLM CARROLL, REGAN
DEVELOPMENTS LIMITED, DANIEL TROY
AND CHRISTOPHER TROY TRADING AS
TROY BROTHERS, DOYLES STORES LIMITED, F.X. BUCKLEY LIMITED, STEPHEN ROSS TRADING AS INDUSTRIA, SIMON HART LIMITED, JOHN CORCORAN, JAMES COUSINS LIMITED, MARTINA INVESTMENTS LIMITED AND PETER SLATTERY LIMITED

Notice Parties

JUDGMENT of Mr. Justice Geoghegan delivered the 2nd day of May 2007


For some considerable time it was well known that Dublin City Council had plans for the regeneration of O’Connell Street so that it would become a major street of importance. The area particularly earmarked for regeneration was that between O’Connell Street and Moore Street and it was intended that there be a new connecting street. The above-named appellant is the owner of some properties within that area and he combined with the owners of two other properties in the same area, a Mr. Quirke and a Mr. Carroll to form “The Carlton Partnership” so as to submit plans for and engage in the development of the area. The partnership in turn made informal arrangements for a combined development with another local owner a Mr. McGettigan, who owned a property at the north of the site Nos. 46/49 O’Connell Street which was known as the Fingal Building. The four owners together were known as “The Carlton Group”. The name of the partnership and of the group respectively was derived from the Carlton Cinema the site of which had been identified as the key site whereby the regeneration would be achieved.

The Carlton Group duly obtained, through An Bord Pleanála, planning permission for development of the entire area in a particular way and there is no dispute that that form of development, had it been implemented, would have fulfilled the requirements of Dublin City Council for the regeneration of the area of Upper O’Connell Street. No meaningful steps, however, were perceived as having been taken by the group to develop the site and the City Council came to the conclusion that in practice for reasons which I will explain in more detail later on in the judgment and mainly due to lack of development expertise, the planning permission was not in reality going to be implemented. The City Manager, therefore, decided that a Compulsory Purchase Order would be made so as to enable the council to take control of the situation and either develop the site itself or arrange for some appropriate development by a third party. At all material times, the council made no secret of the fact that it had no particular development in mind apart from a broad general scheme and that for that reason a compulsory purchase order was stated to be simply for development purposes. This was following the wording of one of the purposes permitted by statute. An Bord Pleanála, pursuant to the Planning and Development Act, 2000, had the function of confirming the compulsory purchase order which it did with some modifications and with a slight alteration in wording of the stated purpose something to which I will return.

The appellant applied on notice for leave to obtain judicial review of the confirmed compulsory purchase order on a number of different grounds. The application for leave came for hearing before Finnegan P. As all parties were in agreement that the interpretation of section 213 of the Planning and Development Act, 2000 was crucial to the arguments and that a judicial decision on that interpretation would be useful to all, the application for leave, as such, was not opposed but the application for judicial review itself was contested and was fully heard by Finnegan P. In a reserved judgment, the former President refused the judicial review remedy sought and the appellant has appealed that decision to this court.

The necessary certificate to the effect that the decision involved a point of law of public importance and that it was in the public interest that an appeal should be brought was duly sought from Finnegan P. and was granted in respect of one suggested ground only. When the appeal duly came before this court, the issue arose as to whether this court would be confined to dealing with the certified point only or whether, on a correct interpretation of the statutory provision, this court must deal with every ground of appeal. In an earlier reserved judgment delivered by Denham J., she came to the view (with the concurrence of all members of the court) that all grounds of appeal were open. That is the form of appeal now with which this judgment is concerned.

The written submissions lodged on behalf of the appellant take up 94 pages and there are extensive written submissions on behalf of the first, second and third-named respondents. The Attorney General was joined because of an attack, if necessary, on the constitutionality of the relevant statutory provision but this judgment will not be concerned with that matter.

Despite the lengthy submissions of the appellant and the detailed legal analysis with much of which I agree and the extensive oral submissions before the court, it would not be unfair to the appellant to adopt the reductionist approach of An Bord Pleanála in its written submissions where the point is made that essentially, the appellant is making two main complaints. To quote that submission:

          “Firstly, he complains that at the oral hearing he was required by the Board to justify the retention of his property rather than the Council being required to justify its acquisition. Secondly, he complains that the purpose relied on by the Council, i.e. the statutory purpose of ‘development’ is unacceptably general. This latter argument is partly based on the interpretation to be given to section 213 of the Planning and Development Act, 2000 but also on the contention that the absence of a more specific purpose in the form of a specific development proposal meant that the appellant was denied natural justice in attempting to oppose the CPO.”

For reasons which I will be explaining in some detail, I would reject both complaints. It is misleading to suggest that the Board reversed the onus of proof. If the council was correct in law in maintaining that it merely had to show that the property was required by it for development purposes without having to be specific as to the precise Carlton development, given the stated and known reason which was the regeneration of the O’Connell Street area, then there was very little which the council had to prove on a prima facie basis. Understandably, the inquiry would have been taken up for the most part with the objections raised by the appellant. There is nothing in the evidence before the court or in the Inspector’s Report to justify the complaint that an onus was in any way reversed.

In relation to the second complaint it would seem that the council had two alternative answers. One was that as “development” was specified as a statutory purpose in the Planning and Development Act, 2000 the council was not obliged to go beyond proving that the property was required for a named statutory purpose. That was the view endorsed by the learned President of the High Court in his judgment. The alternative argument which I prefer, at least for the purposes of this case, is that because the property was required for the legitimate purpose of regeneration of the O’Connell Street area, the precise nature of this specific development was not required to be proved even if it be the case that in some other situations it might have to be done. I will be elaborating further in due course.

The principal grounding affidavit of the appellant was sworn on the 13th March, 2003. In that affidavit, the appellant exhibits a written objection to the Compulsory Purchase Order which he prepared for the purposes of the inquiry and also a précis of his evidence which he furnished to the inspector at the inquiry. The affidavit contains 106 paragraphs but the main thrust of the appellant’s complaint is contained in paragraph 11 which reads as follows:

          “As appears from the statement of grounds herein, the gravamen of my complaint as to the confirmation of the Compulsory Purchase Order by An Bord Pleanála is that there simply was no material before An Bord Pleanála which could have justified the confirmation of the order. In particular there was no evidence before An Bord Pleanála as to what it was that the acquiring authority, Dublin City Council, intended to do with the lands if acquired. I say that I am advised by my solicitor and so believe that before a power of Compulsory Acquisition can properly be exercised, the acquiring authority must be in a position to demonstrate that there is a countervailing public interest which justifies the use of compulsory purchase powers. I say and believe that in the present case, the local authority failed to put forward any firm proposals as to how it is that the land is to be developed or redeveloped. I further say and believe that in the circumstances that there is simply no material before An Bord Pleanála which could justify the confirming of a Compulsory Purchase Order.”

The appellant goes on to assert that he and his business partners were progressing their development pursuant to a planning permission in the area at the time when the CPO was made but that in relation to the CPO there were no specific proposals as to how it was that the local authority intended to use the land if and when acquired. Nor was it indicated whether the local authority itself intended to develop the land or not. The appellant explains in the affidavit that through his solicitors he attempted to obtain information from the council. One of the letters from the local authority dated the 8th May, 2002 contained the following statement:

          “No decision has been taken by Dublin City Council as to how development of the lands in question would be secured subsequent to the making of the Compulsory Purchase Order herein. The final decision on this issue will rest with the elected members of Dublin City Council who will in due course be advised of the options open to Dublin City Council in this regard. While acknowledging it would ultimately be a matter for the elected members of Dublin City Council to decide on any particular route by which redevelopment might be secured, it is presently considered likely that redevelopment will be pursued through the means of public-private partnership involving a transparent and open public competitive bid process aimed at achieving redevelopment consistent, and in harmony, with the aims and objectives set out in the O’Connell Street Integrated Area Plan. While Dublin City Council acknowledges that the Millennium Mall Project, for which the Carlton Group has a present extant planning permission is capable of achieving the objectives of the Integrated Area Plan, it is not presently the opinion of Dublin City Council that the Millennium Mall vehicle represents the only, or necessarily even the optimum means of achieving the result envisaged by the Integrated Area Plan.”

It will be again noted that the council has never made any secret of the fact that it had made no clear decision as to the exact type of development nor any clear decision as to whether it would be carried out by a private developer in partnership with the council or by the council itself. There is a vast amount of factual detail before the court but in view of the consistent concession by the council, I intend only to refer to the factual matters directly relevant to what is essentially the only point of law of importance in the case. Was it enough to specify that the property was required for “development purposes”? I have already signalled, however, that in the view I take as to the correct answer to that question some of the particular facts surrounding the circumstances of the CPO are relevant and I will be referring to these. I would prefer to leave to another case where it may arise, the question of whether the learned President was correct in his view that once “development purposes” is named as a statutory purpose that in itself is sufficient irrespective of the surrounding facts. The existence of the planning permission referred to in the affidavit was not of course in dispute but, as will emerge when I go through the facts, the council was of the view, as was the inspector, that for various reasons and in particular a lack of development expertise the planning permission was never going to be implemented. It could not be argued, in my view, that that opinion was unreasonable.

When the appellant and his development partners discovered that Dublin City Council intended to commence work on a “master plan vision” to rejuvenate O’Connell Street, they entered into discussion with officials of the council. Details of these discussions are set out in the affidavit. In paragraph 24, the appellant refers to the launch by the City Council of its draft Integrated Area Plan for O’Connell Street in December 1997 and it is alleged by the appellant that shortly afterwards pressure was exerted on the appellant and his partners to enter into a joint development with developers favoured by the council. The pressure was resisted and the appellant appears to be insinuating that in reality, that led to the CPO and a lack of bona fides on the part of the council. The appellant goes on to describe how he and his partners lodged a planning application on the 14th May, 1998 for a project which he asserts was exactly as specified in the Integrated Area Plan. There is a complaint that at all material times, plans were afoot for a CPO notwithstanding the application for planning permission.

These events appear to have been overtaken and the real situation ultimately was that there was a reasonable perception that the planning permission was not going to be implemented. In paragraph 41 of the affidavit it is asserted that “the continuing threats of a CPO and delay in carrying out the civic works had a significant negative impact on progressing the development of the Carlton site.” These reasons did not convince the inspector. Complaints of unfair procedures were made in relation to the failure to furnish information but the inspector of An Bord Pleanála granted an appropriate adjournment for this problem to be sorted out which it was. This is gone into in some detail in the affidavit but I do not find it necessary to repeat it here. In paragraph 91, the appellant refers to the decision by An Bord Pleanála to confirm the CPO with modifications and recites the decision as follows:

          “AND WHEREAS An Bord Pleanála has concluded that the acquisition by the local authority of the lands included in the order is necessary for the purposes of facilitating the implementation of the Dublin City Development Plan and that the said objections cannot be sustained against the said necessity.”

I should mention in passing that one of the grounds of appeal is that the CPO itself merely mentioned “development purposes” whereas the confirming decision of An Bord Pleanála referred to “facilitating the implementation of the development plan”. The learned trial judge did not accept that there was any substantial difference and I agree with that view. I would, however, state a strong preference for the slightly more elaborate statement contained in the confirming decision of An Bord Pleanála. I appreciate that the council was scrupulously following the statutory wording, but a statement that the property was required for development purposes so as to facilitate the implementation of the development plan could not have been criticised. Over the years, many Compulsory Purchase Orders have been imperfectly drafted but that does not mean they are invalid. Obviously, if there is a serious substantive defect, a C.P.O. may be quashed but not every imperfection leads to that result. In reality in this case, the appellant, at all material times, well knew the purpose which the council was asserting and well knew that the purpose specified by An Bord Pleanála was that very purpose. I can find no defect in the statement of reasons in the Board’s decision. Since the affidavit is itself full of legal arguments, I have found it necessary to comment on the law as occasion has arisen in referring to the affidavit.

I move now to the main replying affidavit, sworn on behalf of An Bord Pleanála by Ellen Morrin, Senior Administrative Officer. In paragraph 4 of the affidavit, the deponent makes it clear that she does not intend to respond in any detail to what she describes as that “lengthy chronology” contained in a large number of paragraphs in the appellant’s affidavit. She makes the point, however, that in so far as the affidavit related to matters occurring before the oral hearing, the same matters were described in almost identical detail in the submission made by the appellant to the Board and exhibited in the appellant’s affidavit and that that submission and the oral evidence, adduced on behalf of the appellant to similar effect, formed part of the materials before the Board and was considered by the Board before it reached its decision to confirm the CPO.

It is important to cite in full paragraph 5 of Ms. Morrin’s affidavit. It reads as follows:

          “Further it may be of assistance to indicate factual elements of the applicant’s claims which are not disputed by the Board. Firstly, it is not disputed that the purpose advanced by the Council for acquisition of lands by CPO is general in nature and does not amount to a specific development proposal. Secondly, the evidence before the Board established that the Council had been considering the acquisition of the subject lands by CPO from a date prior to the granting of planning permission and continued to consider the making of a CPO at various stages after the grant of planning permission. Thirdly, there is a valid planning permission in respect of the subject site granted in August 1999 and due to expire in August 2004 unless substantial works are carried out on foot of the said permission prior to that date.”

The deponent proceeds to exhibit reports of Anne Graham, Project Manager for the O’Connell Street Integrated Area Plan and Alan Taylor, Economic Development Officer which were submitted by the council to the Board. She also deposes to the fact that the council adduced evidence from both of those persons and also from the Deputy City Planning Officer and a former Project Manager for the Integrated Area Plan and also an executive manager and a valuer. She exhibits the Inspector’s Report in which the evidence of those witnesses is detailed as well as the arguments advanced by counsel. In the next paragraph, she explains that in addition to the oral arguments the council submitted written submissions on the final day of the hearing and these are exhibited. She sums up the position in paragraph 10 by saying that all of this material indicated that the general development purposes for which the CPO was proposed were necessitated by the council’s objectives and policies as contained in the O’Connell Street Integrated Area Development Plan which in turn formed part of the Dublin City Development Plan and that in those circumstances proof of a proposed specific development was not a prerequisite to the Board confirming the CPO. I find myself in agreement with these views.

I also agree with the comment contained in paragraph 14 of the affidavit that the Board’s function appeared to be misunderstood by the appellant. It is pointed out that it is not the function of the Board to stipulate any purpose for which land the subject of a CPO is to be used. Rather it is the function of the local authority to identify lands which it requires for a purpose and if it is appropriate to make a CPO in respect of those lands specifying the purpose for which the CPO is required. The Board then has to decide whether the CPO for that purpose should be confirmed. At all times however it is the local authority which requires the lands and consequently it is the local authority which must identify the purpose for which the lands are required rather than the Board directing the authority as to the purpose for which the lands so acquired are to be used.

The principal affidavit filed on behalf of the council was sworn by Anne Graham, Senior Executive Officer. She was, at all material times, Project Manager of the O’Connell Street Integrated Area Plan with responsibility for implementing the objectives of that plan. I have already indicated what the main position of the council was and is. I therefore, do not intend to repeat matters contained in the affidavit relating to that position. I will confine myself to citing in full paragraphs 10, 11 and 12 as they succinctly set out the council’s case which was clearly accepted and legitimately accepted by the Board. These paragraphs read as follows:

      “10. The applicant has claimed on many occasions over the years to be committed to the regeneration of O’Connell Street. He has had numerous contacts with the second-named respondent during this time and, in particular, had been made aware as far back as 1997 of the intentions of the second-named respondent to compulsorily acquire, if necessary, the lands the subject matter of these proceedings in order to procure their redevelopment. It was against that background that the applicant and his partners set about formulating their plans for the redevelopment of their site which led ultimately to their application for planning permission in 1998, ultimately approved by An Bord Pleanála in 1999. The fact that the applicant was fully aware of the intentions of the second-named respondent at the time can be seen, inter alia, from a letter written by his solicitors Smyth Foy and Partners to the law agent, dated 2nd March 1998 to a copy of which I now beg to refer and upon which marked with the letter ‘D’ I have endorsed my name prior to the swearing hereon. The applicant’s solicitors at the time wrote as follows:
            ‘The making of a Compulsory Purchase Order over the properties by the Corporation would destroy our client’s plans for a comprehensive redevelopment of the property and it would be our client’s instructions to stringently oppose any Compulsory Purchase Order made affecting his property.’
      11. The applicant’s planning permission, if implemented, would, in the opinion of the second-named respondent, have significantly contributed to the redevelopment of O’Connell Street and would have been in conformity with the O’Connell Street Integrated Area Plan. The Carlton Group ultimately secured an effective working permission for its development from An Bord Pleanála, in 1999, whereafter their permission was challenged in two sets of proceedings seeking judicial review. Ultimately, those proceedings were disposed of in the early months of the year 2000. Thereafter, the second-named respondent afforded the applicant and his partners an adequate opportunity of commencing the development for which they had obtained their planning permission; while at the same time reminding them from time to time of the necessity to ensure that they should undertake the commencement of their development as soon as possible. In the opinion of the second-named respondent, there was a clear imperative on the applicant and his partners to implement and act upon their planning permission in a speedy way to bring about the required development. Unfortunately, the applicant and his partners failed to commence work on site on their ‘Millennium Mall’ Project, and ultimately, in the view of the second-named respondent had by the end of 2001 failed to demonstrate any reasonable likelihood that such commencement would take place in any reasonable time frame in the future.

      12. Both in the period prior to and subsequent to, the making of the Compulsory Purchase Order the subject matter of these proceedings, the applicant had urged a number of justifications as to why he had been unable to procure the commencement of his development. These included the need to undertake significant preparatory works, the need to ensure that a correct tenant mix was achieved and a whole host of other reasons, including allegations against the second-named respondent in relation to delay in undertaking the civic works. In the opinion of the second-named respondent, at the time (and still) these excuses had no validity. It became the opinion of the second-named respondent (and remains its opinion), that the real reason as to why no development was commenced at the Millennium Mall site by the applicant and his partners lay in the fact that they simply did not have either the development expertise or finance available to them to undertake the development themselves; and required instead the involvement of a developer with approval track record capable of undertaking a project of this magnitude. Ultimately, during the course of the oral hearing, it was accepted by the applicant and his witnesses that the involvement of such a developer was going to be an essential prerequisite before the Millennium Mall Project development could be undertaken at all; and it was further accepted by the applicant (and, so far as the second-named respondent is aware, remains the case), that no such developer of proven repute has committed himself to the project. Furthermore, it has also become apparent to the second-named respondent (as indeed it became apparent during the course of the hearing) that the Millennium Mall Project for which planning permission was obtained by the applicant and his partners is no longer going to be proceeded with – Mr. McGettigan and his companies, which own 46 to 49 Upper O’Connell Street, no longer wish to be involved in the project. Mr. Quirke has confirmed that he wishes to sell out his interest in these properties and does not wish to become involved in the development. Mr. Carroll appears willing to proceed with the development only if it can be demonstrated to be viable. Only the applicant appears fully committed to the Project. Yet he has neither the financial capability nor proven developmental expertise of the scale required to undertake the development himself.”

The facts, opinions and submissions contained in those three paragraphs were all before the inspector and covered by his report and therefore before the Board also. They were clearly accepted by the Board.

If I were to detail every fact contained in every affidavit (there were others) this judgment would be of inordinate length. I think that I have covered the salient facts and can now turn to the law.

For all practical purposes the legislation relevant to the issues on this appeal consists of sections 212 and 213 of the Planning and Development Act, 2000. Some additional statutory provisions are referred to in the City Manager’s Order and the Compulsory Purchase Order and, in due course, I will briefly explain these. But as far as the issues in this appeal are concerned the two sections in the Act of 2000 to which I have already referred are the key provisions. I think it useful to cite in full the parts of those sections immediately relevant.

      “212. (1) A planning authority may develop or secure or facilitate the development of land and, in particular and without prejudice to the generality of the foregoing, may do one or more of the following:
              (a) …

              (b) …

              (c) …

              (d) provide, secure or facilitate the provision of areas of convenient shape and size for development;

              (e) secure, facilitate or carry out the development and renewal of areas in need of physical, social or economic regeneration and provide open spaces and other public amenities;

              (f) …
        (2) …
          (3) A planning authority may, in connection with any of its functions under this Act, make and carry out arrangements or enter into agreements with any person or body for the development or management of land, and may incorporate a company for those purposes.
          (4) A planning authority may use any of the powers available to it under any enactment, including any powers in relation to the compulsory acquisition of land, in relation to its functions under this section and in particular in order to facilitate the assembly of sites for the purposes of the orderly development of land.
      213.- (1) The power conferred on a local authority under any enactment to acquire land shall be construed in accordance with this section.

      (2)(a) A local authority may, for the purposes of performing any of its functions (whether conferred by or under this Act, or any other enactment passed before or after the passing of this Act), including giving effect to or facilitating the implementation of its development plan or its housing strategy under section 94, do all or any of the following:
            (i) acquire land, permanently or temporarily, by agreement or compulsorily,

            (ii) …

            (iii)…


        and the performance of all or any of the functions referred to in sub-paragraphs (i), (ii) and (iii) are referred to in this Act as an ‘acquisition of land’.

        (b) …

        (c)…
          (3) (a) The acquisition may be effected by agreement or compulsorily in respect of land not immediately required for a particular purpose if, in the opinion of the local authority, the land will be required by the authority for that purpose in the future.
          (b) The acquisition may be effected by agreement in respect of any land which, in the opinion of the local authority, it will require in the future for the purposes of any of its functions notwithstanding that the authority has not determined the manner in which or the purpose for which it will use the land.
          (c) Paragraphs (a) and (b) shall apply and have effect in relation to any power to acquire land conferred on a local authority by virtue of this Act or any other enactment whether enacted before or after this Act.
      (4) A local authority may be authorised by compulsory purchase order to acquire land for any of the purposes referred to in subsection (2) of this section and section 10 (as amended by section 86 of the Housing Act, 1966) of the Local Government (No. 2) Act, 1960, shall be construed so as to apply accordingly and the reference to ‘purposes’ in section 10(1)(a) of that Act shall be construed as including purposes referred to in subsection (2) of this section.”

It is to be noted that under section 213(1) the power conferred on a local authority under any Act to acquire land must be construed in accordance with section 213. That is therefore a subsection which applies now to all compulsory acquisitions by local authorities for any purpose.

The written submissions lodged on behalf of the appellant contained the following sentence:
          “The proper interpretation of section 213 of the Planning and Development Act, 2000 is the central issue in these proceedings.”

I agree with that assessment and I propose now to address the issue. The appellant makes more than one argument based on interpretation of that section but first and foremost he relies on subsection (3) of the section. Under that provision, the acquisition may be effected “by agreement or compulsorily” in respect of land not immediately required for a particular purpose if, “in the opinion of the local authority the land will be required by the authority for that purpose in the future”. It is argued on behalf of the appellant that the property in issue in these proceedings is “not immediately required for a particular purpose”. The basis for this argument is that when the CPO was made the council had not decided what was to be done with the property and that that decision has not even yet been made. Therefore, it is submitted the property can be acquired by agreement only and not compulsorily. Subject to a constitutional argument to which I will refer, this submission must clearly fail if the court takes the view that this property was in fact being acquired “for a particular purpose”. The constitutional argument appears to be that if there is not to be an infringement of the owner’s constitutional property rights the council wishing to exercise compulsory purchase powers must “state with precision the specific public interest by which it intends to further the general public interest laid down by statute”. In my view on the particular facts of this case, at least, this submission is unsound. Section 212 enjoys the presumption of constitutionality. It is quite clear from the wording of paragraph (e) of section 212(1) and indeed of paragraph (d) that it was envisaged that, in the public interest, a planning authority may from time to time take steps itself to ensure that suitable developments take place where there is a clear need of development of some kind and/or regeneration. Many Compulsory Purchase Orders may involve the acquisition of a piece of land or a building to be used for a specific purpose. In that instance, the specific purpose would be itself the “particular purpose”. It may be open to argument in such a case that a general purpose of development would not be sufficient. But that is not the case here. In this respect while agreeing with the decision of the learned trial judge it may not be necessary to go as far as he did in the interpretation of the section.

The following passage is to be found in the learned President’s judgment.

          “I am satisfied that the meaning to be ascribed to ‘particular purpose’ in section 213(3)(b) (sic) is to be found in a consideration of section 213 of the Act of 2000 as a whole. Section 213(2) contains the phrase ‘for the purposes of performing any of its functions’. Section 213(4) also refers to ‘purposes’ in its reference to section 10(1)(a) of the Local Government (No. 2) Act, 1960 section 10 as substituted by section 86 of the Housing Act, 1966. ‘Purposes’ in section 10 as substituted is part of a phrase ‘purposes for which they are capable of being authorised by law to acquire land compulsorily’. It is clear that in section 213(1) and (4) of the 2000 Act and section 10 of the 1960 Act ‘purposes’ refers to statutory purposes and not as is suggested by the applicant to a particular scheme of development intended to be pursued that is to means of achieving the statutory purpose. I can find no indication that the phrase ‘particular purpose’ in section 213(3) should be accorded any different meaning than statutory purpose and I am satisfied that the same refers to a particular statutory purpose. I am fortified in this view by the circumstances that section 213(3)(b) clearly distinguishes purposes and means.”

In the first sentence of that citation “(b)” should presumably read “(a)” but nothing of importance turns on this. The learned President has given a very wide meaning to the expression “particular purpose” for the reason which he gives. Having regard to the obligation, as pointed out by the appellant, to construe compulsory acquisition powers in a manner that does not impinge unnecessarily on the constitutional property rights of the owner, I am not altogether convinced that this approach to the statutory provisions by the learned trial judge is correct. But I do not think it necessary to give any final determination in respect of it in this case because, as I have already been indicating, I am satisfied that there is a much narrower reason why the trial judge was correct. The regeneration purpose, which the council had in mind when deciding to make the Compulsory Purchase Order, was expressly permitted by the Oireachtas. It cannot have been envisaged that the council would have to have a specific plan as to how the regeneration was to be carried out and would have to specify that in the CPO because, as in this case, the whole process would usually involve private developers in some form at least and plans as yet unknown which they would propose and envisage and which would eventually require planning permission. That is quite different from property required for the purposes of council offices or a public swimming pool for instance.

It was at all times perfectly clear that the property was being acquired for regeneration of O’Connell Street. In my view, it was only necessary for the council to demonstrate that a CPO was desirable in the public interest to achieve that purpose. It was not necessary to prove how exactly it would be carried out. Quite apart from the necessity to obtain planning permissions into the future, such a requirement would defeat the purpose of the power conferred by the section.

I accept the argument of the respondents that this property was in fact required for a particular purpose and that therefore the distinctions highlighted by section 213(3)(a) on the one hand and (b) on the other hand are not relevant. But even if I am wrong about that, I equally accept the alternative argument of the respondents that the property was still required for a particular purpose even if “not immediately required”. Accordingly, compulsory acquisition is permitted by section 213(3)(a).

There is some force in the argument of the appellant that if a mere statutory purpose were a “particular purpose” within the meaning of section 213(3)(a), then subsection (3)(b) might be regarded as otiose. That is why I leave open the question of the correctness of the rather broad interpretation given by the learned trial judge. But where the purpose is regeneration of a particular area then that is an immediate “particular purpose” as well as a “statutory purpose”.

I turn now to deal briefly with four key documents, the City Manager’s Order authorising the compulsory acquisition, the Compulsory Purchase Order dated the 11th December 2001, the Inspector’s Report dated November 2002 and the decision of An Bord Pleanála dated the 17th December 2003 confirming the Compulsory Purchase Order.

The City Manager’s decision lists first a number of documents. The first of these is described as “Map index No. 11756 prepared by the City Engineer showing delineated by a red line and coloured grey and brown lands at O’Connell Street Upper/Moore Street/O’Rahilly Parade/Henry Place area required for development and to secure and facilitate the development of land. A public right of way exists over the area coloured brown which right of way it is proposed to extinguish”. It then lists a rental and book of reference, a report of the Dublin City Planning Officer which certifies that the acquisition of the particular area for development purposes is consistent with the City Development Plan and the proper planning and development of the area, a further certificate by the City Architect as to suitability for development purposes, a report dealing with water and drainage services and a key report of Ms. Anne Graham, Project Manager for the O’Connell Street Integrated Area Plan certifying that the acquisition of the area was necessary for the purposes of development and securing or facilitating the development of land by the Dublin Corporation in accordance with the powers conferred by section 212 of the Act of 2000. Finally, there was a report of the Economic Development Officer relating to a demand for commercial and retail development in the area. There then followed a recommendation for compulsory acquisition by the Executive Manager and after that the formal order of the City Manager the operative part of which reads as follows:

          “The acquisition of lands in the O’Connell Street Upper/Moore Street/O’Rahilly Parade/Henry Place area as shown delineated in red and coloured grey and brown on Map Index No. 11756 is required by Dublin Corporation for development, and to secure and facilitate the development of land, in exercise of its powers under section 8 of the Local Government Act, 1991 and section 212 of the Planning and Development Act, 2000. Accordingly I, hereby determine to purchase compulsorily the said lands for the purposes specified above and that such compulsory acquisition proceeds pursuant to the powers vested in Dublin Corporation by section 10 of the Local Government (Ireland) Act, 1898, as amended by section 11 of the Local Government (No. 2) Act 1960 and section 213 of the Planning and Development Act, 2000 and that such compulsory acquisition be in accordance with the procedure provided by section 76 of the Housing Act, 1966 and the Third Schedule thereto as extended by section 10 of the Local Government (No. 2) Act, 1960 (as substituted by section 86 of the Housing Act, 1966 as amended by section 6 and the Second Schedule of the Roads Act, 1993 and by the Planning and Development Act, 2000).”

The significance of all these listed sections arises from the history of both powers of compulsory acquisition and the machinery for carrying them out. At least ever since the unreported judgment of Kenny J. in the High Court Movie News v. Galway County Council (judgment delivered 30th March 1973) it has been generally understood that all powers of compulsory acquisition by a local authority for any one or more of its many statutory functions derive in the first place from section 10 of the Local Government (Ireland) Act, 1898 but many subsequent sections have either extended the powers under the section or clarified any doubts as to the scope of the section. Problems over the years arose as to whether a County Council on the one hand acting as such might have such a power but not if “wearing another hat” such as for instance a planning authority or in former times a health authority. Problems also arose as to whether the power only related to immediate use of the property acquired or whether it could embrace land not immediately required. I do not find it necessary to go into the matter further. An excellent treatment is to be found in Keane on Local Government. The references to the Housing Act etc. are references to the procedures. It would seem to me that the City Manager correctly discerned that no fundamental change in these principles had been brought about by section 213 of the 2000 Act. Indeed its opening subsection refers to how a power conferred on a local authority under any enactment is to be “construed”. The only importance of the City Manager’s order is that it makes crystal clear the object of the exercise.
    The City Manager had before him (inter alia) the report of Ms. Graham which refers to the Dublin City Development Plan 1999 and states that the site is covered by the zoning objective Z5 “to consolidate and facilitate the development of the central area, and to identify, reinforce and strengthen and protect its civic design, character and dignity” in the Dublin City Development Plan 1999.
      It then goes on to deal with what are protected structures such as the Carlton Cinema and how the site is part of an architectural conservation area. The next section describes the land use history. Included in that section is the following sentence.

              “1979/80 – Nos. 50/51 O’Connell Street Upper were demolished, the site cleared and hoardings erected. No development has taken place on site for the past 20 years with the exception of the temporary use of the cleared site as a surface car park. The presence of a large derelict site on O’Connell Street detracts The report then goes on to give the planning history of the site and it then notes that the developer has not complied with any of the planning conditions to date including the requirement to submit a separate planning application for amended elevations to O’Connell Street and the proposed pedestrian route.

              The next section of the CPO is devoted to ‘The O’Connell Street Integrated Area Plan site cluster No. 1’. It notes that O’Connell Street ‘can lay legitimate claim to being the main street of the capital city’ but it goes on to bemoan that ‘surveys and studies conducted over the past three decades highlight a street in decline – a street that has lost its powerful sense of place. O’Connell Street has become a place characterised by a poor balance of uses, an inconsistency in the visual environment and an uninspired and poor quality public domain.”

      It then explains that the purpose of the Integrated Area Plan was to redress the failure to deal with the problems. Areas or sites were targeted for designation. The Carlton site which was this property was identified as a key site in the area and described as Site cluster No. 1. Further it cites that the Integrated Area Plan had contained four reasons for the designation of the site.
        1. The historical lack of investment and the failure of the area between O’Connell Street and Moore Street to attract any development or investment for over 20 years.

        2. The presence of extensive and highly visible derelict and semi-derelict sites and buildings on both O’Connell Street and Moore Street.

        3. The high levels of vacancy and under use of buildings and the poor mix of uses.

        4. The general poor quality of the physical environment.

          The Carlton site in particular was also targeted on the basis that it was recognised that the site had the greatest potential in the O’Connell Street area to bring about a radical change in the use culture of the street and adjoining area. In terms of scale, it had the capacity to act as a catalyst for the redevelopment and re-imaging of O’Connell Street. The development of a flagship project would act as a magnet, constituting a focus on Upper O’Connell Street and encouraging people to move up beyond the psychological barrier of Henry Street. Its location at the upper end of O’Connell Street would also help to draw Parnell Square into a more dynamic relationship with O’Connell Street and pull the cultural institutions located in the Square into a more participatory role with O’Connell Street. These are simply the main factors which were mentioned. There was then an extensive section devoted to “reasons for the Compulsory Purchase Order”. This section of the report dealt with physical deterioration and the impact on O’Connell Street, details of the lack of progress on the development of the site, tax incentives for the development of the site, delay and other areas of the plan, actions taken to facilitate proposed development on the site. The report concluded that an acquisition was necessary under the powers conferred by section 212 of the Act of 2000. The City Manager also had the benefit of a report of the Economic Development Officer which among other things highlighted the failure on the part of the appellant to find a suitable development partner. The authors of both of these reports gave evidence before the Planning Inspector as did a number of other relevant officers of the council.

          The Compulsory Purchase Order which followed and in its unconfirmed form purported to authorise the local authority to acquire the property compulsorily “for development purposes”. At all material times, there was complete openness as to what that meant and the context in which the expression was used.

          When An Bord Pleanála came to confirm the order, its own order contained the following recital.

                  “AND WHEREAS An Bord Pleanála has concluded that the acquisition by the local authority of the lands included in the order is necessary for the purposes of facilitating the implementation of the Dublin City Development Plan and that the said objections cannot be sustained against the said necessity.”

          The confirmation was made subject to modifications set out in the Schedule.

          The Inspector’s Report which was before An Bord Pleanála based on the oral hearing conducted by him is in two volumes, the first containing 82 pages and the second 112. It details all the relevant matters including all the documentation and evidence before the Inspector with the utmost care.

          In his “overall assessment” the Inspector refers to the fact that Mr. McGettigan no longer wished to participate in the development and that Mr. Quirke was now anxious to sell his interest. He pointed out that it was accepted by all parties that the area was in need of development. In relation to the appellant’s planning permission he had this to say:

                  “Despite the advances being made with the outstanding issues, a key and fundamental constraint remains. This is the inability of Mr. Clinton and his group to secure and bring on board a developer or a development partner. A number of international developers were approached, discussions were held but nothing appears to have emerged from these discussions. The Carlton Group or Carlton Partnership do not appear therefore to be in a position to advance the project other than to deal with the outstanding matters referred to earlier. No evidence was given at the oral hearing either that such a developer could be secured in the immediate future or in a reasonable timescale.”

          I have already indicated the terms of the decision of An Bord Pleanála.

          In summary, I take the view that there was clearly an immediate particular purpose known to everybody for the Compulsory Purchase Order namely, the regeneration of this area of O’Connell Street. Even if it were not “immediately required for a particular purpose” there is no doubt as to the purpose for which it was required in the future. Accordingly, the property could be acquired compulsorily on either basis having regard to section 213(3)(a). Since, of its nature, this particular purpose did not involve a definite form of development to achieve regeneration, the council was not obliged to make such determination. In those circumstances the purposes set out in the Compulsory Purchase Order were adequate though I would prefer the wording used by An Bord Pleanála. There would be no basis however for declaring the Compulsory Purchase Order void for lack of particularity. As I have indicated more than once, I would leave open to another case in which it might become necessary to consider the view taken by the learned High Court judge that a stated statutory purpose was always a sufficient particular purpose. I would certainly regard it as open to argument that in a different type of compulsory acquisition a more detailed indication of the purpose might be required.

          Books containing 141 authorities have been placed before the court. I have come to the conclusion that the issues in this case are unique being almost exclusively based on the interpretation of two sections in the Planning and Development Act, 2000 and that none of the authorities are really of any assistance. The closest to a relevant authority is Crosbie v. Custom House Dock Development Authority [1996] 2 I.R. 531. I am inclined to agree with the submissions of the appellant that Crosbie cannot be treated as a decision of general application. It related to the Urban Renewal Acts and most importantly to an instance of the Oireachtas itself designating a specific area in respect of which the use of compulsory purchase powers is authorised. I do not think that it is a particularly helpful authority one way or another in relation to the issues which I have considered and I do not intend to elaborate on the case further. The other case that has been relied on extensively is the English decision of Procter & Gamble Ltd. v. Secretary of State for the Environment (1991) 63 P & CR 317, a case which influenced Costello P. in Crosbie. In that case the English Court of Appeal held that a Compulsory Purchase Order which had been made for one purpose could not lawfully be confirmed for another purpose or for a purpose additional to that for which it was made. It was necessary, therefore, to identify the actual purpose for which the order had been made. On the facts, the purpose for which the order was actually made was the regeneration of a particular area which was in the scope of a statutory power. It was not made for the purpose of implementing a scheme for which planning permission had been given. The Inspector had concluded that certain highway improvements were necessary to achieve the regeneration. It followed that the purpose for which the order was confirmed was in fact the same as that for which it had been made but the means by which that purpose was to be achieved namely, by the highway improvements had changed between the making of the order and the confirmation of the order. Accordingly, the order was lawful. That case was relied upon (it was argued incorrectly) by Costello P. in the Crosbie case but I do not think it is of any assistance in this case.

          There is one other matter to which I wish to refer. Extensive submissions have been made, both written and oral, on behalf of the appellants as to the relationship between compulsory purchase powers on the one hand and the constitutional rights of owners in relation to private property on the other. It is sufficient to state that I accept the analysis of the case law put forward by the appellant and, of course, I particularly accept that compensation as such is no substitute for the property itself. But in my view, the Compulsory Purchase Order made in this case was lawful as coming within the powers of compulsory purchase in the first instance and was proportionate in the second instance.

          I think it appropriate to make the following further observation. It is axiomatic that the making and confirming of a compulsory purchase order (CPO) to acquire a person’s land entails an invasion of his constitutionally protected property rights. The power conferred on an administrative body such as a local authority or An Bord Pleanála to compulsorily acquire land must be exercised in accordance with the requirements of the Constitution, including respecting the property rights of the affected landowner (East Donegal Co-Operative v. The Attorney General [1970] I.R. 317). Any decisions of such bodies are subject to judicial review. It would insufficiently protect constitutional rights if the court, hearing the judicial review application, merely had to be satisfied that the decision was not irrational or was not contrary to fundamental reason and common sense.

          In O’Brien v. Bord na Móna [1983] IR 255, Keane J. stated:

                  “In each case, the person exercising the function is determining whether the constitutionally guaranteed rights of the citizen in respect of his private property should yield to the exigencies of the common good.”

          The decision of the Supreme Court reversing the decision of Keane J. that portions of the Turf Development Act, 1946 were unconstitutional did not address the standard to be applied by an administrative body when considering the making of a CPO.

          The same thinking is implicit in the judgment of Costello P. in Crosbie v. Custom House Dock Development Authority cited above. In that case, the acquisition was mandated by the statute and not delegated. However, Costello P. stated:

                  “The making of an order compulsorily to acquire an objector’s property rights results in an interference with the objector’s constitutionally protected property rights. [He then describes how the legislation provides for compulsorily acquiring]. Here the Oireachtas … … … … …has in effect concluded that the public good which is to be achieved by urban renewal requires the limitations on the objector’s constitutionally protected rights.”

          It is interesting to note that, even in the absence of constitutional protection, Denning M.R. in Prest v. Secretary of State for Wales (1982) 81 L.G.R. 193 at 211 declared:

                  “It is clear that no Minister or public authority can acquire land compulsorily except the power to do so be given by Parliament: and Parliament only grants it, or should only grant it, when it is considered necessary in the public interest… I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands; and then only on the condition that proper compensation is paid.”

          Watkins L.J. said, in the same case at pp. 211 to 212:

                  “The taking of a person’s land against his will is a serious invasion of his property rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see that that authority is not abused.”

          In my view, the procedures at a compulsory purchase hearing must ensure that these principles are observed. The acquiring authority must be satisfied that the acquisition of the property is clearly justified by the exigencies of the common good.

          I believe that that was the position adopted by the council in this case and it must also be borne in mind that there is at any rate a presumption of constitutionality attaching to sections 212 and 213 of the Planning and Development Act, 2000.

          I would dismiss the appeal in so far as it relates to grounds other than the challenge to the constitutionality of certain provisions of the Planning and Development Act, 2000. If it is intended to pursue that constitutionality issue, the court will discuss appropriate procedures with counsel.



























          Clinton v. An Bord Pleanála & Ors.

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          URL: http://www.bailii.org/ie/cases/IESC/2007/S19.html