The Gazette 1993

APRIL . 1993

GAZETTE

Compensation under the Planning Acts: 85 Developments Ltd.

despite the fact that it did not mirror the precise statutory formula. It is legitimate to consider imprecise wording as falling within the ambit of Section 56 provided that it does not require the doing of violence to the language used in the reason. But this fails to address the pertinent question posed in XJS - why did An Bord Pleanála deviate from the statutory formula, particularly when this involved a marked departure from the words used by the planning authority? 4 This is not a question of mere semantics. As stated in XJS an unsuccessful applicant has a prima facie entitlement to compensation and " . . . if the planning authority seeks to defeat that claim it must do so . . . within the confines of S.56 and the exclusion must be clearly established." 5 The onus is on the planning authority to use the required formula. McCarthy J in 85 Developments goes so far as to suggest that " . . . the Board is reluctant to use the precise wording of the relevant portion of the section for the very reason that it might be thought that the reason was being advanced in order to defeat a claim for compensation . . " 6 This statement illustrates the crux of the issue. The planning authorities are not entitled to have regard to a desire to avoid liability for compensation in reaching a planning decision. 7 Yet it is essential that the applicant through the medium of the planning decision and be indicated clearly by the use of the statutory formula. Although the planning authority's decision must not be influenced by considerations of compensation, it is hopelessly unrealistic to expect it to be exclusion of compensation be communicated to the planning

the ambit of Section 56 of the 1963 Act which operated to exclude compensation in certain cases. Section 56 (1) (e) provides that compensation shall not be payable " . . . in respect of the refusal of permission if the reason or one of the reasons for the refusal is that the proposed development would endanger public safety by reason of traffic hazard or obstruction or otherwise." The reason stated that: "The proposed development, located on the main Donabate road which is substandard in width and alignment, would give rise to traffic hazard by reason of the additional turning movements which it would generate." The decision hinged on the interpretation of XJS Investments -v- Dun Laoghaire Corporation. 3 It was urged on behalf of the respondents that that decision required a planning authority to actually quote and set out the words of Section 56 in order to exclude compensation. The Supreme Court rejected this interpretation of XJS. The requirement was less stringent - the reasons need only be expressed in words approximating to the words of the section. The Supreme Court recognised the desirability of using the statutory formula yet nevertheless held that a failure to do so is not fatal, without offering a satisfactory explanation as to why this should be. Finlay CJ claims to find support for this approach in the use of the phrase "approximating to the words of the section" in the XJS decision and in the fact that McCarthy J indicated obiter that a reason for refusal given by the planning authority (but varied by An Bord Pleanála) would have effectively excluded compensation Legal Certainty

Garret Simons

Under the planning acts a person has a right to compensation if the value of their land is reduced as the result of an unfavourable planning decision. Garret Simons reports on a recent case on S.56 of the 1963 Act, which operates to exclude compensation in certain cases. The case hinged on whether a planning authority must quote the exact words of the statutory provision in order to exclude compensation. The Supreme held that words approximating to the section would suffice. The facts of Dublin CC -v- Eighty five Developments Ltd. 0 were as follows: An Bord Pleanála refused to grant permission, on appeal, to the defendants, citing a number of reasons for their decision. Under the Planning Acts 1 there is a prima facie right to compensation for any person, the value of whose interest in land is reduced as a result of an unfavourable planning decision. 2 The issue to be determined was, therefore, whether or not one of these reasons for refusal came within

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