The Gazette 1993

GAZETTE

APRIL

1993

Compensation under the Planning

Acts:

85 Developments Ltd.

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.

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

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.

The

issue to be determined was,

therefore, whether or not one of

these reasons for refusal came within

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.

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.

Legal Certainty

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

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?

This is not a question of

mere semantics. As stated in

XJS

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."

The onus is on the planning

authority to use the required

formula. McCarthy J in

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 . . "

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.

Yet it is essential that the

exclusion of compensation be

communicated to the planning

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

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