The Gazette 1946-49

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GAZETTE DECEMBER 1988
In
this
Issue
Viewpoint
Family Mediation
Practice Note
From the President
Younger Members News 2 84
Cross Bar Co-operation 286
Word Processing 289
People & Places 2 92
Tourism and the Business
Expansion Scheme 295
Cover Photo: (left to right) Tom Clinton,
President of the I.F.A., Seamus Kirk, T.D.,
Minister for State (Horticulture), and
Adrian Bourke, Chairman of the Society's
Public Relations Committee.
Executive Editor:
Mary Gaynor
Committee:
Geraldine Clarke, Chairman
Seamus Brennan
John F. Buckley
Gary Byrne
Michael Carrigan
Eamonn G. Hall
James J. Hickey
Nathaniel Lacy
Frank Lanigan
Charles R. M. Meredith
Desmond Moran
Daire Murphy
John Schutte
Maxwell Sweeney
Advertising:
Liam 0 hOisin. Telephone: 305236
307860
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Turner's Printing Co. Ltd., Longford.
The views expressed in this publication,
save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
Published at Blackhall Place, Dublin 7.
Tel : 710711. Telex: 31219. Fax: 710704.
GAZETT INCORPORATE D
LAW SOCIETY
OF IRELAND
Vol.82 No.9 Novembe r 1988
Viewpoint
No a s p e ct of our p l a n n i ng
legislation has given rise to as
much controversy as the provisions
relating to Compensation. The fact
that relatively small amounts of
Compensation have actually been
paid out by planning authorities has
gone almost un-noticed in the
sustained media campaign wh i ch
has highlighted the "mi l l i ons of
pounds" of compensation wh i ch
have either been claimed or wh i ch
planning authorities fear will be
claimed if they refuse certain
sensitive applications.
Once there is control of the
development of property whether
on an individual basis or by zoning
particular areas there follow t wo
inevitable results. The land of some
owners will become more valuable
while that of others will decline or
at least be forever fixed to its
present use value.
Two doctrines evolved to try to
ba l an ce out t he i ne v i t ab le
inequities. " B e t t e r me n t" as it was
sometimes called, provided that
where the value of land had been
significantly increased either as a
result of zoning or the carrying out
of services which make its develop-
me nt easier, a share of t he
i n c r ea s ed va l ue s h o u ld be
recovered f r om the owner. The
other Compensation provided that,
where a restriction was placed on
the development of land, the owner
should be compensated for his
inability to develop t hat land in the
way in wh i ch the owners of other
land were being pe rmi t t ed to
develop theirs. The concept is
generally analogous to that of
compensation for the compulsory
purchase of lands. Where the
common good required that certain
lands be a c qu i r ed for pub l ic
purposes the land owner was
required to dispose of those lands
but was entitled to be compen-
sated for his loss. Equally if a land
owner was to be prevented, for the
common good, from developing his
lands he ought to be compensated.
" B e t t e r me n t" has long since
been abandoned as an unworkable
system and it has been recognised
that the windfall profits from grants
of planning permission are perhaps
dealt w i th by means of Capital
Gains or other forms of taxation.
It is claimed that Compensation
has become a great millstone round
the neck of planning authorities.
Apart from the argument that vast
sums of money have been paid out
to "speculators", wh i ch appears to
be a considerable exaggeration, the
argument is strongly made that
authorities have yielded to "black-
ma i l" from developers who have
threatened to pursue claims for vast
sums of compensation if certain per-
missions are not granted to them.
It is unfortunate that in one of the
most significant cases the X J S
case in wh i ch a substantial, though
not the horrendous figure claimed
by the claimants, was awarded the
compensation became payable as
a result of the failure of An Bord
Pleanala to word its refusal of
permission properly.
It has to be said however that the
" o u t " offered by the 1963 Act
whe r eby a planning au t ho r i ty
c o u l d, in order to d e f e at a
c omp e n s a t i on c l a i m, o f f er a
p e rm i s s i on for an a l t e r na t i ve
development has proved to be
unworkable and probably unlawful.
The Local Government (Planning
& Development) (No. 2) Bill of 1988
is the Minister's response to the
clamour to " p l ug the compensation
l oopho l e ". It has been mu ch
criticised for being a half measure
but perhaps it is none the worse for
that. If the an t i - compensa t i on
lobby had had its way, property
owne rs who se land had been
e f f e c t i v e ly s t e r i l i s ed by t he
decisions of planners wh i ch might
have had t he mo s t t e n u o us
c o n n e c t i on w i t h t he c ommon
good, wou ld have been w i t hout a
remedy. Whe t her t he Bill w i ll
achieve its aim of ensuring that
Contd. on pmgm 277
2 75