375 / 406
GAZETTE
JANUARY/FEBRUARY 1985
stated to an additional £677,000.
The substantial difference between the
two amo u n ts depended on how the lands
should be valued in so far as they were
affected by the County Development
Plan, 1972. These lands were designated
in the Plan with the letter " Q " which
indicated that the entire area so desig-
nated was to be preserved as an area of
high ame n i t y. This restricted very
considerably the development potential
of the lands. The Arbitrator next put a
value on the lands free from the develop-
ment
restrictions i mp o s ed by
the
foregoing zoning provision and this put
an additional value of £670,000 on the
lands. This necessitated the making of
two assumptions which required confir-
mation by the High Co u r t, if the higher
award was to take effect. One such
assumption was that the Co u n ty Council,
as Sanitary Authority was obliged to
allow effluent f r om the foul water sewers
of a scheme of development to be
discharged into the Do d d er Valley main
sewer. The other was that a plea by
Dublin Co u n ty Council that the capacity
of the Do d d er Valley main sewer was pre-
empted to provide capacity for a scheme
of development on other lands (some of
which would possibly or probably be
undertaken by the County Council)
would not entitle the Co u n ty Council to
refuse planning permission for develop-
ment on the claimant's land under the
provisions of the Planning Act, 1963
while at the same time barring any claim
to compensation by the claimant by
reason of the exclusion f o u nd in section
56(s) (b) (i) of the Act of 1963.
Paragraph 19 of the award of the
Arbitrator contains the four questions
submitted by him for the opinion of the
High Court. It reads as follows:—
" 1 9 . T h e A c q u i r i n g
A u t h o r i t y
submitted that a decision, as Planning
Authority, to refuse planning permis-
sion for development on the subject
land for the reason that the capacity of
the Do d d er Valley main sewer was
pre-empted would not confer a right
to compensation. T he questions for
the opinion of the High Court are:
(1) is the designation " Q " in the
C o u n ty Du b l in D e v e l o pm e nt
Plan 1972 equivalent to a reserva-
tion for a particular purpose?
(2) Is the designation " T " in the
C o u n ty D u b l in D e v e l o pm e nt
Plan equivalent to a reservation
for a particular purpose?
(3) Could the Acquiring Authority,
as the Sanitary Authority, have
refused to allow effluent f r om the
foul water sewers of a scheme of
development on the Subject Land
to be discharged into the Do d d er
Valley main sewer?
(4) Wo u ld a decision, ma de at the
time of a service of the Notice to
T r e a t ,
by t h e
A c q u i r i n g
Authority as Planning Authority,
to refuse to grant
planning
permission for a scheme of
development on the subject land
for the reason that the capacity of
the Do d d er Valley main Sewer
was p r e - emp t ed
to
p r o v i de
capacity for a scheme of develop-
ment on other lands some of
which scheme was probably or
possibly undertaken by a Local
Authority, confer a right to
c omp e n s a t i o n ?"
The Supreme Court in
Dublin County
Council
-v-
Short
([1983] I.L.R.M. 377)
dealt with a case stated in similar terms by
another Arbitrator in relation to other
lands affected by the same C.P.O. The
affirmative answers given by the Supreme
Court to Questions (1) and (2), which
both parties agreed must be given in the
present case also, means that the designa-
tion of the lands as lands required " to
preserve an area of high amenity", or as
lands required " to provide for recrea-
t i o n al
o p en
s p a ce a n d
a n c i l l a ry
structures" amo u n ts to a reservation for a
particular purpose within Rule 11 of the
Statutory Rules for the assessment of
compensation contained in the Fourth
Schedule to the Planning Act of 1963 and
inserted into section 2 of the Acquisition
of Land (Assessment of Comp e n s a t i o n)
Act, 1919, by section 69 of the 1963 Act.
Consequently, in assessing compensation
for the acquisition of land the Arbitrator
is not to have regard to any depreciation
in values attributable to the fact that the
land has been so reserved for such
particular purpose in the development
plan.
The Arbitrator then has to consider
whether, in the event of lands being
available for general development, such
development would in any event be
inhibited by lack of water supplies or
sewerage facilities in the area as a result of
which planning permission for develop-
ment could be refused and a claim for
compensation defeated by the provisions
of section 56 (1) (b) (i) of the 1963 Act.
The Arbitrator f o u nd as a fact that
there would be no difficulty in providing
a water supply to service a development
on the land in question; that there was
ample capacity in the Do d d er Valley
main SeweT to cope with any develop-
ment which might take place on the lands,
but that the acquiring authority as
Sanitary Authority, were contending that
the entire capacity of this sewer was pre-
empted to provide for the requirements of
future development on other lands zoned
for development in the 1972 Develop-
ment Plan.
Under the decision in
Short's
case the
Co u n ty Council are not entitled to rely on
such " p r e - emp t i o n" of the capacity of the
sewer to defeat a valid claim in reliance on
the provisions of the Public Health
(Ireland) Act, 1878 and particularly
section 23 thereof, to discharge into the
sewers of the Sanitary Authority for the
district, sewerage from premises within
that district.
As the Court regarded the instant case
as being substantially on all fours with
Short's
case the answer to the third
question posed by the Arbitrator had to
be in the negative.
As to the fourth question, it was clearly
decided in
Short's
case that a situation
where planning permission is refused on
the grounds that available sewerage
facilities although sufficient to meet the
requirements of the proposed develop-
ment have been " p r e - emp t e d" for other
building developments contemplated by
the local authority but not yet carried out,
cannot be regarded as a situation where
planning permission is refused "by
reference to any existing deficiency in the
provision of water supplies or sewerage
facilities and the period within which any
such deficiency may reasonably be
e x p e c t e d
t o
b e m a d e
g o o d " .
Consequently, if permission is refused on
such grounds a claim for compensation
under Section 55 of the Act of 1963
cannot be defeated by pleading in answer
the provisions of Section 56 (1) (b) (i) of
the same Act. But the Court regarded the
form of this question as being somewhat
unsatisfactory since, as was observed by
the Chief Justice in
Short's
case, it is
hypothetical and based on many supposi-
tions. This was highlighted in the later
case of
McKone Estates Limited
-v-
Kildare County Council
(unreported H.C.
24.6.1983) which involved an actual, as
distinct f r om a hypothetical claim for
compensation under Section 56 which the
Arbitrator has to consider in this case.
Having regard to the decision of the
Supreme Court in the
Short
case a
decision by a Planning Authority to
refuse permission for a development
on the g r o u nd that the capacity of the
sewer of the Sanitary Authority for the
area concerned was pre-empted for other
building developments contemplated by
the local authority but not yet carried out
would in all probability be invalid and
ultra vires.
But whether such a decision
can give rise to a claim for compensation
under Section 55 of the 1963 Act without
first requiring the applicant to take
whatever steps are open to him to quash
the decision and proceed with his
development is a moot point. F or this
reason rather than give a simple " y e s" or
" n o " answer to Question 4 the Co u rt
preferred to reply to it as follows:
" A
decision
by the
A c q u i r i ng
Authority that the capacity of the
Do d d er Valley main Sewer was pre-
empted to provide capacity for a
scheme of development on other
lands, (some of which would possibly
or probably be undertaken by a Local
Authority), would not entitle the
A c q u i r i ng A u t h o r i ty t o r e f u se
planning permission for development
of the Subject L a nd under the
iii