The Gazette 1988

GAZETT INCORPORATE D LAW SOCIETY OF IRELAND

GAZETTE

DECEMBER 1988

In this Issue Viewpoint Family Mediation Practice Note From the President Younger Members News Cross Bar Co-operation

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

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Word Processing People & Places

Tourism and the Business Expansion Scheme

Legal Audit

Correspondence

Book Review

Professional Information 3 08 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 Printing: 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.

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