The High Court has refused a liquidator’s application for leave to disclaim obligations relating to a wastewater treatment plant and pumping station serving a development at Monard, Co Tipperary.
In a judgment delivered on 21 January 2014, Mr Justice Michael White said the company’s responsibility to comply with planning conditions was a statutory obligation. The Multi-Unit Developments Act 2011 made clear that transferring ownership of common areas did not remove a developer’s responsibility to ensure compliance with planning permission, he said.
Anthony J. Fitzpatrick, acting as liquidator of Bohergar Developments Limited, sought leave to disclaim the operation and maintenance of the plant and pumping station. He also sought an order vesting related estate and maintenance obligations and legal entitlements in Cuirt Monard Management Company Limited. South Tipperary County Council was a notice party.
The company had built 52 houses, a creche and four apartments in Monard. It went into voluntary liquidation after the decline in the housing market and a lack of sales left it unable to continue trading. The judgment said the liquidator had limited resources.
Planning conditions required a wastewater treatment system capable of serving 300 people, a pumping station with standby pumps and monitoring, and an emergency generator. They also required a management company to operate the pumping station. The judgment distinguished the developer’s statutory duty to meet planning conditions from ongoing maintenance obligations.
The liquidator told the council in August 2013 that he intended to disclaim maintenance obligations and have them assigned to the management company. The council responded that responsibility for roads and services remained with the developer and its successors until the council took them in charge. It listed work it said was needed to complete and maintain the plant.
The court considered a previous case in which a liquidator had been allowed to disclaim a licence carrying onerous conditions. It distinguished that case: the company there had obtained its licence after it had stopped production and had no assets, while Bohergar Developments had obtained planning permission, proceeded with the development and sold properties without discharging its planning obligations.
The judge said the company’s limited assets did not, by themselves, allow the liquidator to disclaim responsibility for having the development taken in charge. Cooperation by a director of the management company and Inis Housing Association in keeping the plant operating did not transfer responsibility to the management company or create an estoppel.
The relief was refused. The court said the liquidator and council should cooperate to activate a €140,000 bond provided under a planning condition dated 31 August 2006. The judgment did not make an order transferring the obligations to the management company.