The High Court has refused Wicklow County Council’s application to dismiss a claim by Dwyer Nolan Developments Limited over the return of €63,486 in planning security connected with a golf clubhouse and course at Ballynamuddagh, Bray.
Mr Justice Conleth Bradley’s ruling concerned only whether the claim should be dismissed for delay and want of prosecution. It did not decide whether the development complied with its planning permission or whether the company is entitled to the security.
The Council had granted planning permission in August 2001 for a clubhouse, car park and access road works, subject to conditions including submission and agreement of detailed foul and storm-water drainage plans. The company says the drainage condition was met and the security should be returned. The Council disputes compliance and says it will consider returning the money if specified information and documents are provided.
The company issued summary proceedings in October 2009. The case was later adjourned for a plenary hearing, and the parties exchanged pleadings and pursued discovery and particulars. The court’s chronology records that the company served a notice of trial in June 2012. In 2020, the Council applied to strike out or dismiss the proceedings for delay.
The Council argued that the delay was inordinate and inexcusable and that the passage of time created general prejudice, including possible difficulty recalling events surrounding drainage works and discussions with council officials in 2001 and 2002. The company accepted that the first two parts of the legal test for dismissal were met, but argued there was no evidence it would face an unfair trial.
The judge said the application turned on the balance of justice. Under the principles in *Primor plc v Stokes Kennedy Crowley*, as applied in *Cave Projects Ltd v Gilhooley*, the court had to consider whether the claimed prejudice was causally connected to the company’s delay. He was not satisfied that it was. He found no actual prejudice to the Council had been established and no evidence that the Council could not fairly take part in a trial.
The judgment also noted that, in March 2022 correspondence, the Council had set out conditions under which it would consider realising the security. The judge said the underlying compliance dispute was not for determination on this interlocutory application.
The application to dismiss or strike out the claim was refused. The court directed that the matter be mentioned on 28 February 2024 so the parties could address further orders, including costs of the application.