The High Court ruled that Dun Laoghaire Rathdown County Council must generally make financial-contribution compliance certificates available to Glenkerrin Homes for units in a development, unless the council has reasonable grounds to believe issuing a certificate would put its potential entitlement to Part V housing units at risk.
Mr Justice Clarke delivered the judgment on 26 April 2007, following an urgent hearing in late February. The dispute arose after the council changed its long-standing practice of issuing certificates used in property sales. The court said the certificates had come to be treated by conveyancers as essential documents when selling newly built homes.
Glenkerrin argued it had a legitimate expectation that the practice would continue unless reasonable notice of a change was given. The judge accepted that expectation, but said it was not absolute: a certificate could be refused where completing a sale might prevent the council from securing units to which it could be entitled under Part V of the Planning and Development Act 2000.
The development’s planning permission required Glenkerrin to enter an agreement with the council about social and affordable housing within eight weeks. No agreement was reached. The council sought 20% of the units, while Glenkerrin initially proposed meeting part of its obligation in cash. By the time of the proceedings, the development was substantially complete and the parties accepted that the obligation would be met through units, though they disputed how those units should be selected and valued.
The judge held that the property arbitrator could resolve the remaining disputes about the number, identity and price of units, because transfer of units had become the only practical means of meeting the obligation. He concluded that the council’s blanket policy of withholding certificates until a Part V agreement was reached went too far. Instead, each requested certificate had to be assessed against the risk that the sale would leave the council unable to obtain units consistent with its maximum case.
The court declared that the council was obliged to make certificates available on that basis and gave liberty to apply if a specific refusal was said not to meet the test. It did not make a mandatory order requiring certificates for particular units. Nor did it decide whether the development was unauthorised because no final Part V agreement was in place; the judgment said that issue belonged in separate proceedings.