The High Court has quashed a property arbitrator’s decision on the number of homes Murphy Construction (Carrigtwohill) Limited had to transfer to Cork County Council under social and affordable housing rules, finding that the arbitrator applied the wrong interpretation of the Planning and Development Act 2000.
Mr Justice Clarke ruled that, where an agreement provides for built homes, the sites associated with the homes transferred must account for 20% of the development’s total planning gain, or as close to that figure as possible, subject to a balancing payment. He directed that Cork’s question about the number of homes be referred back to the arbitrator for a fresh calculation under that approach.
The Cork dispute concerned a development of 186 dwellings at Fernwood, Ballinglanna, Glanmire. The council and Murphy Construction had agreed in principle that the developer’s entire social and affordable housing obligation would be met through built homes, with any small difference balanced by a payment. Their technical valuation figures had been agreed before the arbitration concluded, leaving the interpretation of section 96 as the central issue.
The arbitrator’s determination was not reasoned. The judge said its only reasonable inference was that the arbitrator had accepted Murphy Construction’s interpretation. He held that this was a material error of law and granted an order of certiorari quashing the determination. Although the court should show significant deference to a statutory property arbitrator, ordinary judicial review principles applied. The possibility of referring the legal question to the High Court by a case stated did not prevent Cork from obtaining relief.
The judgment also addressed Dun Laoghaire Rathdown County Council’s separate claim against Glenkerrin Homes concerning 149 housing units at Ballintyre Hall, Ballintyre, County Dublin. The judge set out the same approach for calculating the units due, including where sites differ in value. He rejected the council’s proposed general rule based on transferring 20% of gross residential floor area, though floor area could help allocate site value among apartments in a block.
The court did not make final declarations in the Glenkerrin proceedings at this stage. It gave the parties an opportunity to consider the judgment and agree the wording of declarations, with further submissions to follow. In the Cork proceedings, the arbitrator must also address the relevant construction and development costs, including profit, by reference to open-market rates in the relevant locality and at the relevant time. The judgment said valuations should generally reflect the likely transfer date, with the arbitrator estimating that date from the available evidence.