The High Court upheld Louth County Council’s order reducing the development contribution on unsold houses in a 43-home scheme, but directed that the amendment to the planning condition apply to 30 houses rather than the 33 named in the order.
In a judgment delivered on 20 October 2017, Mr Justice Eagar rejected McCaughey Homes Limited’s challenge to the council’s order. He held that the company had liability to both the council and Irish Water for contributions required under the original planning condition.
The permission was granted in 2006 to McCaughey Developments Limited. Condition 13 required contributions towards roads, water, sewage, surface water and community, recreational and amenity facilities. The initial contribution was €8,946 per house, subject to annual index changes. Ten houses were sold and paid for before McCaughey Homes acquired the 33 unsold houses in May 2016.
Louth County Council’s 2016 contribution scheme set a rate of €5,400 per unit for specified infrastructure and amenity costs. The company argued that the lower scheme rate should apply to the unsold houses and that the council could not add water and sewage charges. It sought to quash the council’s January 2017 order and obtain compliance certificates after paying €5,400 per house.
The council argued that the water and sewage portion of the original contributions had vested in Irish Water on 8 April 2015, when water-services assets and related sums transferred under the Water Services (No. 2) Act 2013. It said the 2016 scheme did not change that part of the contribution, and that the company remained liable for it.
Justice Eagar concluded that the statutory changes separated responsibility for water and sewage from the other infrastructure categories. The 2016 scheme changed the contribution basis for roads, surface water, and community, recreational and amenity purposes, but did not alter sums due to Irish Water for water and sewage. The judge found that the council’s order was made under the statutory power to amend a planning condition when the contribution basis changes, and that the council could make the amendment as an executive function.
The court did not grant the declarations, certiorari or compliance-certificate orders sought by the company. It directed that the amendment apply only to the 30 houses that remained unsold, reflecting the council’s actions. The judgment does not specify the final per-house amount payable or direct the issue of compliance certificates.