The High Court dismissed a claim by landowner Charles McHugh challenging an agreement to transfer 20% of his lands at Newhall/Jigginstown, Naas, to Kildare County Council if the remainder was rezoned. The court held the agreement valid and enforceable and said McHugh was bound by its terms.
The judgment, delivered by Mr Justice Gilligan on 26 October 2005, concerned a written agreement dated 13 May 1999, made under section 38 of the Local Government (Planning and Development) Act 1963. The council’s development plan was adopted later that month.
During the plan review, McHugh’s consultants made submissions seeking rezoning. At an oral hearing on 11 December 1998, it was proposed on his behalf that up to 20% of the land would be dedicated to the council if the rezoning proceeded. The written agreement provided for 20% to be transferred for the council’s statutory purposes if the rest of the lands were rezoned. The judgment said McHugh had independent legal advice before signing.
McHugh argued that the council could not seek land in return for carrying out its statutory planning functions, and that the agreement lacked lawful consideration. The council denied requiring him to sign, saying the agreement followed his proposal and was lawfully made under section 38.
The judge framed the issue as whether section 38 empowered the council to accept McHugh’s proposal and enter the agreement. He distinguished the case from one involving a planning permission: the agreement related to rezoning through a development plan, rather than being a condition of planning permission.
Gilligan said the agreement’s purpose was to allow the council to develop the transferred land for small industry independently of adjoining private industrial development. He considered that purpose fell within section 38’s provision for agreements restricting or regulating development or land use. He also found that the council conferred a benefit on McHugh and that consideration moved from the council to him.
The court therefore declined to grant the declarations McHugh sought and dismissed his claim. The judgment does not state a separate order on costs.