The High Court has ruled that a planning condition protecting an undeveloped area at Douglas Hall did not prevent an arbitrator from awarding compensation to a landowner under the Local Government (Planning and Development) Act 1990.
Mr Justice Roderick Murphy gave the ruling on November 8, 2006, in a case stated by property arbitrator Eoin O Buachalla. The question was whether section 12(2) of the Act and specified Fourth Schedule conditions barred compensation for a planning restriction imposed by An Bord Pleanála.
The landowner, Sean Cooper, owned 0.83 hectares within a larger 1.4-hectare site at Douglas Hall, Cork. An Bord Pleanála granted permission for 33 apartments on March 15, 2000, subject to conditions. Condition 5 prohibited development east of an existing line of beech trees, required that area to remain in its natural undeveloped state, and required proposed parking there to be moved to the western part of the site. The stated reason was amenity.
Cooper’s amended claim sought £280,000 for an alleged reduction in the value of his interest in the land resulting from condition 5. The arbitrator stated that, if the High Court answered the legal question in the negative, he would award €150,000 plus costs; if answered in the affirmative, compensation would be nil and each side would bear its own costs of the arbitration reference.
The council argued that the condition fell within Fourth Schedule categories concerning amenity, trees and development layout, so compensation was excluded. Cooper argued that the condition did not fit those statutory categories. The judgment also records the planning inspector’s view that the eastern part of the site had nature conservation significance and that keeping it undeveloped would protect amenity.
The court held that condition 5 related to preserving and protecting trees, shrubs, plants and flowers under paragraph 19 of the Fourth Schedule, and also fell within the class described in paragraph 18 concerning preservation of amenities of places and features of natural beauty or interest. It said paragraphs 6(b), 10(a) and 10(b) were not relevant.
The judge answered the arbitrator’s question in the negative: section 12(2) did not preclude the arbitrator from awarding compensation under section 11. The High Court did not itself make the conditional €150,000 award; that was the arbitrator’s stated outcome if the court answered the question in the negative.