The High Court granted two applicants leave to bring a judicial review challenge to Cork City Council’s decision to begin taking roads and other services at the Lindville estate in charge, but refused the relief they sought after hearing the case.
In a judgment delivered on 17 December 2009, Mr Justice O’Neill held that section 180 of the Planning and Development Act 2000 required the court to assess whether the development had been completed to the planning authority’s satisfaction by applying the irrationality test in O’Keeffe v An Bord Pleanála. The authority had a wide discretion because taking the development in charge would place responsibility for its maintenance on the council.
The first applicant owned land at Lindville and was a director and principal shareholder of the developer, Croft Park Builders Limited. The second applicant was his son. The council had granted permission for a 61-house estate in 1997. After the developer went into liquidation, the council used a bond and hired contractors to complete works. The judgment records that some landscaping was not carried out and that the works included changes to site contours and the drainage compound.
Thirty-eight residents asked the council in July 2006 to take the estate in charge. On 9 March 2007, the council published notice of its intention to do so. The applicants argued that the process was premature because the development did not comply with the planning permission, including in relation to landscaping, traffic calming, contours and drainage. The council disputed that claim and said the works substantially complied with the permission.
The court found that the applicants’ arguments about the meaning of section 180 and the treatment of open space were substantial enough to permit judicial review. It also considered the underlying challenge, as the parties had agreed to a “telescoped hearing” if leave were granted.
On the substance, the judge rejected the challenge. He found that the council could reasonably conclude that there had been substantial compliance. He said the planning permission did not require a specific traffic-calming measure; the drainage compound’s relocation was a minimal alteration; and the council could accept the use of soil to remedy the site condition, with the absence of shrubs and trees also a minimal deviation.
The court therefore refused the requested relief, which included orders to quash or halt the take-in-charge procedure. The judgment did not make an order taking the estate in charge; it addressed the challenge to the council’s decision to initiate that process.