The High Court has ordered Clare County Council to comply with its statutory obligations over Westpark, an unfinished housing estate at Spanish Point, after finding that the mandatory provisions of planning law applied.
In a judgment delivered on 26 May 2016, Mr Justice Max Barrett granted an order of mandamus sought by resident Andrew O’Donoghue. The order directs the council to comply with section 180(2) of the Planning and Development Act 2000, as it applies to Westpark, following a request by the estate’s householders on 21 November 2011.
The judgment says the estate had not been completed to the planning authority’s satisfaction, principally because the development company collapsed. Residents had made a valid request in November 2011 for the council to take the estate into charge. The court said the statutory preconditions for section 180(2) were satisfied, including that enforcement proceedings had not been started within the relevant seven-year period.
The council argued that section 180(2A), enacted to address unfinished developments, governed the request. That section gives planning authorities discretion over whether to initiate the taking-in-charge procedures in specified circumstances. Mr O’Donoghue argued that the mandatory duty under section 180(2) applied instead.
The judge found that section 180(2A) overrides section 180(2) when the circumstances set out in 2A arise. But neither of those circumstances applied here: enforcement proceedings had not been started and the seven-year period had expired, while the provision concerning whether enforcement would complete the development could not sensibly apply where proceedings were out of time. The court therefore held that section 180(2) applied and required the council to comply with section 11 of the Roads Act 1993.
The judgment explained that this order carries obligations beyond simply starting the process. Under section 180(4)(a), the council must take relevant sewers, water mains, service connections and public open spaces or car parks into charge, subject to the statutory provisions. The judge noted that Irish Water had confirmed to the council that temporary taking in charge of Westpark’s wastewater works was within Irish Water’s remit, making related issues moot.
The court concluded that O’Donoghue had made a demand, that the council’s position amounted to a refusal, and that mandamus would provide meaningful relief. The judgment grants the order sought; it does not state that the estate’s taking-in-charge process had already been completed.