The High Court has rejected a marina company’s claim for the unpaid balance of a State grant and the department’s counterclaim seeking repayment of the instalment already paid.
In a judgment delivered on 7 March 2014, Mr Justice Birmingham found that the development had changed substantially from the marine training project for which grant aid was approved. The court concluded that this departure justified withholding the second instalment. It also held that the department’s counterclaim was brought too late and was statute barred. Both claims therefore failed.
Star Marina Limited had sought damages for breach of legitimate expectation or, alternatively, breach of contract. The grant approval, notified in January 2001, was for up to IR£592,681, equivalent to €752,549.63, subject to conditions including that relevant planning and foreshore requirements be in place. The department paid €332,312 in December 2001. The company sought a further €420,238, which the department refused in February 2006.
The company argued that it had been approved for the grant and proceeded on that basis. The Minister for Agriculture, Food and the Marine said the later payment was properly withheld because the project had changed, planning and foreshore requirements were not being met, and the grant had been spent beyond the original proposal. A State aid concern had also appeared in correspondence but was not an issue at the hearing.
The original proposal described a marine facility centred on sailing, windsurfing, canoeing and rowing, with language classes. The court reviewed planning records showing that the building constructed was substantially larger and different from the permission granted in 2000. A retention application was overturned on appeal, and the local authority later refused permission for a change from a coffee shop and training classroom to a restaurant. Further planning applications and enforcement issues followed.
The court also considered changes to the pier from the layout in the foreshore lease. The department had concluded that a fresh application, including public consultation, was required. The judge said that issue alone might have warranted waiting for the application to be decided, but it was not the only ground for withholding funding. The development and its uses had moved well beyond the grant proposal, including a public restaurant and other recreational activities.
The department sought the return of €332,312, alleging breach of contract, negligent misstatement or misrepresentation. The judge held that time to bring the counterclaim began no later than the end of 2002, when the department must have known in general terms what had occurred. Because the counterclaim was delivered in October 2010, it was statute barred. The judgment did not order repayment or award the company the unpaid grant balance.