The High Court ruled that Cork County Council cannot satisfy a 2013 order requiring a Part V agreement for onsite social and affordable housing at Levis Quay by taking zero units. The ruling answers legal questions referred during an arbitration; it does not decide which apartments will transfer or their final price.
The dispute concerns a development in Skibbereen completed around 2007. A planning permission granted in 2004 required an agreement under Part V of the Planning and Development Act 2000. After the parties failed to agree its terms, An Bord Pleanála ordered in September 2013 that the developer enter an agreement providing for the transfer of onsite units. That order was not challenged.
The property arbitrator had not begun hearing the arbitration when the High Court considered five questions of law. The parties disagreed over whether the Council could take no units, which development plan and statutory rules applied, whether the transfer had to reflect the stated housing percentage, and whether the developer could claim interest for retaining units.
Justice Creedon held that the Board had already decided the principle: onsite units had to transfer. The arbitrator’s role was to determine how to implement that decision, including the units and their price. The court said it was outside the arbitrator’s jurisdiction to set the number at zero. It also concluded that the Board’s decision fixed the applicable development plan period: the law in force when the Board made its order, which was the same law in force when planning permission was granted, rather than the law at the start of arbitration.
The court answered yes to whether the Part V agreement had to provide for the same percentage of land or units specified in the relevant development plan. It also ruled that amendments introduced by the Urban Regeneration and Housing Act 2015 did not apply to the site-cost calculation in this case. The court answered no to whether the arbitrator could award the claimed interest for the cost of retaining ownership after completion. It noted the delay between the Board’s 2013 decision and the application for an arbitrator in 2019, and said no statutory provision allowed interest in the terms claimed.
The claimants had proposed transferring eight specified apartments for either €1,975,213.09 or €1,742,240.79, depending on the site-cost rules. Those were proposals, not amounts awarded by the High Court. The court asked the parties to correspond on the form of order. If they could not agree costs within 14 days, the referral costs would be reserved to the arbitration hearing, subject to submissions.