By Ruth Mercer
The Supreme Court has overturned a High Court ruling and declared void an agreement under which Charles McHugh was to transfer part of his lands at Jigginstown, Naas, to Kildare County Council free of charge if other lands were rezoned for development.
McHugh owned about 47 acres in Co Kildare and applied in 1998 to have land rezoned for industrial use. Discussions followed with the council. On 13 May 1999 he signed a document stating that, if the relevant lands were rezoned, he would transfer another identified portion to the council without charge.
McHugh had legal and engineering advice and his solicitor witnessed his signature. The document was prepared by the council but was not itself signed or sealed on the council's behalf.
The High Court later held that the agreement was valid and enforceable. McHugh appealed after benefiting from the rezoning and selling the balance of the lands.
Mr Justice Adrian Hardiman said the narrow question before the Supreme Court was whether the agreement was authorised by section 38 of the 1963 Planning Act. That provision allowed a planning authority to make agreements restricting or regulating the development or use of land.
The court held that an agreement transferring ownership was fundamentally different. Simply referring to section 38 in the document could not bring a land-transfer arrangement within a power concerned with regulating how land was developed or used.
Kildare County Council expressly accepted that it could not enforce the agreement unless it fell within section 38. As it did not, the court held that the council lacked power to make the arrangement and the agreement was ultra vires, meaning outside its statutory authority.
The ruling was confined to that point. The Supreme Court stressed that it had not been asked to decide the broader administrative-law validity of arrangements under which a planning authority might benefit from making a particular rezoning decision.
The appeal was allowed and the 13 May 1999 agreement was declared void.