The High Court has ordered Donegal County Council and Bundoran Town Council to begin the statutory process for taking charge of the Maple Drive and Ross View housing estates in Magheracar, Bundoran.
In a judgment delivered on 26 February 2013, Mr Justice Hogan granted an order of mandamus compelling the councils “forthwith to take steps to initiate” the procedure under section 180 of the Planning and Development Act 2000. The order requires the councils to start that procedure; the judgment does not itself transfer the estates into public ownership or decide the final taking-in-charge outcome.
The applicants, White Maple Developments Limited and Castlewin Properties Limited, were involved in building about 167 houses across the two developments. The estates were completed in 2006. The companies later sought to have them taken in charge and carried out further works identified by the town council’s engineer, to the council’s satisfaction.
The companies formally applied in May 2010 using Donegal County Council’s non-statutory application process. The form stated that it was not an application under section 180 and that a separate application would be needed under that section. Hogan noted that the council had no pre-printed form for statutory applications and appeared to process requests through its non-statutory scheme unless applicants specifically asked for the statutory route.
The companies’ solicitors wrote to the council on 15 September 2011, expressly calling on it to initiate the section 180 procedure. The council did not act. After judicial review proceedings began, the council’s solicitors said in January 2012 that the companies had not made a formal application under section 180 and should do so.
The court said the only issue was whether the companies had requested the statutory procedure. The councils did not dispute that the other section 180 requirements had been met. Hogan held that the September 2011 letter clearly called on the council to perform its statutory duty. If the councils had been unsure of the companies’ intentions, they could have asked for confirmation and then taken steps to start the process.
Hogan said a local authority’s non-statutory scheme could not dilute or undermine the statutory process. Finding no acceptable reason for the council’s failure to act, he made the order of mandamus.