The High Court has decreed specific performance of 22 contracts for units at Castlemanor Retirement Village in Co Cavan, requiring the purchasers to complete their purchases and building agreements.
Mr Justice Kelly ruled on 28 July 2011 that the plaintiffs were entitled to the order. He said its terms must expressly include the receiver’s undertaking to ensure a sewer required by a planning condition is completed when Cavan County Council calls for it, and to fund the work to the extent the bond does not cover the cost. The judgment said the exact terms of the order would be discussed with counsel.
The contracts, dated 30 November 2007, covered units 4, 7, 8, 10, 21, 24, 27, 30, 31, 32, 35, 36, 53, 54, 55, 56, 57, 58, 67, 68, 69 and 70. Each involved an €82,000 land sale and a €188,000 building agreement. The claim concerned the balance of an original 48-unit arrangement; the other sales had been completed.
The defendants argued that the plaintiffs could not provide a valid planning-compliance certificate because a sewer specified in condition 33 had not been installed. They also relied on other planning conditions and contended that the development was unlawful and the units could not be occupied. Those were defence and counterclaim arguments, not findings accepted by the court.
The judge found that the sewer had not been installed, but accepted evidence that the developer had been willing to do the work and that the council preferred it to be coordinated with a planned water main to avoid repeated road closures. Funding for the water main had not been provided by the Department of the Environment. The judge found the certificate was substantially correct as to condition 33, given what was reasonably possible at that stage. He also found that condition 14 concerned sanitary facilities within the development and had been substantially met.
The court rejected the argument that the outstanding sewer made the development unlawful, describing the risk of planning enforcement on the evidence as without substance. It also found the defendants knew the sewer had not been built and concluded their reliance on that fact to escape the contracts had no merit.
The judge held that a special contract term requiring the certificate and barring objections to it meant the purchasers could not use the certificate’s alleged defects to refuse completion. He considered the evidence and the alternative arguments as well, and concluded that specific performance would not be unjust if the receiver’s undertaking was included in the order.