Supreme Court allows appeal, ruling estoppel does not bar claiming exempted development status after refused planning applications.

[2005] IESC 55

THE SUPREME COURT

148/02

Murray CJ

Denham J

McGuinness J

Hardiman J

Fennelly J

Between:

Fingal County Council

Plaintiff/ Respondent

AND

William P. Keeling & Sons Limited

Defendant/ Appellant

Judgment of Mr Justice Fennelly delivered the 29th day of July, 2005

1. This appeal requires the Court to reconsider part of its judgment in County Council of the County of Dublin v Tallaght Block

Company Limited [Supreme Court unreported 17th May 1983, per Hederman J, hereinafter “Tallaght Block”]. The Court there appears

to have decided the following. Where a developer applies unsuccessfully for retention planning permission, he is estopped by that fact

alone from resisting a later application for an order pursuant to section 27 of the Local Government (Planning and Development) Act,

1976 on the basis that the development was exempted development. Section 27 is now, of course, replaced by section 160 of the

Planning and Development Act 2000.

2. The Respondent applied in October 2001 pursuant to section 27 for an order that the Appellant demolish forthwith a partially

completed bungalow constructed on lands at Killeek Lane, Killeek, County Dublin and to carry out site clearance works following the

demolition.

3. It is not in dispute that the Appellant had not obtained any permission for the development in question before it was carried out.

Thus the development was unauthorised unless it enjoyed the benefit of the relevant Exempted Development Regulations. The

Appellant’s contention that the development is exempt appears to be based on the existence on the site of an old disused cottage,

but I do not wish to say anything whatever about the merits of that argument, which has not yet been explored by the High Court.

4. The Respondent caused an inspection of the site to take place and complained that unauthorised development had taken place.

The Appellant applied on three occasions for permission to retain the development but each application was refused.

5. In answer to the application for an order pursuant to section 27, the Appellant argued that the development was exempt.

6. McKechnie J ordered that a preliminary issue be determined “as to whether or not an exemption could be claimed for a development

in respect of which an application for planning permission had been lodged.”

7. The agreed note of the ex tempore judgment of McKechnie J determining that issue states:

“The Applicant relying on the judgment of the Supreme Court in [Tallaght Block], argues that the Respondent is now

estopped from raising a defence in these proceedings that the work carried out to the property is exempted development.

The Applicant submits that the Respondent cannot now argue that the works do not require planning permission as the

Respondent lodged planning applications for the works on three occasions and is bound to accept in those circumstances

that the works constitute development for the purposes of Part IV of the Local Government (Planning and Development)

Act, 1963.”

8. McKechnie J concluded that:

“were it not for the decision in the Tallaght Block case, this Court would have great difficulty in holding that the

Respondent is not entitled to raise the defence of exempt development. The facts of this case are not so distinguishable

from the facts of the Tallaght Block case and the decision of Costello J is persuasive. The decision of the Supreme Court,

of course, binds this Court.”

9. Consequently, McKechnie J determined the preliminary issue against the Appellant. The sole issue on the appeal is whether

McKechnie J correctly determined the preliminary issue and, consequently, whether, following the decision in Tallaght Block, the

Appellant was estopped from raising the issue of exempted development.

10. Having regard to the doctrine of stare decisis, this Court has consistently stated that it will not depart from a fully considered

earlier decision in the absence of compelling argument showing the decision was clearly wrong. That principle does not apply if the

earlier statement is not truly a decision in the sense of forming part of the ratio decedendi of the decision of the Court. The

statement most relevant to the present appeal is that of Henchy J, with whom Budd and Griffin JJ agreed, in Mogul of Ireland v

Tipperary (N.R.) County Council [1976] IR 260 at 272:

“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a

consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a

different conclusion.”

11. It is necessary, therefore, to consider whether the Tallaght Block decision falls within that description.

12. The High Court judgment in Tallaght Block was that of Costello J. It is reported at [1982] ILRM 534. The development involved the

construction of a manufacturing facility for concrete blocks. Costello J described the issues in the case, at page 535, as being, in

effect, whether, in respect of part of the site, the development was exempted development and, in respect of the remainder,

whether there had been such “use” prior to 1st October 1964 (the appointed day for the purposes of the Act of 1963) that the

development did not constitute material change. In the ensuing pages of his judgment, Costello J examined the history of the

development in detail. He concluded, firstly, at page 541, that what he had already said “would justify [him] in making an order under

s. 27.” Notwithstanding this he thought he should give his conclusions as to whether the works constituted exempted development.

He then examined that argument and concluded it against the Respondents. He continued:

“It follows from what I have said that permission was required under part 4 of the 1963 Act for the development carried

out by the Respondents and accordingly the jurisdiction to make the order under s. 27(1)(a) has been established.”

13. At this point, it seems clear that the learned judge had established to his complete satisfaction all the elements necessary to

enable him to make an order under section 27. Nonetheless, he continued as follows:

“Before concluding, I should refer to the submissions that were made in this case as to the effect of certain provisions of

the 1963 Act on applications made under s. 27 and give my conclusions on them.”

14. What the submissions there referred to were does not appear and the ensuing passage dealt with two issues. Only the first of

those is now relevant. It constitutes the crucial statement. The learned judge stated:

“If an occupier of land carries out development on it and, having subsequently accepted that the development was

unauthorised and that permission in respect of it should have been obtained, applies under s. 28 of the 1963 Act for

permission to retain the unauthorised structure and is refused, then he cannot be heard to argue in proceedings against

him under s. 27 of the 1976 Act that permission for the development was not required. He is estopped from doing so. This

is what happened in this case in relation to the respondents development in area “E.” Notwithstanding this view of the

operation of the Acts I felt that I should give my conclusions on all issues which arose in the proceedings.”

15. This Court unanimously upheld the judgment of Costello J on all issues. Hederman J, at page 11 of the unreported judgment,

summarised the issues on the appeal as being whether there had been a material change of use, whether any development was

exempted development and whether section 5 of the 1963 Act imposed a mandatory obligation to refer the exempted development

question to An Bórd Pleanála. It will be noted that, like Costello J, he did not include the question of estoppel as one of the issues to

be determined. Like Costello J, Hederman J examined the three mentioned arguments in the light of a detailed account of the facts. At

one point, however, he stated that he agreed with the findings of Costello J, citing part of the first sentence of the passage from

Costello J, which I have quoted in the immediately preceding paragraph. Thus, it is the dictum of Costello J, thus approved, to which

we should look to see what was decided. Hederman J did not express himself otherwise on the estoppel question.

16. Two features of the two judgments stand out. Firstly, it was entirely unnecessary for the Court to express any opinion about

estoppel. On both the facts and the law, each court was completely satisfied both that the development was unauthorised and that

it was not exempt. It was, accordingly, unlawful. The Court would normally make the order under section 27, as sought. Secondly,

the quoted passage from the judgment of Costello J contains a conclusion, unsupported by the close supporting reasoning invariably

to be found in the written judgments of that very distinguished judge. In particular, it contains no account of the submissions of the

parties or of any authorities which may have been cited. This Court has been referred to specific English case law on the topic, which

was in existence at the time of Tallaght Block, but not there considered. Without wishing to pronounce definitively on that case law,

it would appear to suggest that there is not an estoppel in circumstances such as those of Tallaght Block. If these decisions had

been cited in the High Court or the Supreme Court, it is impossible to believe that the judgments would have passed over them in

silence. Furthermore, neither the High Court nor the Supreme Court judgment contains any reference to the general principles of the

law of estoppel or any explanation of how the usual elements of representation and reliance arose on the facts of the case. It is not

apparent, therefore, that Tallaght Block was a considered decision made in the light of full argument and on citation of relevant

authority.

17. It is quite clear, therefore, that both the statement of Costello J and that of Hederman J approving it constitute obiter dicta.

Tallaght Block is not a binding precedent for the existence of an estoppel.

18. The Court must, nonetheless, determine the current appeal. In the absence of considered argument and reference to authority in

the High Court, it is undesirable that this Court should play the effective role of a court of first instance by determining generally on

this appeal whether and to what extent the doctrine of estoppel has a role to play in the field of the relations in public law between

an individual and a planning authority. That will have to be determined, on full consideration of the law, by the High Court in this or

another case.

19. Nonetheless, in the very narrow terms in which the supposed principle of estoppel was expressed in the terms of the preliminary

issue directed and determined by the High Court, it seems clear, and was virtually conceded by Mr John Gallagher, Senior Counsel for

the Respondent, that it cannot be sustained. If a proposed development is, in fact and in law, an exempted development, no principle

has been identified whereby the owner of land should be estopped from asserting the exemption merely by reason of the fact, and by

nothing more, that he or she has made a perfectly proper and lawful application for planning permission. That would be to deprive him

of a right at law by reason of his exercise of a different right, which would require cogent justification. There could be many perfectly

good and even laudable reasons for taking the course of applying for a planning permission, where there is an arguable case for

exemption. It might be done through oversight or mistake or merely through an abundance of caution or to ensure that the planning

situation was very clear on the sale of a property. It is perhaps better, at this stage, to say nothing more, as Mr Gallagher reserves

the right to assert the right of a planning authority to rely on the doctrine of estoppel based on a more extensive factual basis.

20. This appeal should be determined solely by reference to the very narrow point which it raises. It suffices to allow the appeal and

to hold that a developer is not estopped from claiming that a development, which he has carried out without the benefit of planning

permission, is in fact and in law exempted development, by reason only of having made an application for planning permission for the

retention of that development.