A couple who allege they were the victims of a corrupt planning decision are bidding to sue Dublin City Council more than 30 years after it refused them permission for a housing development, the Supreme Court heard on Tuesday.
Dublin City Council and An Bord Pleanála refused planning permission in 1987 to Clare Manor Hotel Ltd, owned by Gerald and Marie Bresnan, to build about 100 houses on land in Balgriffin where a hotel they had owned had burned down.
However, the council subsequently granted developer Gannon Homes permission for 700 houses on the same site in 1990, after Clare Manor had sold the land. The Bresnans had sold on the understanding that the area was about to be rezoned for agricultural use, which would have seriously reduced the property's value.
The company is asking the Supreme Court to be allowed sue Dublin City Council, even though the time allowed for taking such cases has elapsed, because an 11-year investigation into planning corruption prompted it to delay legal action.
Clare Manor’s senior counsel, Paul Anthony McDermott, told the court that subsequent revelations about planning corruption in Dublin led the firm’s owners to believe this was behind the company’s failure to get permission.
“The core of our case is that the reasons for refusing planning permission were not the reasons given at the time. They were corrupt reasons,” he said.
While the land was never rezoned for agriculture, this was proposed in a draft development plan for Dublin published in the late 1980s. Neither side’s lawyers was able to say who had proposed the rezoning.
Clare Manor referred the issue to the Flood – later the Mahon – tribunal in the 1990s following revelations about planning corruption in north Dublin.
Mr McDermott said the tribunal investigated the claim in private over two days in October 1998. Staff from the inquiry interviewed a council planning official involved and sought a report on what had happened.
While Clare Manor never featured in a public hearing or in the tribunal’s final report, Mr McDermott explained that Mr Bresnan continued to hope that the inquiry would take it up. This was why he delayed in pursuing the case against the council.
“It may have been a forlorn hope, but hoping he was,” Mr McDermott said.
Dublin City Council's senior counsel, Nuala Butler, said the local authority and An Bord Pleanála refused Clare Manor planning permission because its application made no provision for extra infrastructure such as sewerage, drains and roads. Gannon Homes agreed to provide those facilities.
“There is a clear difference,” she said. “In one case the developer is offering to build the infrastructure, in the other case the infrastructure is not available.”
The council also argued that waiting for the Flood-Mahon tribunal to finish its work was not a good enough reason in itself for delaying taking legal proceedings.
Ms Butler said that a “generic finding” of planning corruption in Dublin at the time of the Clare Manor decision would be of no real use to the company’s case.
She pointed out that it took Clare Manor 12 years to begin proceedings in the first place and it could be up to 35 years after the original decision before a trial was heard.
“The balance of justice favours that the case be dismissed,” she said. The lawyer argued that the council could find it impossible to defend the action as three key figures involved in the Clare Manor decision were dead while others were retired.
The three judges who heard the case, Ms Justice Iseult O'Malley, Chief Justice Frank Clarke and Mr Justice Liam McKechnie, reserved judgment.