COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL
MEETING OF RATHFARNHAM AREA COMMITTEE
Tuesday, March 13, 2012
MOTION NO. 16
MOTION: Councillor E. Coburn
"That this Committee discuss with the aid of a report the decision by South Dublin County Council to hold in abeyance enforcement S6039 following several years of investigation, meetings and discussions on the matter."
REPORT:
Loreto Abbey is a private property in its entirety. A considerable amount of time and effort has been expended by the Planning Authority to date on this extremely complex case which has been further complicated by the layers of companies involved.
The Planning Authority is fully aware of the disappointment and frustration felt by the residents of Loreto Abbey. To this end, the Planning Enforcement team has worked very hard to bring this matter to a successful resolution. However the enforcement action taken to date is currently at an impasse as no Official of the Planning Authority is in a position to give evidence in relation to the cause, frequency, and nature of the flooding in the basement carpark.
The enforcement action taken to date is as follows;
· Planning Enforcement received a complaint on 20th April 2009 in relation to the flooding of the basement carpark at the Loreto Abbey development.
· A Warning Letter dated 28th May 2009 pursuant to Section 152 of the Planning and Development Act 2000 (as amended) was served on the Developer of the lands as indicated in the Commencement Notice submitted to the Planning Authority (Riversmith Ltd) and was sent to the address given on the Commencement Notice. The Warning Letter was in relation to alleged non-compliance with Conditions 1 and 11 of the Planning Permission Granted under Register Reference S00A/0554 and PL06S.125554.
· A meeting was held with the Riversmith Ltd’s Agents on 23rd September 2009. Two drawings detailing the Agent’s proposals to remedy the flooding problem were submitted to the Council during this meeting.
Following consideration of the proposals, the Council's Engineer required technical amendments. These revised proposals were submitted for consideration and following further discussions with the Council's Engineer, the Agent for Riversmith Ltd undertook to submit proposals to remedy the flooding problem for approval and attachment to the planning file by Friday 9th October 2009.
· As the original Warning Letter was not received by Riversmith Ltd, a further S152 Warning Letter issued on 16th September 2009 to Riversmith Ltd and to Lozeto Ltd (the applicant named on the Extension of Duration of Permission Granted).
· Subsequent to the issue of the Warning Letter, Enforcement Notices dated 13th October 2009 and 4th November 2009 were served on Lozeto Ltd and Riversmith Ltd requiring compliance with Condition Nos 1 and 11 of the Planning Permission Granted and further requiring that the remedial works as proposed by Riversmith Ltd’s Agent and as amended by the Council’s Engineer be carried out and completed within a specified period.
· The Enforcement Notices served were not complied with, and legal proceedings were initiated on 2nd December 2009 against Lozeto Ltd for non-compliance with condition 11 of planning permission Register Reference S00A/0554 insofar as it relates to the drainage arrangements on the site.
· A further check of Land Registry records revealed that Riversmith Ltd (who had at this point gone into Receivership) did not have any legal interest in Loreto Abbey.
· An Enforcement Notice regarding this matter had also been served on Danninger Limited, the company named on the bond for completion of works.
· The matter was listed for Hearing in the summer of 2010. Lozeto Ltd had at this point also gone into Receivership. A representative from the Receiver was present in court. Evidence was given to the Council’s solicitor by the Receiver which showed that whereas Lozeto Ltd owns the old Abbey complex of buildings, it does not have an interest in the residential area or common areas at Loreto Abbey. It was subsequently established that these common areas are registered to Oze Developments Ltd, and proceedings were issued.
· The cases against Danninger Ltd and Oze Developments Ltd were listed for hearing on 16th November 2010. Following a request for an adjournment by the Defendant, the above matter was listed for Hearing in the Dublin District Court in January 2011.
· On a pre-hearing examination of the file it was been noted that there is a technical error in the naming of the legal entities, (i.e. served on Danninger Ltd and Oze Development Ltd when the correct entities are Danninger and Oze Development) on which the enforcement notices were served. Failure to comply with the requirements of an enforcement notice may result in a criminal conviction. In this regard, the burden of proof on the Council is very high.
Accordingly, urgent legal advice sought from both the Council’s solicitor and the Council’s Law Agent was that these proceedings in their current format be discontinued, as a successful prosecution for non-compliance with the particular enforcement notice served is highly unlikely.
· As a result of the above and following legal consultation, on March 2nd 2011, the County Law Agent was instructed to initiate Circuit/ High Court proceedings to seek a Planning Injunction pursuant to Section 160 of the Planning and Development Act, 2000 (as amended) directing the carrying out of required works including the resolution of the flooding issue in the basement car park.
· On 4th March 2011 various representatives of the Residents of Loreto Abbey were advised for the above and requested that in the event of any further flooding occurring in this location, that Planning Enforcement be contacted immediately, in order that Council Officials may record the flooding event and carry out a site assessment.
· There was substantial flooding in various locations of the east coast of the evening of October 21st 2011. The Council did not receive any complaints or notification of flooding at Loreto Abbey.
· Further contact by email with various representatives of the Residents of Loreto Abbey was made on 17th February 2012, once again requesting that in the event of any further flooding occurring in this location, that planning enforcement be contacted immediately, in order that Council Officials may record the flooding event and carry out a site assessment which is essential to this matter progressing further.
· To date, no Authorised Person under the Planning and Development Act 2000 (as amended) has witnessed flooding of the basement car park. In order to progress this matter to the Circuit/ High Court, it is imperative that the Planning Authority be in a position to swear to the evidence contained in any affidavits lodged.
· Any evidence pertaining to the planning injunction proceedings being taken by the Council must come from the Planning Authority and not from a third party. This matter cannot be progressed any further until such time as the Planning Authority has direct evidence of the flooding issue in the basement carpark area. It must be pointed out that any action may list the Management Company as Defendants.
· It is open to any person under the Planning and Development Act 2000 (as amended) to initiate their own proceedings pursuant to Section 160 of the Act.
In relation to the Bond held in relation to this development, the Council submitted a claim to De Montford Insurance Company PLC on the bond of €465,964, lodged under Condition 26 “….. to secure the provision and satisfactory completion of roads, sewers, watermains, drains, car parks, open spaces, tree protection and other services required in connection with the development, ….”
The insurance company responded to the Council’s claim stating that “Our liability under the bond is on failure by the Developer so to do the Surety shall satisfy and discharge the damages sustained by the Council”
The solicitor acting for the Council in relation to the Enforcement Notices advised that any proceedings to enforce the bond would have to be taken in the High Court, and would be very costly.
He further advised that in his opinion the bond is unenforceable because it is worded to “satisfy and discharge damages sustained by the Council”, (presumably because the intention was to safeguard areas to be taken-in-charge), and the Council has not and cannot sustain damages because the development is private property in its entirety, and no part of it will be taken in charge.
The purpose of a bond is not to ensure that all conditions of planning are complied with. Its purpose is to protect the taxpayer, through the Council, from having to pay to complete public areas of a development when they are taken in charge.
Accordingly, the legal advice is that as Loreto Abbey is a totally private development, the Council is not in a position to enter onto the lands and complete the development, and therefore cannot call on the bond.