COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL

MEETING OF LUCAN AREA COMMITTEE

Tuesday, September 23, 2014

MOTION NO. 2

MOTION: Councillor W. Lavelle

"That this Area Committee commends the Foxborough Residents Group on their fantastic efforts in maintaining and enhancing the public realm of both Foxborough estate and of the main roads that pass through and close to the estate, including the painting of plastered boundary walls at Balgaddy Road; however noting the historic failure by this Council to ensure the plastering of boundary walls along the main road between the Grangecastle Road junction and Foxborough Road roundabout, this Area Committee now agrees to support the request by Foxborough residents to have these walls plastered; and therefore recommends that an appropriate sum be provided in the Councils’ budget for 2015, ring-fenced from within the public realm allocation for Lucan, to fund the plastering of these walls in Spring 2015."

REPORT:

Foxborough Estate, Lucan was developed in phases by Rossmere Developments Ltd. 

Condition No. 13 of Planning Permission S94A/0022 required as follows:
“That screen walls in block or similar durable materials not less than 2 metres high, suitably capped and rendered, be provided at the necessary locations so as to screen rear gardens from public view. The specific locations and extent of walling must be fully discussed and agreed with the County Council before construction.  Timber fencing is not acceptable.”

The developer was requested to complete the works as required above by Condition No.13 of the Planning Permission.

Condition No.4 of the permission set out the requirements in respect of security being lodged to guarantee the satisfactory completion of the development as follows:--
“That no development under any permission granted pursuant to this decision be commenced until security for the provision and satisfactory completion of services, including maintenance, until taken in charge by the Local authority for Roads, Open Spaces, Car Parks, Sewers, Watermains and Drains, has been given by:-

a. Lodgement with the Council of an approved Insurance Company Bond in the sum of £180,000 by the developer kept in force by him until such time as the Roads, Open Spaces, Car Parks, Sewers, Watermains and Drains are taken in charge by the Council.
or./…

b. Lodgement with the Council of a Cash Sum of £80,000 to be applied by the Council at its absolute discretion of such services to standard specifications.
or./…

c. Lodgement with the Planning Authority of a letter of guarantee issued by any body approved by the Planning Authority for the purpose in respect of the proposed development in accordance with the Planning Authority and such lodgement in any case has been acknowledged in writing by the Council.

REASON: To ensure that a ready sanction may be available to the Council to induce the provision of services and prevent disamenity in the development.”

The developers, through their legal representatives disputed their responsibility to carry out these works to the boundary walls and stated that the Council was not entitled to withhold the security in respect of same.

A detailed listing and costing (in the amount of €52,966) of the necessary works was carried out and forwarded to the developers with a request that they submit proposals and a timeframe, by 18th July 2007, for completion of the works.

As the developers had not complied with the above request the Council issued notification of its intention to sequester the necessary funds, from the security being held, to enable the outstanding works to be carried out.

On 9th August a Plenary High Court Summons was served on the Council, by the developers, requiring the repayment of the security being held for the performance of the obligations as set out in Condition No.4 of Reg. Ref S94A/0022.

The County Solicitor advised that the Council was not entitled to retain the security for the purpose of capping and rendering of the boundary walls, because Condition No. 4 of the permission was not contingent on compliance with Condition No.13.

The legal advice therefore was that the security be released to the developer, which has been done and the County Solicitor also advised that the time had expired for the taking of enforcement proceedings in order to enforce Condition No. 13 of this permission.

Accordingly the Council is precluded from pursuing compliance with condition 13 and as legal advice was to release the bond to the developer and the funds were released; these funds are not available to carry out the works on the boundary walls in question.

As these boundary walls are private property, the use of public monies to plaster them would not be appropriate.