The Gazette 1983

JULY/AUGUST

1983

GAZETTE

that the relationship between the parties was that of employer and contractor and that the work was carried out on the employer's site, and if the Contract failed to provide the necessary term, that the Council would pay the Contractors the cost thereof as part of the Contract price. The court also accepted the statement that in the ordinary way it's for the owners/developers of a building site to provide or obtain the necessary and essential services for the development. The Council therefore was in breach of an implied term of the Principal Agreement, and were held liable to compensate the Contractors for damages suffered by them. Keegan and Roberts Limited v. Comhairle Chontae Atha Cliath. High Court (per Ellis J.) — 7 July 1981 — unreported. John Gore-Grimes PLANNING - Compensation for refusal of Planning Permission — Undertaking for alter- native development under Section 57 (3) of Planning Act, 1963 — Validity of undertaking — Whether claim for com- pensation is precluded by Undertaking. The Claimant, applied for outline Planning Permission for residential development on 65 acres of his land at Portmarnock. The Application was refused by the Respondents and by An Bord Pleanala, on appeal. The Claimant then applied for £2.4m. compensation for such refiisal under Section 55 ofthe Local Government (Planning and Development) Act, 1963 (The Act). The claim was referred to the official Arbitrator. Before the hearing before the Arbitrator commenced, the Respondents furnished to the claimant a document purporting to be an Undertaking to grant Permission for a development to which Section 57 of the Act applied. The Undertaking contained recitals referring to the claimant's application and its refusal and the Respondents proceeded to undertake to grant permission for the construction of hotels, theatres or structures for the purpose of entertainment or any combination thereof subject to conditions in relation to. .. (being the matters specifically mentioned in Section 57(3) of the Act). The Respondents submitted that the delivery of the Undertaking was a complete answer to the claimant's claim for compensation. The Official Arbitrator stated a case for the opinion of the High Court in which he raised questions as to whether the Respondents had power to give a valid Undertaking to grant Planning Permission in accordance with Section 57 (3) of the Act and, if they had such a power, whether the Undertaking actually furnished was valid and had the effect of

Jurisdiction is "to proceed and act and give relief on principals and rules which in the opinion of the said Court shall be as nearly as maybe conformable to the principals and rules which the Ecclesias- tical Courts of Ireland have heretofore acted on and given relief'. The court was influenced by the fact that the Ecclesiastical Tribunal had in the cir- cumstances of this case granted a Church annulment which was an indication that canon lawmay embrace not only violence and threats of violence but also certain moral pressures of the type evident in this case. Held that a decree ofnullity be granted on the ground of duress, as the will of both the Petitioner and the Respondent was overborne by the compulsion of their respective parents to whom they had been subject in the parent child relationship and which drove them to marriage, neither desired nor gave their consent to.„The duress exercised was of a nature that they were constitutionally unable to withstand nor extract themselves. M.K. (otherwise M. McC) v. F. McC, [1982J ILRM 277. Mary Griffin CONTRACT — Agreement to build silent as to a term, related to services, implied term should be included in the Agreement. Council found to be in breach of the implied term and must compensate for damage sustained by the Plaintiff. The Plaintiff a Building Contracting company claimed damages for alleged breach of an Implied term of a building agreement dated 25 July 1974 (the Principal Agreement) wherein it was agreed that the Contractors execute and do all works required in accordance with the Contract and to the satisfaction of the council's engineer for the completion of twenty houses on the Council's site at Town Parks, Skerries County Dublin. This site was adjacent to a site owned by the Plaintiffs on which they also intended to build forty houses. A dispute then arose in that necessary connections for certain services which were essential for the carrying out of the works according to the above agreement, were not provided for or available on the council's site nor did the agreement specify the responsibility of either party. In order to resolve the problem and the dispute which had arisen between the parties it was agreed that the Contractors should secure an agreement, with the adjacent Developer. Lincoln Develop- ments Limited whereby this Company granted the Contractors the saidrights of connections and services, subject to the Contractors paying £7,500 to the Company for,the said rights.

A Supplemental agreement dated 25 May 1976 between the Plaintiffs and the Council stipulated that the said con- nections and services were to be provided from the lands belonging to Lincoln Development Limited to the Council's site, and this Supplemental agreement was to be read in conjunction with the Principal Agreement and it was agreed in this Supplemental Agreement that the council would reimburse the Contractors the £7,500 paid to Lincoln Developments Limited and did so. This dispute resulted in 19 weeks delay, and the Contractors claimed for loss and damage which they sustained on account of this delay on the basis that an implied term should be read into the Principal Agreement that there was an obligation on the part of the Council its servants, and agents to provide and supply the said connections and services on the Council's said site to enable the Contractors to complete their obligations, and in failing to do so the Council should be held liable for loss and damage sustained. The Council argued against this: (a) That the obligations ofproviding such connections and services could not be so implied. (b) That the Plaintiffs were estopped from claiming damages for delay on foot of the Supplemental Agreement. (c) That the delay was due to a difficulty that arose in regard to the invert levels at the boundary between the Council's site and that of Lincoln Development Limited. (d) That the Contractors did not need to negotiate on behalf of the Council with Lincoln Development Limited, but for themselves as they were building forty houses next to the Council's site. (e) That when including all precon- tractual documents and drawings subsequent to the Principal Agree- ment the situation shows that the Contractors were responsible for the connections and services. The Court held that neither party con- sidered or proposed that the Contract should or could be frustrated. The Court can imply a term which will implement the presumed intention, to do what the parties would have agreed but for their inadvertent omission. This power is vested in the Court since the case of the Moorcock [1889] 14 P.D 64. The law looks at what is presumed the obvious intention ofthe parties, and draws implications into the Contract with the object of giving efficacy to the transaction. The Court held in the instant case that the course of the conduct of the parties and the corrspondence indicated that a term or condition could be read into or implied in the Principal Agreement, which if it had been originally included would have resolved the dispute in issue and further

xiv