A JUDGE has ordered a county council to move immediately to take over responsibility for public areas and services in two new housing estates following a legal dispute with the builders.
In a decision which affects local authorities' special arrangements for taking over such responsibilities, the High Court ruled Donegal Co Council was not entitled to rely on a scheme it created for this purpose but was obliged to deal with these matters in accordance with national law.
Mr Justice Gerard Hogan said the county council, and the local town council, had offered no acceptable reason for failure to discharge their legal obligations to two building companies relating to two estates they constructed at Maple Drive and Ross View, Magheracar, Bundoran, Donegal.
White Maple Developments Ltd and Castlewin Properties Ltd completed the 167 houses in 2006 and later asked the county council to take over responsibility for public services like roads, open spaces, water pipes and sewers, or "taking-in-charge" as it is known.
After attending to further works identified by the local town council, the companies formally applied to have the estates taken-in-charge in May 2010.
The application was made under a taking-in-charge procedure set up by the council which runs parallel to one set up under statute by the Planning and Development Act 2000.
This non-statutory procedure has the advantage over the statutory scheme in that it enables the council to take a transfer of title to roads and common areas, whereas the 2000 Act is more limited in its scope, Dermot Flanagan SC, for the council, told the court.
Mr Flanagan also pointed out the non-statutory scheme was the responsibility of the council officials whereas the statutory procedure involved a decision of the elected councillors.
The builders argued their solicitors had called on the council, in September 2011, to take the estates-in-charge in accordance with the statutory scheme but had received no response and then initiated legal proceedings. The council then suggested the builders make a formal application under the statutory scheme.
Ordering the council to take steps forthwith to comply with its obligations under the 2000 Act, Mr Justice Hogan said the "taxpaying public are entitled to suppose their applications will be dealt with in accordance with law and not by reference to non-statutory schemes which the council has itself been pleased to create."
The judge also said it was fair to surmise the builders did not care too deeply about the exact legal mechanism involved, they just wanted the estates taken in charge.
He said he was entitled to draw an inference that the council found the statutory scheme "to be an inconvenient one and was unwilling to operate it unless it was actually compelled to do so, whether by legal proceedings or other force of circumstances."