Hibernia Real Estate Group Limited v Dun Laoghaire-Rathdown County Council

APPROVED THE HIGH COURT PLANNING & ENVIRONMENT [2026] IEHC 141 Record No. 2024/5705P Between/ HIBERNIA REAL ESTATE GROUP LIMITED Plaintiff -AND- DUN LAOGHAIRE-RATHDOWN COUNTY COUNCIL Defendant JUDGMENT of Ms. Justice Emily Farrell delivered the 27th March 2026 Introduction 1. What is a house? The question to be determined in this case is whether what was sold to the Plaintiff on 12th November was a “house” or comprised houses within the meaning of section 2 of the Planning and Development Act 2000 on that date. The Plaintiff purchased the site on which there was a partially constructed apartment block. It was designed as, and planning permission had been granted for, a block of 213 apartments, and was described in the Deed of Conveyance as the premises “now known or intended to be known as Block 3, Wyckham Point, Ballinteer, Dublin 16.” 2. The issue in this case is a further clear demonstration of how words used in legislation may not bear the meaning which would be generally understood. As O’Donnell J. (as he then was) stated in NAMA v. Commissioner for Environmental Information [2015] IESC 51, [2015] ILMR 165, [2015] 4 IR 625 (§29) “It is tempting I think to consider that statutory interpretation demands no particular legal expertise, and merely requires an understanding of language, and perhaps some common sense. This decision with its confusions, contradictions and wrong turnings, illustrates, with respect, why that is not always so.” This case is perhaps a more stark example of the difference between the ordinary meaning of a commonly understood word, and its meaning in a statute. 3. The relevance of the determination whether the structure, to use a neutral term, is that if it was a “house” on the date of the sale, the parties agree that the Plaintiff is not entitled to the benefit of a reduction of the development contributions due by reason of the conditions imposed on the planning permission granted for that development. 4. There are 213 units in Block 3 of Wyckham Point, Dublin 16, which was built in accordance with planning permission (Ref. No. PL 06D.213291) granted by An Bord Pleanála on 30th January 2006, subject to Condition 22 which required the developer to pay development contributions under section 48 of the Planning and Development Act, 2000. That permission was amended by the grant of a further planning permission by the Council on 28th September 2026 (reg. ref. no. D06A/0908). The revised planning permission was sought and granted for reasons related to Condition 3 of the first permission. Conditions 7, 8 and 9 of the Amended Permission provided for the payment of development contributions in accordance with the Dún Laoghaire-Rathdown County Council Development Contribution Scheme 2004, adopted by the Council under section 48 of the 2000 Act on 21st January 2004. Both permissions required the development contributions to be paid prior to the commencement of the development, or as facilitated or agreed by the planning authority. 5. It is not in dispute that, on the date on which the original permission was granted, and the date of the amending permission, the 2004 Scheme applied. The rate of development contribution under the 2004 Scheme was €13,470.05 per unit. On 13th May 2013, the Council adopted a revised Scheme, which applied from 1st June 2013 to 31st December 2015 and included a reduced applicable rate of development contribution of €11,000.00 per unit (“the revised Scheme”). 6. The parties agree that the effect of subsections 48(3A) to (3C) of the Planning and Development Act 2000, as inserted by section 29 of the Urban Regeneration and Housing Act 2015 on 1st September 2015, is that if the sale was not of a “house” within the meaning of the 2000 Act, the development contribution should be calculated on the basis of the revised Scheme. If what was sold was a “house” or houses, the Council was correct in requiring the Plaintiff to pay the development contributions as calculated under the 2004 Scheme and not the revised Scheme. In those circumstances, the proceedings would fail. 2 7. The Plaintiff has paid the development contributions on the basis of the 2004 Development Contribution Scheme adopted under section 48 of the 2000 Act, which was the applicable scheme when the planning permissions were granted. The full payment was made whilst maintaining the position that it was entitled to the reduced rate introduced by the revised Scheme. The Plaintiff maintains that the Council has been unjustly enriched by the difference between the contributions as calculated under the 2004 Scheme and the revised Scheme. It is agreed that if the Plaintiff is correct in contending that the structure was not a house on the date of the sale, it is entitled to a refund of €526,120.97. 8. A “house” is defined by section 2(1) of the 2000 Act as follows: “ “house” means a building or part of a building which is being or has been occupied as a dwelling or was provided for use as a dwelling but has not been occupied, and where appropriate, includes a building which was designed for use as 2 or more dwellings or a flat, an apartment or other dwelling within such a building”. 9. It is agreed that on the date of the sale, the structure in question was not a building or part of a building occupied or provided for use as a dwelling, but the dispute is whether it was, or comprised, a ‘house’ or houses within the meaning of section 2. Preliminary Issue 10. A preliminary issue had been raised in the Defence in which it was pleaded that the Plaintiff’s claim was statute barred by virtue of the Statute of Limitations. However, it has since been accepted by the Council that as Hibernia’s claim is pleaded as an action in unjust enrichment, arising from the payment made on 22nd March 2019, the proceedings which were issued on 3rd October 2024 were issued within the time permitted under the Statute of Limitations. The Evidence 11. The evidence has effectively been agreed, or at least the Plaintiff’s evidence has not been challenged. The witness statements prepared by witnesses on behalf of the Plaintiff and the Council were confirmed on affidavit and neither party sought to cross-examine the other side’s deponents. No evidence was given by the Council in respect of the state of the works at the relevant date. 3 12. The commencement notices for Block 3 were lodged with Dún Laoghaire-Rathdown County Council in or about March 2006. Whilst only one commencement notice has been exhibited, two further commencement notices were produced at the hearing without objection. It is obviously not possible to add them to the exhibits of an affidavit which had already been sworn. 13. The Plaintiff describes itself as carrying on the business in 2014 of “a real estate investment trust which earned rental income from commercial and residential property.” 14. A portfolio of loans, which included the mortgage in respect of the lands the subject of these proceedings, was acquired by Hibernia REIT Finance Limited (which became known as Hibernia Real Estate Group Limited on 29th June 2022) from the receiver appointed by Ulster Bank. 15. On 12th November 2014, the Plaintiff acquired the property described as “lands and premises … forming part of the lands at Ballally formerly known as "Gortmore" and "Gort Muire", Balinteer, Dublin 16 now known or intended to be known as Block 3, Wyckham Point, Ballinteer, Dublin 16” outlined on the map annexed to the Deed. The property shown outlined in red on plan number 1 annexed to the Deed of Conveyance was sold by the Receiver to Hibernia REIT plc, which has since renamed Hibernia Real Estate Group Limited. The contract for sale had been entered into on 22nd October 2014. 16. It is submitted that the purpose of acquiring Block 3, Wyckham Point, was to buy a distressed construction site asset out of receivership, engage a contractor to complete the development, and thereafter rent out the apartment units when completed. 17. The Council has tendered no evidence to contradict the evidence of the Plaintiff regarding the stage of development on the date of the sale, nor were the Plaintiff's witnesses cross- examined. The evidence proffered on behalf of the Plaintiff is that Block 3 was at “grey box stage” i.e. it was still a construction site, in an unfinished state, with none of the apartments capable of being occupied. On that basis, the Plaintiff submits, Block 3 did not comprise or consist of “houses” as defined by section 2 of the Planning and Development Act, 2000. By the end of July 2015 sufficient works had been carried out such that the Plaintiff submits all 213 apartments qualified as “houses” within the meaning of section 2. 4 18. On behalf of the Plaintiff, Frank O’Neill states: “When Hibernia acquired the Wyckham Point Property on 12 November 2014, Block 3 was in development but was far from completed. It was in a 'grey box' state, meaning that while the basic structural shell of the building had been erected, the internal fit- out and essential services were largely absent and it was not habitable or suitable for use as a dwelling. The status of Block 3 on acquisition was that the envelope (external walls and roof), floor slabs and the units' external walls and the stairways (aside from handrails that needed to be installed) were completed in block and concrete. The individual units internally were incomplete other than the installation of prefabricated Pod kitchens and bathrooms. These Pods, while containing all the normal kitchen and bathroom fittings, including the kitchens' white goods and the bathrooms' sanitary ware, had no services (water, electricity, drains) connected. The individual units had no internal walls or doors. Block 3 at the time of acquisition was a shell of a building: structurally present but functionally inert. It lacked the basic infrastructure and internal configuration required for residential occupation, and substantial further work was necessary before it could be considered complete or suitable for habitation.” 19. Colman Stack’s evidence is that: “… in November 2014 the 213 apartments in Block 3 consisted of bare wall concrete "boxes" comprising concrete floors, concrete ceiling and concrete walls. Internally, the units were not yet subdivided into rooms, (i.e. partition walls were under construction). While bathroom "pods" had been installed, they were not functional. Building services such as heating, electricity, water and gas had not yet been installed in the units. The electrical substation to service Block 3 had not yet been completed. Fire-safety works, including the installation of Automatic Opening Vent (AOV) systems, fire / smoke alarms and a fire alarm panel had not yet been done; remedial works were ongoing to windows/screening. Waterproofing of the basement roof, (podium slab) was yet to start, repairs to the roof membrane system were ongoing, external “civils” type works, (e.g. car parking areas, “hard” & “soft” landscaping), had yet to start, joinery, (doors, skirtings, architraves, etc.), had not yet been installed; walls were not boarded or skimmed; ceilings were not installed; floor finishes were not installed; decoration had not taken place. Significant completion works were also required to “common areas” 5 including the installation of lifts, balustrades / handrails to stairs as well as decoration & floor finishes.” 20. He also stated that “Given the extensive nature of the works that remained to be undertaken as of November 2014, scaffolding remained around erected around Block 3” and that “Block 3 could not have been occupied as a dwelling or provided for use as a dwelling on 12 November 2014.” 21. Colman Stack has referred to a number of Project Manager Reports, of which he is the author, including Reports dated 27th October 2014 and 27th November 2014. He states that the contents of those Reports are true and accurate to the best of his recollection and belief. No evidence to the contrary is before the court. In the October Report under the heading “Project Particulars (non-exhaustive list) it is stated: “· The building has been in a partially complete state for c. 5 years · The building is structurally complete with stair cores in place” 22. It is common case that the structure was neither occupied nor provided for use as a dwelling on or before 12th November 2014. It is beyond doubt that it was designed as a block of apartments, and that planning permission had been granted for a building designed to include 213 apartments, the original planning permission having been amended on 28th September 2006. 23. The Plaintiff submits that the development did not become a house or houses for the purposes of section 2 until the apartments were habitable. The apartments were completed in phases, the first of which was completed by April 2015. By July 2015, all 213 of the apartments were complete and ready for occupation. The Plaintiff accepts that at that time, each of the apartments within Block 3 was a house within the meaning of section 2. Dún Laoghaire-Rathdown County Council submits that what was sold in November 2014 came within the definition of “house” in the 2000 Act and that accordingly, it is entitled to retain the entire development contribution paid by the Plaintiff. 24. It is accepted by the Plaintiff that, as of the date of sale, the development contributions remaining outstanding in respect of Block 3 amounted to €1,751,106.82. A Phasing Agreement was entered into between the Plaintiff and the Respondent in June 2015, 6 whereby the balance would be paid in four instalments - on the first week of July 2015, the first week of October 2015, the first week of January 2016 and the first week of April 2016. 25. The Council’s position is that the obligation on a planning authority to reduce development contributions under subsection 48(3A) only arises where a commencement notice in respect of the development has not been lodged, or where the development comprises houses and one or more of those houses has not been sold. It is common case that a commencement notice was served prior to the amendments to section 48 coming into force. The Council regards the 213 apartments in Block 3 as houses with the meaning of section 2, which were sold prior to 1st September 2015. 26. For the purposes of these proceedings only, the Council accepts that, in the event that Hibernia prevails in its contention that the provisions of subsection 48(3A) to (3C) entitled it to pay development contributions at the reduced rate under the 2013 Scheme, the sum of €526,120.97 should be repaid to Hibernia. However, the Council contends that Hibernia is not entitled to benefit from the reduced contributions calculable by reference to the 2013 Scheme. 27. Whilst section 48 has been amended, the section applies as amended on 1st September 2015 by section 29 of the 2015 Act. Section 29 of the 2015 Act provides: “Section 48 (as amended by section 30 of the Act of 2010) of the Act of 2000 is amended by inserting after subsection (3) of the following: “(3A) Where a permission which includes conditions referred to in subsection (1) has been granted under section 34 in respect of a development and the basis for the determination of the contribution under subsection (1) has changed— (a) where the development is one to which Part II of the Building Control Regulations 1997 (S.I. No. 496 of 1997) applies and a commencement notice within the meaning of that part in respect of the development has not been lodged, or (b) where the development comprises houses and one or more of those houses has not been sold, the planning authority shall apply that change to the conditions of the permission where to do so would reduce the amount of the contribution payable. 7 (3B) Where the development referred to in subsection (3A) comprises houses one or more of which has not been sold, the planning authority shall apply the change in the basis for the determination of the contribution referred to in that subsection only in respect of the unsold houses. (3C) Where the planning authority applies a change in the basis for the determination of a development contribution under subsection (3A) it may amend a condition referred to in subsection (1) in order to reflect the change.” Principles of Statutory Interpretation 28. There is no dispute between the parties as to the general principles of statutory interpretation. However, the Plaintiff submits, and the Council disagrees, that if the court does not find that the Act is clear, and that the structure was not a house at the material time, the Explanatory Memorandum published with the Bill, subsequently enacted as the Urban Regeneration and Housing Act, 2015, may be considered in ascertaining the context and purpose of the definition of ‘house’. 29. The parties agree that the approach to the interpretation of the definition of “house” in section 2, and of section 29 of the 2015 Act, which amended section 48 of the 2000 Act, is that set out by Murray J. in Heather Hill Management Co. CLG & Anor v. An Bord Pleanála [2022] IESC 43, [2024] 2 IR 222, [2022] 2 ILRM 313. 30. The (partly dissenting) judgment of McKechnie J. in DPP v. Brown [2018] IESC 67, [2019] 2 IR 1 was considered by Murray J. in Heather Hill, who stated that that judgment provided a good summary of the principles of statutory interpretation. Murray J. stated: “The essential points he made were as follows: (i) The first and most important port of call is the words of the statute itself, those words being given their ordinary and natural meaning. (ii) However, those words must be viewed in context; what this means will depend on the statute and the circumstances, but may include ‘the immediate context of the sentence within which the words are used; the other subsections of the provision in 8 question; other sections within the relevant Part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including … LRC or other reports; and perhaps … the mischief which the Act sought to remedy. (iii) In construing those words in that context, the court will be guided by the various canons, maxims, principles and rules of interpretation all of which will assist in elucidating the meaning to be attributed to the language. (iv) If that exercise in interpreting the words (and this includes interpreting them in the light of that context) yields ambiguity, then the court will seek to discern the intended object of the Act and the reasons the statute was enacted.” (§106) 31. At para 108, Murray J. stated: “It is also to be noted that while McKechnie J. envisaged here two stages to an inquiry – words in context and (if there remained ambiguity), purpose – it is now clear that these approaches are properly viewed as part of a single continuum rather than as separated fields to be filled in, the second only arising for consideration if the first is inconclusive. To that extent I think that the Attorney General is correct when he submits that the effect of these decisions – and in particular of Dunnes Stores and Bookfinders – is that the literal and purposive approaches to statutory interpretation are not hermetically sealed. Indeed McKechnie J. later suggested as much in Brown (at para. 95).” 32. He continued, referring to section 5, Interpretation Act, 2005: “What, in fact, the modern authorities now make clear is that with or without the intervention of that provision, in no case can the process of ascertaining the ‘legislative intent’ or the ‘will of the Oireachtas’ be reduced to the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of a statute as a whole or the context in which, and purpose for which, it was enacted.” 33. The Council submit that Heather Hill indicates that the literal and purposive interpretations effectively proceed together as part of a single continuum of analysis and that there should be no abstract analysis of a word or words in isolation. Murray J. held: 9 “112. The debate reveals an obvious danger in broadening the approach to the interpretation of legislation in the way suggested by the more recent cases - that the line between the permissible admission of ‘context’ and identification of ‘purpose’, and the impermissible imposition on legislation of an outcome that appears reasonable or sensible to an individual judge or which aligns with his or her instinct as to what the legislators would have said had they considered the problem at hand, becomes blurred. In seeking to maintain the clarity of the distinction, there are four basic propositions that must be borne in mind. 113. First, ‘ legislative intent’ as used to describe the object of this interpretative exercise is a misnomer: a court cannot peer into minds of parliamentarians when they enacted legislation and as the decision of this court in Crilly v. Farrington [2001] 3 IR 251 emphatically declares, their subjective intent is not relevant to construction. Even if that subjective intent could be ascertained and admitted, the purpose of individual parliamentarians can never be reliably attributed to a collective assembly whose members may act with differing intentions and objects. 114. Second, and instead, what the court is concerned to do when interpreting a statute is to ascertain the legal effect attributed to the legislation by a set of rules and presumptions the common law (and latterly statute) has developed for that purpose (see DPP v. Flanagan [1979] IR 265, at p. 282 per Henchy J.). This is why the proper application of the rules of statutory interpretation may produce a result which, in hindsight, some parliamentarians might plausibly say they never intended to bring about. That is the price of an approach which prefers the application of transparent, coherent and objectively ascertainable principles to the interpretation of legislation, to a situation in which judges construe an Act of the Oireachtas by reference to their individual assessments of what they think parliament ought sensibly to have wished to achieve by the legislation (see the comments of Finlay C.J. in McGrath v. McDermott [1988] IR 258, at p. 276). 115. Third, and to that end, the words of a statute are given primacy within this framework as they are the best guide to the result the Oireachtas wanted to bring 10 about. The importance of this proposition and the reason for it, cannot be overstated. Those words are the sole identifiable and legally admissible outward expression of its members' objectives: the text of the legislation is the only source of information a court can be confident all members of parliament have access to and have in their minds when a statute is passed. In deciding what legal effect is to be given to those words their plain meaning is a good point of departure, as it is to be assumed that it reflects what the legislators themselves understood when they decided to approve it. 116. Fourth, and at the same time, the Oireachtas usually enacts a composite statute, not a collection of disassociated provisions, and it does so in a pre-existing context and for a purpose. The best guide to that purpose, for this very reason, is the language of the statute read as a whole, but sometimes that necessarily falls to be understood and informed by reliable and identifiable background information of the kind described by McKechnie J. in Brown. However — and in resolving this appeal this is the key and critical point — the ‘ context’ that is deployed to that end and ‘ purpose’ so identified must be clear and specific and, where wielded to displace the apparently clear language of a provision, must be decisively probative of an alternative construction that is itself capable of being accommodated within the statutory language.” 34. Murray J. reiterated that context is critical, both immediate and proximate in A, B & C (A Minor) v. the Minister for Foreign Affairs and Trade [2023] IESC 10, [2023] 1 ILRM 335. The context certainly includes the Act as a whole, but in some circumstances may extend beyond that. At para. 73 Murray J. stated that “the cases – considered most recently in Heather Hill ... – have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other.” He said: “The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its 11 language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting, contextualising the apparent meaning of those words.” (emphasis added) 35. While a legislative provision may be saved from invalidity, or incompatibility with the ECHR, by implying fair procedures (as occurred in Dellway and ors. v. National Asset Management Agency and ors. [2011] IESC 14, [2011] 4 IR 1) or by reading a provision in a manner which limits its apparent scope (as happened in Re National Irish Bank Ltd. (No. 1) [1999] IESC 18, [1999] 3 IR 145), or by applying the double construction rule, the intention of the Oireachtas remains critical. It is not permissible interpret a provision in conformity with the Constitution or ECHR, or to sever a statutory provision or part of a provision if to do so would render the provision inconsistent with the intention of the Oireachtas. As Murray J. held in A, B & C (A Minor) “The double construction rule allows the adjustment of a single statutory provision so as to align it with constitutional requirements, it does not thereby permit the imposition of an entirely new legislative regime.” 36. In Cronin (Inspector of Taxes) v. Cork and County Property Company Limited [1986] I.R. 559, 572 the Supreme Court held that a statute cannot be interpreted in light of subsequent amendments. Griffin J. stated: “… the Court cannot in my view construe a statute in the light of amendments that may thereafter have been made to it. An amendment to a statute can, at best, only be neutral – it may have been made for any one of a variety of reasons. It is however for the courts to say what the true construction of a statute is, and that construction cannot be influenced by what the Oireachtas may subsequently have believed it to be.” 12 37. The submission that the court should consider a subsequent amendment to interpret the definition of house in the 2000 Act is not consistent with the principles of statutory interpretation. Means and includes 38. The meaning of the terms “means” and “includes” have been considered in a number of academic texts which have been relied upon, including Dodd, Statutory Interpretation in Ireland (Dodd, Dublin, 2008), Understanding Legislation: A Practical Guide to Statutory Interpretation (Lowe & Potter, London, 2018, §6.19 to 6.20), Bennion, Bailey and Norbury on Statutory Interpretation (LexisNexis Butterworths, Oxford, 8th Ed. 2020, §18.1 to 18.3 and 24.14) and Craies on Legislation (Sweet & Maxwell, London, 12th Ed., 2020, § 24.1). It is suggested in Craies that it is normal drafting practice to use ‘means’ to define a term by reference to an exhaustive list or definition, and ‘includes’ to ensure that an expression is treated as covering something which is not (or more usually may not be) within its ordinary meaning. Dodd and Lowe & Potter, agree that the term ‘includes’ may either expand a definition or clarify what is included within a definition. Both words are used in the definition of house in section 2(1). 39. In National Asset Management Authority v. Commissioner for Environmental Information [2015] IESC 51, [2015] 2 ILRM 165, [2015] 4 IR 626 O’Donnell J. (as he then was, and with whom the other members of the Court agreed) held that considering the word “include” as operating to extend the scope of the provision was “a dubious generalisation”, and wrong in that case. In that case, the word “includes” within the definition of “public authority” in article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007 was construed as not extending the scope of the provision. The term “includes” is also one which must be interpreted having regard to the context in which it appears. 40. O’Donnell J. considered the use of the words “include” and “and includes” in definitional provisions and stated: “The fact that the word “include” can be read to extend the meaning of a class, does not mean it must be so read in every case. Similarly, the fact that the word “include” has been held to be a word of extension, as correctly observed by the Commissioner, does not mean that it must always be so held, irrespective of context.” 13 41. O’Donnell J. stated: “36. For my own part, I would have thought that the ordinary meaning of ‘include’ is to shut in, enclose, confine, embrace, comprise or contain and comes from the Latin root claudere meaning to close or shut. It is thus a statement that the things included are within the term or definition. Where the term or definition is very clear, it may be natural to interpret the word “include” as somehow extending that meaning, since otherwise it would be superfluous. But there are many circumstances in ordinary language where the word “include” is used for clarity, to resolve any doubt, or for emphasis. For my part I see merit in the approach of Mazza J. in the Canadian case of Allen v. Grenier (1997) 145 D.L.R. (4th) 286: ‘include’ as defined in the Black’s Law Dictionary is a ‘term which may, according to context, express an enlargement and have the meaning of and or in addition, or merely specify a particular thing already included within general words theretofore used’. I do not however seek to make any observation of general application. It is clear to me that in the context in which it is used, the word “include” here was not used to extend the meaning of subparagraphs. (a), (b) and (c), but rather to illustrate the type of thing included within the core definition.” 42. The interpretation of “include” in article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007, as illustrative rather than expansive was supported by a number of factors, one of which was the phrasing of the section which did not say “shall include”. O’Donnell J. considered that the phrase “shall include” would suggest enlargement of the definition, but that “and includes” was suggestive of description rather than prescription. (§37) That interpretation was also found to be consistent with the interpretation of “public authority” in Directive 2003/4/ EC on public access to environmental information, which had been transposed by the 2007 Regulations. The Court also had regard to the judgment of the CJEU in Fish Legal v. Information Commissioner (C-279/12) [2014] Q.B. 521, in which the CJEU had authoritatively interpreted public authority for the purpose of the Directive. 43. It is also clear from the speech of Lord Watson in the House of the Lords (UK) in Dilworth & Ors v. Commissioner of Stamps [1899] A.C. 99, 105-106, cited in NAMA v. Commissioner 14 for Environmental Information, that the word ‘include’ or ‘includes’ is ambiguous and must be read in its context. Lord Watson stated: “The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include,’ and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.” 44. I am satisfied, therefore, that it is not possible to say that the phrase “and includes” must be interpreted in one particular way; it must be interpreted having regard to the specific context in which it is used. In this case, section 2 uses the phrase “and where appropriate, includes”. 45. The Plaintiff submits that as section 2 provides “house” means a building … and where appropriate, includes a building which was designed for use as 2 or more dwellings …” that a non-expansive interpretation of the definition must be taken, and that the latter part of the definition must be interpreted by reference to the genus, a building which is or was capable of being occupied as a dwelling. 46. In Jennings v. An Bord Pleanála [2023] IEHC 14, Holland J. considered the definition of ‘house’ within section 2 in deciding whether the student accommodation units (within the meaning of Chapter 1 of the Planning and Development (Housing and Residential Tenancies) Act 2016) came within the definition of ‘house’. The issue to be determined was whether Part V of the 2000 Act applied to developments comprised of student accommodation. Section 3(1) of the 2016 Act (which must be construed with the 2000 Act) defined strategic housing development as including the category of ‘houses’ and separately, ‘student accommodation units’. 15 47. Holland J. stated: “So, S.2(1) extends the statutory meaning of “ house”, • beyond its literal meaning – to apartments and flats. • beyond even apartments and flats, to “a building which was designed for use as 2 or more dwellings”. That, at least in its general sense connoting a block of dwellings such as an apartment block, broadens the scope for inclusion also of “ student accommodation” in the definition of houses if student accommodation consists of dwellings. • beyond even apartments and flats and buildings designed for use as 2 or more dwellings, to “ other dwelling(s)”. That implies the existence of dwellings which are not houses (in the ordinary sense), apartments or flats or such buildings but which yet fall within the statutory meaning of “ house”. As to examples in the PDA 2000 of such “ other dwelling(s)”, none have been drawn to my attention and, as far as my searches of the Acts reveal, the only candidates are student accommodation and shared accommodation. 48. It was submitted on behalf of the Applicant that in stating that section 2(1) extends the statutory meaning of houses, there is a clear mistake in the judgment, as “house” is defined only in section 2(1). However, I consider §287 of the judgment to be clear. It explains that the definition of ‘house’ in section 2(1) of the 2000 Act extends the literal or ordinary meaning of the word house to a wider category of structures, which do not come within the literal or ordinary meaning of “house”. This includes flats, apartments and blocks of apartments. There is no question but that the definition in section 2 goes beyond the meaning of the word house as would be understood by the ordinary person. 49. Whilst Holland J. expressed the need for care in applying the canon ejusdem generis to the question of statutory interpretation, he held that the genus in the definition of house in section 2 was “dwelling” rather than “housing”. The Applicant submits that the second part of the definition is a ‘sweeping up’ phrase rather than one which extends the definition to a variety of dwellings and does not extend to a partially built block of apartments. 50. The Council submits that there is no necessity for the court to apply the cannon of construction, ejusdem generis because the intention of the Oireachtas is clear, and that, in holding that “S.2(1) extends the statutory meaning of “house”” Holland J. has determined 16 in Jennings that this definition extends the meaning of house to a building which was designed for use as two or more dwellings. 51. “Dwelling” is not defined in the Planning Acts, but it is defined in various ways in other contexts including section 4(1) of the Residential Tenancies Act 2004 and section 27 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. As was stated in Clonres CLG v. An Bord Pleanála [2021] IEHC 303 “there's nothing unusual about a term being defined to mean different things in different Acts.” The interpretation of the term ‘dwelling’ is not in dispute in this case. It must be interpreted in its context. Counsel for Hibernia has referred to the Oxford English dictionary definition and the Council has not disagreed. It is common case that the apartments in Block 3 were designed as dwellings, and that once completed they were capable of being occupied as such. Many of the apartments were being occupied as dwellings by July 2015. What is a “house”? 52. As Murray J. succinctly stated, there is “no room for doubt but that the words used in the legislation are the primary reference point in the exercise.” 53. Section 2 provides: “In this Act, except where the context otherwise requires - … “house” means a building or part of a building which is being or has been occupied as a dwelling or was provided for use as a dwelling but has not been occupied, and where appropriate, includes a building which was designed for use as 2 or more dwellings or a flat, an apartment or other dwelling within such a building”. 54. Despite drawing attention to the introductory saver, that the definition applies except where the context requires otherwise, the Council agrees that “house” in section 48(3A) is to be interpreted by reference to the definition provided in section 2(1). Neither party has submitted that the context requires a different interpretation of the term house. On the Plaintiff’s case, the structure was “structurally complete with stair cores in place”. I am satisfied that the structure which was sold in November 2014 amounted to a building within the ordinary meaning of that word, despite being incomplete. However, it had neither been 17 occupied as a dwelling nor provided for such use, and it was not capable of being occupied at that time. 55. The plan or design for the structure was fixed when the planning permission was granted and subsequently amended in 2006. Planning permission was granted for the development of Block 3, Wyckham Point, as a building which was “designed for use as …. two or more dwellings”. While the Council submitted that on a hypothetical case, it may be possible to include a building which has not been constructed at all because it was designed for use as two or more dwellings within the definition but submitted that, due to the state of construction in November 2014, it is not necessary to go to that hypothetical extreme. 56. The question is whether in interpreting the word “house” the phrase “and where appropriate includes” is to be interpreted as expanding or explaining the first element of the definition of a house. The Plaintiff submits that only a building which is capable of being provided for use as a dwelling, or is or has been so occupied, comes within the definition, but the Council submits that “includes” should be read expansively in this case. On that basis, the Council submits that, as it was designed for use as 213 apartments, the building comes within the definition of section 2 despite being partially constructed. The Council also submitted that even if “includes” should be interpreted as providing clarification, the structure which was sold on 12th November 2014 still comes within the definition of house. 57. The term “house” is used elsewhere within the 2000 Act. Save insofar as it is separately defined in section 96B (as inserted by section 4, Planning and Development (Amendment) Act, 2003), it must be interpreted in accordance with the definition in section 2(1), unless the context requires otherwise. As noted above, neither party has contended that section 48(3A) requires the application of a definition other than that set out in section 2(1). 58. Section 2 also defines the term “habitable house”. Habitable houses are a subset of “houses”, but it is clear from the definition of “house” that not every house is habitable. The definition of house includes houses which have been used as dwellings but can no longer be used as such. The Plaintiff submits that in order to be a house, it must be, or have been, habitable. 59. The Plaintiff submits that the only logical and consistent interpretation of house as it applies throughout the 2000 Act is something which has been built and completed and is ready for 18 occupation as a dwelling, whether or not it has been occupied. It is only a building which was designed for use as two or more dwellings which the Council submits need not be complete or capable of being or having been occupied. None of the other structures included within the definition of house could be partially constructed. A building or part of a building which is being or has been occupied as a dwelling or was provided for use as a dwelling but has not been occupied, a flat, apartment or other dwelling must necessarily have been completed in order to come within the definition of house. No rationale has been advanced for the Oireachtas distinguishing between a building designed as two or more dwellings and the other types of dwellings referred to in the definition, nor is one evident from the Act. 60. The Applicant referred, in submissions, to a number of provisions of the 2000 Act which apply to houses and submits that interpreting those provisions in accordance with the definition of “house” advanced by the Council would be illogical. These include large-scale residential developments, which include “the development of 100 or more houses” a concept introduced by the Planning and Development (Large Scale Residential Developments) Act 2021. Similarly, section 34(3)(c) refers to applications for permission which relate to residential developments of 10 or more houses. Section 96 of the 2000 Act (as originally enacted and as subsequently amended) applies to the provision of social and affordable houses. As the Applicant submits, it is inconceivable that applications for permission for the development of houses referred to therein would include developments which did not comprise completed houses. The definition of “house” in section 96B applies only to that section. 61. The interpretation advanced by the Council is an overly literal interpretation of the definition in section 2(1). I am satisfied that in defining “house” in section 2(1), the Oireachtas did not intend to include a partially constructed building which was designed for use two or more dwellings but had not become capable of occupation as a dwelling. It was open to the Oireachtas to decide how to restrict the circumstances in which a developer could benefit from the reduction of development contributions when inserting section 48(3A) into section 48. The definition of “house” in section 2(1) was not amended by the Urban Regeneration and Housing Act 2015, nor was a different definition inserted for the purposes of section 48(3A). The parties accept that the definition in section 2(1) should be applied to section 48(3A) and the arguments focussed on the meaning of that definition. 19 62. I am reinforced in this view by the dictum of Holland J. in Jennings, where he stated that section 2(1) extends the statutory meaning of house, beyond its literal meaning, and beyond apartments and flats “to “a building which was designed for use as 2 or more dwellings”. That, at least in its general sense connoting a block of dwellings such as an apartment block, broadens the scope for inclusion also of “ student accommodation” in the definition of houses if student accommodation consists of dwellings.” Explanatory Memoranda 63. Hibernia expressly accepted in its written submissions “that the Explanatory Memorandum cannot be directly referred to for the purposes of seeking construe the wording of any particular section of the statute.” However, it was submitted that it is relevant for the purposes of “seeking to ascertain the context and purpose of the statute, the mischief at which the statute is directed, and the reasons why it was enacted”. The Council submits that an Explanatory Memorandum cannot be considered, relying in particular on the comparison between an Explanatory Memorandum and the statement of a sponsoring Minister in either House of the Oireachtas. 64. In view of the findings made above, I do not consider that the Explanatory Memorandum would be of any assistance in interpreting the provision even if it were appropriate to have regard to it. Furthermore, as the Supreme Court held in Cronin (Inspector of Taxes) v. Cork and County Property Company Limited a statute cannot be interpreted in light of subsequent amendments, even if it were permissible to have regard to the Explanatory Memorandum for the 2015 Act, to interpret that Act, it could not be relevant to the interpretation of the definition of “house” enacted in 2000. 65. In Heather Hill, Murray J. stated that “A court cannot peer into minds of parliamentarians when they enacted legislation and as the decision of this court in Crilly v. Farrington [2001] 3 IR 251 emphatically declares, their subjective intent is not relevant to construction." He also held that “Even if that subjective intent could be ascertained and admitted, the purpose of individual parliamentarians can never be reliably attributed to a collective assembly whose members may act with differing intentions and objects.” An Explanatory Memorandum does not form part of the Bill, as acknowledged therein, and it is comparable to the views of the sponsoring Minister as expressed in either House. The rationale for not 20 relying on Dail debates or the sponsor’s explanations of the provisions of a Bill as explained in Crilly, appear to apply with equal force to an Explanatory Memorandum. Conclusion 66. Section 2(1) defines “house” as “ “house” means a building or part of a building which is being or has been occupied as a dwelling or was provided for use as a dwelling but has not been occupied, and where appropriate, includes a building which was designed for use as 2 or more dwellings or a flat, an apartment or other dwelling within such a building.” 67. The only issue between the parties is whether the Plaintiff purchased the lands which included a partially constructed building designed, and subsequently completed, as 213 apartments, it was a house or houses within the meaning of section 2(1). It was not submitted that that definition should not be applied to section 48(3A) because the context required otherwise. 68. The definition in section 2(1) cannot be interpreted by reference to subsequent amendments to the 2000 Act and must be interpreted by application of the well-established principles of statutory interpretation. 69. A “house” as defined by section 2(1) does not include a partially constructed building which was designed for use two or more dwellings but had not become capable of occupation as a dwelling. House, is defined in a manner which includes houses, as commonly understood, flats, apartments, other dwellings and buildings or parts of buildings which have been or are capable of occupation as dwellings. The phrase “a building which was designed for use as 2 or more dwellings” cannot be read in isolation or divorced from the concept of dwelling. The fact that the structure known as Block 3 Wyckham Point, which is now comprised of 213 apartments had been designed for use as two or more dwellings was insufficient to bring it within the definition of “house” when it was sold as a partially constructed building in November 2014. 70. Therefore, the Plaintiff was entitled to the benefit of section 48(3A) of the 2000 Act. 71. The defence advanced by the Council was that the Plaintiff is not entitled to reduced rates for development contributions under the 2013 scheme in circumstances where, at the time 21 of the sale in November 2014, Block 3 comprised houses within the meaning of section 2. It was accepted that if the Plaintiff’s interpretation of “house” was accepted, and that advanced by the Council was rejected, the Plaintiff would be entitled to be repaid the sum of €526,120.97. Order 72. The Plaintiff is entitled to an order directing the Defendant to repay the sum of €526,120.97. 73. In the circumstances, given the Plaintiff has been successful, it is presumptively entitled to its costs. Should either party contend that a different order should be made in respect of costs, they should file short submissions by 20th April 2026. In that event, the proceedings will be listed for mention on a date to be notified. Emily Farrell 22