Insights

Mergers & Aquisitions

If you have questions about Merger or Aquisitions, please contact G J Moloney for information and expert advice.

“Delighted to announce our 2nd acquisition as Cuil Dídin Nursing Home in Tralee, a modern 64 bed home with an excellent reputation. We look forward to working with Caitriona and the team in Cuil Dídin in continuing to deliver excellent care to our residents. This is the second of a number of acquisitions of top quality existing homes we aim to acquire in the next 12 to 18 months. CEO Paul Kingston said: “We are interested in acquiring homes who have an excellent reputation of care and the home itself is modern and has a capacity to expand, Cuil Dídin meets all these requirements and we look forward to continuing the excellent care provided under the stewardship of Caitriona. We also look forward to continuing to serve the needs of our residents in Cuil Dídin, ably led by Director of Nursing, Caitriona O’ Connor and her team.” Special thanks to our acquisition team of led by and , , and .”

Planning Permission

 

 

Strategic Housing Developments: The failure to upload report forming part of application can lead to planning permission being set aside

 

In the recent decision of Southwood Park Residents Association v An Bord Pleanála & Others [2019] IEHC 504, the High Court held that failure to upload and make available to the public an updated bat survey/report submitted as part of a SHD planning application was not merely a de minimis breach (a breach which is trivial, technical or insubstantial) of the Planning and Development Regulations 2001 (“the Regulations”). As a result, the decision of An Bord Pleanála (“the Board”) to grant planning permission for a large-scale housing development in Blackrock, Co Dublin, was set aside.

This decision is of particular significance to developers involved in Strategic Housing Development (“SHD”) applications. It highlights the need to ensure full compliance with the relevant procedural and legal requirements.

Background

In February 2019 the Board granted planning permission for a housing development in Blackrock, County Dublin under the SHD planning regime. Pursuant to Article 301(3) of the Regulations, all documents submitted as part of a SHD planning application must be uploaded to a dedicated website by the developer from the date of application and for a period of eight weeks.

In this case, the applicant failed to upload one of the documents forming part of the application. This document was the second of two reports on bats at the site of the proposed development. The first report uploaded to the website contained a survey of bat activity at the site and recommended measures to mitigate against any environmental impact the development might have on the bats. The second report however, which was not uploaded to the website, amended the mitigation measures proposed in the first report.

Grounds of Review

Southwood Park Residents Association sought an order setting aside the decision of the Board to grant planning permission for the development. The failure to upload the second report was conceded by both the Board and developer to be a breach of the Regulations. However, the Board contended that this breach was de minimis and did not affect the validity of the decision to grant planning permission.

Decision

Justice Simons emphasised that neither the Board nor developer enjoyed any discretion as to compliance with the obligation to upload all documentation. There was no question as to whether a breach had taken place. The relevant question was whether the failure to upload the second report could be considered a de minimis breach and the judge held that it could not be regarded as such on the basis that:

  • The breach deprived the public of a right to review and make submissions on the actual application documentation; and
  • A member of the public reviewing the earlier report which was uploaded may have thought certain mitigation measures, which were more robust in the first report and subsequently amended in the second report, remained in place.

The judge referred to the differences between the mitigation measures proposed in the two reports. One of the mitigation measures proposed in the first report was the requirement to obtain a derogation licence pursuant to the Birds and Natural Habitats Regulations 2011. This was amended in the second report, resulting in a member of the public relying on the website version. The suggested effect of this is that such a person may have decided not to object to the proposed development on the basis that the mitigation measures were in place. The court therefore granted a provisional order setting aside the Board’s decision to grant planning permission.

Conclusion

This decision highlights the importance of ensuring full compliance with the procedural and legal requirements when making an application for planning permission. It also emphasises that a failure to ensure full public participation during the planning process can prove detrimental to an application.

This is particularly important for SHD applications, given that the SHD procedure does not contain any ‘request for further information’ mechanism which might allow potential issues to be resolved in advance of the application being considered. As the application is made directly to the Board, the public do not have an opportunity to make submissions or observations at both the planning authority stage and any subsequent Board appeal, as would be typical in a standard planning application.

 

Vanessa Mullally

For further information on Environmental & Planning law, please contact our Cork or Dublin offices.

TUPE REGULATIONS

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”) protect the rights of employees when there is a transfer of the undertaking in which they are employed. The Regulations transpose Council Directive No 77/187 of 14 February 1977 on the approximation of the laws of the Member States relating to the safe-guarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (“the Directive”).This area of law is commonly referred to as “TUPE”.

An ‘undertaking’, for the purposes of the Regulations, is an economic entity. This is an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective. The entity must retain its identity in that it is actually continued or resumed.

The transferor’s rights and obligations arising from a contract of employment existing on the date of transfer shall, by reason of such transfer, be transferred to the transferee.

The date of transfer is the date on which responsibility as employer for carrying on the business of the unit transferred moves from the transferor to the transferee.

The existing terms and conditions of the employment contract and the employer’s obligations thereunder are automatically transferred to the new employer. The parties, employer and employee, remain free to agree changes in terms and conditions of employment regardless of whether or not a transfer is or has taken place under TUPE.

The rights of the transferor vis-á-vis its employees also pass to the transferee. Thus the benefit of restrictive covenants and contractual obligations must pass to the transferee.

Employee pension rights, apart from those provided for by social welfare legislation, do not transfer to the new employment. However, where there is a pension scheme in operation in the original employer’s business at the time of the transfer, the legislation provides that:

  • If the scheme is an occupational pension scheme covered by the Pension Acts, then the protections given by that legislation apply;
  • In the case of other pension schemes, the new employer must ensure that rights are protected.

The parties to a transfer have obligations to notify, inform and possibly to consult employees and their representatives before the transfer takes effect.

There are joint obligations on the transferor and transferee to inform employee representatives of the reasons for the transfer, the legal, economic and social implications of the transfer for the employees, and any of the measures envisaged in relation to the employees.

This information is to be given, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, before the employees are directly affected by the transfer ‘as regards their conditions of work and employment’.

The Regulations generally prohibit dismissals for reasons connected with the transfer. An employee who is terminated may claim either under the Regulations, or the Unfair Dismissals Acts 1977 – 2015.

The Regulations do allow for dismissals to take place for economic, technical or organisational reasons entailing changes in the workforce (ETO). Only the transferee can make such dismissals.

Irish cases in this area have tended to equate the ETO dismissals with the concept of redundancy.

Economic, technical or organisational reasons must entail ‘changes in the workforce’. This normally requires a change in the numbers of people employed to perform particular functions, not merely a change in their terms and conditions.

European Court of Justice decisions have made it clear that the term “transfer” implies that the transferee actually carries on the activities of the transferor as part of the same business. The decisive criterion for establishing whether there is a transfer for the purposes of the Directive is whether the business in question retains its identity.

Contracts for Services

In relation to contracts for services, where the main/only asset is the workforce, which were previously carried out by one contractor but are now carried out by another contractor (also in circumstances where the contract is brought in house or outsourced), the EAT/WRC decisions have found that it is essentially up to the incoming contractor to decide whether or not to take on the outgoing contractor’s employees.

If the incoming contractor does choose to take on these employees then TUPE may apply, provided the employees can be said to be part of a stable economic entity, i.e. the job that they were doing before the transfer is essentially identical to the job they are doing after the transfer.

If the incoming contractor chooses not to take on the outgoing employees then TUPE will not apply.

The Right of an Employee to Object to a Transfer

The transfer of the employee from transferor to transferee is automatic irrespective of the wishes of either party. This is subject to the right of the employee to object to a transfer of his employment relationship.

The legal effect of the employee’s right to object is a matter for each member state to determine; consequently, differing positions regarding the effect of a refusal have emerged.

The legal effect in Ireland was considered in Symantec Ltd. v Leddy & Lyons where the employees refused to transfer when Symantec sold part of its business to another company. The EAT (Employment Appeals Tribunal) held that in refusing to transfer, the employee remained employed by the transferor. If the transferor had no alternative position to offer the employee, he would be redundant and the transferor would be liable for that redundancy.

However, the High Court overturned the EAT’s decision, holding that the refusal of an employee to transfer does not result in the employee being made redundant. Consequently the employee was not entitled to any severance payment, statutory or otherwise. The High Court appears to have aligned itself with the UK approach, where legislation provides that a refusal to transfer is deemed to be a resignation by the employee.

Please contact our offices in Cork or Dublin for further information.

Adverse Possession

 

Paving the Way for Adverse Possession of Land: Factual Possession

 

What is adverse possession?

Adverse possession allows a person who has been in possession of land for a specified period of time, who has no interest in that land, to adversely take the interest in the land if they fit within a number of limitations. The Statute of Limitations, 1957 governs the law on adverse possession in Ireland.

Adverse possession requires an applicant to show factual possession of land for the requisite period without the owner’s consent and with the necessary intention to possess.

 

Factual possession

The long standing test concerning the factual possession of land has been challenged in the recent UK case of Thorpe v Frank & Anor [2019] EWCA Civ 150 where the Court of Appeal found that repaving a forecourt constituted sufficient possession in a successful claim for adverse possession.

The court held that while the physical enclosure of a piece of land is an obvious way to take possession, it is not an absolute requirement. A sufficient degree of control depends upon the nature of the land and the manner in which the land is used and enjoyed. This decision appears to widen the grounds required to establish factual possession.

 

Thorpe v Frank: Facts

In 1986, the owner of a house, Mrs Thorpe, repaved and altered the surface level of a triangle of land forming part of a neighbouring property without objection from that property’s owner. The land lay to the front of Mrs Thorpe’s house and adjacent to her driveway and was used since 1986 to provide a place for her to park. Mrs Thorpe also regularly maintained the land.

Mr and Mrs Frank became the registered owners of the adjacent property in 2012. In 2013, Mrs Thorpe fenced off the paved area in question and later applied to be the registered owner of the paved area on the basis that it had been acquired by adverse possession. The Land Registry referred her application to the courts.

Mrs Thorpe succeeded in the first instance. However, that decision was overturned by the Upper Tribunal who ordered that the lands in dispute be removed from Mrs Thorpe’s registered title and transferred to Mr and Mrs Frank. Mrs Thorpe appealed to the Court of Appeal.

 

 

Decision of the Court of Appeal

Mr and Mrs Frank argued that the repaving merely amounted to temporary trespass by Mrs Thorpe and that she had no control over the land until the erection of the fence in 2013.

However, the court recognised that making physical changes to the surface of land is a material factor in determining whether adverse possession had taken place and held that the repaving in this case established factual possession.

Here the land was open because of its location in front of two houses at the corner of a cul-de-sac and was subject to estate covenants designed to prevent the land from being built upon or fenced. Mrs Thorpe’s repaving of the land had asserted an intention to assume sufficient control over it. It did not matter that, after the work had been done, the neighbouring owner could continue to pass over the area as before.

 

Conclusion

Although this case is fact specific, it demonstrates that the lack of fencing or enclosing over an area of land will not specifically prevent a claim for adverse possession. The Irish Courts in assessing the factual possession element of adverse possession may draw on the persuasive authority of this UK decision and could potentially result in more cases in Ireland making successful claims for adverse possession, provided the person making the application is still able to prove they have acted in a way typical of an owner of that land.

 

For further information on adverse possession, please contact our Cork or Dublin offices.

 

Vanessa Mullally

Changes in Personal Injury Litigation

 

Significant changes in Personal Injuries Litigation

Two of the main pieces of legislation often referred to in Personal Injuries Litigation are the Civil Liability and Courts Act 2004 (hereinafter “the 2004 Act”) and the Personal Injuries Assessment Board Act 2003 (hereinafter “the 2003 Act”). Since 3 April 2019, the PIAB (Amendment) Act 2019 has come into force joining the group of significant pieces of legislation in this area.

Amendments to the 2004 Act

Section 8

As one of the initial steps in the Personal Injuries litigation process consists of sending what is commonly known as a “Section 8 letter”, the first and most important amendment was passed in relation to this obligation. Section 13 of the Central Bank (National Claims Information Database) Act 2018 has amended Section 8 of the 2004 Act to reflect that the obligation of service of the Section 8 letter within two months has now been reduced to one month. This amendment also removed “or soon as practicable thereafter” and most significantly, the Court now “shall” draw inferences from a failure to do so as opposed to “may”.

In light of this change, all accidents that occur on or after 28 January 2019 are bound by this amendment. Therefore, all personal injuries summons issued on or after that date which are not served within the one month period, must provide an explanation as to what “reasonable cause” existed to explain such a failure. If such explanation is not forthcoming or not accepted by the Court, the Court shall draw inferences and costs deduction would seem inevitable.

Section 14

In equal importance is the amendment of this section. Section 14 requires that all pleadings shall be verified by the Plaintiff and Defendant and, should the Plaintiff provide further information by way of affidavit, same should be lodged within 21 days of delivery of such pleading or information and also be verified. The new section 14 (4)(a) now mirrors the penalty provisions in Section 8 for failure to do so, i.e., Court shall draw inferences and costs will be affected.

PIAB (Amendment) Act 2019

This is another significant piece of legislation which has come into force on 3 April 2019. The key provisions are Section 51C, Section 13, Section 50 and Section 54.

SecTion 51C

This section penalises claimants (and respondents in some cases) in the event of failure to comply with requests for documents, attend medical examinations and provide information or documents in respect of special damages or further medical information. Failure to cooperate with PIAB allows the court to make orders which will impact on costs or how same is apportioned. Unlike the above amendments to the 2004 Act, this section contains no mandatory requirement.

It is important to note that this requirement applies to all applications made under Section 11 after 3 April and all applications made before that where such requests had not already been made

Section 13 

Under tHis section, there is no longer a requirement to lodge a medical report (Form B) with the application form in order to stop the clock. The original position was that, in order for the clock to stop running, both Forms A and B needed to be submitted with the application. The position now is that the application itself is deemed to suffice for that purpose. However, the formal Section 13 notice which sets the 90 day period in motion will not be served until a medical report is provided and the administration fee (45e) is paid.

Section 50 ­(Renehan v T&S Taverns (2015 IESC 8))

This section rectified an anomaly in legislation which originally allowed the statute of limitations to stop running in relation to all respondents – even where a respondent was added to proceedings at a later stage. The position now is that the actual date of joining a new respondent to an application already made will be date on which the statute stops running for the purposes of Section 50 of the 2003 Act as opposed to the date of the original application.

Section 54

The Book of Quantum must now be revised at least every three years.

For further information please contact G J Moloney in Cork or Dublin.

 

 

 

COURT RECORDS & ACCESS BY THE MEDIA

 

 

The Data Protection Act 2018 has a significant impact on the media’s access to court records.  The Rules of the Superior Courts have implemented new rules to allow a bona fide member of the media access to documentation opened or deemed to have been opened in Supreme Court, Court of Appeal and High Court.

 

A bone fide member of the media includes a persons who can produce a valid National Press Card, a valid International Federation of Journalists Press Card, a valid ID identifying them a reporter/correspondent or employed by an online new agency/website which is a member of the Press Council of Ireland, and reporter/ correspondent employed by a company licensed by the Broadcasting Authority of Ireland.

 

Previously, the media have always had the right to report on what was said in open court. Under the new Rules, the media will now have a right to access documentation, in both civil and criminal matters, which is referred to in court and documentation which is deemed to have been opened. This applies to the full document even if only a small portion of the document was referred to or if the Judge has read the document in preparation for the hearing. Restrictions will still apply to certain types of cases i.e. those held in camera.

 

Under the new rules, the media can access the documents under the supervision of the courts service and they can take a copy of the document, provided they give an undertaking to return the document at the end of the reporting of the hearing. The media can also obtain a press release from the Courts Services in relation to the proceedings that they are reporting on.

 

The consequences of this change is that the media can thoroughly examine court documentation and this could lead to more detailed reporting. Therefore, clients may not want certain personal information and /or sensitive information to be available in the public sphere.  

 

If you seek any advice on this matter, please do not hesitate to contact our litigation department.