Dublin Co. Co. v. Browne & Ors [1987] IEHC 16 (6 October 1987)

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IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1976

AND IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

PETER BROWNE, PETER NEARY, TRADITIONAL HOMES (IRELAND) LIMITED, AND PORLAN CONSTRUCTION LIMITED

These proceedings come before the Court by way of application grounded upon evidence presented by affidavit for orders under section 27 of the Local Government (Planning and Development) Act 1976. They relate to the intended use by Valeview A.F.C. of two concrete sheds which are structures situated between Quinn's Road Shankhill and the Dublin to Bray railway line. The applicants are the appropriate planning authority for the area, the first two respondents are nominated representatives of the football club, and the second two respondents represent the owners and builders of the concrete sheds. The football club have a playing field to the southeast on the other side of the railway, the access to which field heretofore has been from the same side of the railway as the playing field. From the field access to the two concrete sheds can be had by crossing a bridge over the railway line to the rear of houses numbers 100 to 110 Quinn's Road. In November 1986 the members of the Valeview A.F.C. entered into a contract to buy the site with these two concrete sheds from Traditional Homes (Ireland) Limited. Before doing so they went in on the site and commenced work on the two concrete sheds preparing and adapting them to provide all the changing facilities and other services required for the proper running and administration of the football club. Their presence and activities evoked protest from the residents of Quinn's Road and enquiries of the planning authority. These enquiries disclosed that no application for planning permission of any kind had been made at any time with reference to these two sheds. They also disclosed that the site upon which they are situated forms part of a single plot of ground or site for the development of the entire of which, by building six private dwelling houses with gardens, planning permission had been granted on the 20th of December 1973 to Traditional Homes Limited. The planning records, including planning application and plans and communications in reference thereto, give no indication of the existence of these two structures nor of any use therefor as a matter of development.

The site comprising the houses numbers 100 to 110 Quinn's Road formed part of a larger parcel of agricultural land between the former Bray Harcourt Street railway line and the present Dublin Bray line purchased from Mr. Garrett Reilly which had been let by him to a Mr. Kavanagh for grazing sheep. The purchaser from Mr. Reilly was a company named Nelson Car Hire Limited. The contract to purchase was signed by a John King in trust and is dated the 14th of December 1964. The assignment and conveyance is dated the 15th of March 1965 and contains a certificate by Nelson Car Hire Limited that the person

"who hereby becomes entitled to the entire beneficial interest in the interest in land hereby purported to be vested is a person who is certified by the Minister for Industry and Commerce as having shown to the satisfaction of that Minister that it is acquiring the relevant interest exclusively for the purpose of an industry other than agriculture'.

On some later date Nelson Car Hire Limited assigned and transferred this plot of land to Traditional Homes Limited. When the latter company was wound up by a members' voluntary winding up in 1970 these lands were transferred on an undisclosed date to Traditional Homes (Ireland) Limited which had been incorporated in 1969. The deeds of transfer to and from Traditional Homes Limited were not produced in Court on the hearing of this application. The houses which were built on Quinn's Road following the planning approval of the 20th of December 1973 were built by Porlan Construction Limited the second named respondent. Mr. John King is the principal Shareholder and Director of Porlan Construction Limited, of Traditional Homes (Ireland) Limited, of Traditional Homes Limited, of Nelson Car Hire Limited and of a number of other companies. These were the subject of a scheme of arrangement made in 1975 between Mr. King and his creditors. The creditors formed a company, Abney Limited to supervise the arrangement and to collect and realise the assets of Mr. King's companies.

Mr. King is living in America since 1982 and returned to give oral evidence on this application on behalf of the respondents. The six houses behind which the two concrete sheds stand were built between January 1977 and October 1977. During the building operations these two sheds were used as stores for building materials and as site offices as they had been used apparently for some years after 1968 during the course of the development by private house building of other neighbouring sites. The last of the houses of the Quinn's Road development was completed before 1978 and all building operations seemed to have ceased by 1979. The two concrete sheds were not removed.

After the building operations ceased one of the sheds', formerly the site office, was used by a Mr. McKeon accountant to Mr. King for facilities for his accountancy practice in the period 1981 to 1982. The shed which had been a store became put to use for storing chemicals in 1984. A report came to the planning authority from the fire officer that the two buildings were being used for storage of liquid chemicals in plastic containers which were considered dangerous. A warning notice was served in June 1984 on behalf of the planning authority and compliance was obtained by October 1984. Mr. Brian McCarthy, an industrial chemist obtained the use of the "office building" from January 1983 to August 1984 without payment by arrangement with Mr. McKeon. His occupation ceased when he found his access was being obstructed by local residents. Apparently the local residents were led to believe that the two concrete structures were temporary for facilitating the building development and would be removed when the building operations ceased.

These two concrete structures were separated from the rear gardens 100 to 110 Quinn's Road by a wall which Mr. King is alleged to have informed some of the first occupants was only a temporary wall and would be removed. The existence of the wall and of the concrete sheds was brought to the attention of the planning authority in 1977 whereupon a notice dated the 22nd day of September 1977 to cease unauthorised development was served. The unauthorised development notified to both Traditional Homes (I) and to Porlan Construction Limited builders of an address Quinn's Road Shankhill is as follows:

Re: Development at Quinn's Road Shankhill (rear of house Numbers 100 to 110) consisting of erection of wall, offices and sheds".

The notice described the development as not being exempted development and required the parties notified to take all necessary steps forthwith to cease works or discontinue the use as the case may be under a threat of proceedings by way of prosecution or enforcement under the Planning Acts. No further steps were taken to enforce compliance with the notice. When the wall was being constructed and before its completion soil was filled into the gardens at the rear of houses numbers 100 to 110 Quinn's Road. The effect of this was that the ground level in these gardens is higher than on the other side of the wall where the two concrete sheds were erected. In addition to providing support to maintain the rear gardens of numbers 100 to 110 at a higher level than the ground on which the two concrete sheds stand the wall effectively creates a definite boundary limit to the area of land developed by the building of those houses and so renders these sites smaller than the remaining sites on that side of Quinn's Road.

The residents of those six houses are aggrieved because they have discovered that the development involving the layout and construction of their sites, gardens and houses, as approved in the planning permission granted in 1973 incorporated the entire area comprising their sites and the ground on which the two concrete structures stand. This would have given them longer gardens with no building between them and the railway property, and a greater width and road frontage to each house. However, none of the residents had seen the development plans which had been approved, and each, upon purchase, obtained a lease of the site and house as they now are and not as represented on the plans submitted to the planning authority. Although the plans submitted for planning

approval and the plans of the sites leased differ as to the dimensional boundaries of the house and garden sites none of the plans used for either purpose gives any indication of the existence of any building or structure between the houses and the railway. These circumstances, combined with the fact that in relation to this plot of land, which had been in use as agricultural land in the year 1964, no planning permission of any kind was sought or granted for the construction of the two concrete sheds throws upon the respondents an onus of establishing that the construction and presence of these structures is lawful or at least not prohibited under the provisions of the Local Government Planning and Development) Acts 1963 and 1976. The agreement to which the football club entered into on the 10th of November 1986 to purchase the concrete sheds and the ground of the site walled off from the gardens expressly excludes any warranty of planning approval and contains express notification of the claims of the house owners, but with an inaccurate statement that more than twelve years have elapsed since the house owners purchased their properties.

The relief as claimed by the planning authority on this motion dated the 20th of November 1986 is as follows:

"An order pursuant to section 27 of the Local Government (Planning and Development) Act 1976.

(1) Restraining the respondents and each of them, the irrespective servants agents licensees and all persons having knowledge of the making of the order from making any use of two structures situated in a laneway at the rear of house numbers 100 to 110 Quinn's Road Shankhill in the County of Dublin.

(2) Restraining the respondents and each of them their respective servants agents licensees and all persons having knowledge of the making of the order from using the said structures or either of them as dressing rooms, club rooms, stores or offices.

(3) Directing the respondents and each of them to forthwith remove two unauthorised structures erected in the laneway at the rear of numbers 100 to 110 Quinn's Road Shankhill County Dublin.

(4) Directing the third and fourth named respondents to comply in full with all the conditions of planning permission Reg. Ref. No. F2362 granted to the third named respondent by the applicant by order of the 20th December 1973 and in order to do so remove the boundary wall at the rear of house numbers 100 to 110 inclusive Quinn's Road aforesaid and to incorporate the laneway at the rear of the said houses into the

(5) For such further or other order or relief including interim or interlocutory relief as the Court may consider just or necessary.

The first two conditions of the Planning Permission Reg. Ref. No. P2362 are as follows:

1. That the development be carried out and completed strictly in accordance with the plans and specifications lodged with the application save as is in the conditions hereunder otherwise required.

2. That the houses numbers 114 and 112 be omitted from the proposed development and that the remaining sites be increased by an equal amount to utilise the additional space made available.

1. To ensure that the development shall be in accordance with the permission and effective control maintained and

2. To maintain a residential density the same as that existing on the southern side of Quinn's Road.

Condition No. 7 was that each premises be used as a single dwelling unit. Condition No. 9 was that building bylaws approval shall be obtained and all conditions of such approval

shall be observed in the development. Condition No. 10 was that a special contribution of £2,058 (two thousand and fifty eight pounds) shall be paid to the Council by the applicants towards the cost of providing public open space on adjoining land in the area and opposite this the reasons for Condition 10 were given as "in lieu of building the proposed houses on existing open space". That permission form must be read in conjunction with the form of application to which it relates and which was dated and lodged with the planning authority on the 2nd of November 1973. On that form the site is described as "builders yard at eastern end of Quinn's Road Shankhill" and the name of the applicant is Traditional Homes (Ireland) Limited Quinn's Road Shankhill. The description of the proposed development is given as eight semi-detached houses similar to the existing and the area of the site is given as 75 acres. Question 11 on the form inquiries "if application is in respect of a material change of use state:

and the answers given are "private open space, builders yard, domestic". Lodged with that application form were plans and specifications none of which gave any indication of the existence of the two concrete sheds and consequently no question of their removal as being temporary or their retention as a structure being an identifiable use of land was indicated. The builders yard described as "private open space builders yard" had been in use at some stage since 1968 as a builders yard in the course of, but not at the commencement of the development of the rest of the fifteen and three quarter acre plot purchased from Mr. Garrett Reilly in March 1965. That application of December 1973 was made by the architect engaged by the respondent companies.

The respondents opposed this application on the ground that r the erection of these two concrete sheds was a development for which planning permission is not required as, although not a structure or structures which existed immediately before the 1st of October 1964, it was commenced before that date. On this question of fact the football club were in no position to offer any evidence and they adopt and are bound by the evidence adduced by the respondent companies and by the applicants, the planning authority. Notices of intention to cross-examine the deponents by whom affidavits were sworn were served and leave was given to call oral evidence in addition to that of such deponents on affidavit. Evidence was given by Mr. King that he was aware prior to 1963 of the intended enactment of the Local Government (Planning and Development) Act 1963 and had inspected the lands of Mr. Reilly with the intention of purchasing them for building development in 1964. He had gone on to the lands and had had them surveyed and tested for suitability for that purpose before 1964 under an agreement for a monthly payment which left Mr. J Reilly at no loss for the early termination of the grazing agreement. He swore that because of advice he had obtained from Senior Counsel at that time he believed that to avoid the expected planning restrictions it was necessary and sufficient that he should have commenced building development work on the lands before October 1964. As evidence of commencement of development he opened and poured foundations for four houses numbers 87, 88, 89 and 90 and cut out and laid two concrete floors for the two sheds the subject matter of these proceedings. His evidence was that this work had been done immediately after the second week in August 1964" before he had purchased the land. He said that he was engaged since 1962 in building development on lands immediately adjoining these on which he had a site hut. He choose the site on which the two concrete sheds were later built for site offices because of a difficulty of drainage, and having erected these he moved his site offices to them in 1965. The planning permission for development of this site which had been in use continuously as a builders yard was applied for by his architect in December 1973.

He believed his architect had negotiated an agreement with the County Council to keep the two concrete buildings on the site after they had been 'required to reduce the number of houses from eight to six for the site. Nothing was done in response to the notice from the County Council of the 22nd of September 1977, he said, because it was different from what his architect had agreed with the County Council. From 1983 he left everything in the hands of Mr. McKeon his accountant. The building of houses on p this site commenced in 1977 towards the summer and was completed, he thought, in 1978. He did not, he said, tell anyone the wall between the ends of the gardens and the yard was temporary because being a retaining wall supporting eight feet of clay and the sewer it could not be removed. Under cross-examination, Mr. P King stated, "after we were positive we would get planning permission we signed the agreement with Mr. Reilly". He also said "knowing we hadn't planning permission - we didn't require m planning permission at that stage - the foundations were dug out in 1964 before the lands were bought from Mr. Reilly for four houses and out-offices going the other way on Quinn's Road." According to Mr. King the work on the foundations was done during ^ a builders strike between the 16th of August 1964 and the 18th of October 1964. Mr. King agreed in cross-examination that Nelson Car Hire Limited the purchaser from Mr. Reilly was incorporated i in 1965 and never carried on any building development. He p explained that Nelson Car Hire Limited assigned the property to Traditional Homes Limited which was incorporated in 1965 and H Traditional Homes (Ireland) Limited by whom the leases of these houses were granted was incorporated in 1969. The purchase monies for the houses were received by Porlan Construction P Limited by whom the houses were built. The lease maps were prepared from the site map made by his architect for the planning application in December 1973. None of the maps gave any indication of the existence of the concrete sheds for which the concrete base had been laid according to Mr. King during the builders strike in August 1964 and on which the roofing, he said, was done for these sheds in 1965. He said they were occupied and in use when Traditional Homes Limited were building other houses in 1965 and 1966. This builders yard site was the last project of building development in that area.

The evidence of Mr. Garrett Reilly from whom Nelson Car Hire Limited purchased the parcel of land was at variance with that of Mr. King on the significant matter of when the work identifiable with the building of the two concrete sheds first j commenced. He was emphatic in declaring that Mr. King had not L made foundations for these buildings in 1964, that the buildings were not there at Christmas 1964, that they were not there when he concluded the sale in March 1965 and that there was no mention of them in the solicitors1 offices. He insisted they were not built before March 1966. He said that Mr. King had asked him could materials and a portable hut be stored at his Reilly's place at the rear of the Garda Station and that he Reilly agreed. According to Mr. Reilly, Mr. King moved these materials and hut up there at the commencement of 1965, and I that when the building of houses at Shanganagh Grove commenced they took materials out as they required them. He said that J the first houses were built up at the top nearly 500 yards away and they worked their way down towards the yard at Quinn's Road next to the Westland Row railway line. The concrete sheds, Mr. Reilly insisted, were not there when the foundations for the first houses were being taken out. As to what happened after March 1965, he maintained that by then he had sold the lands, they were no longer his, and what happened then did not affect him.

The only witnesses other than Mr. King and Mr. Reilly to give evidence relating to the time of commencement of work of development, whether before or after December 1964, were Mr. Hill, a carpenter employed by Mr. King and his companies, and Mr. Thompson a truck driver also employed by Mr. King.

Mr. Hill said he worked with Mr. King from January 1961 to April 1965 and that he was in charge of all the jobs as foreman. According to him the first time he heard that Mr.

King had an interest in Reilly's land was in the middle of 1965. He said these two concrete sheds were first put up in I late 1966. He said there were no foundations, just concrete m slab floor, that he did the roofing and they were temporary buildings for offices for the building sites. He said it was late 1966 they came onto the yard first and it was then a field, that it was still a field in 1966 when they laid the concrete slab. There was a builders strike between 15th of August 1964 and the 18th of October 1964 during which time, according to Mr. Hill, Mr. Thompson went to England.

Mr. Thompson insisted the strike was only a carpenters strike and that as a truck driver employed by Mr. King he delivered pegs and stones through a hole in a hedge during the strike to workers digging foundations beside where the yard was made. He said the yard was laid out a good while after that. He said that what became the yard was further down the road from where he threw the pegs in through the gap in the hedge but that he was down there only once. Mr. Thompson said he was "bad on I dates" whereas Mr. Hill said "my memory is very good on dates". The impression I had of these witnesses as they gave their evidence corresponds with those assessments. It emerged from the evidence that the architect engaged by Mr. King upon the application for planning permission had no function or duties of supervision of the works nor of insuring conformity with his plans or building specifications. According to a Mr. Palles who gave evidence he was the construction surveyor who supervised the work after the site was laid out by the architect. He worked from drawings he got from the architect who told him what had to be done and he, Palles, saw that it was done. He did not see any drawings or plans used for planning permission, the architect had no plan for him and it was all done without site plans according to Mr. Palles. The architect, he said, told him he originally applied for planning permission for eight houses but got permission for only six and it was to be on a reduced site. He said the costing was very tight, the demolition of the stores and offices to make way for gardens was not on, and a wall to support soil filling would not have been built as a temporary measure.

Mr. King who gave his evidence with confidence and assurance did not carry conviction to my mind in relation to the fundamental aspect of the time of commencement of the development constituting the building of the two concrete sheds. I think his recollection of events was, perhaps understandably, unreliable. On his own evidence he was a director of a number of companies all of which it would seem were entirely under his personal control and most of which probably were incorporated solely for the purpose of securing the advantages of separate and distinct legal personality. His financial affairs appear to have been supervised (at least) from 1961 to date by Mr. McKeon his accountant who gave lit evidence in Court. I disregard the evidence given by Mr. McKeon on affidavit of matters not within his personal knowledge. The two essential documents of title to the land referred to in Mr. McKeon's affidavit were not exhibited with that affidavit nor were they, nor copies produced nor identified in Court. They are the assignment of the 1st of

! April or August 1965 by Nelson Car Hire Limited to Traditional Homes Limited and the assignment and conveyance of 28th April 1970 by Traditional Homes Limited to Traditional Homes (Ireland) Limited. According to Mr. McKeon's evidence given in Court the builders yard buildings and lands were transferred to Traditional Homes (Ireland) Limited a company incorporated in 1969. It was his evidence that Traditional Homes Limited was the subject of a members voluntary winding up in 1970 without any final meeting being held, but the creditors were paid in full and the assets distributed. According to Mr. McKeon's affidavit "Nelson Car Hire Limited was, notwithstanding its name, a company established by the said John King for the purpose of assisting him in his building operations and the development of the lands." But Mr. King in his evidence said "I don't think Nelson Car Hire ever built any houses." Porlan Construction Limited was not formed until 1976. That latter company apparently built the six houses on Quinn's Road involved in these proceedings and sold them upon agreement to nominate the purchaser for a lease of 850 years from an unnamed lessor, but not otherwise putting

the purchaser in privity of contract with the vendor of any interest in land. At that stage however all Mr. King's companies were the subject of arrangement with his creditors

who themselves had formed a company, Abney Limited, to gather all the assets of the various companies and to realise them to the best advantage including completing unfinished work. The evidence of Mr. King and of Mr. McKeon did not clarify whether the development alleged to have been commenced before the 1st of October 1964 had ever been identified at any stage of the various transmissions of interest in the lands or upon the incorporation of any of the companies.

In the foregoing I have very briefly summarised the evidence adduced on the basic factor of the time when the development consisting either of the change of use of this plot of agricultural land to a different identifiable purpose or the carrying out on that land of works such as the construction of an identifiable structure actually commenced.

I have no doubt that Mr. King obtained the advice of Senior Counsel relative to the then impending legislation which he says he received and that he understood its nature. But I am not satisfied that Mr. King did in fact commence development of either nature of these lands before the 1st of October 1984. At most he had no more than an unenforceable verbal agreement with Mr. Reilly which did not permit him to commence any such "development" on any part of the land. Because of the tests he was making on the lands at that time it is unlikely he would have committed himself to a binding agreement. It is equally improbable that he would have incurred speculative expense immediately after the nine week strike, much less during the period when the duration of the strike was unpredictable. On the other hand Mr. Reilly had at the same time a compelling interest in the negotiations and their probable outcome. I believe no work involving digging out foundations, and filling them and filling open slabs of concrete flooring, could have taken place on his land without his knowledge prior to March 1985 in view of the terms of the agreement of the 14th of December 1984 and the alterations and third schedule thereto to which he placed his initials. On this matter of fact I must hold that the work of laying out the yard and the building of the two concrete sheds at the rear of numbers 100 to 110 Quinn's Road was not commenced before the appointed day.

The evidence put forward by the respondent companies as to the nature purpose and use of these two concrete sheds and of P the yard in which they are enclosed is such that at the time of their original construction and completion they were not merely meeting a temporary need in connection with the development of building domestic housing in the vicinity. They were not removed at the conclusion of that housing development. There is no intention on the part of the respondent companies to reinstate the land comprising this site. Although the purchasers of the houses on Quinn's Road may have supposed, and Mr. Costello the representative of the companies may have believed, that the yard site and concrete sheds came within Class 12 of the third schedule of the 1964 Regulations or Class 13 of the third schedule of the 1976 Regulations (S.I. 65 of 1977) it has been established by the evidence on this hearing that they do not come within any of the exemptions under Rule 10 or Rule 11 of the Statutory Instrument Number 65 of 1977.

On this initial question of fact my conclusion is that the construction of the two concrete sheds and the walling in of the yard in which they stand is a development of land which did not exist before the appointed day, and was not commenced before the appointed day. On the evidence before me I am satisfied as a matter of law that such development is not an exempted development in accordance with the construction prescribed by section 4 (3) of the Local Government (Planning and Development) Act 1963. Notwithstanding the representations made to the purchasers of the houses that the yard and sheds were serving only the temporary purpose of necessary services ancillary to the building development and would be removed on completion of the building development I am satisfied as a matter of fact that the yard and sheds were not of a temporary character and were not intended to be removed. As a matter of law I am of opinion that the uses to which the yard and the two concrete structures were put were at all times unauthorised use as defined in the Planning Acts and Regulations.

Much of the argument presented on behalf the respondents has been based on the supposition that the work of development had commenced before the appointed day and that the subsequent user of the site and of the two concrete structures did not constitute a change of user or an exempted development. On the facts as found by me on the evidence it is not necessary to deal with these submissions. For the respondents the builders and developers, Miss Sheppard argues that orders as sought to be directed to her clients cannot be made under section 27 of the 1976 Act. She further submits that by reason of the failure of the applicants to move the Court under that section when that course was available relief of the nature of injunction as a matter of discretion should not be granted now. She pointed out that under the statutory power conferred by section 27 the Court can do no more than compel compliance with the planning permission in its terms without substituting alternative terms. She argued that the title and possession of the property having now passed to the owners of the houses and to the football club, the developing and building companies cannot be authorised under section 27 by Court order to take possession of the property to carry out work involving anything less than full compliance with the planning permission as recorded. She pointed out that the owners of the houses purchased them as they now are and the Court has no power to grant them title to any greater or different property nor to deprive the football club of the property purchased by them. Any attempt to enforce compliance with the planning permission granted nine years ago would now be impracticable and because, on her submission, the excessive delay of the applicants is unconscionable the application should be refused.

For the football club Mr. Brady accepted that his clients had purchased the site and concrete buildings with prior knowledge of a dispute as to the requirements of planning permission. He submitted that the present situation for which his clients are in no way responsible is one in which if there has been a breach of planning permission it is irremediable by anyone. He argued that the power of the Court under section 27 is limited to adopting the requirements of the planning authority as expressed in the planning permission and enforcing compliance with them without alteration or substituting an alternative evolved by the Court. He submitted that the objections by the residents which provoked the applicants into action were founded upon groundless fears of nuisance by noise. He pointed out that the complaints of noise related to work now completed when the club started working on preparing the sheds as dressing rooms and club facilities under a caretaker agreement before their contract. The evidence wasthat they had spent £10,500 on the premises when negotiations with the County Council for alternative suitable grounds and premises produced no satisfactory results. Mr. Browne, the representative of the club, swore that the club has not a licence, that is to say has not been registered under the Registration of Clubs Acts, and does not intend to apply for "a licence". Mr. Brady submitted that as the County Council was made aware in 1977 of the failure then of the developer to conform to the planning permission granted in December 1973 when they could have obtained a Court order under section 27 it would be inequitable to give any of the relief sought now when circumstances had changed substantially.

Before declaring my ruling on the question on relief having regard to my findings of facts on the evidence I think it proper to express the opinion that this application is but the latest in a large number of cases coming before the Courts term after term in which substantial issues of dispute on matters of fact are sought to be resolved by motion on notice founded only on affidavit under section 27 of the Planning Act 1976. This is clearly a case in which, as I have frequently pointed out in other cases, procedure by originating summons, proper pleadings, and oral evidence, is more appropriate, is available, and can be operated as expeditiously as the circumstances disclosed might require. By the enactment of section 27 of the 1976 Act the legislature has not (and constitutionally could not have) deprived the High Court of its inherent jurisdiction to grant equitable relief where justice requires by intervening in contractual relationships or where a wrong is threatened or is taking place. But if the intervention by the Court is sought for orders pursuant to section 27 of the Planning Act of 1976 relief can be obtained only in the manner and by way of the limited procedure prescribed. In my judgment in Dublin County Council .v. Kirby 1985 ILRM 325 I demonstrated the limitations the legislature chose to put on applications to the Court under the summary procedure prescribed in section 27 of the 1976 Act. To overcome the inadequacy of the section 27 procedure it has become common practice to procure the -attendance of deponents for oral examination and to admit additional oral evidence to be adduced as was done in this case. But the result in this case is that the local residents are not parties and their evidence was related to embarrassment in regard to their purchases and anxiety about the quiet enjoyment and continued value of their properties. The football club who apparently were never in the contemplation of the developers feel under pressure of their increasing need of improved amenities for recreation. The live issues of the relative requirements of these neighbouring parties and whether and to what extent they can be justly accommodated by suitable planning is thrust aside to give way to technical legal issues of the identification of corporate identities with the activities of the individual shielding behind their several masks.

On the facts as found by me on the evidence put before me the use now of what had been a builders yard with concrete sheds as grounds, changing rooms, club rooms, offices, or recreation rooms of a football club is an unauthorised use for . which planning permission is required and is an unauthorised use of such yard and structures which must be discontinued unless duly authorised under the provisions of the Planning Acts and Regulations. I accept as correct in law the submissions by Miss Sheppard and by Mr. Brady that upon an application under section 27 of the 1976 Act the Court cannot within the limitations of that section enforce a partial compliance with the planning permission after the development to which it relates has been completed. Accordingly, I will not order the removal of the concrete sheds, nor the removal of the retaining wall at the rear of the gardens, nor the filling of the yard to garden level for each of the gardens, nor the closing of the gate and passage entrance to the yard from Quinn's Road. The order restraining the continued unauthorised use of the premises and structures unless and until permission therefor be granted in accordance with the Planning Acts and Regulations takes effect forthwith. The order I propose making embraces those requested at paragraphs 1 and 2 of the notice of motion but can be expressed in the form of a single order.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dublin Co. Co. v. Browne & Ors [1987] IEHC 16 (6 October 1987) URL: http://www.bailii.org/ie/cases/IEHC/1987/1987_IEHC_16.html Cite as: [1987] IEHC 16

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