Avenue Properties Ltd v Farrell Homes Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1982
• Neutral Citation: 1981 WJSC-HC 1463
• Court: High Court
• Date: 01 January 1982

1981 WJSC-HC 1463

THE HIGH COURT

1981/28 M.C.A.

Avenue Properties Ltd. and McCabe v. Farrell Homes Ltd.

IN THE MATTER OP THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 TO 1976 AND

IN THE MATTER OF AN APPLICATION BY AVENUE PROPERTIES LIMITED AND JOHN McCABE

BETWEEN:

AVENUE PROPERTIES LIMITED AND JOHN McCABE

Applicants

and

FARRELL HOMES LIMITED

Respondents

1 Judgment of Mr. Justice Barrington delivered the 27th day of May 1981

2 This is a motion brought by the applicants pursuant to section 27 of the Local Government (Planning and Development) Act 1976for an order prohibiting the respondents from continuing with the development of an office block situate at Leeson Close , Dublin 2 and for an order directing the respondents to remove from the said site all structures not authorised by planning permission.

3 The respondents are a property development company. In 1980 they acquired the site referred to which is held under a lease dated the 21st February 1835. There was attached to the site a planning permission dated the 17th June 1957 for the construction of an office block. This planning permission was granted prior to the enactment of the Planning and Development Act 1963and at a time when planning law and requirements were not as strict as they are now. It seems probable that the Planning Authority would not nowadays, grant permission for an office block of such proportions in this particular area. The planning permission is, however, a perfectly valid planning permission.

4 The planning permission will however, "wither" unless the authorised development has been completed by November 1981. The respondents, therefore, having acquired the site, proceeded to develop it with great speed and have now raised, on the site, an office block some seven storeys high.

5 The first-named applicants, Avenue Properties Limited, are an investment company and own the immediately adjoining property, Kingram House, Kingram Place, Dublin 2. These premises consist of an extensive single storey office building which the applicants have leased for a term of 35 years to a firm of quantity surveyors, Messrs Desmond McGreevy and Partners, at a substantial rent, for a term of 35 years. There are 33 years of this term to run and the lease contains a clause for rent reviews at five yearly intervals.

6 The second-named applicant, John McCabe, resides with his wife and family in a mews house at 65 Leeson Close, Dublin 2.

7 Both applicants are dismayed by the building of an office block of such dimensions on the property immediately adjoining them. They say that an office block of such dimensions is totally out of character with the area, that it will substantially interfere with their amenities, that it will de-value their properties and that it will constitute a nuisance to them both in the course of its construction and afterwards. These matters may be important in themselves but they are not central to the present case. The central point is that the applicants submit that the building actually in the course of construction has not been built in accordance with the planning permission and is therefore an unauthorised structure. All further development should therefore be stopped and, if necessary, the existing structure should be demolished.

8 The applicants submit that they hope to prevent the respondents from completing their building By November 1981 and thereby to force the respondents to apply for a completely new planning permission. If that were to happen, the applicants are confident that the Planning Authority would subject the development to rigorous conditions designed to preserve the amenities of the area and to protect the applicants" properties. The applicants say that they are perfectly entitled to take this attitude because the respondents have deliberately departed from their existing planning permission hoping to present the Planning Authority and their neighbours with a fait accompli in the form of a completed structure which they will then get permission to retain.

9 The applicants" motion first came before Mr. Justice D'Arcy on the 6th April 1981. At that stage the office block was five storeys high and the applicants submitted that it violated the planning permission in two different respects. First the planning permission was for a seven storey office block built over a basement and the existing structure had no basement. Secondly the planning permission contemplated a building with two projections or "nibs" on the side nearest Kingram House and the existing structure had no such projections or "nibs". The respondents, however, argued that the order in which they developed their property was a matter for them. They hoped that the Planning Authority would give them permission to dispense with the basement and the projections but they said, if the Planning Authority did not do so, they would put in the basement and the projections later.

10 It should be mentioned that the original permission contemplated that the basement would be used as a bank vault and for the storage of fuel oil. The developer had abandoned the first project and the present building bye-laws and fire officers regulations would not permit the user of the basement for the storage of fuel oil.

11 Under these circumstances Mr. Justice D'Arcy clearly thought there was a certain air of unreality in the submissions of both sides. On the one hand he could not see that the applicants were, in any way damaged because of the omission of the basement and the projections. On the other hand it was difficult to believe that a developer who intended to put in the basement would first build the office block leaving the basement to be excavated later.

12 The respondents, however, said that their course of conduct was explained by the fact that they hoped that the Planning Authority would not require them to build the basement and the projections. If however, they were required to do so they could and would do so. The applicants, on the other hand, admitted that their objections in relation, for instance, to the basement, were of a purely technical nature. If, however they could by means of these objections, force the respondents to apply for a fresh planning permission then they could insist on the basement being provided and used, for example, for car parking, thereby reducing the traffic hazard which, they say, the development will otherwise create.

13 Mr. Justice D'Arcy took the view that the Applicants" case was unmeritorious and dismissed the application with costs.

14 The presentation of the applicants" case has been made more difficult by reason of the fact that the Planning Authority, unfortunately, lost the file relating to the matter so that the original drawings on which the Planning Permission was granted are not now available. The circumstances in which the file relating to the original permission was lost are referred to in a letter which the Principal Planning Officer wrote to both parties to this dispute on the 14th Hay 1981. It is not necessary to go into them here. Suffice it to say that as a result of the file being lost Mr. McGaw, the architect advising the applicants, was not able to inspect the original drawings accompanying the 1957 planning application. He only had available to him Xeroxed copies of these drawings and these copies did not, on their face, expressly disclose the scale to which they were drawn.

15 However, on the 6th April 1981 the respondents lodged in the Planning Office a further planning application in relation to this development and the papers relating to this application were inspected by Mr. McGaw on the 22nd April 1981. From this inspection it appeared that the respondents" architect, in a covering letter lodged with the planning application, stated that the drawings accompanying the 1957 application were drawn on a scale of 16 feet to one inch. Applying this scale to copies of the drawings lodged with the original application Mr. McGaw reached the conclusion that the original scheme contemplated that the walls of the new development should stand back approximately seven feet from the boundry wall between the respondents" properties and Kingram House. He then took a measurement on the ground and found that there would, in fact, only be four feet two inches between the outer wall of the new building and the boundry wall when the building was completed. He therefore concluded that it would not be possible to add the projections contemplated by the permission after the office block had been completed.

16 The applicants appealed to the Supreme Court against the order of Mr. Justice D'Arcy and, on the appeal, sought to introduce evidence of the new discoveries made by Mr. McGaw. The respondents said they disputed Mr. McGaw's findings. Under these circumstances the Supreme Court admitted the new evidence but remitted the matter to the High Court to resolve the issue of fact between the parties and to reconsider the application for an injunction in the light of the new evidence. On the application before me the respondents have stressed that the drawings filed with the original planning application in 1957 were not working drawings and that it is therefore dangerous to make fine calculations based on them. Moreover, they have shown that there is frequently a distortion, on copy drawings particularly copies of the type which were available to Mr. McGaw when he made his calculations. Mr. McGaw's calculations, so far as they are based on the copy drawings, can not therefore be regarded as scientifically reliable.

17 Mr. McGaw, however, has another leg to his argument. He says that it is clear from the drawings that the projections referred to were meant to enclose two lavatories or water closets placed side by side. Such water closets, he says, would not be less than 3 to 3½ feet wide. The projections would therefore have to...