Birmingham v Birr Urban District Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Morris
Judgment Date20 January 1998
Neutral Citation[1998] IEHC 190
Date20 January 1998

[1998] IEHC 190

THE HIGH COURT

1997/445/JR
BIRMINGHAM v. BIRR URBAN DISTRICT COUNCIL
JUDICIAL REVIEW

BETWEEN

MICHAEL BIRMINGHAM, COLETTE BIRMINGHAM, MICHAEL QUINN,FRANK KENNY, ANN KENNY, FERGUS GARLAND, MARIE BRADY, PETER LOONAM,MARTINA LOONAM, JOHN HOGAN, MAURA HOGAN AND LAURENCEBRODERICK
APPLICANTS

AND

BIRR URBAN DISTRICT COUNCIL
RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S39(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S29(3)

CAMPUS OIL LTD V MIN FOR INDUSTRY & ENERGY 1983 IR 82

MAHON & ORS V BUTLER & ORS 1997 3 IR 369 1998 1 ILRM 284

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1977 S27

Synopsis

Planning

Interlocutory injunction; construction of halting sites by local authority; judicial review of construction; injunction sought to restrain construction; whether fair question to be tried; whether construction an exempted development; whether balance of convenience favoured grant of injunction; whether laches on part of applicants; ss. 4 & 29(3) Local Government (Planning and Development) Act, 1963 Held: Injunction granted; fair question to be tried existed; balance of convenience favoured grant of injunction; no laches on part of applicants (High Court: Morris P. 20/01/1998)

Birmingham v. Birr Urban District Council

[1998] 2 ILRM 136

1

Mr. Justice Morrisdelivered the 20th day of January, 1998.

2

This matter comes before the court as an application for an interlocutory injunction restraining the defendants its servants or agents and any other person or persons whomsoever from carrying out and/or continuing any works in relation to the construction and/or erection and/or development of a permanent halting site and/or hard stand at Croghran Road, Birr, Co. Offaly.

3

The circumstances in which the application arises can be summarised, in so far as is relevant to the present application, as follows.

4

The respondents propose to develop and construct two permanent hard stand and/or halting sites to accommodate members of the travelling community at Croghran Road, Birr, Co. Offaly and on the Roscrea Road, Birr, Co. Offaly. This application relates to the proposed development at Croghran Road.

5

As it is relevant to the defence advanced by the respondents I set out in short form the history of this proposed development.

6

The development of these sites has been in the contemplation of the respondents since May of 1994. Advertisements were inserted in the newspapers, reports were circulated and meetings were held between interested parties and the Birr Urban District Council in and around the months of June and July of 1994. As a result of representations the halting sites were reduced in size so as to accommodate six members of the travellingcommunity instead of ten. A decision was made at that time to proceed with the proposed development.

7

It was not until November of 1996 that finance for the development was sought by the Birr Urban District Council. This was sanctioned in September of 1997. Tenders had already been sent out in May of 1997 and on the 4th of November, 1997 contracts were signed with the contractors for the carrying out of the work. Works commenced on the 6th of November, 1997 and the applicants sought leave to challenge the development by way of judicial review on the 15th of December,1997.

8

The case being advanced by the applicants is that this development is an unauthorised development and in judicial review proceedings they have sought inter alia a declaration that this work is unlawful and is in breach of section 39(2) of the Local Government (Planning and Development) Act, 1963. Leave to seek this relief by way of judicial review was granted to the applicants by order of Geoghegan, J. on the 15th of December, 1997.

9

It is not anticipated that these judicial review proceedings will be disposed of for some considerable time.

10

The applicants now apply for interlocutory relief on the basis that they wish to preserve the status quo pending the determination of the judicial review proceedings.

11

The submissions made by the applicant can be summarised as follows. It is accepted by the applicants that a development by a Council of an Urban District in such a district is an exempted development by virtue of section 4 of the Local Government (Planning and Development) Act of 1963. However, such a development looses this status if it is a development which "contravenes materially the development plan" (see section 29(3)) of the Local...

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1 books & journal articles
  • Planning injunction: section 160
    • Ireland
    • Irish Judicial Studies Journal Nbr. 2-4, July 2004
    • 1 July 2004
    ...may not now be actionable per se. 4 Mahon v. Butler [1997] 3 I.R. 369 (S.C.) cited with approval in Birmingham v. Birr U.D.C. [1998] 2 I.L.R.M. 136 (H.C.); Westport U.D.C. v. Golden [2002] 1 I.L.R.M. 439 (H.C.); and O’Connell v. Dungarvan Energy Ltd., High Court, unreported, Finnegan J., 27......

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