Cairnduff v O'Connell

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,FINLAY C.J.
• Judgment Date: 05 February 1986
• Neutral Citation: 1986 WJSC-SC 209
• Docket Number: [1984 No. 212 S.C.],(212/84)
• Court: Supreme Court
• Date: 05 February 1986

1986 WJSC-SC 209

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

(212/84)

CAIRNDUFF v. O'CONNELL

BETWEEN/

IAN CAIRNDUFF AND MAUREEN CAIRNDUFF

Appellants

and

PETER O'CONNELL

Respondent

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

Synopsis:

PLANNING

Exempted development

External stairway - Terraced house in Dublin - Construction of external balcony and stairway at side of return portion of defendant's house - Smaller external balcony and stairway existing at side of return until 12 years before action - Former structure much less intrusive of neighbour's privacy - Plaintiff neighbour seeking removal of defendant's structure - No planning permission sought for present structure - Held that present structure materially affected external appearance of defendant's house - Held, however, that present structure did not render the appearance of defendant's house "inconsistent with the character" of his house or of neighbouring houses - Held, accordingly, that present structure was an exempted development within s.4(1)(g) of Local Government (Planning & Development) Act, 1963 - Plaintiff's claim dismissed - (212/84 - Supreme Court - 5/2/86) - [1986] IR 73; [1986] ILRM 465

|Cairnduff v. O'Connell|

WORDS AND PHRASES

"Inconsistent with the character"

Planning - Exempted development - External balcony and stairway - Local Government (Planning & Development) Act, 1963, s.4(1)(g) - ~See~ Planning, exempted development - (212/84 - Supreme Court - 5/2/86) - [1986] IR 73; [1986] ILRM 465

|Cairnduff v. O'Connell|

1 JUDGMENT delivered on the 5th day of February 1986by GRIFFIN J.

2 I agree with the judgment of the Chief Justice. I have however some reservation as to whether the opening of the window in question and the erection of the timber balcony and open thread steps leading to the garden of the respondent's premises are works which "materially affect the external appearance of the structure" within the meaning of s. 4(1)(g) of the Local Government (Planning and Development) Act, 1963. I do not, however, consider that it is necessary for the purpose of this appeal to decide that issue. On the assumption that the works do materially affect the external appearance of thestructure, I am in entire agreement with the Chief Justice that they do not "render such appearance inconsistent with the character of the structure or of the neighbouring structures" within the subsection, and as such are exempted development. There was uncontradicted evidence that similar stairways are to be found at the corresponding position in many of the other houses in Waterloo Road, and as the Chief Justice has pointed out, such balconies and stairs are a common feature of the rear of a great number of such houses in theCity.

3 In common with Barrington J. and the Chief Justice, I can appreciate the feelings of the appellants who found the diminution of the privacy of their dwelling objectionable and who considered that the erection of such a balcony, from which their garden and patio in particular can be overlooked, was insensitive to their privacy as adjoining occupiers. Although the expressed intention of the respondent for having such a large balcony (10??#x2032?? x 5??#x2032??) was for use only as a means of access to the garden, and to permit the placing of a number of flower pots thereon, human nature being what it is, it is almost inevitable that during fine weather the occupiers of the premises will sit out, or perhaps eat, on that balcony, to the detriment ofthe privacy of the appellants who would be likely to be using their garden and patio at the same time. Counsel for the appellants readily accepts that they have no right in law not to be overlooked by the respondent as the adjoining occupier, and concedes that they are attempting to use the provisions of the Planning Acts to achieve their desired objective. The fact that their motive was one of self-interest would not, in my opinion, be sufficient to defeat their right to an injunction under s. 27 of the Local Government (Planning and Development) Act, 1976if the works in question were not excepted development under s. 4 of the Act of 1963. Like the Chief Justice, if the works were such as to require permission for development or approval under s. 26 of the Act of 1963, I would without hesitation grant the appropriate injunction pursuant to s. 27 of the Act of 1976.

4 I also would dismiss the appeal.

5 JUDGMENT delivered on the 5th day of February 1986by FINLAY C.J. [Walsh J. concurring]

6 This is an appeal against an Order of the High Court made by Barrington J. on the 11th July 1984, dismissing an application for an injunction pursuant to section 27 of the Local Government (Planning and Development) Act 1976.

7 The Appellants who are owners of the house, 56 Waterloo Road, in the City of Dublin, sought an injunction restraining the Respondent who is the owner of the house immediately next door, at No. 58 Waterloo Road, from the breaking open and insertion of a windowinto the side wall of the return of the Respondent's house and the replacement of a window in the side wall of that return by a door and the construction of a balcony outside, with an external staircase leading down to the garden.

8 The Appellants allege the works being carried out by the Respondent require planning permission and it is agreed that he has not sought or obtained planning permission. The Respondent asserts that the works being carried out by him are an exempted development and do not require planning permission.

9 On behalf of the Appellants it was candidly and clearly admitted that whilst their application is to restrain breach of the planning laws that their motive or intention is to try and preserve the privacy of a patio at garden level, which they have in their garden and which they say will be excessively and unpleasantly overlooked as the result of the opening of the window complained of and, more particularly, as a result of the construction of the balcony and staircase complained of.

10 In the course of his judgment in the High Court, Barrington J. held that the works being carried out by the Respondent were an exempted development within the provisions of section 4(1)(g) of the Local Government (Planning and...