O'Connor v Kerry County Council

 
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1988 WJSC-HC 2782

THE HIGH COURT

No. 168JR 1987
O'CONNOR v. KERRY COUNTY COUNCIL

BETWEEN

MICHAEL O'CONNOR
APPLICANT

and

THE COUNTY COUNCIL OF THE COUNTY OF KERRY
RESPONDENT

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S31

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S41(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT)(EXEMPTED DEVELOPMENT & AMDT)

REGS 1984 ART 87

WALSH PLANNING & DEVELOPMENT LAW 2ED PARA 12.18

Synopsis:

NOTICE

Issue

Service - Warning - Necessity - Planning code - Breach - Erection of structures without planning permission - Enforcement notice served on occupier by planning authority - Notice required occupier to remove structures - Planning authority not obliged to give occupier prior warning of their intention to issue and serve enforcement notice - ~See~ Planning, enforcement - (1987/168 JR - Costello J. - 13/11/87)

|O'Connor v. Kerry County Council|

PLANNING

Enforcement

Development - Buildings - No permission - Enforcement notice served by planning authority - Removal of structures required - Judicial review of decision to issue notice - Certiorari refused - Inappropriate procedure for determining issue of exempted development - The applicant built stables close to his house - He added a two-storey structure adjacent to the stables and attached two lean-to premises to that structure - The applicant did not obtain permission from the respondent planning authority to erect those structures and so, prima facie, they were unlawful developments - The respondents served an enforcement notice on the applicant pursuant to s. 31 of the Act of 1963 - The notice directed the applicant to remove the said structures - The applicant applied to the High Court for an order of certiorari quashing the respondents" decision to issue and serve the notice - Among the submissions made by the applicant was a submission that the structures were exempted developments - Held, in dismissing the application, that procedure by judicial review was inappropriate for the determination of the issue of exempted development since s. 5 of the Act of 1963 provides expressly a procedure for the determination of that issue by the planning board - Held that there was prima facie evidence that the applicant's structures were unlawful developments and that there was no evidence that the respondents" decision to issue and serve the notice had been based on unreasonable or irrational grounds - Held that the respondents were not obliged to inform the applicant of their intention to issue and serve a notice pursuant to s. 31 of the Act of 1963 - Held that there was no evidence that the respondents had failed to consider the proper planning and development of the area or the relevant facts - Held that the form of the notice was adequate for the purpose of section 31 - Held that the requirements of the notice were not excessive having regard to the breach of the planning code which they were designed to remedy - Local Government (Planning & Development) Act, 1963, ss. 5, 31 - (1987/168 JR - Costello J. - 13/11/87)

|O'Connor v. Kerry County Council|

1

DELIVERED BY THE HONOURABLE MR JUSTICE DECLANCOSTELLOON 13 NOVEMBER 1987

APPEARANCES

For the Applicant:

Mr Kielty, BL

Instructed by

Miley & Miley

12 South Frederick Street

Dublin 2

For the Respondent:

Mr O'Sullivan, BL

Instructed by

Donal M King

County Solicitor

Kerry County Council

Ashe Memorial Hall

Tralee

2

Counsel's submissions have been very helpful in this matter. Because thepoints raised have been put very clearly, the issues are very net onesand I can give my judgment on them immediately. In doing so I am not tobe taken as considering that this matter is not a very important one; itclearly is. It is very important from the point of view of theApplicant, Dr Michael O'Connor, and from the point of view of theRespondent Council, but the issues are net ones and my view on them isclear so I am in a position to express an opinion now.

3

Briefly, the facts giving rise to this application are as follows:

4

The Applicant, Dr Michael O'Connor, lives with his family at premisesknown as Muingaphuca, Carragh Village near Carragh Lake, Killorglin,County Kerry. Some years ago the Applicant built stables close to hispremises for the housing of ponies for the use of his children. Morerecently the Applicant built a two-storey structure adjacent to thestables and two lean-to premises attached to the two-storeystructure.

5

It is in respect of these three different types of premises that acomplaint has been made by the Council. The Council have complained thatthese structures are a development within the meaning of the LocalGovernment (Planning and Development) Act and that the developmentoccurred without the permission which the Act requires to be obtainedbefore a development of this sort takes place.

6

It is not in dispute that the structures to which I have referred are adevelopment within the meaning of the Act but apparently there is adispute as to whether or not planning permission was required for them,the Applicant claiming that the structures are exempted development andthat, accordingly, permission was not required.

7

What happened was this: Earlier this year, Mr Stack, a Planning Engineerof the Respondent Council, went out on 16 April 1987 to Dr O'Connor'spremises. He saw Dr O'Connor there and after being shown around returnedand made a report about what he saw. Thisreport has not been exhibited and Counsel for the Respondent Council hasnot objected to it being produced, but I saw no need for its productionas it did not seem to be a relevant consideration.

8

The County Manager for County Kerry made an order to the effect that anenforcement notice under section 31 of the 1963 Act, as amended, shouldbe served on Dr O'Connor. No question arose in relation to the manner inwhich the enforcement order came into existence until Counsel'ssubmissions at this hearing and so the actual order of the CountyManager was not produced in the affidavits. However, Counsel informs methat the order is in Court. In view of what Counsel stated I havedecided, with the agreement of the Applicant's Counsel, that asupplementary affidavit was unnecessary and I will proceed on the basisthat, in fact, the County Manager made an order directing the service ofthe enforcement notice.

9

The enforcement notice was dated 28 April 1987 and it was signed by MissCarmody, a senior staff officer in the Planning Department of theRespondent Council. The enforcement notice directed that the structuresreferred to in its first schedule be removed. This order was stated tohave been made under section 31 of the 1963 Act and the compliance withit had to be within five weeks.

10

The Applicant, Dr O'Connor, applied to the High Court for relief by wayof judicial review. In Accordance with the Rules of the High Court heapplied ex parte and an order was made on 17 june 1987 giving himliberty to institute proceedings by way of judicial review for leave toapply for an Order of Certiorari in relation to the enforcement noticeand four grounds were set out in the order. The grounds which were setout in the order are in very general terms.

11

What I propose to do now is to give my conclusions on the varioussubmissions that have been made in the case.

12

The first matter that arose from the affidavits related to the viewwhich the Applicant, Dr O'Connor, advanced, which is to the effect thatthe development he undertook was "exempted development"within the meaning of the Act and the Regulations.

13

As to the issue of whether or not the development is...

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