Corporation of Cork v O'Connell

• Jurisdiction: Ireland
• Judge: Henchy J.,GRIFFIN J.
• Judgment Date: 04 May 1982
• Neutral Citation: 1982 WJSC-SC 420
• Court: Supreme Court
• Date: 04 May 1982

1982 WJSC-SC 420

THE SUPREME COURT

Henchy J.

Griffin J.

Hederman J.

No. 42 M.C.A./1981

No. 273/1981

CORK CORPORATION v. O'CONNELL

CORK CORPORATION

v.

CHRISTOPHER O'CONNELL

1 Judgment of Henchy J.delivered the 4th May 1982

2 In my opinion the judgment of Costello J. should be affirmed in everyrespect.

3 Up to December 1980 the defendant was running a hardware shop at 20 Academy St., Cork. Then, without getting planning permission he turned it into an amusement arcade with 35 slot machines.

4 Clearly, as the judge found, it then ceased to be a shop and became an amusement arcade. Planning permission was required but was not got for this substantial change of use. The case, therefore, fell fairly and squarely within the ambit of s. 27 of the 1976 Act and it was a proper exercise of the judge's discretion to grant an injunction to CorkCorporationunder that section.

5 The defendant sought to employ two devices to stave off that consequence of his disregard of the requirements of the Planning Acts. He applied, unsuccessfully, to the Planning Board (under s. 5 of the 1963 Act as amended) for a ruling that the change was exempted development, and there is an appeal to the High Court pending under s. 5 against that ruling. Counsel for the defendant argued that while that appeal was pending an injunction should not be granted under s. 27. The judge refused to accede to that argument. I would respectfully agree. S. 27 of the 1976 Act amounts to a summary and self-contained procedure which should not be allowed to be frustrated or protracted by the utilization of the collateral procedures allowed by s. 5 of the 1963 Act.

6 The second device employed on behalf of the defendant for the purpose of fending off an order under s. 27 was no less effective. But it is somewhat disturbing. On the very day that Costello J.was dealing with the s. 27 application, a conditional order of mandamus was obtained from another High Court judge directing Cork Corporation to give planning permission - by default under s. 26(4)(a) of the 1963 Act. We have not seen the affidavit or affidavits on foot of which that conditional order of mandamus was made, but if they showed, as they should have done, uberrima fides, they would have disclosed that Costello J. was dealing on that very day with a s. 27 application in which it was being contended that planning permission was not necessary. It is difficult to believe that, it such disclosure had been made, the other High Court judge would not have refrained from making the conditional order of mandamus and would not have allowed all aspects of the case to be dealt with by Costello J. It is no less surprising that the affidavit filed in the proceedings before Costello J. did not disclose that it was part of the defendant's case that he was entitled by default to planningpermission. Instead of which, it was maintained on the same day before one judge that planning permission was not necessary and before another judge that planning permission had been obtained. Such duplicitous use of the processes of the courts is, to say the least, undesirable.

7 Costello J. did not allow himself to be deflected by the collateral and questionable procedures employed from making the order required in thecircumstances.

8 I would dismiss this appeal.

9 JUDGMENT delivered on the 4th day of May 1982by GRIFFIN J.

10 No. 20 Academy Street, Cork was for a considerable time prior to the month of December 1980 used as a hardware retail shop. The shop closed down. During the month of December 1980 it became apparent to the planning officials of the applicants ("the Corporation"), who are the planning authority, that the above-named Christopher O'Connell ("the defendant") intended to re-open the premises and to conduct therein the business of an amusement arcade. Planning permission for such change of use had not been either sought or granted. The defendant already carried on the business of a pool hall andamusementcentre in the adjoining premises No. 21 Academy Street. The suspicions of the officials of the Corporation were not unfounded. On the 12th of December 1980, the defendant became the lessee of No. 20 for the term of 21 years at the yearly rent of £12,000, so it is clear that he was in the process of acquiring these premises for sometime prior to that date. On the 5th of December 1980 the Corporation wrote to the defendant informing him that it had come to their notice that he was carrying out unauthorised work on the premises, and that this work should cease forthwith. The work on the premises nevertheless continued, and on the 12th of December 1980 the Corporation caused a warning notice pursuant to s. 26 of the above Act to be served on the defendant informing him that it appeared to the Corporation that an unauthorised use of the premises was being or was likely to be made in contravention of s. 24 of the Local Government (Planning and Development) Act, 1963, and requiring him to take adequate stepsto comply with the notice. This notice was not complied with. It appears that on the advice of Mr. J. V. Lennon, the defendant's engineer, that the proposed change of use of the premises would be an authorised change of use, would not be a material change of use, and would be an exempted development within the meaning of the Planning Acts, the defendant opened the premises for business on the 19th of December 1980. The business consisted of operating some 35 gaming or slot machines mostly of the video type.

11 S. 24 of the Act of 1963 (insofar as it is relevant to this case) provides that planning permission is required in respect of any development of land, which is not exempted development, and prohibits the carrying out of any development save under and in accordance with such a permission. "Development" is defined in s. 3 of that Act as meaning the carrying out of any works on, in, or under any land, or the making of any material change in the use of anystructure or other land. S. 4(1) provides what are exempted developments, and includes at (g) development consisting of the carrying out of works for the maintenance, improvement or alteration of the structure being works which affect only the interior of the structure. S. 4(2) gives to the Minister for the Environment power to make regulations providing for any class of development being exempted development. By S.I. 65 of 1977 the Minister duly made regulation in that behalf.

12 By s. 26(4) any person who knowingly fails to comply with the requirements of a warning notice shall be guilty of an offence. On the 22nd of December 1980 proceedings were commenced against the defendant in the District Court for his failure to comply with this notice. Those...