Corporation of Dublin v Flynn
1978 WJSC-DC 210
THE DISTRICT COURT
This matter came before me by way of a case stated pursuant to the provisions of section 2 of the Summary Jurisdiction Act 1857 as amended and extended by section 51 of the Courts (Supplemental Provisions) Act1961by Justice Patrick Keenan Johnson, Justice of the District Court, assigned to the Metropolitan District Court for the opinion of the High Court on the point of law set forth therein.
The relevant facts are set forth in the case stated submitted to the Court and appear to me to be as follows:-
1. The defendant herein caused to be constructed on the premises 466 South Circular Road in the County Borough of Dublin a factory/warehouse building, ninety feet in length, thirty feet in width, and twenty four feet in height at the rear of the said premises.
2. The said premises were commenced by the defendant after the appointed day as set forth in the Local Government (Planning an Development) Act1963, hereinafter referred to as "the Act" within the period of five years immediately preceding the 2nd day of February, 1973 and did not constitute an "exempted development" as defined in the said Local Government (Planning and Development) Act1963.
3. The complainants herein, being the relevant Planning Authority, served on the defendant on the 21st day of March, 1973 a notice made by them pursuant to the provisions of section 31 of the "Act" made by them on the 21st day of February, 1973 requiring him within one month of the date on which the enforcement notice took effect to remove the said factory/warehouse building and all consequential debris.
4. The said notice (hereinafter referred to as "the enforcement notice" was expressed to and did take effect on the 1st day of April, 1973.
5. The defendant herein did not take any of the steps required by the enforcement notice to be taken within the period specified in the enforcement notice.
"subject to the provisions of this section, where an enforcement notice (other than a notice which was been annulled) has been served under any of the last three preceding sections on the person who was, when the notice was served on him, the owner of the land to which the “enforcement” notice related and within the period specified in the enforcement notice, or within such extended period as the Planning Authority may allow, any steps required by the enforcement notice to be taken (other than the discontinuance of any use of land) have not been taken, that person shall be guilty of an offence and shall be liable on summary conviction to a fine not eiceeding one hundred pounds".
On the 29th day of June, 1973 a complaint was heard before one of the Justices of the Dublin Metropolitan District Court assigned to the said District that:
"by virtue of an enforcement notice under section 31 of the Local Government (Planning and Development) Act1963served on defendant 21/ 3/1973 which has not been annulled by Order of Minister for Local Government which has taken effect defendant was required within one month of date of which the notice took effect 1/ 4/1973 to remove factory, warehouse building ninety feet in length thirty feet in width twenty four feet in height approximately and all consequential debris from land rear 466 South Circular Road, and defendant failed on 21/ 5/1973 and on other dates within six months last past take the steps required by said notice contrary to section 34 (1) of said Act".
The said Justice did adjudge that the said defendant be convicted of the said offence and did order that he pay for penalty the sum of fifteen pounds plus one pound fifty pence costs (total sixteen pounds fifty pence) within twenty eights days and in default of such total payment within the said period that he be imprisoned in the Mountjoy Prison for the period of seven days unless the said total sum be sooner paid.
I quote from the certified copy of the original conviction obtained in the Metropolitan District Court on the 29th day of June, 1973.
In spite of the said conviction, the defendant did not as soon as practicable or at all do everything in his power to secure compliance with "the enforcement notice".
"If after a person is convicted under the foregoing provisions of this section he does not as soon as practicable do everything in his power to secure compliance with the enforcement notice, he shall be guilty of a further offence and shall be liable on summary conviction to a fine not exceeding twenty pounds for each day following his first conviction on which any of the requirements of the enforcement notice (other than the discontinuance of any use of land) remain unfulfilled".
Though certified copies of the convictions were not produced to me, it appears from the facts set forth in the case stated that the defendant was prosecuted and convicted under the latter sub-section of the "Act" on the 23rd day of November, 1973, the 7th day of June, 1974, the 4th day of October, 1974 and the 8th day of October, 1976.
On the 23rd day of September, 1977 the defendant was charged before the Dublin Metropolitan District Court sitting at Court No. 3 at Morgan Place in the City of Dublin upon complaint that he did not do everything in his power to secure compliance with an enforcement notice issued pursuant to section 31 of the Local Government (Planning and Development) Act1963serve on him and dated the 21st day of February, 1973 and which took effect on the 1st day of April, 1973 and which required him to remove the factory/warehouse building ninety feet in height, thirty feet in width and twenty four feet in height approximately and all consequential debris from land being the rear of 466 South Circular Road in the County Borough of Dublin.
The said summons alleged that the said defendant had been convicted of having failed to take the steps required by the said enforcement notice on the 29th day of June, 1973 under section 34 (1) of the said Local Government (Planning and Development) Act1963and that the said defendant was further convicted (for failure to take the steps required by said enforcement notice) by further orders of the Metropolitan District Court respectively dated the 23rd November, 1973, 7th June, 1974, 4th October, 1974 (which was found by Order of the Circuit Court dated 27th July, 1976) and the 8th October, 1976 under section 30 (5) of the said Act.
The defendant was charged in the said summons that he did not on the 21st day of April, 1977 and on other dates following do everything in his power to secure compliance with the said enforcement notice contrary to section 34 (5) of the "Act".
The complaint was adjourned on a number of occasions and was finally determined on the 14th day of October, 1977 by District Justice Patrick Keenan Johnson.
As appears from the case stated the evidence tendered before the Learned District Justice and accepted by him was:-
(a) that the defendant was the owner of the factory/warehouse building ninety feet in length, thirty feet in width and twenty four feet in height
(b) that the defendant had erected the said building without having obtained planning permission of the Dublin Corporation therefore, as required by the provisions of the Local Government (Planning and Development) Act1963
(c) that between the 21st day of April, 1977 and the 19th day of July,...
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