Corporation of Dublin v Garland

• Jurisdiction: Ireland
• Judge: Finlay P
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 746
• Docket Number: 1981-27 MCA
• Court: High Court
• Date: 01 January 1982

DUBLIN CORPO. v. GARLAND & ORS.

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMAN AND BURGESSES OF DUBLIN

Applicant

and

PATRICK GARLAND, GEORGE REILLY, JOHN MC DONALD AND NOEL FLAHERTY

Respondents

1982 WJSC-HC 746

1981-27 MCA

THE HIGH COURT

1 Judgment delivered on the 27th day of November 1981 Finlay P.

2 This is an application under Section 27 of the Local Government Planning and Development Act, 1976for an order restraining the Respondents from continuing the user of premises at 59 Upper Drumcondra Road in the City of Dublin or any part thereof as offices and from using the premises or any part thereof otherwise than as a residential premises. It was heard by me on affidavit on the 9th of November 1981 and I then reserved judgment. The facts out of which the application arises were not in dispute on the affidavits before me and may thus be summarised.

3 The Respondents, who are Chartered Accountants practising in partnership, purchased this house in 1973 from a doctor who had previously lived in it and had a surgery on the premises. In November 1973 they commenced to use the premises substantially for office purpose retaining only a small part as a residential flat. The house was apparently inspected on behalf of the Planning Authority in January 1974 when this change of user was discovered and proceedings were then issued pursuant to the provisions of Section 24 of the Local Government Planning and Development Act, 1963alleging an offence by unauthorised change of user. On the receipt of that summons, the solicitors on behalf of the Respondents made a reference to the Planning, Appeals and Reference Section of the Department of Local Government asking for a decision as to whether a change of user had taken place or whether the change was exempted. That application was determined and the then Minister for Local Government on the 2nd of April 1976 decided that the change was a development within the meaning of the Act. The Respondents in October 1976 applied for planning permission for change of use and after a request for additional information a decision to refuse that permission was made by the Applicants before me in January 1977. In the meantime, the hearing of the proceedings under Section 24 of the Act of 1963 which had been adjourned pending the reference and the decision thereon were finally disposed of in December 1976 and three of the four Respondents who were then the persons in occupation were convicted and fined £1.00 each. A further application for change of use but based on different plans was lodged with the Applicants by the Respondents in April 1977, that application was affected by the Housing Act of 1969and proceedings under that Act had first to be dealt with. Permission under the Housing Act was granted in July 1978 and the planning permission sought was refused in August 1978. That refusal was appealed by the Respondents and the appeal was dismissed by An Bord Pleanála in February 1979. In the meantime, an Enforcement Notice pursuant to the provisions of Section 31 of the Act of 1963 was issued in January 1978 and proceedings under sub-section 8 of this Section were subsequently issued for non-compliance but they were dismissed in November 1979 on technical grounds. Fresh proceedings under the same section were issued in March of 1980 and they were heard in May of 1980 and were apparently dismissed by the District Justice on the grounds that he was not satisfied with the...