Creedon v Corporation of Dublin

JurisdictionIreland
CourtSupreme Court
JudgeMCCARTHYJ.
Date01 January 1984
Docket Number267/1978,[S.C. No. 267 of 1978]

1983 WJSC-SC 191

THE SUPREME COURT

267/1978
CREEDON v. CORPORATION OF DUBLIN
CREEDON
v.
DUBLIN CORPORATION

Subject Headings:

LOCAL GOVERNMENT: housing

STATUTORY INTERPRETATION: power

1

JUDGMENT delivered 11th February 1983 MCCARTHYJ. [NEW DISS]

2

The plaintiff is the owner of No. 30 Dartmouth Square, Dublin; on the 3rd June 1975, she applied to the defendant, the Housing Authority, for permission under s. 4 of the Housing Act, 1969to use the premises other than for human habitation, in an application which provided for the construction of the mews residence or extension with residential accommodation; by letter of the 4th July 1975, the defendant refused her permission "for the reason that such change of use would result in a reduction in the supply of housing in the functional area of the Corporation." In these proceedings, which have, indeed, pursued a somewhat leisurely course, the plaintiffclaims:-

3

a "(a) A declaration that the said decision is in conflict with the facts upon which it purports to be based, is unreasonable, and contrary to natural justice.

4

(b) An order setting aside the said decision and declaring that the plaintiff be deemed to have obtained a permission by default on the expiration of five weeks from the 3rd day of June 1975."

5

This second and consequential part of the plaintiff's claim arises from the provisions of s. 4(5) of the Housing Act, 1969which states:-

"(a) Where -"

6

i (i)an application is made to a housing authority in accordance with section 3 for a permission under this section, and

7

ii (ii)the housing authority do not give notice to the applicant of their decision within the appropriate period, a decision by the authority to grant permission shall be regarded as having been given on the last day of that period."

8

In this case, the period was one of five weeks beginning on the date of receipt by the Housing Authority of the application and it is the plaintiff's contention that the decision to refuse permission as conveyed in the letter of the 1st July 1975 was a nullity and, consequently, the Housing Authority had not given notice to the applicant of their decision within the appropriateperiod so that a decision to grant the permission is to be regarded as having been given. By virtue of subs. 6 of section 4 of the Act of 1969, a right of appeal to the Minister is given to any person to whom a permission has either been refused or granted subject to conditions. It is relevant also to refer to the provisions of s. 10 of the Act of 1969-

9

"In case a permission is required under this Act and under Part IV of the Act of 1963 in relation to a habitable house, the : application for a permission under the Act of 1963 may be made at any time and whenever the application under the Act of 1963 is made the following provisions shall apply:

10

(a) the application under the Act of 1963 shall not be decided until an application under section 3 has been fully determined;

11

(b) subject to (c), the references in s. 26(4)(b) of the Act of 1963 to the period of two months beginning on the day of receipt by the planning authority of the application shall be construed as references to the period of five weeks beginning on -

12

(i) in case no appeal is taken under section 4 - the day on which the decision is given,or is regarded as having been given, under this Act by the housing authority, and ;

13

(ii) in case an appeal is so taken,- the day on which the appeal is withdrawn or is determined by the Minister, as may be appropriate,

14

provided that, in case the day mentioned in sub-paragraph (i) or the day mentioned in sub-paragraph (ii) occurs less than two months after the receipt by the planning authority of the application, this paragraph shall not have effect;

15

(c) in case a permission under this Act is refused (whether on the original application or on appeal), the application under the Act of 1963, in so far, but only in so far, as it relates to the relevant house, shall not be considered and accordingly section 26(4)(a) of the Act of 1963 shall cease to apply in relation to the house; and

16

(d) in case a permission under this Act is granted, subject to conditions, the planning authority or the Minister when considering the application or the appeal, as the case may be, under the Act of 1963, shall have regard to the conditions."

17

The effect of s 10 in the present case, it is contended would be that the default permission under s. 4 but would carry with it the necessary...

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