Dublin City Council v Lowe

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 17 December 2004
• Neutral Citation: [2004] IESC 106
• Court: Supreme Court
• Docket Number: [1999 No. 45 MCA]
• Date: 17 December 2004

[2004] IESC 106

THE SUPREME COURT

Murray CJ

McCracken J

Kearns J

084/03

DUBLIN CORPORATION v. LOWE & SIGNWAYS LTD

IN THE MATTER OF SECTION 27(1) OF THE LOCAL GOVERNMENT(PLANNING AND DEVELOPMENT) ACT 1976AS AMENDED BY SECTION 19(4) OF THE LOCAL GOVERNMENT (PLANNING ANDDEVELOPMENT) ACT 1992

AND

IN THE MATTER OF AN APPLICATION BY THE RIGHT HONOURABLE THE LORDMAYOR ALDERMEN AND BURGESSES OF DUBLIN

Between:

The Right Honourable the Lord Mayor Aldermen andBurgesses of Dublin

Applicant/ Appellant

AND

Arnold Lowe and Signways Limited

Respondents

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 19(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

CAIRNDUFF V O'CONNELL 1986 IR 73

DUBLIN CORPORATION V REGAN ADVERTISING 1986 IR 171

FINGAL CO COUNCIL V CREAN & SIGNWAYS HOLDINGS LTD UNREP O CAOIMH 19.10.2001 2001/9/2449

1 Mr Justice McCrackendelivered the 17th day of December 2004

2 This is a matter with a somewhat lengthy history. By notice of motion dated 18 ^th May 1999 the Appellant sought the following reliefs pursuantto s.27 of the Local Government (Planning and Development) Act 1976as amended, namely:-

3 2 "1 An order, directing the respondents and each or either of them, to forthwith discontinue the unauthorised use of the exterior flank wall (Chancery Place elevation) at first and second floor level of the premises situate at and known as Number 3, Inns Quay, Dublin 7, for advertisement purposes.

4 2 An order, directing the respondents and each or either of them, to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (Chancery Place elevation) of the premises situate at and known as Number 3, Inns Quay, Dublin 7, by the respondents and each and either of them, without the benefit of planning permission."

5 By order of Morris P dated 4 ^th February 2000 an order in the terms of paragraph 1 of the notice of motion was granted to the Appellant, but an order in the terms of paragraph 2 of the notice of motion was refused. The Respondents appealed to the Supreme Court and by order dated 15 ^th May 2001 the Respondents' appeal was allowed and the matter was remitted to the High Court for the determination of the remaining issueswith directions as to the filing of points of claim and points of defence. The matter was duly re-entered before the High Court and by order dated 4 ^th February 2003 the application of the Appellant was dismissed. Now before the Court is an appeal by the Appellant against such dismissal.

6 The only issue now before the Court is the claim set out at paragraph two of the notice of motion.

7 The claim relates to the gable wall on the first and second floors of premises known as Number 3, Inns Quay, which premises are situate at the corner of Inns Quay and Chancery Place. The gable wall in question in fact fronts onto Chancery Place. There is a large advertisement hoarding attached to the gable wall, and it is alleged by the Respondents, and found as a fact by the learned trial Judge, that an advertisement hoarding has been erected and in place on that wall since the late 1950s or even earlier, and that the wall had except for very short periods been used continuously for the purpose of appending to it a hoarding. Prior to December 1995 the use of the hoarding had been contracted out to David Allen Holdings by the first named Respondent and indeed the hoarding that had been then present had presumably been erected by David Allen Holdings. Their contractual arrangements with the first named Respondent terminated in December 1995 and new contractualarrangements were entered into between the first named Respondent and the second named Respondent. The David Allen Holdings hoarding was removed on or about 15 ^th December 1995 and the second named Respondent erected a new advertisement hoarding on the gable wall on19 ^th December 1995, which has remained there ever since.

8 The Appellant's claim is that the erection of the new hoarding on19 ^th December 1995 constitutes a development within the meaning of s. 3 of the Local Government (Planning and Development) Act 1963, where "development", save where the context otherwise requires, is defined as:-

"The carrying out of any works on, in, or under land or the making of any material change in the use of any structures or otherland."

9 "Works" is defined in s.2 of the Actas:-

"Includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal."

10 The relevant portion of the definition of "unauthorisedstructure" in s.2 is:-

"... a structure other than (i) a structure in existence on the commencement of the appointed day ..."

11 The trial Judge has found as a fact that on the appointed day, namely1 ^st October 1964, there was in existence the gable wall with a hoarding affixed to it. He also found that hoardings had been renewed or replaced from time to time, with the time periods between...