Dublin City Council v Eircom Plc

• Jurisdiction: Ireland
• Judgment Date: 17 October 2002
• Date: 17 October 2002
• Docket Number: [1999 No. 41
• Court: High Court

High Court

[1999 No. 41 MCA]

Dublin City Council v. Eircom p.l.c.

Dublin City Council

Applicant

and

Eircom p.l.c., Eircell Ltd. and An Post

Respondents

Cases mentioned in this report:-

Dublin Corporation v. McGrath [1978] I.L.R.M. 208.

Morris v. Garvey [1983] I.R. 319; [1982] I.L.R.M. 177.

Planning and development - Unauthorised development - Permission - Enforcement of conditions - Whether structure in breach of conditions - Whether antennae exempted development - Whether discretion ought to be exercised in not ordering removal of structure - Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86), regs. 9 and 10 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 27 - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19(4)(g).

Motion on notice.

The facts have been summarised in the headnote and are more fully set out in the judgment of Carroll J., infra.

By motion on notice dated the 10th May, 1999, the applicant applied for an order pursuant to s. 27 of the Local Government (Planning and Development) Act, 1976, as amended by s. 19(4)(g) of the Local Government (Planning and Development) Act, 1992, for the removal of an antennae structure and antennae on property situate at Whitehall in the City of Dublin.

Pursuant to motion on notice dated the 8th May, 2000, the High Court (Smyth J.) amended the title of the action so that the name of the first respondent read Eircom plc. instead of Bürd Telecom Éireann plc. and the proceedings against the third respondent were struck out.

The case was heard by the High Court (Carroll J.), on the 28th February, 2002 and the 1st March, 2002.

The applicant brought proceedings pursuant to s. 27 of the Local Government (Planning and Development) Act, 1976, as amended by s. 19(4)(g) of the Local Government (Planning and Development) Act, 1992, for the removal of an antennae structure and antennae from property, in which the first respondent was the rated occupier and the second respondent was a licencee of the antennae support structure and antennae on the site. The applicant claimed that the structure was unauthorised by virtue of reg. 10 of the Local Government (Planning and Development) Regulations, 1994, because it was erected in breach of a condition of the planning permission. The adjoining landowners had objected at the time the structure was erected and complained about visual impact, nuisance, breach of privacy and an uncontested claim that their property had become devalued as a result of the existence of the structure.

Held by the High Court (Carroll J.), in ordering the removal of the antennae and antennae support structure, 1, that the right to the enforcement of the law by an adjoining landowner, whose property was devalued by the existence of the unauthorised development, outweighed any "public interest" which was asserted by the respondents.

2. That the support antennae structure would have come within the exemption under reg. 9 of the Local Government (Planning and Development) Regulations, 1994, were it not for the fact that it was erected in breach of a condition contained in the planning permission and it was therefore an unauthorised structure.

3. That the mistaken opinion of a corporation official could not constitute an estoppel as a public authority could not be estopped from asserting that it had acted ultra vires either by itself or through its agent.

Dublin Corporation v. McGrath [1978] I.L.R.M. 208 followed.

4. That the court's discretion would not be exercised where the public interest asserted by the respondents, viz. the maintenance of the telecommunications network, translated as their own commercial interest as it coincided with their profit making capacity.

Cur. adv. vult.

Carroll J. 17th October, 2002

The applicant has brought...