Dublin Corporation v Bentham

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 1939
• Court: High Court
• Docket Number: No. 88 MCA/1991,[1991 No. 88 M.C.A.]
• Date: 01 January 1993

1992 WJSC-HC 1939

THE HIGH COURT

No. 88 MCA/1991

DUBLIN CORPORATION v. BENTHAM

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING

AND DEVELOPMENT) ACT 1976

AND IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACTS 1963– 1990

BETWEEN

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

APPLICANTS

AND

MICHAEL BENTHAM AND MARY BENTHAM

RESPONDENTS

Citations:

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

DUBLIN CO COUNCIL V KIRBY 1985 ILRM 325

MORRIS V GARVEY 1982 ILRM 177

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

CAIRNDUFF V O'CONNELL 1986 IR 73

LOCAL GOVT (PLANNING & DEVELOPEMENT) REGS 1977 SI 65/1977 REG 12

Synopsis:

PLANNING

Enforcement

Use - Change - Dwelling - Bed-sitters - Guest house - Victorian building - Timber sash windows replaced by aluminium windows - Maps as evidence of former use - Local Government (Planning and Development) Regulations, 1977 (S.I. No. 65), article 12; Part 4, class 10 - Local Government (Planning and Development) Act, 1963, V ss. 4, 24, 26 - Local Government (Planning and Development) Act, 1976, s. 27 - (1991/88 MCA - Morris J. - 23/7/92)- [1993] 2 I.R. 58

|Corporation of Dublin v. Bentham|

1 Judgment delivered by Mr. Justice Morris the 23rd day of July 1992.

2 This is an application brought pursuant to Section 27 (1) of the Local Government (Planning and Development) Act 1976. The Applicant relates to premises numbered 8, 9 and 10 Belgrave Square in the City of Dublin. These premises are owned and occupied by the Respondents and are being used by them as a guest-house. The Applicants seek two reliefs. The first of these reliefs relates to new windows which have been put in the premises. The second relief relates to the user of the premises by the Respondents.

3 It is necessary to deal with each of these reliefs separately.

The First Relief

4 In relation to this claim it is common case that when the Respondents purchased the premises in 1988 they were in a derelict state having been extensively vandalized and in the course of carrying out repairs and renovations the Respondents replaced the existing Georgian style windows with new aluminium windows. It is the Applicants views that this is not an exempted development and in those circumstances seeks the reliefs set out in Paragraphs (a) and (b) of the Notice of Motion and they seek an Order "restraining the Respondents from maintaining any alteration of the external appearance of the premises number 8, 9 and 10 Belgrave Square" and an Order "requiring the Respondents to replace the windows in the premises at 8, 9 and 10 Belgrave Square in the County of the City of Dublin being white aluminium with middle outward opening sash with double hung timber vertical sliding sash windows which formerly comprised the windows in the frontal facade of the said buildings".

5 While Paragraph (b) of the Notice of Motion expressly states that the Applicants seek an Order replacing the existing windows with other windows and in effect seeks a mandatory relief, I take the view that in Paragraph (a) notwithstanding, the wording in Notice of Motion essentially the same relief is sought. To restrain the Respondents from maintaining the existing windows requires of necessity that they remove these windows and replace them with something different. I can accordingly see not difference between the two reliefs sought other than that in Paragraph (b) the precise form of replacement window is spelt out.

6 That being so it is necessary to consider the capacity of the Court to make the Order sought.

7 The application is based on Section 27 (1) of the 1976 Act and this provides that where development of land is being carried out without permission or an unauthorized use is being made of land the Court may "by Order prohibit the continuance of the development or unauthorized use". These words have been considered on previous occasions and have been held to apply to a situation where the development or use is actually continuing and the Court may prohibit this continuance or development. Once the development or use has been completed the subsection has no application.

8 The matter first was considered by Mr. Justice Gannon in Dublin County Council .v. Kevin Kirby 1985 I.L.R.M. 325. In the course of his Judgment, at page 329 he says:

"S. 27 (1) makes provision for circumstances in which the occupier of land makes such use of it as comes within the definition of "development" or "unauthorized use" but without having complied with the statutory requirements in relation to planning permission. It would be exceptional if in these circumstances either the Planning Authority or any member of the public could, save with great difficulty, assert or hope to prove any significant factor other than the absence of a planning permission. The intervention of the High Court invoked by the prescribed summary procedure in such circumstances is limited to prohibiting the continuance of whatever development or unauthorized use has been commenced. This does not preclude the planning authority from instituting proceedings in the normal way founded on pleading nor invoking such other statutory remedies as might be appropriate".

9 Counsel for the Applicant has urged that the Court should take a fresh look at the position and urges that the consequence of Mr. Justice Gannon's Judgment is that since subsection (2) of the section empowers the Court to order that a development be carried out in conformity with the permission granted to a developer in a case where that developer deviates from the permission, in a case that falls to be considered under subsection (1) there is no such power. Accordingly a developer with no planning permission is in a stronger position than one who does have planning permission but deviates from it. On that basis it is urged that the Court should construe subsection (1) so as to read into that subsection a power to require the developer or unauthorized user to reinstate the land into its original form.

10 I am not prepared to take this course for two reasons. In the first place I find myself in complete agreement with the Judgment of Mr. Justice Gannon and the reasoning in that Judgment. In the second place when consideration of Section 27 came before the Supreme Court in Morris .v. Garvey 1982 I.L.R.M. page 177 Henchy J. in the course of his Judgment said the following at page 178:

"Under Section 27 (1) which deals with cases where required development permission has not been got and development is being carried out without the required permission and cases where an unauthorized use is being made of land the Court, is empowered to prohibit the continuance of the development or the unauthorized use. So much of the section is merely prohibitory. It's aim is merely to restrain a continuance of the illegality ...".

11 In the light of the foregoing I am of the view that it is not open to the Court to grant either of the reliefs seeked in Paragraph (a) or (b) of the Notice of Motion and I accordingly refuse the application in this regard.

12 I have been informed by Counsel for the Corporation that this is in fact a test case and that there are a large number of cases awaiting the outcome of this case in which the Corporation wishes to move. Accordingly while it is unnecessary to do...