Dublin Corporation v O'Callaghan

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 13 February 2001
• Neutral Citation: [2001] IEHC 22
• Docket Number: No. 2386 SS/1999
• Court: High Court
• Date: 13 February 2001

[2001] IEHC 22

THE HIGH COURT

Herbert

No. 2386 SS/1999

DUBLIN CORPORATION v. O'CALLAGHAN

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTALPROVISIONS) ACT, 1961

AND IN THE MATTER OF PROCEEDINGS IN THE DISTRICT COURT

BETWEEN:-

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMAN ANDBURGESSES OF DUBLIN

COMPLAINANT

AND

KEVIN O'CALLAGHAN

DEFENDANT

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S31(1)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2(2)

MUNICIPAL CORPORATIONS (IRL) ACT 1840 S12

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S17(1)

LOCAL GOVT ACT 1994 S52

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S31

LOCAL GOVT (DUBLIN) ACT 1930 S60(1)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S20(1)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S17(2)(c)

LOCAL GOVT ACT 1994 S52(B)

LOCAL GOVT ACT 1991 S8(2)

ASHBURY RAILWAY CARRIAGE & IRON CO V RICHE 1875 LR 7 HL 653

LOCAL GOVT (DUBLIN) ACT 1930 S30(9)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S31(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S7

O'CONNOR V KERRY CO COUNCIL 1988 ILRM 660

MUNICIPAL CORPORATIONS (IRL) ACT 1840 S1

MUNICIPAL CORPORATIONS (IRL) ACT 1840 S12

LOCAL GOVT (IRL) ACT 1898 S21(1)

LOCAL GOVT (IRL) ACT 1898 S21(2)

LOCAL GOVT (DUBLIN) ACT 1930 S33(3)

LOCAL GOVT (DUBLIN) ACT 1930 S30(9)

GRANT A PRACTICAL TREATISE ON THE LAW OF CORPORATIONS (1850) 358

MUNICIPAL CORPORATIONS ACT 1835 S69

MUNICIPAL CORPORATIONS (IRL) ACT 1840 S92

STREET LAW RELATING TO LOCAL GOVERNMENT (1955) 398

CORK CITY MANAGEMENT ACT 1929 S15(1)

CORK CITY MANAGEMENT ACT 1929

LIMERICK CITY MANAGEMENT ACT 1934

WATERFORD CITY MANAGEMENT ACT 1940

COUNTY MANAGEMENT ACT 1940

LOCAL GOVT (DUBLIN) AMDT ACT 1940

CORK CITY MANAGEMENT (AMDT) ACT 1941

COUNTY MANAGEMENT (AMDT) ACT 1942

LIMERICK CITY MANAGEMENT ACT 1950

COUNTY MANAGEMENT ACT 1940 S19(1)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S19

INTERPRETATION ACT 1937

R, TAYLOR V DARLINGTON LOCAL BOARD OF HEALTH 1865 6 B & S 562

CONSTITUTION SOARSTAT EIREANN 1922 ART 73

CONSTITUTION ART 50

INTERPRETATION ACT 1923

INTERPRETATION ACT 1889

JOWITT DICTIONARY OF ENGLISH LAW (1959) V2 1540

OXFORD ENGLISH DICTIONARY V8 722 S11(b)

OSBORN CONCISE LAW DICTIONARY 8ED 1993 P290

MURDOCH DICTIONARY OF IRISH LAW 3ED P687

KYD TREATISE ON THE LAW OF CORPORATIONS 1792 V1 13

GRANT PRACTICAL TREATISE ON THE LAW OF CORPORATIONS (1850) 154

R V KENDAL 1841 1 QB 366

MAYOR CONSTABLES & CO OF MERCHANTS OF THE STAPLE OF ENGLAND V GOV & CO OF THE BANK OF ENGLAND 1887 21 QBD 160

HASCARD V SOMANY FRCEM 504

REX V MONDAY COWP 530

SMYTH V DARLEY 2 HLC 789

STATUTE OF HENRY VIII, ACTE FOR LEASES OF HOSPITALES COLLEDGES 1541

LOCAL GOVT ACT 1994 S4(1) SCHED 1 PART I

LOCAL GOVT ACT 1994 S30

LOCAL GOVT ACT 1994 (COMMENCEMENT) OREDER 1999 SI 128/1999

LOCAL AUTHORITY (INTERIM) REGS 1999 SI 129/1999

LOCAL GOVT (REPEAL OF ENACTMENTS) ACT 1950 S57

MUNICIPAL CORPORATIONS (IRL) ACT 1840 S140

AUDIT (LOCAL AUTHORITIES) ACT 1927, IN RE : DECISION OF H W MAGRATH, IN RE 1934 2 KB 415

RELIHAN V KERRY COUNTY COUNCIL UNREP O'DALAIGH 14.5.1970

WALSH PLANNING & DEVELOPMENT LAW (1979) 114

WALSH PLANNING & DEVELOPMENT LAW 2ED (1984) 147 &148

RIVER TONE CONSERVATORS V ASHE 1829 10 B & C 349

AG V GREAT WESTERN RAILWAY 1880 5 AC 473

DUBLIN CORPORATION V MOORE 1984 ILRM 339

MAHON V BUTLER 1998 1 ILRM 284, 1997 3 IR 369

KILDARE CO COUNCIL V GOODE UNREP MORRIS 13.6.97 1998/8/2312

KEANE LAW OF LOCAL GOVT IN IRELAND (1982) 37

HALSBURYS LAWS OF ENGLAND 4ED VOL 9 718 & 719 PARA 1204

Synopsis:

Planning

Planning; enforcement notices; defendant alleged to have constructed, without necessary grant of planning permission, balustrade surrounding flat roof of single storey rear return together with steel staircase giving access to same; enforcement notice served on defendant by complainant; whether decision to serve enforcement notice must be in form of order of City Manager and Town Clerk or his/her duly delegated officer or may be taken informally by such person; whether Oireachtas intended that the making of a decision by a planning authority to serve an enforcement notice must have been attended by some formality; whether notice itself can constitute record on foot of which Courts may review decision to serve enforcement notice; s. 31(1)(a), Local Government (Planning and Development) Act, 1963; s. 60(1), Local Government (Dublin) Act, 1930; s. 17(2)(c), City and County Management (Amendment) Act, 1955.

Held: The District Judge was not correct in law in holding that the enforcement notice was valid and lawful notwithstanding fact that no Manager's order was made sanctioning the decision to serve the said notice.

Dublin Corporation v. O'Callaghan - High Court: Herbert J. - 13/02/2001

The proceedings were a consultative case stated by a judge Of The District Court. The case centred around whether or not the decision to serve an enforcement notice must be in the form of a formal order. Herbert J held that the enforcement notice was not valid and the case stated must be answered in the negative.

1 Mr. Justice Herbertdelivered the 13th day of February, 2001

2 This is a Consultative Case Stated by Michael O'Leary, a Judge of the District Court, pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961, seeking the opinion of the High Court on a question of Law which has arisen in the above entitled proceedings.

3 Section 31 (1)(a) of the Local Government (Planning and Development) Act, 1963provides that:-

"Where any development of land, being neither exempted development nor development commenced before the appointed day, has been carried out after the appointed day without the grant of permission required in that behalf under this Part of this Act, .......... the Planning Authority may if they decide that it is expedient to do so, and shall, if they are directed by the Minister so todo serve on the owner, and on the occupier of the land a Notice under this Section."

4 In this case the relevant Planning Authority, having regard to the provisions of Section 2(2) of the Local Government (Planning and Development) Act, 1963, is the Corporation of the City of Dublin, bearing by virtue of Section 12 of the Municipal Corporations (Ireland) Act, 1840, the name of the Complainant in these proceedings. The Defendant is alleged to have constructed, without the necessary grant of planning permission, a balustrade surrounding the flat roof of a single storey rear return at the dwelling house, 108. The Stiles Road, Clontarf, Dublin, 3, together with a steel staircase giving access to the Flat roof from the garden of the said premises.

5 A Notice pursuant to Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, entitled "Enforcement Notice, (unauthorised development)," and dated 26th June, 1998 was served on the Defendant.

6 This Notice was signed by Mr. Christopher Geoghegan, to whom by an Order of the Dublin City Manager and Town Clerk, dated 22nd June, 1998, the powers, functions and duties of the Dublin City Manager and Town Clerk in relation to the provisions of the Local Government (Planning and Development) Act, 1963, in the County Borough of Dublin as regards the control of development were delegated, (subject to certain specified exceptions which it is admitted on all sides have no relevance to these proceedings).

7 It was in my judgment correctly conceded by both parties at the hearing before me that the taking of a decision to serve, and the service of such as Enforcement Notice was an Executive Function of the Complainant to be exercised and performed by the Dublin City Manager and Town Clerk who had in turn lawfully delegated the exercise of this function to Mr. Geoghegan by the Order to which I have referred made pursuant to the provisions ofSection 17(1) of the City and County Management (Amendment) Act, 1955as amended by Section 52 of the Local Government, Act, 1994.

8 The Enforcement Notice, inter alia, states as follows:-

"........... the Planning Authority for the area comprising the County of the Borough of Dublin considering the proper planning and development of the said area (including the preservations and improvement of the amenities thereof) regard being had to the provisions which have been included in the Development Plan, in exercise of the power conferred on it by Section 31 of the Local Government (Planning and Development) Act, 1963and every other power in that behalf it enabling, has decided that it is expedient to serve this Enforcement Notice on the hereinafter described owner(s) and occupier(s) of the premises at 108 The Stiles Road, Clontarf, Dublin 3."

9 The net issue for determination by this Court is whether the decision to serve an Enforcement Notice must be in the form of an Order of the City Manager and Town Clerk or his duly Delegated Officer, or may be taken informally by such Manager and Town Clerk or Delegated Officer.

10 Section 60(1) of the Local Government (Dublin) Act, 1930as amended by Section 20(1) of the City and County Management (Amendment) Act, 1955, provides that:-

"Every act or thing done or decision taken by the Manager which, if done or taken by the council of a county or other borough or urban district, would be required by law to be done or taken by resolution of such council shall be done or taken by the Manager by Order in writing signed by him and containing a statement of the date on which it was so signed."

11 Section 17(2)(c) of the City and Country Management (Amendment) Act, 1955as amended and substituted by Section 52 (B) on the Local Government Act, 1994, provides that:-

"A provision made by or under this or any other Act which vests functions in the Manager or regulates the manner in which any function is to be performed shall, if and in so far as it is applicable to the designated function, have effect, for the purpose...