Dublin Corporation v O'Dwyer Brothers
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kelly |
| Judgment Date | 02 May 1997 |
| Neutral Citation | [1997] IEHC 77 |
| Docket Number | No. 81 MCA/1996 |
| Court | High Court |
| Date | 02 May 1997 |
[1997] IEHC 77
THE HIGH COURT
BETWEEN
AND
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)
DUBLIN CO COUNCIL V MANTRA INVESTMENT LTD 1980 ILTR 201
DUBLIN CORPORATION V MAIDEN POSTER SITES 1983 ILRM 48
Synopsis:
Planning Law
Application to restrain respondent from carrying out unauthorised developments and making unauthorised use of licensed premises; whether planning permission for signs; whether change of use from restaurant to night-club; whether trial judge should accede to application for retention permission; approach of respondent to proceedings. Held: Injunction granted. (High Court; Kelly J. 05/12/97)
Dublin Corporation v O'Dwyer Bros Ltd.
JUDGMENT of Mr. Justice Kellydelivered the 2nd day of May, 1997.
This is an application for a series of orders pursuant to the provisions of Section 27 of the Local Government (Planning and Development) Act, 1976, as amended, to restrain the Respondent from carrying out or continuing to carry out allegedly unauthorised developments at a licensed premises located at 7/8 Lower Mount Street in the City of Dublin. The Applicant also seeks an order restraining the Respondent from making or continuing to make any unauthorised use of those premises.
The matters in respect of which complaint is made are set forth at paragraph 6 of the affidavit of Daniel J. Nolan sworn on the 7th November, 1996. They are as follows:-
(i) It is alleged that the Respondent removed part of the original frontage of the premises and replaced it with a large plastic gargoyle with lettering "Howl at the Moon" and two pairs of doors leading to a nightclub in the basement of the premises. It is alleged that that basement area was formerly used as a pizza restaurant on foot of planning permission granted by An Bord Pleanala on the 17th January, 1990. The Applicant has no record of planning permission having been granted for the change of use from a restaurant to anightclub.
(ii) It is alleged that the Respondent erected an illuminated sign approximately 3 metres high by 2 meters wide which was fixed at the first floor level bearing the lettering "Foster's Australia's FamousBeer".
(iii) It is alleged the Respondent erected a projecting illuminating sign approximately 3 metres long by 0.40 metres wide between the first and second floor bearing the lettering "Howl at theMoon".
(iv) It is alleged that at the ground floor level on the Stephen's Place side of the premises a sign approximately 1.8 metres high by 1.2 metres wide was erected with lettering reading "Howl at the Moon Late Night Piano and Music Bar Restaurant".
(v) It alleged that two blue coloured lanterns approximately 1 metre high by 0.40 metres wide were placed on the Stephen's Place frontage between ground and first floor level.
(vi) A projecting timber sign has allegedly been fixed at ground floor level on the Stephen's Place frontage. That sign is approximately 1.2 metres high by 1 metre wide and is dual sided with lettering reading "Danse Macabre".
(vii) It is said that the Respondent, in the original plans which were approved of, had an entitlement to an area of land at ground floor level measuring approximately 9.4 metres by 4.4 metres which was to be used as an open yard. That area has been roofed over and is being used for customer space. (At the hearing of this application the complaint in relation to this aspect of the matter was not pursued).
(viii) It is alleged that neon strip lighting has been fixed to both the front walls on Lower Mount Street and Stephen's Place.
In May of 1995 the Applicant received a complaint from a member of the public concerning the illuminated neon tubes erected to the Stephen's Place frontage of the premises and concerning the giant contoured wolf or gargoyle fixed to the facia of the premises.
In October 1995 the Applicant received a further complaint from a member of the public regarding changes to the front and side part of the premises and in particular the facade for the nightclub known as "Howl at the Moon".
On foot of these complaints, inspections were carried out by Mr. Nolan on the 8th November, 1995, the 20th November, 1995 and the 14th February, 1996. Those inspections revealed the matters which are set forth at paragraph 6 of his affidavit and which I have reproduced in substance earlier in this judgment.
As a result of the inspections carried out, a letter was sent to the Manager of the premises in question warning that all unauthorised developments must cease and that all unauthorised signs must be removed from the premises. A similar letter was sent to the Secretary of Toji Holdings, which was the entity which had applied for planning permission in respect of the premises some years beforehand. Neither letter appears to have been answered.
A further letter dated the 31st May, 1996 was written to the Respondent Company at its registered office warning that all unauthorised developments must cease and that all unauthorised signs must be removed. That letter does not appear to have been responded to, hence theseproceedings.
These proceedings were commenced by Notice of Motion dated the 8th November, 1996 and were first listed before the Court on the 9th December, 1996. After various adjournments and exchanges of affidavits, they ultimately came for hearing before me on the 29th April, 1997.
Having regard to the material deposed to in the replying affidavits, it is clear that the focus of this inquiry has now narrowed down considerably. At paragraph 4 of the replying affidavit of James Scully, sworn on the 28th April, 1997, it is conceded that all but two of the matters complained of in paragraph 6 of Mr. Nolan's affidavit constituteunauthorised development. The two matters in respect of which this concession is not made are the Foster's sign dealt with a paragraph 6(ii) and the yard which has been roofed over dealt with at paragraph 6(vii) of Mr. Nolan's affidavit. However, the Applicant no longer makes complaint in respect of this latter matter so I need not concern myself with it any further.
There is one other matter, apart from the Foster's sign, that I have to deal with and that is the question of the unauthorised change of use from the restaurant to the nightclub. In that regard two things are said by way of defence. First, it is contended that there is inadequate evidence of such change of use to permit of the grant of an injunction and, secondly, there is a denial of an unauthorised change of use of the premises. It is said that they are used as a public house with restaurant facilities. (See paragraph 4 of the affidavit of Liam O'Dwyer, sworn on the 28th April, 1997 and paragraph 7 of the affidavit of James Scully, sworn on the same day).
Insofar as the admitted unauthorised developments are concerned, I am asked to place a stay upon whatever order I may make in favour of the Applicant in respect of them so as to enable the Respondent to make an application for retention permission in respect of them to the planning authority and, if necessary, to appeal to An Bord Pleanala.
I will consider each of these matters in turn.
Two points are raised by way of defence.
The Respondent contends that this sign was a replacement for a similar sign which was erected on the premises in the 1950's. It argues that the erection of the sign as a replacement of the earlier one is exempted development insofar as it falls within the provisions of Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963. It is accepted that no planning permission was obtained for the sign but it is argued that enforcement proceedings cannot be taken in relation to it having regard to the operation of the enforcement time limits within the planning legislation. I will deal with this pointfirst.
This argument appears to me to have no basis in law having regard to the decision of Finlay P. in Dublin Co. Council v. Mantra Investments Ltd ...
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