Dublin Corporation v McGowan

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR JUSTICE RONAN KEANE
• Judgment Date: 01 January 1993
• Neutral Citation: 1993 WJSC-HC 303
• Date: 01 January 1993
• Docket Number: [1992 No. 25 M.C.A.]

DUBLIN CORPORATION v. MCGOWAN

BETWEEN

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSESOF DUBLIN

Applicants

AND

THOMAS McGOWAN AND MARY McGOWAN

Respondents

1993 WJSC-HC 303

No.25 MCA/1992

THE HIGH COURT

Synopsis:

PLANNING

Permission

Condition - Compliance - Enforcement - Statute - Interpretation - Permission granted for development of mews building on condition that main dwelling restricted to three residential units - Assignment by developer to respondent of main dwelling divided into seven flatlets - Enforcement of condition sought by planning authority - Onus of proof - Local Government (Planning and Development) Act, 1976, s. 27 - Local Government (Planning and Development) Act, 1992 - (1992/25 MCA - Keane J.- 5/11/92) 1993 1 IR 405

|Corporation of Dublin v. McGowan|

Citations:

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

LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) ACT 1992

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

LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) ACT 1976 S27(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

DUBLIN CO COUNCIL V BROWNE UNREP GANNON 6.10.87 1987/6/1588

DUBLIN CO COUNCIL V KIRBY 1985 ILRM 325

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE HONOURABLE MR JUSTICE RONAN KEANEON 5TH NOVEMBER 1992

2 This is an application for an order under section 27 of the Local Government (Planning and Development) Act 1976as substituted by the Local Government (Planning and Development) Act 1992.I am satisfied that it is not a case in which the order sought should begranted.

3 The premises consist of a house at 134 Leinster Road in Dublin and were the subject matter of a planning permission granted on 6th November 1979. The planning permission in question was for the erection of a mews house at the rear of the premises. One of the conditions of the planning permission was that the existing house on on the site, that is, 134 Leinster Road, should be maintained in a maximum of three residential units as existing.

4 The premises were bought on 6th November 1988 by the present respondents. At the time they bought the premises the first respondent (Thomas McGowan) made enquiries as to whether there was any planning permission affecting the premises. He telephoned the applicants"planning department and was told that there was no planning permission affecting the premises. He then went to the planning office and was shown a card, a part of the index to the register, which indicated to him that there was no planning permission affecting the premises.

5 I am satisfied that Mr McGowan was mistaken, albeit bona fide mistaken, in coming to that conclusion in the sense that there was in existence a planning permission affecting the premises. I amalso satisfied that he was mistaken in thinking that the index to the register did not indicate that there was any planning permission in existence affecting the premises because I accept entirely the evidence given in relation to the planning register by the Corporation official about the manner in which the index is maintained. I am satisfied that what happened was that Mr McGowan was shown the card by a clerk at the desk and mistakenly assumed that there was nothing on it to indicate the existence of a planning permission. The evidence is that the register is not compiled in such a way that there is a card in existence relating to every single premises in Dublin. Similarly, there would not be in existence a card relating to every house in Leinster Road. I have no doubt that Mr McGowan was shown the card relating to 134 Leinster Road and that, because he was not acquainted with the way in which the register is maintained, he mistakenly came to the conclusion that there was no planning permission recorded, whereas there was, in fact, a planning permission in existence in relation to the premises. The register disclosed the relevant planning permission containing the condition in question.

6 There was exhibited in the affidavits the search by law searchers which also indicated that there was no planning permission affecting the premises. That search also produced an inaccurate result because there was a planning permission in existence and there was a condition in it affecting the premises at 136 Leinster Road. As the person who conducted that search has not been called to give evidence, there is no evidence as to how the mistaken conclusion was arrived at. The evidence shows that the register wasproperly maintained and that a search should have brought to light the existence of the planning permission containing this condition.

7 Having said all that, however, it is perfectly clear (and conceded by Mr Macken on behalf of the applicants) that Mr McGowan was behaving in a bona fide fashion. To keep himself on the right side of the law Mr McGowan made inquiries, but it would have been better if somebody with more experience of the planning register had conducted the initial inquiries on his behalf. However, it is certainly the case that Mr McGowan did not go ahead with what he intended doing with the premises without first attempting to check the planning position. In the circumstances I am satisfied that he acted in good faith in thematter.

8 When Mr McGowan bought the premises they were already divided into seven residential units. These units appear to have been bedsitters or flatlets, or, more grandiosely, studio flats. The architect and the builder who inspected the...