Dublin Corporation v Moore

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,HEDERMAN J.,McCARTHY J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-SC 2490
• Court: Supreme Court
• Date: 01 January 1984

1983 WJSC-SC 2490

THE SUPREME COURT

Griffin J.

Hederman J.

McCarthy J.

138/1982

DUBLIN CORPORATION v. MOORE

DUBLIN CORPORATION

v.

LAURENCE MOORE AND CARMELMOORE

1 JUDGMENT delivered on the 29th day of July 1983by GRIFFIN J.

2 The net point in this appeal is whether the parking of two large modern style ice cream vans (of what used be known as the "Mr. Whippy" variety) constitutes a material change in the use of the premises No. 144 New Cabra Road in the City of Dublin owned by the above-named Laurence Moore and Carmel Moore ("the appellants"). The appellants have been in the business of selling ice cream from vans for about twelve years and purchased the premises at Cabra Road in the summer of 1980. Shortly after they purchased the premises an inspector from Dublin Corporation saw two mobile ice cream vans parked in the front entrance driveway of the premises. The refrigerators in the vans were connected to the mains supply of the house by an extension lead. In September 1980 the Corporation wrote to Laurence Moore advising him that the parking of any commercial vehiclewithinthe curtilage of the dwelling-house constituted unauthorised development inconsistent with the uses permissible in a residential area. This area is an area zoned for residential use in the Dublin Development Plan, 1980. Mr. Moore then applied for planning permission for the erection of a garage and a new entrance at the premises, presumably for the purpose of garaging the ice cream vans and for the purpose of gaining easier access to the premises through the new entrance. Planning permission was refused by Dublin Corporation and he appealed to An Bord Pleanala. On the 19th of June 1981 An Bord Pleanala refused permission for the development, inter alia because "the site is located in an area zoned for residential use in the Dublin Development Plan 1980 and this zoning is considered reasonable. The proposed development is inconsistent with the residential character of the vicinity and together with the infringement of the established building line would be contrary to the proper planning and development of the area."

3 The appellants continued to park the ice cream vans in the driveway of the premises, and by notice of motion dated the 9th December 1981 the Corporation sought an order of the Court prohibiting the continuance of the unauthorised use of the premises by the appellants.The matter was heard by Mr. Justice McMahon on the 20th April 1982, not only on the affidavits filed in the proceedings but also on the oral evidence adduced by both parties. The appellants" case was that their predecessor in title was in the dairy business, and that Ford vans and cattle trailers were regularly parked in the driveway from 1957 onwards. This was contested by the witnesses called on behalf of the Corporation, and Mr. Justice McMahon accepted the evidence for the Corporation that the driveway was not used to park any commercial vehicles before the appellants occupied the house, and their submission that the use of the driveway for keeping vans was a development within the meaning of s. 3 of the Local Government (Planning and Development) Act, 1963. He held that keeping vans in the driveway was not an exempted development within the meaning of s. 4(l)(h) of the 1963 Act, and that the use being made of the premises was incidental to the carrying on of the appellants" business of selling ice cream. He accordingly ordered, pursuant to s. 27 of the Local Government (Planning and Development) Act, 1976, that the appellants and each of them be prohibited from causing, permitting or authorising the parking of commercial vehicles within the curtilage of the said premises.

4 Pursuant to s. 24 of the 1963 Act, planning permission is requiredin respect of any development of land which is not exempted development, and the carrying out of any development in respect of which permission is required is prohibited unless such a permission has been granted under the Act. "Development" is defined in s. 3(l) of the 1963 Act (in so far as it is relevant to this case) as meaning, save where the context otherwise requires, the making of any material change in the use of land. S. 4 provides for development which shall be exempted development for the purpose of the Act, and in subs. (l)(h) includes development consisting of the use of land "within the curtilage of a dwelling-house for any purpose incidental to the enjoyment of the dwelling-house as such" (emphasis added). Using the premises for parking of these ice cream vans, plugged in to the electrical current in the house, was clearly a change in the use of the premises, the real question then being whether such change was "material". Mr. Justice McMahon held that it was, and in my opinion he was correct in so holding.

5 The purpose of s. 4(l)(h) was to enable the curtilage of a dwelling-house (which would include the driveway) to be used for any purpose incidental to the enjoyment of the dwelling-house as such. This would include the parking of a private car, but the parking of two ice cream vans of the type owned by theappellants would not be a use of the premises for a purpose incidental to the enjoyment of the dwelling-house, but would, as Mr. Justice McMahon found, be use incidental to the carrying on of the ice cream business. In my opinion, parking these vans in a driveway, in a residential area, so designated in the Dublin Development Plan by Dublin Corporation and held to be reasonably zoned as such by An Bord Pleanala, clearly constituted an interference with the residential amenity of the area and was a material change in the use of the premises. It seems to me that a fair yard stick by which to measure the question of materiality in the change of use in a case like this is whether, in a residential area, the average resident would like to see the house next door occupied by a neighbour who is going to park two such large vans in his driveway; or whether a prospective purchaser of the house next door to the appellants" house when viewing it whilst theappellants" vans were absent would have the same interest in buying the house if, on a return visit, these two large vans were parked in the driveway. I think the answer is self-evident. If, in a residential area, vans of this type can be parked with impunity in the driveway of a dwelling-house, what is to prevent the parking of a large articulated container truck in like manner?

6 In my opinion, Mr. Justice McMahon was quite correct in making an order under s. 27 of the 1976 Act, and I would dismiss this appeal.

7 JUDGMENT delivered the 29th day of July 1983by HEDERMAN J.

8 This is an appeal from an order of the High Court made pursuant to s. 27 of the Local Government Act, 1976, on the 20th April 1982 prohibiting the appellants and each of them from causing, permitting or authorising the parking of commercial vehicles withinthe curtilage of the premises 144 New Cabra Road.

9 The appellant and his wife purchased and occupied 144 New Cabra Road in 1980. It is a semi-detached house and is the nearest house to the intersection at Cabra Road and Annamoe Road. The appellant and his wife are ice cream vendors and for this purpose they have two ice cream vans from which they sell ice cream in that area of the city. The vans are parked during the night time inside the gate and on the curtilage of their premises 144 New Cabra Road.

10 New Cabra Road is a long road which comprises shops, banks, garages, bus stops etc. and while it is a residential area it is a main artery for traffic to and from the centre of the city.

11 As a result of complaints from five residents in the area an inspector for the Planning Authority, Mr. Michael Heffernan, on the 14th August 1980 saw the two vans in the driveway. Subsequently s. 26...