Dublin County Council v Tallaght Block Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 766
• Court: High Court
• Docket Number: No. 36 M.C.A./1980
• Date: 01 January 1982

1982 WJSC-HC 766

THE HIGH COURT

No. 36 M.C.A./1980

DUBLIN CO. COUNCIL v. TALLAGHT BLOCK CO.

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

AND DEVELOPMENT) ACT, 1976 AND

IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE

COUNTY OF DUBLIN

BETWEEN:

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

Applicant

and

TALLAGHT BLOCK COMPANY LIMITED

Respondent

1 Judgment of Mr. Justice Costello delivered the 4th November, 1981.

2 This application relates to a site which is located in the Dodder Valley in an area which has been designated by the Planning Authority as one of high amenity. In the year 1973 the Respondents commenced a development of the site and have since carried on a concrete block making business on it. The Applicants have brought an application under Section 27 of the Local Government (Planning and Development) Act, 1976which provides that

"Where -"

3 (a) development of land being development for which a permission is required under Part IV of the principal Act, is being carried out without such a permission, or

4 (b) an unauthorised use is being made of land"

5 the High Court may prohibit the continuance of the development or unauthorised use.

6 As to (a), the Applicants say that the work carried out by the Respondents is "development" within the meaning of the 1976 Act. This is not denied by the Respondents but they say that the development which they carried out did not require permission under Part IV of the 1963 Act as it was exempted development under the relevant Ministerial Regulations.

7 As to (b), it is accepted that the phrase "unauthorised use" in Section 27 of the 1976 Act is to be read in conjunction with the definition of this phrase in Section 2 of 1963 Act where it is provided that "unauthorised use" means

"In relation to land, use commenced on or after the appointed day, the change in use being a material change and being development other than development the subject of a permission granted under Section 26 of this Act or exempted development."

8 The Respondents" case is that on the "appointed day" (i.e. 1st October 1964) portion of the site they now occupy was being used as a concrete block making plant and they say that what they have been doing on the site since 1973 does not constitute a material change in the use of the site within the meaning of the definition.

9 These, broadly, are the issues which I have to try. To consider them I will begin by outlining the evidence relating to the Respondents occupation of the site and its development. In doing so I will use as a reference a plan of the site exhibited as exhibit A in an affidavit sworn by Miss Claire Baxter on the Applicants" behalf and which the Respondents accept as accurate.

The 1973 Development

10 Prior to 1973 there were two concrete slabs on the site now occupied by the Respondents, that marked "A" on the plan measured approximately 1,160 square yards and that marked "B" measured approximately 1,300 square yards. In 1973 the Respondents were not entitled to occupy area "A" but a director of their company obtained a 21 year lease on the 24th August 1973 in respect of the areas marked "B" and "C" on the plan and on the same day a 21 year lease of the premises shown as area "D" on the plan and also a similar lease of a small portion of land near area "B" and area "C". Prior to the execution of these leases the Respondents had been allowed into occupation of these lands and they had commenced to develop them. In the month of July of that year the Respondents laid a concrete slab measuring approximately 8,500 square yards which is marked "C" on the plan and an area of approximately 230 feet by 110 feet was laid in concrete in the area marked "D" on the plan. In addition protective fencing consisting of 9 foot concrete posts was erected around both areas. They installed a large concrete mixing plant on the site and in October a cement silo was erected in area "B". Areas B and C were used for making concrete blocks, area D for storing them. This development did not go unnoticed and on the 26th October the Applicants wrote to the Respondents pointing out that no planning permission had been granted for the development and requiring the removal of all plant, equipment and machinery from the site. The Respondents replied on the 30th October stating that the letter came as a complete shock "since a block yard had existed on this site for many years". Their consultant engineer wrote on the 14th November and pointed out that a concrete block making plant was established on the site early in 1964 and in addition made the case that the Respondents plant was "exempted development".

11 These arguments were not accepted by the Applicants and on the 7th June 1974 they served an Enforcement Notice on the Respondents and the ground landlord. The Notice was not complied with but proceedings were not issued by the Council within the period of six months required by the 1963 Act. No explanation has been forthcoming for the failure to institute proceedings within the statutory time limit but I am satisfied that the Respondents were not led to believe that their contentions had been accepted by the Applicants.

The 1977 Development

12 By a lease of the 27th March 1974 the area marked "E" on the plan was demised to the same director of the Respondent company for a period of 21 years. The previous leases had contained a clause by which the lease had covenanted to use the lands for the "manufacture and storage of concrete blocks and other pre-cast concrete products." The 1974 lease contained a similar covenant. In April of 1977 an Inspector from the Applicants" Planning Department visited the lands and was informed by an employee of the Respondents that a concrete slab had recently been laid on area "E" to increase the size of the storage area marked "D" on the plan. The area of concrete laid was approximately 2,810 square yards. In addition a concrete post and wire fence measuring approximately 6 feet 6 inches high had been erected around the area "E". The Applicants" Inspector was informed that the area "E" had previously been a wash-out area for machines used by Readymix Company Limited, a company which occupied lands adjacent to those occupied by the Respondents, and the Inspector was informed that the washed out concrete was dumped at that spot and it had formed a spoil heap. At the time of the inspection storage of concrete blocks was then taking place on the concrete slab on area "E". Again the Applicants wrote to the Respondents and claimed that an unauthorised development had occurred. On the 4th May 1977 they pointed out that the laying of the concrete slab in area "E" and the erection of the concrete post and wire fence was unauthorised development. The Respondents now had a new professional adviser, an architect. On the 18th July he wrote asking for a meeting. This was held on the 3rd August. At it the Respondents" architect accepted that the development at area "E" was an unauthorised development and undertook to commence immediately remedial works to restore the Dodder river bank and to apply for permission to retain the unauthorised development. These undertakings were confirmed by a letter and were followed by an application to the Applicants for "permission to retain unauthorised block stacking area at Firhouse Road, Tallaght". On the 21st October 1977 the Applicants decided to refuse permission. The Respondents appealed this decision and on the 14th June 1978 An Bord Pleanala refused permission because

"The site is located in the Dodder Valley in an area designated as one of high amenity in the development plan which it is the policy of the Planning Authority, as expressed in the plan, to preserve. This policy is considered reasonable and the retention of this industrial development would be in conflict with it and seriously injurious to the amenities of the area."

13 Notwithstanding the fact that the Respondents through their architect had accepted that this development was unauthorised and had applied unsuccessfully for permission to retain it the Respondents failed to remove the block stacking area and the posts as required by the Applicants and they now contend, for reasons which I will consider later, that no unauthorised development occurred and that they are entitled to retain these structures.

1978 to 1980 Development

14 The Respondents business flourished and they proceeded to acquire more land in 1976. This land is marked "A" and "F" on the plan and was demised to the same director on the 13th September 1976 for a term of 21 years. The rental was £4,000 per annum for the first three years and the lease contained a rent review clause. Under the lease the lease covenanted to use the land for the purpose of manufacturing concrete blocks only, and that in the event of the County Council serving on the lesser a Notice refusing permission for the user of the property for the purpose of the lessee's business or refusing permission to erect any temporary building on the lands the lessee would comply with the Notice and take down and remove temporary buildings and his plant and machinery if so required by the Local Authority. But it also contained a surrender clause on terms very favourable to the Respondents. If the Respondents were required to comply with a Notice from the local authority to take down the buildings they had erected, they were entitled to terminate the agreement and surrender the lease in the manner therein provided for.

15 On the 14th April 1978 an Inspector from the Applicants again visited the site. She then discovered that a new concrete slab was being laid in area "F" on the plan. It was then 3,720 square yards in area and there was then a cement silo lying on the slab and a retaining concrete wall measuring 34 feet long, 11 feet high, by 1½ feet thick had been constructed adjoining the access...