Dublin County Council v Kirby

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 01 January 1985
• Neutral Citation: 1983 WJSC-HC 2085
• Court: High Court
• Date: 01 January 1985

1983 WJSC-HC 2085

THE HIGH COURT

No. 1 M.C.A./1984

DUBLIN COUNTY COUNCIL v. KIRBY

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT

(PLANNING AND DEVELOPMENT) ACS 1976

AND IN THE MATTER OF AN APPLICATION BY THE COUNTY

COUNCIL OF THE COUNTY OF DUBLIN

BETWEEN:

THE COUNTY COUNCIL OF THE COUNTY OFDUBLIN

APPLICANTS

AND

KEVIN KIRBY

RESPONDENT

1 Judgment of Gannon J.delivered the 10th May, 1984.

2 This is an application brought by Dublin County Council by Motion on notice to the Respondent for Orders pursuant to Section 27 of the Local Government (Planning and Development) Act 1976. The Applicants are a Planning Authority and the Respondent is the owner and occupier of lands at Tallaght in the County of Dublin on which stand premises known as Allenton House and Killininny Tower, The orders as sought include Orders restraining the Respondent from demolishing Allenton House or any wall or structure within the curtilage thereof and from demolishing Killininny Tower or any other wall or structure in the grounds of Allenton House unless and until planning permission therefor pursuant to Part IV of the LocalGovernment (Planning and Development) Act 1963shall have been granted. In addition the Applicants ask the Court to make the following specific Orders:-

3 2 "4. Directing the Respondents to reinstate the said house to its pre-demolition condition by re-building the front v/all which was demolished by the Respondent, his servants or agents on or about the 31st day of December, 1983.

4 5. If necessary for an Order that the following works be carried out forthwith as an interim measure to close off the building and to protect it from further damage and/or deterioration:-

5 (a) Clean away demolished brickwork, salvaging as much aspossible.

6 (b) Brick up existing openings at ground and hall floors. Timber door frames, window and linings should be removed and stored ifnecessary.

7 (c) Provide a weather screen to the front of the building generally as follows:-

8 Hallway and right hand room

9 Erect a 200 hollow block partition from ground floor tounder side of first floor just behind the line of the original wall and continue up to roof level in stud partitioning. Bring forward the stair walls and tie to new partition. Weather the front of the partition down to the hall level and take the weathering out over the projecting floor Joist. The weathering should be in metal sheeting.

10 Room to the left of hall

11 Erect similar to above but on a line approximately to the line of the roof purlins over and weather as set out above. Make good to the exposed brickwork in the gables and render to make the samewaterproof."

12 Upon this application coining before the Court Mr. Mackey and Kr. Seligman representing the Respondent submitted to the Court that their appearance on behalf of the Respondent was related only to the application for Restraining Orders which are of a nature to those already made by Order of Murphy J. on the 4th January 1934. They submitted that Orders of the nature sought at paragraphs 4 and 5 of theApplicants" Notice of Motion are not within the competence of this Court to make pursuant to Section 27 of the Local Government(Planning and Development) Act 1976, and that their appearance on behalf of the Respondent is without prejudice to their contentions in relation to the true construction and interpretation of the provisions of Section 27 of that 1976 Act. The further hearing of the Applicants" Motion was accordingly adjourned to the 10th May, 1984 pending this hearing and the consideration of the arguments upon the construction and interpretation of Section 27 of the Act of 1976 and the ruling of the Courtthereon.

13 Mr. Mackey submitted on behalf of the Respondent that Section 27 prescribes particular forms of summary procedure for recourse to the High Court in order that speedy relief may be obtained in a summary manner in the limited circumstances set out in the Section. He emphasised that reliefs of the same nature are available to meet the like or similar circumstances under other statutory provisions such as the Housing Acts and the Sanitary Services Acts, and he argued that the authority conferred by Section 27 should not be, and need not be, invoked or applied save within the limitations as expressed in sub-sections 1 or 2 of Section 27. He drew attention to the distinction between the circumstances provided for in sub-section (l) of the section in relation to workconstituting development of land or unauthorised user being commenced without planning permission and the circumstances of failure to conform to planning permission after commencement of authorised development as provided for in sub-section (2) of Section 27. 3!he circumstances in relation to which the instant application relates as he submitted, fall only within sub-section (1) of Section 27, and sub-section (2) of that section, he submitted, is not applicable. For the Applicants Mr. Gallagher argued that although sub-section (1) is expressed in terms which might seem to support a Court order of a merely prohibitory or restraining nature it is competent for the Court to make its order in such form as might include mandatory directions in order to ensure that the objective of the legislation is achieved. In support of his argument Mr. Gallagher cited the Supreme Court decision in Dublin County Council -v- Tallaght Block Company Limited delivered on the 17th of May 1983 as being a...