Dublin County Council v Carty Builders & Company Ltd

JurisdictionIreland
JudgeMr.Justice Murphy
Judgment Date06 February 1987
Neutral Citation1987 WJSC-HC 522
Docket NumberNo.50 M.C.A./1986,[1986 No. 50 M.C.A.]
CourtHigh Court
Date06 February 1987

1987 WJSC-HC 522

THE HIGH COURT

No.50 M.C.A./1986
DUBLIN CO COUNCIL v. CARTY BUILDERS & CO LTD
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
APPLICANTS

AND

CARTY BUILDERS AND COMPANY LIMITED
RESPONDENTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

GUILDFORD RURAL DISTRICT COUNCIL V FORTESCUE 1959 2 QB 112, 1959 2 WLR 643

GLAMORGAN COUNTY COUNCIL V CARTER 1963 1 WLR 1, 1962 3 AER 866

WASHINGTON UDC V GRAY 1959 10 PCR 264

TAYLOR V EATON RURAL DISTRICT COUNCIL 9 PCR 430

WALSH PLANNING & DEVELOPMENT LAW

Synopsis:

PLANNING

Enforcement

Stay - Development - No permission - Caravan site - Public toilets built - Necessary amenity - Held that retention of unlawful development was a matter for the planning authority - Held that the continued use of the development would be prohibited, but there would be a two-month stay on the order of the court - Local Government (Planning & Development) Act, 1976, s.27 - (1986/50 MCA - Murphy J. - 6/2/87) [1987] IR 355

|Dublin County Council v. Carty Builders|

PLANNING

Use

Material change - Intensity - Increase - Unauthorised development alleged - Caravan site - Ten caravans on site prior to operative date - Fifteen to twenty caravans on site subsequently - Held that increase did not constitute a material change in the use of the property - Local Government (Planning & Development) Act, 1963, s.3 - (1986/50 MCA - Murphy J. - 6/2/87) [1987] IR 355

|Dublin County Council v. Carty Builders|

1

Judgment of Mr.Justice Murphy delivered the 6th day of February, 1987.

2

This is an application by the above named Council under Section 27 of the Local Government (Planning and Development) Act 1976for an Order restraining the Respondents from using certain lands adjoining the premises known as "Lisadell", Old Corballis Road, Donnabate, Co. Dublin for the parking of caravans or for any other unauthorised use.

3

Mr. Joseph Gorman, a planning Inspector with the Applicant Council in an Affidavit dated the 18th June 1986 has sworn that those lands were on the date when he inspected them, that is to say, the 26th September 1984 used as a caravan site and that 17 caravans were parked on the site on that date. He also says that a ladies' and gents' toilet block was erected on the site. He has sworn that no planning permission was granted for the use of the lands for that purpose.

4

In an Affidavit sworn on behalf of the Respondents, Mr. Owen Carty has sworn that the lands in question were used as a caravan park by the Respondent Company since 1962 - and before that date by a Mr. Thomas Cobbe for a like purpose - and that accordingly the user constitutes an exempt development by virtue of the provision of the Local Government (Planning and Development) Act 1963.

5

It appears that complaints were made to the Applicant Council a number of years ago with regard to the use made by the Respondents of the lands in question. As a result of those complaints enquiries were initiated by officials of the County Council. I believe that it is material to note that the enquiries made by those officials were frustrated to a considerable extent by the attitude adopted by the Directors of the Respondent Company. Originally it was intimated to the Applicants that Mr. Owen Carty himself owned the site but subsequently it was claimed that the site was owned by a company. It was only when proceedings were instituted against a company known as Carty Construction Company Limited that the Applicants were informed that the true owner of the site was in fact the above named Carty Builders and Company Limited.

6

However, the essence of the Respondents' defence to the claim is, as I say, that the business of a caravan park was carried on at and for many years prior to the operative date. It was Mr. Owen Carty's evidence that he purchased the lands in question together with an adjoining site containing a total area of 2.9 statute acres pursuant to a contract in writing dated the 15th June 1962 made between Thomas L. Cobbe of the one part and the Respondents of the other part. It appears that something less than a quarter of an acre of the lands so purchased was sold or leased off and that a house known as "Streedagh" was erected thereon and that the house known as "Lisadell" was erected by the Respondents on a site measuring approximately 1.8 acres and that that site and premises were subsequently sold by the Respondents to a Mr. Adrian Toothill in or about the year 1978. The present application concerns the residue of the lands purchased by the Respondents from Mr. Cobbe in June 1962 and measuring something under one statute acre. These residual lands are situate to the east of the Old Corballis Road and to the West of the Corballis Golf Club. The site is rectangular in shape and it would appear that a pathway has been worn - perhaps in recent times - along a line running in an East West direction which effectively divides the site into two parts which I may describe respectively as the Northern and Southern parts of the site.

7

In Paragraph 5 of his Affidavit Mr. Owen Carty has sworn that in the years 1962 and 1963 the Respondent Company provided toilet and washing facilities comprising two ladies' toilets and two gents' toilets, wash-hand basins and lighting in the toilet area on the lands in question. He goes on in the same paragraph to say that the toilet block referred to in the Affidavit of Mr. Gorman, that is to say, the toilet block at present on the site, "is one and the same as that which I built in 1962 and 1963 and has not been extended or enlarged in any way". Again in Paragraph 8 he says that the toilet facilities were completed in 1963 and that at that time and in those circumstances the use of the caravan park extended to accommodate fourteen or fifteen caravans and on occasions carried up to twenty caravans.

8

Mr. Carty has therefore sworn clearly and unequivocally that the toilet accommodation was erected before the operative date. That statement was obviously a matter of the utmost importance in this case. In fact the Applicants were able to prove conclusively and dramatically that the statement made by Mr. Carty with regard to the date of the erection of the toilet block was false. The Applicants produced aerial photographs taken in the year 1966 which showed that the toilet block had not been erected at that time and a further aerial photograph in 1971 showing that it had been constructed at that date. Faced with that evidence Mr. Carty recognised that he was wrong and explained that he had been mistaken in the evidence which he had given on Affidavit. However, making every allowance for frailty in recollection I would not lightly ignore the confident statement which Mr. Carty had made in relation to the date of erection of the toilet block and in particular the fact that he claimed to have erected it in the period immediately following his purchase of the site. It is difficult to see how an honest error could have occurred in relation to that event. One would have thought that Mr. Carty would have a clear recollection as to what decisions were made in relation to the caravans and the amenities on the site following upon its acquisition by the Respondent Company. In the circumstances I think I am bound to approach Mr. Carty's evidence with caution.

9

Mr. Carty relies strongly on a letter dated September 1961 which he says was given to him by Mr....

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