Dundalk Town Council v Lawlor

 
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[2005] IEHC 73

THE HIGH COURT

[No: 51 SS/2005]
DUNDALK TOWN COUNCIL v LAWLOR
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY
SECTION 51 OF THE COURTS (SUPPLEMENTAL) PROVISIONS ACT 1961

BETWEEN

DUNDALK TOWN COUNCIL
COMPLAINANT/RESPONDENT

AND

BILL LAWLOR
DEFENDANT/APPELLANT

2005/51SS - O'Neill - High - 18/3/2005 - 2005 2 ILRM 106 2005 17 3524 2005 IEHC 73

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

PLANNING & DEVELOPMENT ACT 2000 S154

PLANNING & DEVELOPMENT ACT 2000 S155

PLANNING & DEVELOPMENT ACT 2000 S154(5)

PLANNING & DEVELOPMENT ACT 2000 S156(1)

PLANNING & DEVELOPMENT ACT 2000 S154(5)(b)

KING v AG 1981 IR 233

CRIMINAL LAW:

Statute

Enforcement notice - Building works - Construction - Whether sufficiently clear - Whether valid - Respondent prosecuted for alleged failure to comply with enforcement notice - Case stated - King v AG [1981] IR 233 considered - Planning and Development Act 2000 (No 30), s 154 -Enforcement notice found invalid (2005/51SS - O'Neill J - 18/3/2005) [2005] IEHC 73 - [2005] 2 ILRM 106 Dundalk Town Council v Lawlor

O'Neill J.
1

This is a case stated by District Judge Flann Brennan a judge of the District Court assigned to District Court area of Dundalk, District No. 6, in which he poses two questions as follows for the opinion of the High Court:

2

(a) whether I was correct in law in determining that the period of time set forth on the said Enforcement Notice satisfied the requirement of s. 154 of the Planning and Development Act of2000 and

3

(b) whether I was correct in law in determining that the requirement in the said Enforcement Notice to "return site to its previous condition" satisfied the requirement of s. 154 of the Planning and Development Act 2000.

4

By notice entitled "Enforcement Notice pursuant to s. 154 of the Planning and Development Act 2000" and dated 21st October, 2003, the complainant/respondent Dundalk Town Council (hereafter "the Council") required of the defendant/appellant (hereafter "Mr. Lawlor") that certain things be done at a property known as Soldiers Point, Lower Point Road, Dundalk.

5

The notice was in the following terms:

"Dundalk Town Council (hereinafter called the Planning Authority) is the planning authority for the town district of Dundalk in which is situated at the land described in the First Schedule hereto."

6

The planning authority has decided pursuant to s. 155 of the Planning and Development Act, 2000 to issue this Enforcement Notice in respect of the development described in the second schedule hereto.

7

As no permission has been granted for the said development, you are hereby required to cease the said development.

8

You are herby required within a period of immediately commencing on the date of the service of this notice on you to take the steps specified in the third schedule hereto.

9

You are hereby warned that if within the period specified under paragraph 4 above or within such extended period (not being more than six months) as the planning authority may allow, the steps specified in the third schedule hereto to be taken or not taken, the planning authority may enter upon the land and take such steps including the removal, demolition or alteration of any structure, and may recover any expenses reasonably occurred by them in that behalf.

10

You are hereby required to refund the planning authority the costs and expenses set out in the Fourth Schedule hereto, being the costs and expenses reasonably incurred by the planning authority in relation to the investigation, detection and issue of this Enforcement Notice including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisors and the planning authority may recover these costs and expenses incurred by it in that behalf.

11

You are hereby warned that you may be guilty of an offence if you do not take the steps specified in the third schedule of this notice within the period specified by paragraph 4 of this notice or within such extended period (not being more than six months) as the planning authority may allow.

FIRST SCHEDULE - DESCRIPTION OF LAND
12

Soldiers Point, Lower Point Road, Dundalk.

SECOND SCHEDULE - DESCRIPTION OF DEVELOPMENT
13

Unauthorised site development works.

THIRD SCHEDULE - PARTICULARS OF STEPS TO BE TAKEN
14

Cease all excavation site clearance works and return site to its previous condition.

FOURTH SCHEDULE - DETAILS OF COSTS INCURRED BY PLANNING AUTHORITY
85 EURO
Dated this 21st day of October, 2003."
15

The notice was served on Mr. Lawlor and by a letter dated 26th October, 2003, addressed to the Planning Officer of the Council, he said the following:

"Re: Notice received under Planning and Developmental Act 2000."

16

As secretary of the above group, I refer to your letter to me dated 26th October, 2003, enclosing an Enforcement Notice, and I would respectively request clarification of its contents.

17

For our part, we are not aware of having carried out any work whatsoever in breach of any of the provisions of the Planning and Development Act 2000.

Yours faithfully."
18

There does not appear to be any response to this letter.

19

Instead the council caused a summons to be issued against Mr. Lawlor, in which the complaint is as follows:

"WHEREAS a complaint has been made to me that you the said defendant on the 10th November, 2003 at premises, Soldiers Point, Lower Point Road, Dundalk within the County of Louth, within the court area and district aforesaid did knowingly fail to comply with the requirement of a Enforcement Notice dated 21st October, 2003, and served upon you on 21st October, 2003, pursuant to s. 154 of the Planning and Development Act, 2000 and in contravention of s. 154 of the Planning and Development Act, 2000."

20

This complaint came on for hearing before the learned district judge at a sitting of the District Court in Dundalk on 10th March, 2004.

21

The agreed note on the evidence heard is as follows:

"Evidence was given by Mr. Fergus Smyth on behalf of the Complainant as to his inspection of the site the subject matter of the Enforcement Notice on 24th October, 2003 and 10th November, 2003. Mr. Smyth testified that he was familiar with the site which is known as Soldier's Point, Lower Point Road, Dundalk, Co. Louth and that it was an old shipyard, which was since overgrown and was a habitat for birds.

Mr. Smyth testified further that the works referred to in the Enforcement Notice, consisted of the excavation and stripping of top soil and storing of it on site as well as the removal of some debris, which was stacked in different parts of the site concerned. Mr. Smyth agreed that the photographs attached to this note accurately show some of the works concerned. Mr. Smyth agreed that no...

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