Fingal County Council v Dowling and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice de Valera
• Judgment Date: 26 July 2007
• Neutral Citation: [2007] IEHC 258
• Docket Number: 402 CA/[2005]
• Date: 26 July 2007

[2007] IEHC 258

THE HIGH COURT

402 CA/[2005]

FINGAL CO COUNCIL v DOWLING & PETERS

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE

MATTER OF AN APPLICATION BY FINGAL COUNTY COUNCIL

BETWEEN

FINGAL COUNTY COUNCIL

PLAINTIFF

AND

KEVIN MARTIN DOWLING, BRIAN PETERS AND WILLIAM PETERS

DEFENDANTS

Abstract:

Planning and development - Section 160 of the Planning and Development Act, 2000 - Whether the plaintiff’s claim was statute barred pursuant to section 160(6)(a)(i) of the 2000 Act.

This case was an appeal by way of re-hearing from the decision of the Circuit Court. The plaintiff sought by way of appeal an order restraining the defendants from using the original steel framed corrugated apex roofed agricultural structure on specified lands as a PVC window and door factory. The defendants contended with the support of affidavit evidence that PVC door and window manufacturing commenced on those lands in or about July 1997. The plaintiff did not adduce any evidence regarding the commencement of that work on that particular site.

Held by de Valera J. in dismissing the plaintiff’s application: That the plaintiff failed to prove its contention that the use of the structure for the manufacture of PVC doors and windows commenced since July 1998. The plaintiff made no attempt to challenge or contradict the assertions contained in the defendant’s affidavits to the effect that the PVC window/door operation commenced in or about July 1997. Consequently, the defendants’ assertions were accepted and therefore the plaintiff’s application was statute barred.

Reporter: L.O’S.

Mr. Justice de Valera

1 This is an appeal by way of re-hearing from the decision of Her Honour Judge Linnane in the Circuit Court on the 9th November, 2005. By notice of motion dated the 6th July, 2005, the plaintiffs sought:

2 1. An order restraining the defendants and each of them, their servants or agents, licensees and all persons having knowledge of the making of the order from carrying out any development on lands situate at Baldongan, Skerries in the County of the City of Dublin.

3 2. An order restraining the defendants and each of them, their servants or agents, licensees and all persons having knowledge of the making of the order from using the original steel framed corrugated apex roofed agricultural structure on the lands at Baldongan, Skerries, Co. Dublin, as a PVC window and door factory.

4 3. An order restraining the defendants and each of them, their servants or agents, licensees and all other persons having knowledge of the making of the order from using a large single storey extension to the rear of the said agricultural structure on the western boundary of lands at Baldongan, Skerries, Co. Dublin, as part of the manufacturing process relating to the PVC window and door factory.

5 4. An order restraining the defendants and each of them, their servants or agents, licensees and all other persons having knowledge of the making of the order from completing and using as the large apex steel framed structure of solid block construction on the southern side of the existing agricultural structure incorporating a mezzanine floor over ground floor for storage purposes at Baldongan, Skerries, Co. Dublin, as part of the manufacturing process relating to the PVC window and door factory.

6 5. An order directing the defendants and each of them to cease the use of the large steel framed corrugated apex roof agricultural structure and remove the single storey extension erected to the rear of that agricultural structure on the western boundary and the large apex steel framed structure with solid block walls from the lands and premises at Baldongan, Skerries in the County and the...