Fingal County Council v Crean & Signways Holdings Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 19 October 2001
• Neutral Citation: [2001] IEHC 148
• Docket Number: Record No. 21/MCA/2000
• Court: High Court
• Date: 19 October 2001

FINGAL CO COUNCIL v. CREAN & SIGNWAYS HOLDINGS LTD

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT,1976 AS SUBSTITUTED BY SECTION 19 OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1992

AND

IN THE MATTER OF AN APPLICATION BY FINGAL COUNTY COUNCIL

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF FINGAL

APPLICANT

AND

PATRICK CREAN AND KATHLEEN CREAN

FIRST NAMED RESPONDENTS

AND

SIGNWAYS HOLDINGS LIMITED

SECOND NAMED RESPONDENTS

[2001] IEHC 148

Record No. 21/MCA/2000

THE HIGH COURT

Synopsis:

PLANNING AND ENVIRONMENT

Unauthorised development

Local Government - Advertising hoarding - Whether advertising board required planning permission - Whether advertising structure unauthorised development - Whether structure rebuilt or refurbished - Local Government (Planning and Development) Act, 1963 - Local Government (Planning and Development) Act, 1976 section 27 - Local Government (Planning and Development) Act, 1992 (2000/21/MCA - Ó Caoimh J - 19/10/2001)

Fingal County Council v Crean

Facts: The applicant, a local authority, sought orders against what it claimed was an unauthorised development. The structure in question was an advertising hoarding. The first respondents were the owners of the land and the second respondents were the advertising agency which used the hoarding. The first respondents contended that no complaint had been received for seventeen years and that any repairs carried out were exempted development. It was also contended that the income received made a significant contribution to their living needs and also that there had been acquiescence and delay on the part of the applicant. On behalf of the applicant it was submitted that a distinction had to be drawn between rebuilding and refurbishment.

Held by Mr. Justice Ó Caoimh in granting the relief sought. Part of the structure recently erected was not in repair or replacement of the pre-existing structure and could not be authorised. The onus fell on the respondents to prove that the exemption set out under section 4(1)(g) of the Local Government (Planning and Development) Act, 1963 applied. The work in question was not exempted development and the orders sought by the applicant would be granted.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(G)

CAIRNDUFF V O'CONNELL 1986 IR 73

DUBLIN CORPORATION V LOWE & SIGNWAYS HOLDINGS LTD UNREP MORRIS 4.2.2000 2000/6/2107

DUBLIN CORPORATION V TALLAGH BLOCK COMPANY 1985 ILRM 512

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(A)(II)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(B)(I)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S27(6)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S83

LAMBERT V LEWIS & KIELY UNREP GANNON 24/11/1982 1983/3/611

DILLON V IRISH CEMENT UNREP FINLAY 26.11.1986

O'SULLIVAN & SHEPHERD IRISH PLANNING LAW AND PRACTICE

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS ART 9(2)(B)

KILDARE CO COUNCIL V GOODE UNREP MORRIS 13/6/1997 1998/8/2312

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS ART 11(1)(VII)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS ART 10

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

Judgment of

Mr. Justice Aindrias Ó Caoimh

delivered on the 19th day of October 2001

1 This is an application brought by the Applicant Council for Orders:

2 1. restraining the respondents their servants or agents, licensees and all persons having knowledge of the making of the Order from maintaining and unauthorised development at North Road Finglas in the town land of Coldwinters that is unauthorised advertising hoardings/signs;

3 2. directing the respondents or one or other of them to forthwith remove the unauthorised advertising hoardings/signs erected on the lands of the first named respondent by the second named respondent.

4 3. restraining the respondents their servants or agents, licenses and all persons having knowledge of the making of the Order from carrying out any further unauthorised development on the land of the first named respondents at North Road, Finglas, in the townland of Coldwinters unless and until permission therefore under Part IV of the Local Government (Planning and Development) Act,1963as amended is first had and obtained.

5 The application is grounded on an affidavit of the Planning Inspector Mr Richard Dunne of Fingal County Council. He traces the planning history of the site as follows: In or about 1981 Messrs More O'Ferrall erected two hoardings on the first named respondents” land without planning permission. These unauthorised hoardings remained in place until November 1997 when he says he inspected the site and found the hoardings removed. He says that he carried out an inspection of the property on the 3rd of March 1998; he found that two new hoardings had been newly erected on their land. He says that on examining the structures he found that the concrete in place at the foot of the metal supports was freshly laid. The metal supports, the framework and the sheet metal were all new. These newly erected hoardings were again erected without planning permission. Mr Dunne has referred to photographs taken by him on the 3rd of March 1998. Mr Dunne said that from investigations carried out it appeared that an agreement was entered into by the first named respondents and the second named respondents whereby the second named respondent would enter into a rental agreement for the use of the sites. He says that this information was confirmed by faxed letter from the second named respondent on the 6th of May 1998. Mr Dunne says that on the 20th of July 1998 a letter was written to the first named respondents requesting the removal of the unauthorised advertising structures. He says that on the same day a similar letter was written to the second named respondent company. He says that despite these letters no responses were received from either respondent. He says that an inspection on the 24th of January 2000 revealed that the advertising hoardings remained in place. He says that these hoardings have been erected without the benefit of planning permission and do not enjoy the benefit of an exemption under the Planning Regulations. He further says that the erection of the hoardings is an unauthorised development.

6 On behalf of the first named respondents an affidavit has been sworn by Kathleen Crean. She says that her husband purchased lands comprising six acres of agricultural land on the Ashbourne Road in or around 1963. They had a house built on the lands and partly used it for grazing five cattle which they had. The triangular piece of land, upon which the advertising hoardings the subject matter of these proceedings have been placed, was originally a wood and was bought separately from the land connected to the house. The wood was subsequently cut down and the land was used to cut hay each year. They have continued this over the years. In or about 1981 a representative of More O'Ferrall Limited, an advertising company, approached the Creans with proposals to place an advertising hoarding on the site for use as an advertising station. About this time they entered into an agreement with More O'Ferrall Limited for the erection and use of an advertising hoarding in respect of which they obtained an annual fee. She refers to a subsequent written agreement which is in fact exhibited by Mr Dunne in an affidavit.

7 In or about April 1996 Mr Rory Black, Director of Signway Holdings Limited the second named respondent, approached the Creans with a proposal to take over the advertising station and the sign, which had been erected by More O'Ferrall Limited, at the termination of their agreement with More O'Ferrall Limited. An agreement was entered into between the company and herself dated the 15th of October 1996 which was to take effect on the 1st of December 1997. She says that following this agreement she wrote to More O'Ferrall Limited advising them of the situation and that the agreement would be terminated on or about the 30th of November 1997. On or about the 1st of December 1997 they received a cheque from Signway Holdings Limited in respect of the quarterly fee in the sum of £500 pursuant to the agreement.

8 Mrs Crean says that the advertising structure was damaged and needed to be repaired. The company continued to use the existing advertisement structure up until February or March in 1998 when it was rebuilt and replaced by another advertising structure. At the same time the company erected a second advertisement structure and in this regard she says that the affidavit of Mr Dunne is inaccurate. Mrs Crean contends, based on the advice from her legal representatives, that, having commenced in or about 1981, the exhibition of advertisements is immune from enforcement insofar as the advertisement structure erected at that date is concerned. She is advised that the repair/replacement of the said structure amounts to exempted development having regard to the fact that the structure concerned is of the same dimensions and constructed of the same materials as the preceding structure which had been erected in 1981. She says that for seventeen years between 1981 and 1998 there was never any complaint from the applicant concerning the advertisement structure which was erected in or about 1981. She says that until the applicant County Council informed them, neither her husband nor herself were aware that the structure required planning permission. She accepts that More O'Ferrall Limited ought reasonably to have been aware of the necessity of obtaining planning permission. She says that her husband is now ninety years of age and because of health difficulties is not in a position to work. The income obtained from the advertising structures makes a very significant contribution to the ordinary living needs of her husband and herself. She says that...