Furlong v A.F. G.W. McConnell Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gannon
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-HC 1512
• Docket Number: 77/MCA/1986
• Court: High Court
• Date: 01 January 1990

1989 WJSC-HC 1512

THE HIGH COURT

77/MCA/1986

FURLONG v. A F & G W MCCONNELL LTD

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACTS 1963AND 1976

AND IN THE MATTER OF AN APPLICATION BY TONY FURLONG

APPLICANT

BETWEEN

TONY FURLONG

APPLICANT

AND

A. F. & G. W. McCONNELL LIMITED AND CAMPBELLS CARAVANSCOMPANY LIMITED AND BALLYBRAY OIL DISTRIBUTORS LIMITED t/a EASTERN OILDISTRIBUTORS

RESPONDENTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S1(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART III

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG9

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 11

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 REG 12

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 (EXEMPTED DEVELOPMENT) REGS 1964 SI 236/1964

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(1)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(1)(b)

DUBLIN CORPORATION V GARLAND & ORS 1982 ILRM 104

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 SCHED III

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)

Synopsis:

PLANNING

Use

Change - Materiality - Intensification - Prohibition - Enforcement of planning code - Ballycorus mine area - Material change of use since appointed day - Area ignored by planning authority - Continuation of unauthorised use prohibited - Stay of execution granted - Local Government (Planning & Development) Act, 1976, s. 27 - (1986/77 MCA - Gannon J. - 3/10/89)[1990] ILRM 48

|Furlong v. A.F. & G.W. McConnell Ltd.|

1 Judgment of Mr. Justice Gannondelivered the 3rd day of October, 1989.

2 This application came before the Court by way of motion grounded upon affidavit pursuant to Section 27(3) of the Local Government (Planning and Development) Act 1976for relief under subsection (1) of that section. The Applicant is the owner since 1979 and, since 1980 has been the occupier, of a dwellinghouse at "Ledville", BallycorusRoad, Kilternan, County Dublin. His house is the northern boundary of a portion of a courtyard-type area comprising more or less rectangular shape of approximately 250 yards long and approximately 100 yards in width. The courtyard and surrounding buildings formerly comprised the smelting works and ancillary buildings in connection with a lead mine on higher ground to the south. At that time the house in which the Applicant now lives and all the other buildings and yard area were occupied and used solely in connection with the business of the lead mines. The house occupied by the Applicant had been the dwellinghouse of the manager of the lead works and has not been put to any use other than as a dwellinghouse. The lead mining business had ceased more than 60 years ago. The entire area comprising all the buildings and the courtyard are included in the Dublin development plan in the agricultural zone and are adjoining an area indicated on that plan as "high amenity zone".

3 The Applicant claims that the other buildings and former courtyard area are being put to uses constituting development of land for which permissions under part IV of the Local Government (Planning and Development) Act 1963are required and are being carried on without such permission and that such used are unauthorised uses of land. The application is for an order under Section 27(1) of the 1976 Act prohibiting the continuance of the uses to which the land and other buildings are presently being put. The Respondents, A. F. and G. W. McConnell are the owners of the land and buildings with respect to the use of which the Applicant makes complaint. The other Respondentsare the occupiers under leases from McConnell's and are the users of the land and buildings to which the Applicant's complaints relate. At the commencement of this application Mr. Bradley for the Respondents submitted that as the relief being sought is in the nature of a permanent prohibition by injunction evidence on affidavit is inadequate and inappropriate and he objected to any matter of hearsay being introduced. I was informed by Mr. Budd for the Applicant that the deponents by whom affidavits had been made were available and would give oral evidence. I ruled that the application would be determined upon the oral evidence to be adduced, that witnesses could be referred, if appropriate, to the contents of their affidavits.

4 Before referring to the evidence of facts upon which my decision must depend I think it helpful to refer to the statutory provisions which are pertinent, and with reference to which the relief sought may be given. Section 27(1) of the Local Government (Planning and Development) Act 1976is as follows:-

"27 - (1) Where -"

(a) development of land, being development for which a permission is required under part IV of the Principal Act, is being carried out without such a permission, or

(b) an unauthorised use is being made of land, the High Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order prohibit the continuance of the development or unauthorised use."

5 The expression "unauthorised use" is defined in Section 2 of the 1963 Act as follows:-

""unauthorised use" means, in relation to land, use commenced on or after the appointed day, the change in use being a material change and being development other than development the subject of a permission granted under section 26 of this Act or exempteddevelopment;"

6 The permission under Section 26 there referred to is the permission required to be obtained under the general obligation prescribed by Section 24 of the 1963 Act. Section 24(1) of that Act is asfollows:

"Subject to the provisions of this Act, permission shall required under this Part of this Act-"

(a) in respect of any development of land, being neither exempted development nor development commenced before the appointed day, and

(b) in the case of a structure which existed immediately before the appointed day and is on the commencement of that day an unauthorised structure, for the retention of the structure."

7 Subsection (2) prohibits the carrying out of any development for which permission is required save and in accordance with the permission, and subsection (3) makes it an offence so to do and prescribes the punishment for such offence.The 1963 Act contains at Section 3 a rather detailed definition of the word "Development". Subsection (1) of Section 3 reads "Development" in this Act means, save where the context otherwise requires, the carrying out of any works on, in, or under land or the making of anymaterials change in the use of any structures or other land. Subsection (2) deals with "material change" and prescribes asfollows:

"For the purposes of subsection (1) of this section and without prejudice to the generality thereof -"

(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or

(b) where land becomes used for any of the following purposes:

(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or the sale of goods,

(ii) the storage of caravans or tents,

(iii) the deposit of bodies or other parts of vehicles, old metals, mining or industrial waste, builders" waste, rubble or debris,

8 the use of the land shall be taken as having materiallychanged."

9 Subsection (3) of Section 3 deals with the material change of use of dwellings. Section 4 of the 1963 Act sets out in subsection (1) a list of work or use of land classified as exempted development. But in subsection (2) of Section 4 the Act enables the Minister for Local Government by means of regulations to prescribe, without further reference to the Oireachtas, other classes of work or uses of land to be designated as exempted development. Section 4(3) is as follows:-

"References in this Act to exempted developmentshall be construed as references to development which is -"

(a) any of the developments specified in subsection (1) of this section, or

(b) development which, having regard to any regulations under subsection (2) of this section, is exempted development for the purposes of this Act."

10 By Section 1(3) the Minister for Local Government is given power to appoint a day to be the appointed day under the Act and the day so appointed is the 1st of October 1964. Part III of the 1963 Act which pertains to the function and duties of a planning authority in relation to the making, contents, review, variations and alterations and publication of a plan indicating development objectives for its area was not referred to on this hearing.

11 Having regard to the foregoing statutory provisions it appears to me that the Applicant has undertaken the onus of establishing that the uses complained of had commenced after the appointed day and constituted a material change from the uses preceding that day and constituted development for which no permission had been granted pursuant to the 1963 Act as amended.

12 Because Mr. Furlong, the...