Loughnane v Hogan

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 06 May 1987
• Neutral Citation: 1987 WJSC-HC 1868
• Docket Number: [1986 No. 97 MCA],1986/97 MCA
• Court: High Court
• Date: 06 May 1987

1987 WJSC-HC 1868

1986/97 MCA

LOUGHNANE v. HOGAN

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNINGAND DEVELOPMENT) ACT 1976AND IN THE MATTER OF AN APPLICATION BY JOHN LOUGHNANE AND ANNE LOUGHNANEOF CHURCH AVENUE, TEMPLETORS, COUNTY TIPPERARY.

BETWEEN

JOHN LOUGHNANE AND ANNE LOUGHNANE

Applicants

AND

PATRICK HOGAN

Respondent

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977

DUBLIN CO COUNCIL V KIRBY 1985 ILRM 325

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

DUBLIN CO COUNCIL V TALLAGHT BLOCK CO LTD 1982 ILRM 534

Synopsis:

PLANNING

Enforcement

Statute - Relief - Limitations - Structure - Completion - Removal of unauthorised structure sought by applicant pursuant to s.27, sub-s. 1, of the Act of 1976 - Structure erected by respondent in 1983 on his land without planning permission - Structure erected only 1.5 metres from applicant's adjoining garden - Applicant applied under s.27, sub-s. 1, for a mandatory order directing the respondent to remove the structure from his land - Sub-section 1 of s.27 states (inter alia) that, where development of land (for which permission is required) is "being carried out" without permission, the High Court may prohibit the continuance of the development - Held that the relief authorised by sub-s. 1 of s.27 is not applicable to a structure which has been completed - Held that, in any event, the relief authorised by that sub- section does not include a mandatory order directing the removal of a structure - ~Dublin County Council v. Kirby~ [1985] ILRM 325 and ~Dublin County Council v. Tallaght Block Co.~ [1982] ILRM 534 considered - Local Government (Planning & Development) Act, 1976, s.27 - (1986/97 MCA - Blayney J. - 6/5/87) [1987] IR 322

|Loughnane v. Hogan|

WORDS AND PHRASES

"Being carried out"

Planning - Permission - Absence - Unauthorised structure - Removal - Statutory procedure for obtaining prohibition order - Statutory provisions do not authorise an order directing the removal of a completed structure - ~See~ Planning, enforcement - Local Government (Planning & Development) Act, 1976, s.27 - (1986/97 MCA - Blayney J. - 6/5/87) [1987] IR 322

|Loughnane v. Hogan|

1 Judgment of Mr. Justice Blayneydelivered on the 6th day of May, 1987.

2 This is an application for a number of Orders under Section 27 of the Local Government (Planning and Development) Act 1976. Immediately after the nearing of the application, I granted some of the Orders sought, but I reserved my judgment in respect of the claim for an Order directing the Respondent to remove all unauthorised structures from his lands. So this judgment is concerned solely with this aspect of the case and also with a subsidiary matter relating to the user by the Respondent of a lane giving access to his lands.

3 The facts out of which the application arises I find to be as follows. The Applicants and the Respondent both havedwelling-houses at Church Avenue, Templemore, County Tipperary. The garden at the back of the Applicants' house has a common boundary with the Respondent's property over a distance of approximately 50 metres. A lane which runs from church Avenue along two sides of the Applicants' property gives access to the rear of the Respondent's property. In close proximity to where this lane enters his property and only 1.5 metres from the Applicants' garden is a large building 22.7 metres long by 7 metres wide, constructed of concrete blocks, suitable for commercial or industrial use. It is for the removal of this building that an Order issought.

4 The building was erected by the Respondent without planning permission in March, 1983. He had applied for planning permission on two occasions but without success. His first application was in March, 1981, and this was refused both by the Templemore Urban District Council and by An Bord Pleanala. His second application, in December, 1981 was granted by the Urban District Council but, on appeal by the Applicants, was refused by An Bord Pleanala.

5 The Urban District Council served an enforcement notice on the Respondent on the 6th April, 1983 requiring him to restore the land to its condition before development commenced. In other words, the notice required him to remove the building. In response to this notice, the Respondent on the 7th July 1983 signed a written undertaking to alter the building on or before the 1st October, 1983 so that it would come within the scope of an "exempted development" under the Local Government (Planning and Development) Regulations 1977. The Respondent was subsequently prosecuted for failing to comply with the enforcement notice and this prosecution wasdismissed by the District Court in November 1985.

6 The Respondent is a building contractor and the building was used by him for the storage of machinery and materials used in his business.

7 On these facts the Applicants seek an Order directing the Respondent to remove the building from his lands. A preliminary question of law arises as to whether, assuming the building is an unauthorised structure (and I refer to that issue later) the Court has jurisdiction under Section 27 of the Local Government (Planning and Development) Act 1976to direct the Respondent to remove it. This involves construing the section, in particular subsection (1), with a view to seeing what power it confers upon the Court, and this was done by Gannon J. in DublinCounty Council .v. Kirby 1985 I.L.R.M. 325, so I...