Mahon v Butler

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1998
• Docket Number: [S.C. No. 253 of 1997]
• Date: 01 January 1998

Supreme Court

[S.C. No. 253 of 1997]

Mahon v. Butler

In the matter of section 27 of the Local Government (Planning and Development), Act, 1976, as amended John Mahon, Sharon McGrath and Oonagh O'Reilly, Applicants

and

Ronald Richard Butler, Sir Ewart Bell, Arthur Ronald Dawson and Thomas Joseph Kiernan (as Trustees of the Irish Rugby Football Union), Respondents

Cases mentioned in this report:—

Avenue Properties Ltd. v. Farrell Homes Ltd [1982] I.L.R.M. 21.

Butler v. Dublin Corporation (Unreported, High Court, Morris P., 19th February, 1998).

Dublin County Council v. Kirby [1985] I.L.R.M. 325.

Dublin Corporation v. McGowan [1993] 1 I.R. 405.

Dunnes Stores Ltd. v. Mandate [1996] 1 I.R. 55; [1996] 1 I.L.R.M. 384.

Mountcharles v. Meath County Council [1996] 3 I.R. 417.

Ramsay v. Aberfoyle Manufacturing Company (Australia) Proprietary Ltd. [1935] 54 C.L.R. 230.

Local Government - Planning and development - Enforcement - Complicated issues of fact and law to be resolved - Plenary proceedings already in being - Whether an appropriate case to make an order pursuant to s. 27 - Whether procedure available to restrain anticipated breach of the planning code - Whether general equitable jurisdiction of court available to enhance remedy available pursuant to statutory provisions - Local Government (Planning and Development) Act, 1976 (No. 20), s. 27 - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19.

Notice of Motion.

The facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of Denham J., infra

On the 19th July, 1997, the applicants issued a plenary summons which sought against the respondents, injunctive relief, orders under s. 27 of the Local Government (Planning and Development) Act, 1976, as amended, relief from acts of nuisance and trespass, and damages. On the same day, they filed a notice of motion seeking, inter alia, orders restraining the unauthorised use of the respondents' lands at Lansdowne Road in the City of Dublin and orders restraining the staging of pop concerts on those lands on the 30th and 31st August, 1997.

The matter was heard by the High Court (Costello P.) on the 24th and 25th July, 1997 and by order dated the 28th July, 1997, the holding of pop concerts in the Lansdowne Road grounds of the I.R.F.U. on the 30th and 31st August, 1997, was restrained.

By notice of appeal dated the 29th July, 1997, the respondents appealed against that order. The appeal was heard by the Supreme Court on the 30th and 31st July, 1997.

Section 27, sub-s. 1 of the Local Government (Planning and Development) Act, 1976 as amended by s. 19 of the Local Government (Planning and Development) Act, 1992, provides:—

"Where -

• (a) development of land, being development for which a permission is required under Part IV of the Principal Act, has been carried out, or is being carried out, without such 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 require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate -

• (i) that the development or unauthorised use is not continued,

• (ii) in so far as is practicable, that the land is restored to its condition prior to the commencement of the development or unauthorised use."

The respondents intended using their land for the staging of pop concerts on the 30th and 31st August, 1997. Dublin Corporation, the planning authority for the area, issued a warning notice pursuant to s. 26 of the Local Government (Planning and Development) Act, 1976, as amended, in respect of this proposed use, which it considered to be unauthorised. The notice required the respondents to take steps to ensure that the unauthorised use of land should not take place as proposed and warned that failure to comply would result in enforcement proceedings being brought by the planning authority.

The respondents instituted proceedings by way of an application for judicial review against the planning authority seeking to quash the notice and seeking declarations as to the planning status of its stadium in relation to the staging of pop concerts. Leave to apply for judicial review was refused in the High Court but was granted on appeal to the Supreme Court which ordered that the application be brought by way of plenary summons. The planning authority agreed that they would take no further action to enforce the warning notice pending the outcome of the judicial review action.

The applicants, who were three local residents, issued proceedings seeking, inter alia, an order pursuant to s. 27 of the Act of 1976, as amended, restraining the respondents from staging the pop concerts on the 30th and 31st August, 1997. The High Court (Costello P.) granted the order so restraining the respondents and from that order the respondents now appealed.

The respondents argued:—

• 1. that the s. 27 procedure was a summary one and was inappropriate to resolve the complex factual and legal issues involved;

• 2. that s. 27 did not permit an application for an anticipated breach of the planning code;

• 3. that the remedy under s. 27 was a specific statutory injunction and was not an injunction under the general equitable jurisdiction of the High Court. Consequently, the High Court had had no authority to expand the statute by invoking the court's equitable jurisdiction.

Held by the Supreme Court (Denham, Barrington and Keane JJ.) in allowing the appeal, 1, that s. 27 referred plainly to events occurring in the present or which have occurred in the past. The planning code was to be construed strictly and there was no statutory power in s. 27 to make an order in relation to an anticipated breach. The issue to be determined related to the holding of two concerts at the end of August 1997, which was in the future.

2. That the remedy under s. 27 was a statutory injunction which was distinct from the general equitable jurisdiction of the High Court. In making an order under that section, the court could not exceed the jurisdiction conferred by that section.

Dunnes Stores Ltd v. Mandate [1996] 1 I.R. 55 applied. Dublin County Council v. Kirby [1985] I.L.R.M. 325 approved.

3. That neither the judicial review proceedings nor any other proceedings wereper se a bar to s. 27 proceedings, but their existence was a relevant consideration in the exercise of the discretion under s. 27. Factors which would carry weight in exercising that discretion included, the pending judicial review litigation, the complexity of the facts and law involved and the attitude of the planning authority. In the circumstances, the plenary hearing, envisaged in the judicial...