McCabe v Harding Investments Ltd

CourtSupreme Court
JudgeHenchy J.,O'HIGGINS C.J.
Judgment Date01 January 1984
Docket Number(79/1982)
Date01 January 1984

1982 WJSC-SC 3064


O'Higgins C.J.

Henchy J.

Hederman J.

No.182 P/1982



JUDGMENT delivered the 27th day of October 1982by O'HIGGINS C.J. [HEDERMAN J. CONCURRING]


The issue which arises on this appeal requires consideration in the light of the following facts.


On the 6th April 1981 the Defendants made an application to the Dublin Corporation for a planning permission in respect of a seven-story office development on a site between Leeson Close and Kingram Place in the City of Dublin. The site had been an open space and car park. This application was made in the following circumstances. There was in existence in relation to the site a planning permission granted under the provisions of the former Town and Regional Planning Act 1934. This planning permission authorised building on the site of a seventy-storey office block. The permission was dated the 17th June 1957, and at the date of the passing of the Local Government (PlanningandDevelopment) Act 1976, had not been availed of in any way. It was, nevertheless, a valid permission which was preserved in its authority by the provisions of section 92(2) of the Local Government (Planning and Development) Act 1963. However, by virtue of the provisions of section 29 of the 1976 Act a time limit was placed on this validity and that section, in its application to this particular permission, provided that it would cease to have effect at the expiration of five years from the coming into operation of the section (November 1st 1976).


On the 12th September 1980 Fitzpatricks, Solicitors, entered into a contract to purchase the freehold interest in the site for a sum of£300,000. In so doing Fitzpatricks acted and contracted in trust for interests which are now represented by the Defendants in these proceedings. A deposit of £30,000 was paid on the signing of the Contract and a further sum of £170,000 was paid in accordance with its provisions on the 2nd October 1980. The balance of £100,000was to be paid pursuant to the Contract on the 2nd January 1981, which date was to be the closing date. However, in the investigation of title queries were raised as to the subsistence of a mortgage and the efficacy of a previous Contractfor Sale. These queries resulted in the vendors agreeing to obtain certain releases and waivers. The result was that the payment of the balance of the purchase money was delayed until the 29th May 1981 and the actual Conveyance was executed on the 2nd November 1981.


The site had been purchased for the purpose of development and, of course, towards this end it was intended to avail of the permission granted in June 1957. However, because of the statutory provision already mentioned this permission was due to expire on November 1st 1981. In these circumstances, although the Contract for Sale had not been completed in a conveyance, the vendors allowed the developers into possession of the site and agreed to the commencement of the intended construction. This took place on the 5th November 1980 and the construction of a seven-storey office block was immediately commenced by building contractors, Farrell and Company, acting on behalf of the interests now represented by the Defendants.


The Plaintiff resides with his wife and family in a mews house at 65 Leeson Close and has done so for approximately seventeen years. He was completely unaware of the intended development of the car parkwhich adjoined his residence until construction had actually commenced. This was, no doubt, due to the fact that under the former legislation no register of planning permissions was kept and the discovery that a permission existed in relation to a particular site was often a matter of chance. However, having discovered what was afoot the Plaintiff determined to do everything that was lawfully open to him to do, to hinder, obstruct and, if possible, prevent the intended development. In this respect I do not think the Plaintiff's attitude could be regarded as being unreasonable. Suddenly and without warning to find the peace and pleasure of one's residence disturbed and shattered by the arrival of men and machinery committed to the construction, as quickly as possible, of an enormous office block on adjoining ground would be sufficient to goad the most passive of individuals into action. Having armed himself with appropriate advisers, the Plaintiff in association with the company which owned adjoining property, caused the apparent development to be examined very carefully, having regard to what was permitted under the 1957 permission. Being satisfied that what was under construction differed in design from the plans upon which planning permission had beengranted the Plaintiff and Avenue Properities Limited brought a motion in the High Court under the Provisions of section 27 of the Local Government (Planning and Development) Act 1976for an Order prohibiting the continuation of the development and directing the removal from the site of what had been constructed. This Motion was heard by Mr. Justice D'sArcy who, not being satisfied on the evidence that the Order sought should be granted, refused the relief sought. An appeal was then brought to this Court and an application made to allow the introduction of additional evidence. This appeal was allowed and the matter was remitted to the High Court to hear further evidence. Meanwhile, on the 6th April 1981, the Defendants as the developers, submitted a fresh planning application to the Planning Authority seeking a fresh planning permission to authorise what was being constructed although it would vary in some respects from what had been authorised in the original planning permission of 1957. On the re-hearing of the Motion in the High Court, Mr. Justice Barrington, although satisfied that the development, not then completed, would depart from what had been authorised, decided not to make the Order sought under section 27 pending the determination by the PlanningAuthority of the new planning application. By a Decision dated the 25th June 1981 the Planning Authority granted the permission as applied for. An appeal was brought against this decision and on the 10th November 1981 An Bord Pleanala, having heard all relevant evidence, also decided to grant the permission sought. The development has been completed in accordance with this permission.


In these proceedings which were commenced on the 8th January 1982 the Plaintiff alleges that the Defendants in their application of the 6th April 1981 for the planning permission which they obtained, failed to comply with the requirements of Regulation 17(a) of the Local Government (Planning and Development) Regulations 1977 in that they incorrectly stated their interest in the site to be a freehold interest. On this ground the Plaintiff claims a declaration that the purported grant of planning permission to the Defendants was null and void and an injunction restraining them "from carrying out or taking the benefit of the said purported planning permission". Faced with this claim, the Defendants by Notice of Motion dated the 25th January 1982 sought an Order pursuant to the provisions of Order 19 r. 28 of the Rules of the Superior Courts, or alternatively, pursuant to the inherentjurisdiction of the Court, striking out and dismissing the same. This Motion was heard by Mr. Justice Hamilton in the High Court, who came to the conclusion that the Plaintiff's action was vexatious and in pursuance of the inherent jurisdiction of the Court, granted an Order dismissing the same. Against this decision and Order this appeal has been brought.


The Defendants' Motion was supported by a long and detailed Affidavit from Francis X. Woods, a director of the Defendant Company, which dealt with all the facts concerning the Defendants' acquisition of the site and the state of its interest therein at the date of the planning application. There was also before the Court an Affidavit from the Plaintiff which in this respect did not controvert or put in issue what was deposed to by Mr. Woods. It is clear from these Affidavits and from what has been urged on the hearing of this appeal that Mr. Justice Hamilton had before him, on the hearing of the Defendants' Motion, all the relevant facts and material which would have been available on a plenary hearing of the Plaintiff's action. The relief...

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    ...extraneous evidence should be ignored. As to the foregoing statements of the law see Barry v. Buckley [1981] I.R. 306; McCabe v. Harding [1984] ILRM 105; Aer Rianta c.p.t v. Ryanair [2004] 1 I.R. 506 and RayanRestaurant Limited v. Gerald Kean practising as Kean Solicitors [2012] IEHC 29. It......
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    ...cause of action or is shown by the pleadings to be frivolous or vexatious. As stressed by O'Higgins C.J. in McCabe v Harding [1984] ILRM 105, 108, ‘in order for r.28 to apply, vexation or frivolity must appear from the pleadings alone’. The inherent jurisdiction to strike out or stay proce......
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    • 1 January 1990 not in possession of the freehold since such discrepancy falls within the de minimis rule. McCabe v. Harding Investments Ltd.DLRM [1984] ILRM 105 followed. (H.C.) Molloy and Dublin County Council Whether failure of planning authority to give applicants notice of decision within relevant ......
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1 books & journal articles
  • The Courts Make a New Friend? Amicus Curiae Jurisdiction in Ireland
    • Ireland
    • Trinity College Law Review No. VII-2004, January 2004
    • 1 January 2004
    ...Rules of Appellate Procedure. 75 This rule provides that amicus submissions may only be filed with the consent 68 McCabe v. Harding [1984] ILRM 105; Barry v. Buckley [1981] IR 306. 69 See Kearney and Merrill, "The Influence of Amicus Curiae Briefs on the Supreme Court" (2000) 148 Pennsylvan......

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