McMahon v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [1989 No. 9870P],No 9870p/1989
• Court: High Court

1996 WJSC-HC 4138

THE HIGH COURT

No 9870p/1989

MAHON v. DUBLIN CORPORATION

BETWEEN

THOMAS McMAHON AND OTHERS

PLAINTIFFS

AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

DEFENDANTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1983

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(6)

READYMIX (EIRE) LTD V DUBLIN CO COUNCIL & MIN FOR LOCAL GOVT UNREP SUPREME 30.7.74

WILSON V WEST SUSSEX CO COUNCIL 1963 2 QB 764

BELMONT FARM V MIN FOR HOUSING 60 LGR 319

Synopsis:

PLANNING

Use

Change - Materiality - Structure - Purpose - Planning permission - Purpose of structure not stated in permission - Permission deemed to include use for purpose for which structure designed - Residential development of houses and maisonettes - Portion of dwellings used for short-term lettings - Structures designed for private residential use - Material change of use - Unlawful development of portion of estate - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 3, 24, 28 - Local Government (Planning and Development) Act, 1976 (No. 20), s. 39 - (1989/9870 P - Barron J. - 19/6/96) - [1996] 3 IR 509 - [1997] 1 ILRM 227

|McMahon v. Corporation of Dublin|

WORDS AND PHRASES

"Designed"

Planning - Permission - Use - Change - Materiality - Structure - Purpose - Purpose of structure not stated in permission - Permission deemed to include use for purpose for which structure designed - Residential development of houses and maisonettes - Portion of dwellings used for short-term lettings - Structures designed for private residential use - Material change of use - Unlawful development of portion of estate - (1989/9870 P - Barron J. - 19/6/96) - [1996] 3 IR 509 - [1997] 1 ILRM 227

|McMahon v. Corporation of Dublin|

1 JUDGMENT of Mr. Justice Barron delivered the 19th day of June, 1996 .

2 On the 19th April, 1984 the Defendants granted permission for the development of lands at Newbridge Avenue, Londonbridge Road, Dublin 4 for the erection of thirty-five houses and fifty-six maisonettes. A number of conditions were imposed but the only one which is material to the presents case is No. 7 which was as follows:-

"No part of the proposed houses or apartments shall be used for non-residential purposes such as offices, surgeries or consulting rooms."

3 It was said that the reason for this condition was "to prevent unauthorised development and in the interest of residential amenity".

4 The development which was carried out is known as Lansdowne Village. At the time of the building of the estate, tax advantages were available for use of the houses and maisonettes as holiday homes. At least eight homes had to be involved and registration with Bord Failte was necessary. Under the provisions of the Act under which the advantages were provided, the use of such homes was deemed to be the business of hotel keeping.

5 The owners of ten of these homes took advantage of the scheme and such homes have at all material times been available for use by person requiring short term lettings. They were managed by Trident Holiday Homes Limited, a management company the business of which is to provided holiday and other short term lettings at various sites around the city of Dublin.

6 Some time in 1987 complaint was made to the Defendants that this use was not a permitted use. Following upon such complaints, the matter was referred by the Defendants to An Bord Pleanala. The reference was made by letter dated the 7th June, 1988. This reference made it clear that the Defendants regarded the use of its homes as holiday homes as being a change of use. The letter also made it clear that the view of the Defendants would be considerably strengthened if it was supported by An Bord Pleanala.

7 The Ruling of An Bord Pleanala was given on the 5th July, 1989 and was as follows:-

"Whereas a question has arisen between Dublin Corporation and Trident Holiday Homes of Unit 2, Sandymount Village, Sandymount. Dublin as to whether the use of ten town houses at 38 to 46 and 48 Lansdowne Village off Newbridge Avenue, Sandymount, Dublin as holiday homes on a commercial basis is or is not development or exempted development within the meaning of the Local Government (Planning and Development) Acts, 1963to 1983."

8 And whereas the said question was, pursuant to Section 5 of the Local Government (Planning and Development) Act, 1963 as amended referred to An Bord Pleanala by Dublin Corporation on the 7th day of June, 1988.

9 Now therefore An Bord Pleanala in exercise of the powers conferred on it by Section 5 of the Local Government (Planning and Development) Act, 1963as amended hereby decided that the said use is development and is not exempted development within the meaning of the said Acts."

10 The present proceeding are brought to obtain a Declaration that the use to which these houses is being put is an authorised use. The Plaintiffs also appeal against the decision of An Bord Pleanala.

11 A number of residents on the estate gave evidence that the use of these holiday homes causes them annoyance and disturbance. The major complaints related to noise, mainly of vehicles entering the estate in the early hours of the morning and disturbing those who are asleep. Other complaints were of rowdy behaviour at weekends, particularly those involving international rugby matches at nearby Lansdowne Road. As against this there was evidence from two residents who had no complaints and evidence from the Managing Director of the company which managed the homes who was hereself a home owner and a Director of the estate management company.

12 Having heard the evidence, I am satisfied that the residents are justified in many of their complaints. Two of them indicated that they did not become aware of these holiday homes for some three or four years. It seemed to me implicit in their evidence that there was more noise and disturbance in the estate than might have been expected on an estate of that type, that they had been unable to understand why. Some of the complaints, particularly in relation to the large coach, were unreasonable. It happened once and the real complaint seems to have been the rudeness of the driver. It is perhaps unfortunate that complaints which in the main were grumbles among the residents themselves were never specifically referred to Trindent Holiday Homes Limited.

13 While I believe the properties used as holiday homes to be well managed, I have little doubt that those living near them would prefer more permanent...