Molloy v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Gilligan |
| Judgment Date | 30 April 2004 |
| Neutral Citation | [2004] IEHC 74 |
| Court | High Court |
| Docket Number | [2001 No. 73,HC 173/04 |
| Date | 30 April 2004 |
[2004] IEHC 74
THE HIGH COURT
AND
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 SCH II PART IV
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(4)(G)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 (EXEMPTED DEVELOPMENT) REGS 1967 SI 176/1967 PART IV
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(5)
YOUNG V SECRETARY OF STATE FOR ENVIRONMENT 1983 JPL 465
CYNON VALLEY BOROUGH CO V SECRETARY OF STATE FOR WALES V OI MEE LAM 1986 53 P & CR 68
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S23(9)
TOWN & COUNTRY PLANNING ACT 1971 S23(9) (UK)
TOWN & COUNTRY PLANNING ACT 1971 S23(8) (UK)
TOWN & COUNTRY PLANNING ACT 1971 S245 (UK)
PIONEER AGGREGATES (UK) LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1985 AC 132
TOWN & COUNTRY PLANNING ACT 1971 S33(1) (UK)
TOWN & COUNTRY PLANNING GENERAL DEVELOPMENT ORDER 1977 SI 1977/289 ART 3.1 (UK)
SLOUGH ESTATES LTD V SLOUGH BOROUGH COUNCIL (NO 2) 1971 AC 958
NEWBURY DISTRICT COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT 1981 AC 578
HARTLEY V MIN HOUSING & LOCAL GOVT 1970 1 QB 413
PETTICOAT LANE RENTALS LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1971 1 WLR 1112
KENNY & HUSSEY, STATE V BORD PLEANALA UNREP SUPREME 30.12.84 1984/7/ 2366
MEATH CO COUNCIL V DALY 1987 IR 319
WESTMEATH CO COUNCI V QUIRKE & SONS UNREP BUDD 23.5.1996
LITTLE PLANNING CONTROLS & THEIR ENFORCEMENT 7ED PAR 1.6.1
CARRICK HALL HOLDINGS LTD V DUBLIN CORPORATION 1983 ILRM 268
BUTLER V DUBLIN CORPORATION 1999 1 IR 565
GALWAY CO COUNCIL V LACKAGH ROCK LTD 1985 IR 120
PLANNNING & DEVELOPMENT ACT 2000
Synopsis:
- [2004] 2 IR 493 - [2004] 2 ILRM 343
Facts: the respondents had purchased a property from its previous owners who had been granted planning permission in 1969 for it use as a hostel for students. They subsequently changed its use to that of a religious institution and monastery in 1977 which continued until the respondents purchased it in 2000 and which material change of use, it was accepted by everyone, had been, at all times, unauthorised. The applicants objected to the respondents intended reversion to the use of the premises as a hostel, albeit for asylum-seekers now rather than novitiates. It was contended by them that the original permission attaching to the property had been abandoned and extinguished by the subsequent unauthorised material change of use from 1977 onwards and sought, inter alia, a declaration that the proposed change of use of the premises from its intervening use as a religious institution since 1977 to that of an asylum hostel constituted development, being a material change of use from its habitual, intervening use, which required fresh planning permission and, an injunction restraining its use as an asylum hostel unless and until such permission had been granted. The respondents replied that they had bought the premises with the benefit of the 1969 permission which still subsisted (inter alia, as it was not capable of being abandoned by the conduct of an owner or occupier) and that there was no requirement for them to apply for fresh planning permission. In support of that contention, the respondent pointed to the desirability, from a conveyancing point of view, of purchasers being able to rely definitively on the planning register. The applicants further contended, in the alternative, that the proposed use would result in an intensification of the previous residential use, amounting to a material change of use, which thereby also required fresh planning permission.
Held by Gilligan J in refusing the reliefs sought that the effect of section 28(5) of the Act of 1963 was that the grant of planning permission enured for the benefit of the land or structure concerned and, accordingly, could not be abandoned. Where there was an existing valid planning permission for a specific use of property and no subsequent planning permission had been granted for the use of the property concerned and where a material unauthorised change of use had occurred, notwithstanding that that intervening use was incapable of being prevented, and where the original permission was capable of being implemented (in the sense that there had been no material structural alteration of the property which would render the original permission for use incapable of being implemented), the original planning permission could not be abandoned or extinguished. Accordingly, the intervening, material unauthorised use of the premises for religious purposes since 1977 until the premises was sold to the respondents in 2000 was of no legal effect and did not take precedence over the original valid planning permission of 1969, which was still extant as being capable of implementation as there had been no material structural alteration to the property concerned, and remained extant until altered by a subsequent valid planning permission. Accordingly, planning permission was not required for a change of use from an intervening, unauthorised use to a use as provided for in a subsisting valid planning permission attaching to the property. Whether any significant intensification of use would lead to a material change of use was hypothetical for the time being.
Reporter: P.C.
Judgment of Mr. Justice Paul Gilligan delivered the 30th day of April, 2004.
By Order of O'Higgins J. on the 12 th February, 2001, the applicants herein were given leave to apply by way of an application for judicial review for the following reliefs:
1. A Declaration by way of application for judicial review that any change of use of the premises known as Broc House, Nutley Lane, Dublin 4, from use for the purposes of a Religious Body to use for the purposes of a reception centre and/or premises for the accommodation of asylum seekers amounts to a material change of use within the meaning of s. 3 of the Local Government (Planning & Development) Act, 1963, as amended.
2. Further, or in the alternative, a Declaration by way of application for judicial review that any change of use of the premises known as Broc House, Nutley Lane, Dublin 4, from its existing use to use for the purposes of a reception centre and/or premises for the accommodation of asylum seekers amounts to a material change of use within the meaning of s. 3 of the Local Government (Planning & Development) Act, 1963, as amended.
3. A Declaration by way of application for judicial review that the said change of use of the said premises known as Broc House, Nutley Lane, Dublin 4, from its existing use or its use as a religious institution and/or its use for the purposes of a religious institution and/or as a monastery to use for the purposes of a reception centre and/or the accommodation of asylum seekers constitutes development for the purpose of s. 3 of the Local Government (Planning & Development) Act, 1963, as amended, and is not exempted development for the purposes of s. 4 of the said Act and the Regulations made thereunder.
4. If necessary, an Order pursuant to s. 27 of the Local Government (Planning & Development) Act, 1976, as amended, prohibiting the respondents, their servants or agents or any persons having knowledge of the making of the said Order or otherwise from operating, maintaining or using the premises known as Broc House, Nutley Lane, Dublin 4, as a reception centre and/or premises for the accommodation of asylum seekers, unless and until planning permission is granted in respect of the change of use involved.
The grounds upon which relief is sought are as follows:
1. The use of a building as a reception centre and/or premises for the accommodation of asylum seekers involves materially different planning implications than the use of premises for the purposes of a religious body and/or as a monastery and, on this basis, constitutes a material change of use. The use history of the subject premises confirms that the last use of Broc House was for the purposes of a religious body and/or as a monastery and is therefore a type of use which falls within Class 7 of Part IV of the Second Schedule to the Local Government (Planning & Development) Regulations, 1994, as amended, or a cognate class of uses. The existing use of Broc House includes a residential component and occasional visitor accommodation on a small scale. The said use for residential purposes and/or for the purposes of occasional visitor accommodation is ancillary to the primary use of the premises for the purposes of a religious body and/or amounts to a de minimis use which does not alter the character of the primary use as aforesaid. The use of the premises for the purposes of a reception centre and/or premises for the accommodation of asylum seekers would amount to a use of a materially different character to the primary use of the said premises as a religious institution within the said Class 7 of Part IV of the Second Schedule to the said Regulations of 1994, or cognate use grouping.
2. Furthermore, the use of the said premises as a reception centre and/or premises for the accommodation of asylum seekers is a use materially different in character from the existing use of the said premises by reason of the fact that the said proposed use involves a number of activities, whether part of the said overall proposed use or ancillary to that use, which do not form part of the existing use of the premises and/or...
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