Morgan v Slaneygio
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Ms. Justice Baker |
| Judgment Date | 04 May 2017 |
| Neutral Citation | [2017] IEHC 284 |
| Docket Number | [2016 No. 339 MCA] |
| Date | 04 May 2017 |
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
AND
[2017] IEHC 284
[2016 No. 339 MCA]
THE HIGH COURT
Planning and Development – S. 160 of the Planning and Development Act 2000 – Demolition of preserved structure – Refurbishment
Facts: The applicants had filed the present application against the respondents seeking an order pursuant to s. 160 of the Planning and Development Act (‘PDA’) 2000 for the reinstatement of the demolished premises to its prior condition. The applicants who resided in the adjoining premises contended that the owners of the demolished premises were not authorised to demolish their premises as those were not exempt premises. The respondents showed their willingness to reinstate the demolished premises but took an objection in relation to the jurisdiction of the Court to grant an order under s. 160. The respondents argued that the works carried out by them could be characterised as ‘works’ within the meaning of the PDA as they were done with the intent of restructuring the premises.
Ms. Justice Baker held that the works of demolition carried out in relation to the premises in question was not an exempted development under the PDA. The Court, however, refused to make any other order pending the cross-examination of the owner of the demolished premises in order to ascertain the intention of the owner for demolishing the premises. The Court held that the application of provisions relating to exemption required consideration of different classes of work of different degrees of intensity. The Court held that the mere fact that the motive for bringing down the existing structure to build a new structure with modern amenities would not itself render the demolition exempt. The Court held that under s. 4(1)(h) of the PDA, the Court had to do an analysis of the intention of the person carrying out the demolition in question. The Court noted that the reinstatement of the demolished premises to its prior condition would require continuance of supervision by the Court under the guidance of an expert.
This application arises from the demolition by the respondents of a building situate at and known as 25 Dublin Street, Carlow, Co. Carlow, a terraced building between and connected to Nos. 24 and 26 Dublin Street, Carlow.
Number 26 Dublin Street, Carlow is a protected structure and the applicant and her two siblings are the owners. The applicant brings the application on her own behalf and on behalf of, and with the authority of, the other two co-owners.
The first respondent is a limited liability company of which the second respondent is the principal shareholder, and is the owner of the premises at No. 25 Dublin Street, Carlow, which adjoins No. 26 on the northern boundary thereof.
For convenience, I will refer to No. 25, the now demolished building, as ‘the Premises’. The Premises is situate within an architectural conservation area, but is not a protected structure.
A particular feature of the Premises is that it has a gated arch on the ground floor through which access may be gained to the yard at the rear.
This judgment is given in an application for an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, (‘the PDA’) for the reinstatement of the Premises to its prior condition, and for ancillary orders relating to the degree of detailed directions and scrutiny to be engaged by the court regarding such works.
On 1st November, 2016, Noonan J. made an order ex parte restraining the carrying out of further works by the respondents to the Premises and the preservation of all structural materials at, or taken from, the site. On 10th October, 2016 an order was made by me joining Carlow County Council as co-applicant in the proceedings on its motion, and continuing the order made ex parte by Noonan J. By that order the applicant was permitted to carry out temporary works of buttressing and support subject to conditions, and the conservation architect employed by the applicant was permitted to enter upon and inspect the Premises.
An unusual feature of the application is that the respondents have indicated a willingness to reinstate the building, and argue that in those circumstances the making of a court order is unnecessary and oppressive. The respondents have made this concession notwithstanding their assertion that the works carried out at the Premises were exempted works of demolition executed for the purposes of improving and making safe the existing structure. As the making of an order under s. 160 is conditional upon the court accepting that the works of demolition were unauthorised, and therefore amenable to a planning injunction under the section, the respondents deny that the court has jurisdiction to grant an order under s. 160.
Carlow County Council supports the application and rejects the assertion that the works of demolition were exempted development.
In December, 2015 Slaneygio purchased the Premises. On 24th June, 2016, Mr. Germaine attended a pre-planning meeting with Carlow County Council at which he indicated his intention, or that of the company, to seek planning permission to develop the Premises and erect a hostel. A second pre-planning meeting was held on 2nd August, 2016, and the planning officials advised Mr. Germaine that, as the building was situate in an architectural conservation area, and because it abutted a protected structure, the demolition of the building would not be in accordance with best architectural practice or the planning guidelines.
In late September, 2016, Mr. Germaine visited one of the co-owners, Ms. Morgan's brother, David Morgan, asking him to consent to demolition of the Premises in return for a car park space in the proposed development. David Morgan in his affidavit of 14th November, 2016, avers that he refused consent and that he pointed out to Mr Germaine that the demolition or redevelopment of the Premises would be a matter for the planning authorities.
Mr. Germaine in his first affidavit of 9th November, 2016, says that at some point in mid-October, 2016, he instructed workmen to enter upon the Premises and carry out certain internal works, as a consequence of which on 20th October, 2016 a wall or part of a wall to the rear of the Premises collapsed. At some time between 20th and 27th October, 2016, Bill Forristal, B.E. inspected the Premises on behalf of the respondents and produced a written report dated 27th October, 2016, sent by email at midday on Saturday, 29th October. Mr. Germaine asserts that as a result of concerns regarding the safety of the building expressed in that report that he carried out the demolition works on 29th October, 2016. The work commenced early on that morning, a Saturday morning of a bank holiday weekend, and continued over the weekend.
The interim injunction was granted on Tuesday morning, 1st November, 2016.
No planning permission exists for the demolition of the building, and it is accepted for the purposes of this application that, as the demolition was not a spontaneous event, the demolition may be characterised as ‘works’ comprising development within the meaning of the PDA.
The respondents argue that, as Mr. Germaine has stated on his own behalf and on behalf of the company that he will reinstate the Premises, and as counsel has confirmed this in open court prior to the commencement of the hearing, an injunction is not necessary. However, the matter for determination first by me is whether the court has jurisdiction to grant an injunction under s. 160 and that engages the question of whether the works of demolition were exempt within the planning code. Certain factual differences arise from the affidavit evidence, and I will in this judgment also consider whether those factual differences require to be resolved by the cross-examination of Mr. Germaine on his affidavits. I will deal also with the argument, that because the demolition of the building is said by the respondents to have been necessitated by health and safety considerations, the court should exercise its discretion to refuse injunctive relief.
It is common case that the Premises has been empty for a number of years, and the respondents assert that it has been semi-derelict for a long period of time. Mr. Germaine's evidence is that he engaged contractors for the purpose of cleaning out the interior of the building, and taking down plaster work and decaying and rotting materials, with the intention of ‘bringing the structure back to its core’ before any repair or decorative works ‘of a more substantial nature’ could be carried out. The Premises is not a protected structure and the works of internal refurbishment were exempt from the requirement of planning permission.
Mr. Germaine says that following on works carried out on 20th October, 2016, ‘a catastrophic’ collapse occurred to the rear of the building and he exhibits a photograph which shows a large gaping hole in the wall and a considerable amount of rubble in the form of timber and mortar scattered around.
Mr. Germaine says that it became apparent that the building had no foundations and that there was ‘immediate concern as to the stability of the remainder of the building given the relatively minor works that caused the rear wall to collapse’. He says that the collapsed wall supported part of the roof, and that the lack of support for the roof which in turn tied the building together had the combined effect that the building became unstable and unsafe. He says the...
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Morgan v Slaneygio
...25 Dublin Street, Carlow. The facts have been fully set out in the judgment of the High Court of the 4th May, 2017, Morgan v Slaneygio [2017] IEHC 284. For the purposes of this appeal it is sufficient to note that the building was completely demolished over the Halloween bank holiday weeke......