Morris v Garvey

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-SC 1253
• Docket Number: [S.C. No. 95 of 1981]
• Court: Supreme Court
• Date: 01 January 1983

MORRIS v. GARVEY

THOMAS J. MORRIS

v.

PETER GARVEY

1982 WJSC-SC 1253

Henchy J.

Griffin J.

Hederman J.

95/81

THE SUPREME COURT

1 Judgment of Henchy J.delivered the 8th March 1982[Nem. Diss]

2 This case raised a short but important point under the planning laws. It may be stated thus: when a person gets permission to carry out development for which permission is required under s. 24 of the 1963 Act (i.e. the Local Government (Planning and Development) Act, 1963) and he proceeds to carry out the development without complying with the conditions attached to the permission, has the High Court jurisdiction under s. 27(2) of the 1976 Act (i.e. the Local Government (Planning and Development) Act, 1976) to order the demolition of building work done in breach of the permission, or isits jurisdiction limited to issuing an injunction restraining the developer from proceeding with the unauthorised building work?

3 The relevant facts of the case are these. Thomas J. Morris ("the applicant") is a medical practitioner who resides and carries on his medical practice at No. 185 Rathgar Road, Dublin. He has lived there with his wife and a housekeeper for the last thiry-seven years. The predecessor in title of Peter Garvey ("the respondent") was granted development permission in February 1973 for the erection of a two-storey block of three flats at No. 188 Rathgar Road, which adjoins the applicant's home. A fresh application for an altered version of that development was made in May 1979 and it was granted in September1979.

4 This permitted development was of prime importance to the applicant, for as the next-door neighbour he was the person most likely to be affected by it. The development work commenced in April 1980, butthe applicant soon discovered that it was not being carried out in accordance with the conditions attaching to the permission granted in 1979. Those conditions required that the gable wall of the permitted building on the side nearest to the applicant's house would be nine feet away from the boundary at the front of the applicant's gable wall and eleven feet away from the boundary at the rere of that gable wall, and that the front of the block of flats would be six feet out from a building line drawn from the front wall of the applicant's garage.

5 As a result of measurements taken by his architect, the applicant discovered that those conditions were being grossly violated. The partly-built gable wall of the new building was only five feet one inch at the front and only six feet seven inches at the rere from the applicant's gable wall. To make matters worse, the partly-built front wall of the block of flats was positioned eleven feet six inches beyond the building line projected from thefront wall of the applicant's garage.

6 It is any wonder that the applicant objected to this flouting of the development permission? Finding that the amenities of his home were being unlawfully diminished, and that the deviations from the terms of the permission would produce unsightly results, he made an application to the High Court under s. 27 of the 1976 Act. That important section vested a new jurisdiction in the High Court and it allowed that jurisdiction to be exercised at the instance of either the planning authority "or any other person, whether or not the person has an interest in the land". under s. 27(1), which deals with cases where required development permission has not been got and development is being carried out without the required permission, and with cases where an unauthorised use is being made of land, the Court is empowered to prohibit the continuance of the development or the unauthorised use. So much of the section is merely prohibitory. Its aim is merely torestrain a continuance of the illegality. S. 27(2), which is the relevant provision in this case, is in a different vein and of a wider scope. It runs as follows:

"Where any development...