Planning injunction: section 160

AuthorGarrett Simons
PositionPractising barrister and the author of Planning and Development Law (Thomson Round Hall, Dublin, 2004).
The Planning and Development Act, 2000 has introduced a
number of important changes to planning law. Perhaps the one
which will prove the most significant in terms of the practice and
procedure of the Circuit Court is that in relation to the planning
Section 160 of the Planning and Development Act, 2000
provides a procedure whereby an application may be made to either
the High Courtor the Circuit Court for orders in respect of
unauthorised development. The section is widely drafted and a
variety of orders may be made; for example, orders may be made
requiring the discontinuance of unauthorised development, or the
restoration of any land so far as practicable to its condition prior to
the commencement of any unauthorised development. The side note
to the section refers to an “injunction” in relation to unauthorised
development: this is somewhat misleading given the breadth of the
orders which may be made.1The most notable featureof the
procedure is that there is no locus standi or standing requirement: it
is expressly provided under section 160(1) that an application may
be made by the planning authority or any other person, whether or
not the person has an interest in the land. For this reason, the courts
had indicated that the grant of relief under the equivalent section of
the previous legislation was discretionary.2
2004] 199Planning Injunction: Section 160
*B.L. Garrett Simons is a practising barrister and the author of Planning and Development
Law (Thomson Round Hall, Dublin, 2004). The following text is based to a limited extent on
material from that book. All copyright and other rights are reserved in this regard.
1See comments of Barrington J. in Stafford v. Roadstone Ltd. [1980] 1 I.L.R.M. 1 at 19
(H.C.): “While the word‘injunction’ is not used in this section it is clear that the section
confers on the High Court jurisdiction to issue both restraining and mandatory injunctions”.
See also Avenue Properties Ltd. v. Farrell Homes Ltd.[1982] I.L.R.M. 21 at 26 (H.C.).
2See generally Simons, G., “Judicial Enforcement of Planning Control” (2002) 9 I.P.E.L.J. 143.
Section 160 is the successor of section 27 of the Local
Government (Planning and Development) Act, 1976 (as amended by
section 19 of the Local Government (Planning and Development)
Act, 1992). A number of significant amendments have been made,
however. First, the procedure has been streamlined: under the
previous legislation, a distinction was drawn between development
in breach of planning permission, and unauthorised development i.e.
development without the benefit of any planning permission.3
Secondly, quia timet or anticipatory relief is now available; thus the
lacuna identified in the Lansdowne Road case4has been legislated
for.Thirdly, the jurisdiction of the Circuit Court has been limited to
cases where the rateable valuation of the land the subject-matter of
the application does not exceed I.R. £200. Fourthly, the time limit
with respect to the taking of enforcement proceedings has been
increased from five years to seven years. Finally, it is now expressly
provided that planning permission shall not be required in respect of
development required by an order under section 160.5
Although most of the amendments introduced under the new
procedure under section 160 are welcome, it has to be said that there
are a number of aspects of same which are open to criticism. In
particular, the new section is silent on several key issues. The most
obvious of these is in relation to the change in the limitation period
from five years to seven years. No provision is made for what is to
happen in respect of those unauthorised developments of the vintage
five to seven years. Toelaborate: therewill be a bracket of
unauthorised development which had achieved immunity under the
previous legislation (by virtue of having been commenced more than
five years previously) prior to the 11 March 2002 (commencement
date), but which was still shy of the seven years stipulated under the
Planning and Development Act, 2000. Is the prospect of enforcement
action to be revived in respect of such development? The Act is silent
on this point. Although the argument might be made that to revive
200 [4:2Judicial Studies Institute Journal
3One consequence of this is that a breach of the terms or conditions of a planning permission
may not now be actionable per se.
4Mahon v. Butler [1997] 3 I.R. 369 (S.C.) cited with approval in Birmingham v. Birr U.D.C.
[1998] 2 I.L.R.M. 136 (H.C.); Westport U.D.C. v. Golden [2002] 1 I.L.R.M. 439 (H.C.); and
O’Connell v. Dungarvan Energy Ltd., High Court, unreported, Finnegan J., 27 February
5Section 163.

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