Smyth v Colgan

• Jurisdiction: Ireland
• Judge: LYNCH J.,O'Flaherty J.,BARRON J.
• Judgment Date: 01 January 1999
• Neutral Citation: 1998 WJSC-SC 12271
• Docket Number: [S.C. No. 250 of 1997]
• Court: Supreme Court
• Date: 01 January 1999

SMYTH & SMYTH v. COLGAN

BETWEEN/

PATRICIA SMYTH AND THOMAS SMYTH

Applicants/Respondents

and

JOHN COLGAN

Respondent/Appellant

1998 WJSC-SC 12271

250/97

THE SUPREME COURT

Synopsis

- [1999] 1 IR 548

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963–1992

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 8

R V ALLISON 1843 3 LT (OS) 24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

JUDGMENT delivered on the 15th day of July 1998 by LYNCH J.

1 This is an appeal by the appellant (hereafter called the house owner) against a judgement of the High Court (Costello P.) which in effectfoundand declared that certain development works carried out by the house owner in late 1996 were not exempted development within the meaning of the Local Government (Planning and Development) Acts, 1963to 1992and the Regulations made thereunder. I refer hereafter to the respondents to the said appeal as the objectors. Costello P. delivered his judgment orally on the 15th May 1997: the matter was then adjourned for submissions as to the precise form of order and the order was thereafter perfected on the 4th July 1997.

2 I am in agreement with the judgment about to be delivered by Barron J. that this appeal should be dismissed for the reasons which he gives, but I would also dismiss the appeal for the other reason contended for by the objectors.

3 The relevant regulations as to exempted development relate to development within the curtilage of a dwelling house. In myview,dwelling house in this context means a habitable house which is actually being used or has in the fairly recent past been used by some person or persons as a dwelling house. Where, for example, a builder has erected five small bungalows with two bedrooms each in accordance with a planning permission for five such two bedroomed bungalows, it would not be permissible for the builder or a purchaser from him before the bungalow has ever been occupied as a residence to add a third bedroom at the rear of the bungalow with a floor area of, let us say, twenty square meters. Translating this area into the former scheme of measurement would give 215.28 sq. feet and would provide a bedroom of 16 feet by 13.4 feet which would quite possibly then be the biggest bedroom in thebungalow.

4 The status of a house before it has ever been dwelt in as a residence by human persons is that of a habitable house not a dwellinghouse.Dwelling house is not defined in the Acts or the regulations but habitable house is defined in Article 8 of the Local Government (Planning and Development) Regulations, 1994 as follows:

"Habitable house means a building or part of a building which-"

(a) is used as a dwelling, or

(b) is not in use but when last used was used, disregarding any unauthorised use, as a dwelling, or

(c) was provided for use as a dwelling but has not beenoccupied."

5 From this definition, it follows that a dwelling house will always be a habitable house within the meaning of the planning code of legislation, but the converse does not necessarily apply.

6 In The Queen v. Allison (1843) 2 LTOS 24 the judgment concludes as follows at p. 25:

"It comes entirely to the question, whether the term dwelling house means the house in which a person dwells, or only imports a relation as subsisting between the person and the thing. This house has been empty for some time, and closed up as an empty house. My opinion is, that when you state it to be the dwelling house of A and B, that is a place in which they are in some sense dwelling. A house, as soon as built and fitted for residence, does not become a dwelling house until some person dwells in it. Here the evidence is that no person has dwelt in it, and there is, therefore, no evidence to support thatcount."

7 In Stroud's Judicial Dictionary the primary meaning of dwelling house is "obviously a house with the super added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi and the legal ability to return."

8 It was conceded on behalf of the house owner that the house had never been occupied as a dwelling when he sought to avail of the exemption in the regulations relating to dwelling houses. That being so the status of the house at that time was that of a habitable house and not that of a dwelling house. Accordingly, the proposed alterations at that time were neither development within the curtilage of a dwelling house nor an extension of a dwelling house. They were alterations or development within the cutilage of a habitable house and extensions of a habitable house. They were not therefore exempted development within the Second Schedule Part I Class I of the 1994 Regulations.

9 If it were otherwise, a builder could drive a coach and four through a planning permission to develop an area of land by erecting, for example, twenty-five two bedroomed bungalows and twenty-five three bedroomed two storey houses. As he would complete the bungalows and thehousesin accordance with the planning permission he could then offer them for sale as three bedroomed bungalows and four bedroomed two storey houses undertaking to extend each bungalow and house by 20 sq. meters to provide the additional bedroom accommodation in each case.

10 It may well be that the requirement that newly constructed houses be first lived in before the exempted development provisions of the regulations apply to them as dwelling houses is not infrequently disregarded. Provided that neighbours are not incommoded and do not object, little or no harm is caused if that be so. But where, as in this case, objections had already been successfully made in respect of a planning application to the local planning authority for developments on the same general lines as those the subject matter of these proceedings, there is no basis for overlooking the fact that the exempted development regulations apply only in relation to "dwellinghouses" to be which they must be bonafide used as a residence or have been so used within the reasonably recent past.

11 I would accordingly also affirm that part of the judgment of Costello P. delivered the 15th May 1997 and perfected as an order of the High Court on the 4th July 1997 which found that the house owner's premises was not a dwelling house within the meaning of the exempted development regulations relating to dwelling houses and I would dismiss this appeal on that ground also.

12 JUDGMENT delivered on the 15th day of July 1998by BARRON J.

13 In 1994 an application was made for planning permission in respect of a proposed development to the side of the rear garden of the applicants' home. The applicants objected to the...