The Corporation of D£n Laoghaire v Frescati Estates Ltd

• Jurisdiction: Ireland
• Judge: O'Hanlon J.,
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 789
• Court: High Court
• Date: 01 January 1982
• Docket Number: 1981-75 MCA

DUNLAOGHAIRE CORPO v. FRESCATI ESTATES

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING & DEVELOPMENT)

ACT, 1976

AND IN THE MATTER OF AN APPLICATION BY THE CORPORATION OF DUN LAOGHAIRE

BETWEEN/

THE CORPORATION OF DUN LAOGHAIRE

Applicant

-and-

FRESCATI ESTATES LIMITED WILLIAM CHARLES ROCHE STANLEY JOSEPH ROCHE RAYMOND FRANCIS ROCHE

Respondents

1982 WJSC-HC 789

1981-75 MCA

1 Judgment delivered by O'Hanlon J., on the 16th December, 1981.

2 These proceedings brought by Dun Laoghaire Corporation under Sec. 27 of the Local Government (Planning and Development) Act, 1976, relate to the premises known as No. 40 Rock Hill, Blackrock, Co. Dublin. This house formed part of a terrace of four houses, Nos. 36, 38, 40 and 42, and it appear that these houses at one time were a single residence known as Frescati House, a building of some historic interest by reason of its connection with the family of Lord Edward Fitzgerald.

3 The property in the four premises Nos. 36, 38, 40 and 42 Rock Hill appears to have been vested in the Respondents or one or more of them for the past eight years and upwards, since proposals for the development of the site were made to Dun Laoghaire Corporation on behalf of Frescati Estates Limited as long ago as 1973, and have been followed up by other proposals which resulted in planning permission for the erection of a departmental store, car park and ancillary works being granted pursuant to a decision dated the 25th October, 1978. The planning authority were at all times anxious to ensure that No. 40 would be preserved intact, while permitting demolition of the other three houses, and that a room known as the Pillar Room which formerly formed part of No. 42 would be incorporated in No. 40, thus preserving a building of historic interest and value to the nation. By agreement with the developers, No. 40 was excluded from the application for planning permission and the permission granted was made subject to a special condition, i.e., "that the pillar room for No. 42 Rock Hill be incorporated in No. 40 Rock Hill."

4 The developers appear to have been satisfied to accept the grant of planning permission in this form, but an appeal was taken by a number of objectors, and the matter came before An Bord Pleanala. The Board on the 10th May, 1979, decided to grant the permission sought by the developers in accordance with the plans and particulars lodged by them subject to the conditions specified in column 1 of the Second Schedule to the said decision. These conditions were four in number. They referred to physical features of the area external to the proposed new buildings and did not refer to the incorporation of the Pillar Room in No. 40., nor was there any mention of No. 40 itself in the decision of An Bord Pleanala.

5 The application for permission was made originally by W. A. Maguire and Parents, Architects, to Dun Laoghaire Corporation by letter dated 7th September, 1978, enclosing copies of relevant drawings and other documentatic The penultimate paragraph of that letter read as follows:

"It is proposed that No. 40 Frescati Park be retained. The remaining houses to be cleared in accordance with the consent of the Corporation of Dun Laoghaire under the Housing Act of 1969, by Order dated 15th September, 1970, subject to the conditions set out therein."

6 The Corporation contend in the present proceedings that by reason of the statement made by the applicants for permission in relation to No. 40, coupled with the plan which accompanied the application and which showed No. 40, as being excluded from the redevelopment proposals concerning the remainder of the site, planning permission was granted on this basis by the planning authority, and later, on appeal by An Bord Pleanala. They further contend that the developers have been guilty of flagrant breaches of an obligation to retain No. 40 and have allowed it to deteriorate to such an extent that the entire fabric of the building is being gradually undermined. Accordingly they seek relief under Sec. 27 of the Act of 1976, and in particular seek an order directing and compelling the developers to carry out all works necessary to make No. 40 structurally sound and stable, and to make it wind and water tight so as to halt any further deterioration in the building.

7 It should be noted that after An Bord Pleanala had made its decision on the 10th May, 1979, to grant the planning permission ought by the developers, it was thought necessary to go back to Dun Laoghaire Corporation for permission to make alterations in the plans for the Department Store, but these alterations were only concerned with the provision of an additional fire escape, as required on the application for Bye-Law permission However, the Corporation, in deciding to grant the permission sought, by Order dated 18 July, 1980, reintroduced a condition (No. 5) "That the pillar room for No. 42 Rock Hill be incorporated in No. 40 Rock Hill". This condition had been omitted, whether accidentally or deliberately, by An Bord Pleanala, when granting permission for the development the previous year.

8 Finally, it is also relevant to...