The State (Toft) v Corporation of Galway

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'HIGGINS C.J.
• Judgment Date: 30 July 1981
• Neutral Citation: 1981 WJSC-SC 2110
• Docket Number: (153-80)
• Date: 30 July 1981

STATE (TOFT) v. GALWAY CORPORATION

IN THE MATTER OF AN APPLICATION BY DAVID C. TOFT

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963–1976

THE STATE AT THE PROSECUTION OF DAVID C. TOFT

Appellant

and

GALWAY CORPORATION

Respondents

1981 WJSC-SC 2110

Chief Justice

Walsh J.

Kenny J.

(153-80)

THE SUPREME COURT

1 JUDGMENT delivered on the 30th day of July 1981 by O'HIGGINS C.J.[Nem. Diss]

2 This appeal relates to certiorari proceedings brought by the Appellant as prosecutor seeking to quash a planning permission granted by the Galway Corporation as a Planning Authority under the provisions of the Local Government (Planning and Development) Acts 1963–1977. The grant of planning permission was made by Order of the Corporation dated the 16th August 1977. It provided for the grant under the provisions of Section 26 of the 1963 Act of permission to change the user of premises No. 228 Upper Salthill in the City of Galway from that of a dwellinghouse to that of an amusement centre. The Order purported to grant such permission to a company named therein as Spirits Rum Company Limited. It appears from the Affidavits which were before the High Court Judge in these proceedings that no such company as Spirits Rum Company Limited existed. It further appears that the premises in question were owned by a company known as Rum Spirits Limited which was a company wholly owned by a Mr. Frank Hallinan and his sister Mrs. Caroline Sheils. The misdescription of this company in the Order granting planning permission was due to a genuine error made in the preparation of the application for planning permission. This application was in fact made by a Mr. John Gallagher, engineer, who was acting on behalf of the company which owned the premises, Rum Spirits Limited, and who received his instructions so to act from Mr. Frank Hallinan. The error in describing the name of the company was due, either to a mistake made by Mr. Hallinan in giving the name of the company to Mr. Gallagher, or, to a mistake made by Mr. Gallagher in noting or understanding his instructions. The premises No. 228 Upper Salthill in the City of Galway adjoin premises owned and occupied by the Appellant. In his premises the Appellant carries on the business of an amusements centre. The premises No. 228 Upper Salthill were purchased at a public auction in 1977 by Mrs. Caroline Sheils acting on her own behalf and on behalf of her brother. The defeated bidder at the auction was the Appellant. Having purchased the premises, Mrs. Sheils and her brother took the conveyance in the name of Rum Spirits Limited, which was a company which they had acquired for this purpose. In relation to the planning application, which was subsequently made by Mr. Gallagher on behalf of the company, it does not appear whether or not, the Appellant objected. It does appear, however, that the provisions of the relevant planning regulations were fully observed and that consequently the Appellant was afforded every opportunity to object if he so wished. It also appears that he subsequently objected to later applications made in respect of the premises, both under the Gaming and Lotteries Act 1956, in the name of Francis J. Hallinan as nominee of Rum Spirits Limited, and under the Planning Acts, in the name of Francis J. Hallinan. These later applications were made in May and July 1979. From these facts it would appear that prior to the...