Westport UDC v Golden

 
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2000 WJSC-CC 6742

THE CIRCUIT COURT

1999-435-CA
Record No. 2/2000
WESTPORT URBAN DISTRICT COUNCIL v. GOLDEN & ORS
1999-435-CA
Western Circuit County of Mayo
In the matter of Section 27 of the Local Government (Planning and Development) Act1976 as substituted by Section 19(4) (g) of the Local Government (Planning and Development) Act1992 and in the matter of an Application by Westport Urban District Council

Between

Westport Urban District Council
Applicant

and

George Golden
First Named Respondent

and

Sudgrove Limited
Logden Homes Limited
Second Named Respondent

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(g)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(1)

DILLON V IRISH CEMENT LTD UNREP FINLAY 26.11.1986

BURDLE V SECRETARY OF STATE FOR ENVIRONMENT 1972 1 WLR 1207

CARROLL & COLLEY V BRUSHFIELD LTD UNREP LYNCH 9.10.1992

XJS INVESTMENTS LTD V DUN LAOGHAIRE CORPORATION 1987 ILRM 659

DUBLIN CORPORATION V REGAN ADVERTISING LTD 1986 IR 171

MAHON V BUTLER 1999 3 IR 369

CORK CORPORATION V O'CONNELL 1982 ILRM 505

Synopsis:

Planning

Planning; exempted development; material change in use; premises had been used partly as restaurant and partly as take away facility with first floor residential accommodation; premises sold to respondents who converted first floor to commercial use, reduced ground floor to a single room and opened premises as fast food outlet, despite service of a warning notice by applicant; whether two air handling units installed by respondent materially effect the external appearance of the structure; whether two flues of which complaint was made are an exempted development; whether court should exercise its discretion under the Act in favour of respondents in respect of an admitted unauthorised development when to do so would lend support for uncooperative conduct; whether there has been change in use of restaurant part of premises since facility opened; whether this change of use is material; s.27(1), Local Government (Planning and Development) Act, 1976 as substituted by s.19(4)(g), Local Government (Planning and Development) Act, 1992.

Held: Circuit Court order affirmed; order stayed to enable the respondents to bring such application as they may be advised to regularise their position.

Westport Urban District Council v. Golden - High Court: Morris P. - 18/12/2000 - [2002] 1 ILRM 439

After acquiring a premises formerly used as a restaurant and fast food outlet the respondents converted the outlet into a Super Mac's fast food. The applicant issued a warning notice under the planning legislation but the respondents proceeded to continue the work and opened the outlet for business in December 1999. The applicant instituted proceedings against the respondents in the Circuit Court which held that the work represented a material change of use. The respondents appealed. Morris P held that since the opening of the Super Mac facility there had been a change of use of that part of the premises which formally constituted the restaurant area. Because of the noise that would be generated into the late hours disturbing the residents it was a material change of use. The Circuit Court order would be affirmed and a stay put on the order to enable the respondents to bring such application as they might be advised to regularise their position. The court would then review the situation.

1

Judgment of Mr. Justice Frederick Morris on the 18th day of December 2000

Mr. Justice Frederick Morris
2

This matter comes before the Court by way of an appeal from an Order of the Circuit Court made the 10th February 2000.

3

Prior to 1979 the premises which are the subject matter of this application which are situate at Bridge Street, Westport, Co. Mayo was used as a butcher's shop and cafe with living accommodation overhead. On the 3rd August 1979 the then owner Mr. Dominic Di Lucia applied to the Westport Urban District Council for permission to carry out a development to the said premises and on the 16th November 1979 the Council notified Mr. Di Lucia that by Order of the 11th October 1979 it had granted him permission to erect a restaurant and extension to the living accommodation at the said premises subject to the conditions set forth in the permission.

4

With the application for permission Mr. Di Lucia had lodged drawings with the Council. These drawings showed that it was intended to use the business part of the premises partly as a restaurant and partly as a Take Away facility. The remainder of the ground floor was given over to cooking, food preparation and storage with the usual ladies and gentlemen's toilets. The plans also showed that it was intended to carry out significant alterations to the residential part of the premises on the first floor.

5

The permission was granted by the Council"in accordance with the documents lodged and subject to the conditions set out in column 1 of the Schedule hereto."

6

Mr. Di Lucia carried on business in the premises on foot of this permission under the title of Cafollas up to the month of September 1999.

7

I am satisfied that between 1979 and September 1999 on which date the premises was acquired by the Respondents, the premises was used as a restaurant with a small area used as a Take Away facility. The first floor of the premises was used as residential accommodation. While there has been some conflict of evidence as to the way in which the premises was run, I am satisfied that the parts of the premises which are marked "Restaurant" on the drawings lodged with the planning application were in fact used as a conventional restaurant. That is to say a diner would be shown to a table presented with a menu and would have waiter service throughout his meal. I am satisfied that in the area marked "Take Away" hot food was delivered to patrons at a counter for the purpose of being consumed off the premises. This area is separate and apart from the restaurant area. I am satisfied that save for rare and exceptional occasions, when a diner in the restaurant would expressly ask to be provided with a Take Away, no Take Away sales were conducted in the restaurant area.

8

The Take Away area comprises five square metres. The restaurant area comprises 56.3 square metres. Both of these areas front onto the street but they are separated by an area in which the cooking for both restaurant and takeaway facilities took place and at the rear of this cooking area a food preparation area served both the restaurant and the takeaway facilities.

9

I am satisfied that the residential area was renovated broadly in accordance with the plans lodged and insofar as there has been a deviation from these plans, I am of the view that it is not material to the issues which I have to consider in this case.

10

In or about the month of September 1999 the Respondents acquired the premises and consulted Mr. John Lambe, an Engineer practising at Quay Street, Westport, Co. Mayo. Initially Mr. Lambe was requested to advise in relation to the conversion of the first floor residential area into business use and to advise on the redesign of the shop windows.

11

Initially he was not consulted in connection with work on the ground floor nor any planning considerations which might arise in relation to that work.

12

I am satisfied that in or shortly after the month of September 1999 the Respondents arranged for builders to strip the entire ground floor of the premises thereby removing divisions between the takeaway, the cooking area and the restaurant so as to, in effect, reduce the ground floor to a single room.

13

Mr. Kieran Lynn the Town Engineer of Westport Urban District Council and Mr. Simon Wall an Executive Architect employed by Westport Urban District Council inspected the work and formed the view that it constituted an unauthorised development within the meaning of the Planning Acts. As a result of a visit to the premises on the 25th November 1999 and upon discovering that the layout of the Take Away section had changed and that various other works had taken place in the premises, arrangements were made for a warning notice to be served on the Respondents. I am satisfied that upon Mr. Lambe becoming aware of the intention of the Council to serve this notice, steps were taken by him and by the Respondents to avoid being served with this notice. However, I am satisfied that the notice was served on the Respondents on the 26th November 1999 and that arrangements were made for an application to be made to the court for the reliefs now claimed. I am satisfied that notwithstanding the fact that the Plaintiffs moved with all due expedition to prevent it, the Respondents succeeded in converting the premises into a Super Mac fast food outlet decorated, lit and furnished in a manner appropriate to such a facility and that the premises opened for business as a Super Mac outlet on the 1st December 1999.

14

The Mangerial Order of the 26th November 1999 ordering that a warning notice be served on the Respondents identifies the unauthorised development of the lands at Bridge Street in the following terms:

2 "(1) Installation of air handling units;
15

(2) Change of use of room at 1st floor level from residential use to commercial use;

16

(3) Constructing a new section of roof at rear of property resulting in a large commercial area;

17

(4) Relocating the takeaway location from area indicated on drawings as...

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