White v McInerney Construction Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: BLAYNEY J.
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-SC 4310
• Date: 01 January 1995

1994 WJSC-SC 4310

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Blayney J.

246/398-89 & 26/90

WHITE v. MCINERNEY CONSTRUCTION LTD

IN THE MATTER OF AN APPLICATION

UNDER SECTION 27 OF THE LOCAL GOVERNMENT

(PLANNING AND DEVELOPMENT) ACT 1976

BETWEEN/

JOHN P.M. WHITE

Applicant/Appellant

and

McINERNEY CONSTRUCTION LIMITED

Respondent/Respondent

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(3)

RSC O.103 r2

RSC O.103 r5

RSC O.103 r6(a)

RSC O.103 r7

AVENUE PROPERTIES LTD V FARRELL HOMES LTD 1982 ILRM 21

Synopsis:

HIGH COURT

Order

Discretion - Exercise - Planning - Enforcement - Permission - Conditions - Compliance - Absence - Extent - Significance - Interference with foliage screen enjoyed by owner of plaintiff's house - Refusal of court to frustrate defendant's entire development - Enforcement subject to discretion of High Court - (246,398/89 - Supreme Court - 29/11/94) - [1995] 1 ILRM 374

|White v. McInerney Construction Ltd.|

PLANNING

Enforcement

Development - Conditions - Compliance - Absence - Extent - Significance - Interference with foliage screen enjoyed by owner of plaintiff's house - Refusal of court to frustrate defendant's entire development - Enforcement subject to discretion of High Court - Rules of the Superior Courts, 1986, order 103, rr. 2, 6, 7 - Local Government (Planning and Development) Act, 1976, s. 27 - Local Government (Planning and Development) Act, 1992, s. 19 - (246,398/89 - Supreme Court - 29/11/94) - [1995] 1 ILRM 374

|White v. McInerney Construction Ltd.|

1 JUDGMENT delivered on the 29th day of November 1994 by BLAYNEY J. [NEM DISS]

2 By order dated the 28th April 1989 the Cork Corporation decided to grant planning permission to the respondent for a residential development consisting of sixty-six houses at Ardnalee, Carrigmore, Middle Glanmire Road, Cork, subject to twenty conditions. The appellant is the owner and occupier of a house at 6 Herbert Park, Gardiner's Hill, in the city of Cork, and his gardenimmediately adjoins the development site.

3 On the 7th July 1989 the appellant obtained ex parte from the High Court an order prohibiting the respondent "until after Monday the 10th day of July 1989 or until further order in the meantime from any interfering with or removal of the screening adjacent to the applicant's property situate at 6 Herbert Park, Gardiner's Hill in the city of Cork". This order was obtained on foot of an affidavit sworn by the appellant in which he averred that the respondent had commenced the development in breach of certain conditions in the planning permission and in particular in breach of condition No. 6. This condition required that certain screening details should be agreed between the respondent and the planning authority prior to the commencement of the development. And this condition specifically stated that "no development shall commence until the requirements of this condition have been agreed in writing with the planning authority." In his affidavithe also averred that there was a screen of natural trees and shrubbery between the development site and Herbert Park and that the respondent on the 5th July 1989 cut and hacked away a substantial part of this including a tree bounding his lands thereby changing the character of his property and gravely affecting the residential and visual amenitiesthereof.

4 On the same day as he obtained the ex parte order, the appellant served on the respondent a notice of motion for the 10th July 1989 seeking an order "prohibiting the respondent its servants or agents from carrying on further works in relation to a residential development known as Ardnalee, Carrigmore, Middle Glanmire Road, Cork until further order." That motion was heard by Lardner J. on the 10th July 1989. It was grounded on three affidavits sworn by the applicant, an affidavit of a surveyor and an affidavit of one of the appellant's neighbours. On behalf of the respondent affidavits were sworn by its manager andarchitect. At the hearing the respondent by its counsel undertook "pending trial of this action or further application to this Court" not to interfere with or remove any trees or other screening foliage adjacent to the western or northern boundaries of the applicant's property situate at 6 Herbert Park, Gardiner's Hill in the city of Cork - such trees to include trees numbered 5 to 12 as marked on the map exhibited in the affidavit of Paul Twoomey and also trees located on the far side of the road or track running along the northern boundary of the lands in the possession of the applicant and Barra O'Connell", and the order made on the motion was that the relief sought be refused and that the motion be adjourned pending trial or further order in themeantime.

5 The appellant appealed against this order by notice of appeal dated the 12th day of July 1989. In his notice of appeal he sought an order setting aside the judgment and order of the High Court of the 10th July 1989 and in itsplace he sought an interlocutory order prohibiting the respondent from carrying out further works in the said development pending compliance by the respondent with the conditions precedent to the commencement of the development contained in the planning permission. This is the first appeal which is before the Court.

6 On the 9th October 1989 the appellant served a further notice of motion in which he sought "an order in the terms of the notice of motion herein dated the 7th day of July 1989" and "such further order pursuant to s. 27 of the Local Government (Planning and Development) Act, 1976 as this honourable Court shall deem fit in the circumstances." This motion came before Lardner J. on the 20th November 1989 and the relief sought was refused. It was ordered in addition that the undertaking given by the respondent to the Court on the 10th day of July 1989 should be continued but should be varied so as to permit the respondent to comply with...