The Gazette 1979

GAZETTE

JULY-AUGUST

1979

RECENT IRISH CASES

TOWN PLANNING

Planning Authority not estopped by

representations made by an official.

The Defendant erected a building

measuring 64 feet in length, 31 feet in

breadth and 19 feet in height in the

rere garden of a premises at Ballygall

Road, Dublin. The Defendant did not

get Planning Permission for the

development which was commenced

in 1975. During the progress of the

work an Inspector from the Dublin

Corporation (Complainants) Planning

Department paid a number of visits

to the site and according to the

evidence of the Defendant's husband

assured him that he could proceed

with the erection of the building and

that the Inspector believed that there

would be no objection by the

Planning Authority if he completed

the building. The Inspector was later

suspended

from

duty

and

subsequently dismissed.

The Dublin Corporation served an

enforcement notice under Section 31

of the Local Government (Planning

and

Development)

Act

1963

requiring the Defendant to remove

the structure and

subsequently

brought proceedings in the District

Court against the Defendant for

failure

comply

with

the

Enforcement Order. The District

Justice held that by reason of the

misleading representations made to

the Defendant's husband by the

Inspector

that

the

Dublin

Corporation were estopped from

denying that the building was an

exempted development and dismissed

the summons. He stated a case for

the High Court to determine the

following question of law:

"Was I correct in holding that the

Comp l a i nan t s,

qua

Planning

Authority, were estopped from

denying the representations made by

their former employee".

Held

(per McMahon, J.), having

considered the English cases of

Southend-on-Sea

Corporation

Hodgson Limited

[1961] 2 A.E.R.

41;

Wells

Minister of Housing

[1967] 2 A. E . R. 1041;

Lever

(Finance) Limited v. Westminster

Corporation

[1970] 3 A.E.R. 496;

Minister

for

Agriculture

and

Fisheries v. Matthews

[1951] K.B.

148;

Rhyl

U.D.C.

Rhyl

Amusement Limited

[1959] 1 A.E.R.

257 and

Minister for Agriculture and

Fisheries v. Hulkin

(unreported) and

the Irish case of

Greendale Building

Co. v. Dublin County

Council

(Supreme Court 13 / 5 / 1977 -

unreported, 185/1976) that if the

Dublin Corporation had told the

defendant that the building which her

husband was erecting was an

exempted development they would be

acting 'ultra vires', and could not be

held to have estopped themselves

from asserting subsequently that

Planning Permission was necessary

for the development in question and,

accordingly, no representation by

their agent could work a similar

estoppel.

Insofar

the

representation referred to in the

question of law in the case stated

included

a representation

that

Planning

Permission

would be

granted for the development this

could

not

bind

the

Dublin

Corporation to grant

Planning

Permission. Any undertaking by the

Dublin

Corporation

grant

Planning

Permission

without

compliance with the provisions of

Section 26 of the Local Government

(Planning and Development) Act

1963 would clearly be 'ultra vires'.

The Right Honourable The Lord

Mayor Aldermen and Burgesses of

Dublin

(Dublin

Corporation),

Complainants, v. Elizabeth McGrath

(Defendant) — High Court (per

McMahon J.) — 17 November 1978

— unreported.

SALE OF LAND — FAMILY

HOME PROTECTION ACT 1976

— Assurance void in absence of wife's

consent — Doctrine of Notice.

In March 1961, the Defendant's

husband purchased a house by way

of lease in Artane, Dublin. He

married the Defendant in July 1961

and the house became the family

home. There were four children of the

marriage which proved an unhappy

one. The Defendant claimed that the

husband's improvidence, drinking

and physical cruelty to her caused

her to leave home with her four

children in October 1973. She got a

tenancy from the Dublin Corporation

firstly in a house in Kilbarrack and

later, in June 1976, in a house in

Coolock.

On leaving the Family Home the

defendant went to the FLAC Law

Centre in Coolock because she

wanted to have custody of the

children and to be free of interference

from the husband. On the 20

November 1974 a written Separation

Agreement was executed by the

defendant and her husband which

made no provision for any payments

by the husband for the maintenance

of the wife or children and was silent

as to the family home.

On the 2 August 1976 the

husband entered into an agreement to

sell his interest in the Artane house to

the Plaintiff for £6,400. The Family

Home Protection Act 1976 had

come into force on the 12 July 1976

and both the husband's solicitors and

the plaintiff's solicitors were aware of

its

provisions.

The

Plaintiffs

solicitors, by letter of 10 August 1976,

requested that the Defendant's

consent to the sale (assignment) be

endorsed on the purchase deed,

"unless there is an official Separation

Deed, in which case we require a

copy of same". On the 11 August

1976 the husband's solicitors wrote

in reply:

"Our client and his wife have been

separated for some years. Our

client's wife has been housed by

Dublin Corporation and is therefore

no longer relying on the Artane

house as her family home. We

understand that a Separation Deed

has been entered into but we did not

act for either party at the time and do

not have a copy of the Agreement.

We understand from our client that

he has never had a copy of the

Agreement and that the same is with

FLAC. We understand that Mr.

P.M. of this organisation was

dealing with the matter. We did in

fact try to make contact with the

Coolock Branch of FLAC for the

purpose of obtaining a copy of the

Agreement but this we understand is

at present closed for holidays. We do

not have the address or telephone

number of any other branch and

cannot trace any in the telephone

directory. In view of the fact that the

premises are not now a family home

and your client is the purchaser for

full value, we cannot see how your

client

is concerned

with

the

matrimonial situation".

The husband was at that stage in

Canada (but was back in Ireland by

the 16 August 1976) so his solicitor

could not get the Defendant's address

from him. The Plaintiffs solicitors

did not wait for the Defendant's

husband to return nor for the FLAC

centre to re-open but prepared a

statutory declaration stating that

since the execution of the Separation

Agreement the wife had not relied on

the Artane house as her family home

and that "by virtue of said

Separation Agreement has now no