297 / 298
GAZETTE
DECEMBER 1981
solicitor. At that time the Respondent
lived with his wife in the upper floors
of the house. Following a visit by an
official of the Dublin Corporation,
(the planning authority) in May of
1978 a warning notice was served
under Section 29 of the Local
Government
(Planning
and
Development) Act 1976 on the
Respondent in relation to the
unauthorised use of the basement for
the purpose of carrying on an office
business in it.
and his wife vacated the upper floors
and extended the solicitors practice to
the entire of the premises. The
Planning Authority served a notice of
motion under Section 27 of the 1976
Act seeking an order for the
discontinuance of the unlawful use.
The respondent did not contest the
application in respect of the upper
doors.
In respect of the basement the
Respondent first submitted that since
the unauthorised use had continued
for a period in excess of 5 years at
the time of the making of the
application, having regard in par-
ticular to the provisions of Section 3 1
of the Local Government (Planning
and Development) Act 1963 and the
general construction of the Acts of
1963 and 1976 the Court had no
jurisdiction now to make an order
under Section 27 in respect of the
unauthorised use.
The Respondents second submis
sion was that even if there were a dis-
cretion to make an Order under
Section 27, having regard to that lapse
of time and to the other facts of the
case the Court should not exercise its
discretion in favour of granting an
order.
The Court held, referring to its
decision in the case of
Dublin County
Council i'. Matra Investments
Ltd.,
(no written judgement given) that
there were no grounds for implying
into Section 27 of the 1976 Act the
time limit created by Section 3 1 of
the 1963 Act. Section 27 of the 1976
Act is an entirely new section in the
Planning Code and gives the Court
an entirely new power. There is
nothing in Section 27 nor in any
other section of the Act of 1976 in
anyway restricting the time during
which the planning authority or any
other interested party may apply to
the Court for an order under that
section.
The Respondent also submitted
on this issue that Section 31 should
be interpreted as making in this case
an unauthorised change of use which
had occurred more than 5 years
before the institution of proceedings
into an authorised change of use,
losing its unlawful and unauthorised
character. The Court held that it
could find no warrant for so
construing Section 31.
On the second submission the
Court held that the lapse of time
between the commencement of an
unauthorised use or the making of an
unlawful development and the time
when application is made to the
Court must remain one of but not the
only material factor in regard to the
exercise by the Court of its discretion
as to whether to make an order under
Section 27.
In the instant case the Court was
not satisfied that the applicant was
guilty of laches and delay. The Court
held that there was another aspect of
the relevance and importance of the
lapse of time, namely the position in
which the Respondent finds himself,
if after a very considerable number of
years following the breach of the
Acts without any attempt to enforce
the Acts he suddenly faces an order
under Section 27. The Court
construed Section 31 of the 1963 Act
and Section 30 of the 1976 Act as an
acceptance by the legislature that
with regard to those forms of
enforcement it would be unjust that a
person, after the lapse of 5 years,
should face the relevant court
proceedings.
The Court noting that there was
no question of the respondent
concealing the fact that he was using
the premises as a solicitors office, and
that the public first drew this matter
to the attention of the applicants in
Spring 1978, came to the conclusion
that the use by the Respondent for a
period
of
5 years
although
undoubtedly in breach of the
Planning Acts was not such a breach
causing real damage to the amenity
and convenience of the area as
instigated complaints by persons or
residents near by to the Planning
Authority.
The Court held that by reason of
the lapse of time since the
commencement of the change of use
before the institution of proceedings it
should refuse an order in respect of
the basement. Such decision should
not be construed as being equivalent
to a decision that this user had now
become lawful or authorised or to the
effect that any successor in title
would be immune from the making of
an order under Section 27 were he to
use the basement premises for office
use.
(
Dublin Corporation v. Mulligan -
The High Court (Finlay P.) - 6 May
1980 — unreported.
SALE OF LAND
Statute of Frauds — Suffiency of
Memorandum.
The Dublin Auctioneer, Mr. Corry
Buckley, was a customer of his local
licensed premises, known as "The
Silver Tassie" which was being run
by the first named defendant Michael
O'Neill and had from time to time
discussed with Mr. O'Neill the
possibly of the premises being sold.
He telephoned Mr. O'Neill on Friday
the 13 January 1978 to say that he
had a purchaser who would pay
£190,000 for the premises. Mr.
O'Neill responded by saying that he
would telephone his solicitor Mr.
Black. Mr. Black had three telephone
conversations on the following day
with Mr. Buckley who told Mr. Black
the Plaintiff was the purchaser, that
£190,000 was the maximum that he
was prepared to pay and that
"everything was subject to contract".
Aflcr some telephone conversations
between Mr. O'Neill and Mr. Black,
Mr. O'Neill agreed to the sale at
£ 190,000 saying that "it was subject
to the usual documentation attached
to the sale of property".
The auctioneer, who was due to go
to America that week-end, dictated
three letters on a tape recorder
intending that they would be typed
and sent out by his secretary while he
was away. All three were posted on
the 17 January and presumably did
not rcach their addresses before the
18 January. The first letter was to the
plaintiff confirming that his offer was
being accepted and that Mr. Black
would forward a contract to the
Plaintiffs solicitor "for his perusal
and approval". The second letter was
to Mr. O'Neill marked "Subject to
Contract" confirming that he had
been authorised to accept the
plaintiffs offer of £190,000 and
suggesting that Mr. Black should
send a draft contract to the plaintiffs
solicitor. The third letter to Mr. Black
xxxv