The Gazette 1984

GAZETTE

SEPTEMBER 1984

galvanised sheeting which formed the

original shell of the structure. This work

could not be completed satisfactorily

without gaining access to the Plaintiffs

back garden for part of the work. Reilly

completed such of the work as could be

done without such access. Further, he

built a loft area within the building so that

the activities of the joinery workshop

could be carried out on two different

levels and again ran into trouble with the

planning authorities.

The Court held it could not find any

intention to deliberately flout the

provisions of the Planning Acts. The

Defendant's family had carried on a

joinery workshop business on the site at

the rere of the house for a very long time

past, extending back into the latter half of

the 19th Century. The original premises

were somewhat lower but otherwise

comparable in size with the structure

which was the subject matter of the

proceedings. The Court would not grant

a Mandatory Injunction to remove the

structure. Part of the reason why the

conditions of An Bord Pleanala had not

been complied with was attributable to an

unreasonable refusal on the part of the

Plaintiff to help the Defendant in any way

in making good his previous defaults.

(Thomas J. Morris

-v-

Peter Garvey

[1982] ILRM 177 Distinguished).

The Court further had evidence given

that an Application was made to the

Local Urban District Council for

permission regarding the altering of the

internal layout and permission by default

was obtained and no communication had

been received from the Planning

Authority. The Court was prepared to

overlook the default of the Defendant in

failing to comply with the Undertaking

made to the High Court and felt that the

Defendant was a man who was trying to

keep an old established business in

operation and coping at the same time

with the hostility of his neighbours, the

wear and tear of proceedings in three

different Courts and the intervention of

the Planning Authorities.

The Court held with respect to

diminution of light the 1954 Ordnance

Survey Map shows almost complete

coverage of the site to the rere of the

Defendant's premises to a much greater

extent than was now achieved by the

present workshop in its reconstructed

form. The Court felt that the testimony of

persons affected by alleged diminution of

light is generally regarded in this type of

case as carrying as much weight as, if not

more weight than, the testimony of

experts who attempt to measure

diminution of light in mathematical

terms. On considering all the evidence no

significant diminution of light was felt to

have taken place.

The Court held that in respect of the

nuisance by dust that that would be

eliminated when the extraction system

was installed which, the Defendant said

in evidence, it was his intention to provide

for the benefit of his staff. With respect to

nuisance by noise the Court held that the

Plaintiff had to endure an unreasonable

amount of noise over a long period of

time between 1979 and 1983, but with the

Defendant's professed intention to close

off the remaining gaps and openings in

the building whenever he could do so with

the co-operation of the Plaintiff that this

situation would be remedied in full by the

Defendant. With respect to nuisance by

flooding evidence was given that water

poured from a gutter on the new

galvanised structure which, in the early

stages, caused flooding right into the

Plaintiffs kitchen, but when the building

was reduced in size by 15'/

feet the water

now falls into the Plaintiffs back garden

which is less of a nuisance.

The Court, in awarding £1,000.00

damages to the Plaintiff pointed out that

the nuisances could have been minimised

and, perhaps, terminated altogether had

she not taken up an entrenched position

in relation to her complaints against the

Defendant. The question of costs was

reserved for a further hearing.

May Leech

-v-

Rose Reilly and Patrick

Reilly - High Court (per O'Hanlon J.). 26

April, 1983 - unreported.

Daniel F. Murphy

FAMILY HOME PROTECTION ACT

Failure to pay mortgage instalments,

whether conduct leading to loss of interest

in the family home.

The Plaintiff and the Defendant were

married in May 1974. Their family home

and 8 acres were purchased by the

husband for £45,000 in 1979 of which

£15,000 was borrowed from his mother

and the remaining £30,000 from the

Building Society, the second named

Defendant. The husband executed a

mortgage in favour of the Building

Society and the wife endorsed her consent

thereon. No repayments of the mortgage

were ever made by the husband. The

Plaintiff and the husband separated in

March 1980 when the Plaintiff left the

family home and went to live in Dublin in

a house owned by her brother. Proceed-

ings were commenced against the

husband only in November 1980 and

claims were made lor the custody of the

children, for maintenance, for a barring

order against the husband and for a

declaration that the Plaintiff was entitled

to the beneficial ownership of the entire

of the family home or of such percentage

as the Court might determine and for an

Order for the sale of the family home. In

May 1981, the parties entered into a

consent which was received and filed in

Court and the action was adjourned

generally with liberty to re-enter. One of

the terms of the consent was that the

husband would expedite the sale of the

family home and pay the balance of the

purchase price remaining, after the

discharge of the amount due to the

Building Society, to the Plaintiffs

solicitor to be invested in a house for the

use of the Plaintiff and her children

during her lifetime with remainder to the

children absolutely.

As no repayments were made on foot

of the mortgage and the premises were

not sold by the husband the Building

Society issued proceedings against him by

Summons in July of 1982. An Order for

Possession was made in those

proceedings on 26 July 1982 and the

premises were subsequently sold for

£48,000 being less than the sum then due

to the Building Society so that there was

no surplus to be applied for the purchase

of a house by the Plaintiff. There was

some confusion at the hearing of the

application for the Order for Possession;

and the Plaintiff was represented before

the Master of the High Court and an

objection to an Order was made on her

behalf although the husband consented

to the Order being made. When the

matter came into the Judge's list it was

heard at the end of a very long list and in

the absence of the Solicitor for the

Plaintiff an Order was made with the

consent of the husband.

In September 1982 the Plaintiffhad the

Building Society joined as a Defendant in

these proceedings and an interim

injunction was granted restraining the

Building Society from selling the family

home. The Plaintiff sought liberty to

amend the Special Summons by including

a claim under Section 5 of The Family

Home Protection Act. 1976. for the

protection of the family home, requiring

the husband to discharge all arrears due

on foot of the mortgage, joining the

Building Society as a Defendant and

preventing the Building Society from

taking any steps on foot ol the Order lor

Possession obtained bv the Society 26

July 1982. In September 1982. the

application for an Order restraining the

Building Society from selling the family

home was refused and the other matters

were adjourned. Following further

applications made on behalf of the

Plaintiff the Summons was amended to

include a claim against the husband

under the provisions of the Act of 1976

for compensation for loss of the family

home, a claim against both defendants

for damages for the sale of the family

home and a Declaration that the Order of

26 July 1982 was obtained collusively by

the Defendants in breach of the Plaintiffs

rights and thus was null and void and of

no effect. The following arguments were

put forward on behalf of the Plaintiff:

1. The Plaintiffs consent to the

mortgage was invalid, apparently

based on the fact that the husband

was an Agent for the Building

Society and on an allegation that the

Plaintiff gave her consent to the

mortgage in his office and signed it a