342 / 346
GAZETTE
NOVEMBER 1983
affirmative. The Council thereupon
applied unsuccessfully to the High Court
for an Order of Certiorari. The basis of
this application was that the Circuit
Judge, having no further evidence before
him, had no jurisdiction at the second
hearing to decide the Appeal in favour of
the landowners on different grounds. On
appeal to the Supreme Court it was held
that the Circuit Judge was entitled to
uphold the Appeal on different grounds.
It was assumed that he would have due
regard to the judgment of the High Court,
and would approach the case, notwith-
standing that there was no further
evidence adduced, from a different
standpoint. The fact that he reached the
same conclusion but for a different — and
this time valid — reason could not be said
to indicate any wrongful exercise of
jurisdiction. He was entitled to change his
mind either as to the result or as to the
reason for the result. The Court affirmed
its decision in
Dolan
-v-
Corn Exchange
[1975] I.R. 315 where it was stated on
page 330 "The decisions of the Courts be
they verdicts of juries or judgments of
judges must yield to the overriding
requirement that they truly accord with
the law and the facts as they appear at the
time of the decision.
The State (Cork County Council)
-v-
Judge Fawsitt and Others - Supreme Court
- (per Hency J. Nem. Diss.) - 27th July,
1983. Unreported.
George Bruen
PLANNING
Tlie keeping of ice-cream vans in the
driveway of a private residence while not in
use for the sale of goods is not development
within the meaning of Section 3 of the
Planning and Development Acts, 1963.
The Appellants who have lived at 144,
New Cabra Road, Dublin, since June,
1980, carried on business as retailers of
ice-cream from two ice-cream vans which
they parked in the driveway of their
home. The vans were normally only
parked there at night and if stock was not
fully sold in the course of the daily
business, a freezer installed in one or both
vans was connected to the electricity
supply in the house for the night.
As a result of complaints from
residents in the area, an Inspector from
the Planning Authority, on 14 August,
1980, saw the two vans in the driveway.
Subsequently, Section 26 proceedings
under the Planning and Development
Acts, 1963, were served on the Appellants
but were not proceeded with and were
subsequently withdrawn. On 18 January,
1982, a Section 27 Notice under the
Planning and Development Acts, 1976,
was served on the Appellants to prevent
them from causing, permitting or
authorising the parking of commercial
vehicles within the curtilage of the
premises. A hearing took place in the
High Court on 20 April, 1982, and in
addition to the evidence on Affidavit the
Judge heard oral evidence adduced on
behalf of both parties. The Appellants
had sought to make a case that the
driveway of their home had been used for
parking commercial vehicles for many
years before their purchase of the
property but the Judge rejected this and
accepted the evidence on behalf of Dublin
Corporation that the driveway was not
used to park commercial vehicles before
the Appellants had occupied the house.
The Judge further held that the use of the
front driveway for keeping vans was a
development within the meaning of
Section 3 of the Local Government
(Planning and Development) Act, 1963,
was not an exempted development under
Section 4 (1) (h) as it was not used for a
purpose incidental to the enjoyment of
the dwellinghouse as such. Accordingly,
the Judge ordered that the Appellants be
prevented from causing, permitting or
authorising the parking of commercial
vehicles within the curtilage of the
premises 144, New Cabra Road,
Phibsboro, Dublin 7. The order was
made pursuant to Section 3 (2) (b) (i) of
the 1963 Act.
Section 3(1) states;
"Development" in this Act means,
save where the context otherwise
requires, the carrying out of any works
on, in, or under land or the making of
any material change in the use of any
structures or other land."
Section 3 (2) (b) (i) states;
"For the purpose of subsection (1) of
this Section and without prejudice to
the generality thereof—
(b) where land becomes used for any
of the following purposes;—
(i) the placing or keeping of any vans,
tents or other objects, whether or not
moveable and whether or not collap-
sible, for the purpose of caravanning
or camping or the sale of goods
the use of the land shall be taken as
having materially changed."
The Appellants appealed on the
grounds that the High Court decision was
wrong in law in holding that the parking
of the vehicles within the curtilage of their
grounds was a breach of Section 3 (2) (b)
(i) of the Planning and Dvelopment Acts,
1963.
The Supreme Court HELD that the use
of the premises was not a development
within the meaning of Section 2 of the
Planning and Development Acts, 1963, as
there was no evidence that the keeping of
vans overnight on the premises was for
the purpose of the sale of goods on the
premises or that at any time ice-pream
was sold from the vans while parked at
the premises 144, New Cabra Road,
Phibsboro, Dublin 7. The Court agreed
that the keeping of vans at the premises
did not constitute exempted development
xxxix
pursuant to Section 4 (1) (h) of the
Planning and Development Acts, 1963.
The Right Honourable, the Lord Mayor
Aldermen and Burgesses of Dublin
-v-
Laurence Moore and Carmel Moore -
Supreme Court (per McCarthy and
Hederman, JJ.). 29 July, 1983. Unreported.
Unreported.
Daniel F.' Murphy
Edited by Gary Byrne
Copies of judgments in the above cues are
available to members on requestfrom the
Society's Library.