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widow, Breda and his only daughter, Ann Dolores,
surviving him. He left 5 different properties in Finglas,
Co. Dublin, of which the public house called "Lower
House" was left under trust to his widow for life, with
power to the trustees to sell. Apart from three pecuniary
legacies of £200 each, the deceased left the residue of
his estate to his daughter. Difficulties arose with the
running of "Lower House" as a licensed premises, and
eventually the trustees sold it for £7,000 in October
1957. With this money, the trustees agreed to buy the
registered property known as Johnstown House on be-
half of the widow for £2,255. The purchaser of Lower
House had been allowed £2,700 from £7,000 in order
to carry out necessary repairs to Johnstown House, and
the purchaser's company, General Builders Ltd. under-
took to do this. The money to complete the purchase
of Johnstown House culd not be found, and proceed-
ings were taken to have the estate administered by the
High Court. In August 1958, McLoughlin J. ordered
that an account be taken of the monies in the hands
of the trustees and others, and that the Trustees could
obtain a loan on the security of the premises, for the
purpose of completing the transaction : the order was
only a confirmation that a deposit of £550 had been
paid. It was not possible to arrange this loan, and
proceedings for specific performance of the contract
were brought; ultimately the deposit was forfeited,
and the widow was ejected from the premises.
Undoubtedly the plaintiff trustees should not have
allowed the purchaser to make a preliminary deduction
of £2,700 for repairs not carried out, but a complicated
arrangement had meanwhile been made between the
purchaser, and the Receiver of General Motors Ltd.
The plaintiffs cannot make any claim for the purchase
of the Finglas Dispensary, as they did not complete it.
As regards the premises, "Montgomery's" in Finglas,
the plaintiffs are accountable for unpaid balance of
£250 plus 6 per cent interest.
The Examiner's Certificate was issued in July 1968,
and in it, the plaintiff trustees were found to have
received £4,968, and that they had paid out £2,593,
leaving a balance due of £2,375. The following items
disallowed by the Examiner were allowed by the Judge :
(1) £26 vendor's costs for sale of "The Dispensary".
(2) £200 part deposit on sale of Johnstown House.
(3) £356 for balance of deposit on Johnstown.
(4) £15.75 to valuers for valuation for Probate pur-
poses.
(5) £177 costs for sale of "Lower House".
(6) £51 costs for sale of "Montgomery's".
(7) £10.50 costs of plenary summons to compel specific
performance.
The total allowed is £837, which added to £2,593
previously allowed, comes to £3,430.
(Re : Patrick Flood, deceased—Anderson and Kenny
v. Anne Dolores Flood and Breda Flood—Kenny J.—
unreported—17 July 1973.)
A
person who has no proprietary interest in the land
may nevertheless apply for planning permission in
respect of it
Plaintiffs are owners of Frescati House, Blackrock and
an adjoining 7 acres. They intended to demolish the
house, develop the lands, erect a supermarket, a hotel
and car park. They made four applications for plan-
ning permission to Dun Laoire Corporation—in October
1971, January and March 1972, and these were re-
fused. They appealed to the Minister and an oral
inquiry was held in October 1972. Before any decision
was announced, the plaintiffs withdrew their appeals >
on 28 November 1972 and claimed compensation for
£1,300,000, under the Planning Act 1963. On 4
October 1973 Dun Laoghaire Corporation granted
planning permission for development of the lands under
S.57 of the 1963 Act subject to certain conditions, but,
on account of this, the Corporation rejected the appli-
cation for compensation.
The defendant is the Hon. Secretary of the Frescati
and Blackrock Protection Society and has strongly
opposed the attempts by the plaintiffs to get planning
permission which would involve the demolition of Fres-
cati House. On 30 August 1973, the defendant applied
to the Corporation for outline planning permission,
and stated she wished to acquire an interest in the
property. On 23 November 1973 the Corporation
granted outline permission to the defendant for the
retention of Frescati for residential purposes, and the
erection of a three story office block on the lands.
Plaintiffs seek an injunction restraining the defen-
dant from applying for planning permission in respect
of Frescati and a mandatory injunction ordering her
to withdraw the application for outline planning per-
mission granted, and have applied meanwhile for an
interlocutory injunction.
The net question is : May a person apply for and
obtain planning permission in respect of property in
which they have no proprietary interest of any kind?
Having examined the provisions of the Local Govern-
ment (Plai ning and Development) Act 1963 and the
Permission Regulations of 1964—S.I. No. 221 of 196b—
in detail, Kenny J. held that there was nothing in the
Act which suggested that the person applying for per-
mission must have an estate or proprietary interest or
right in the land. The Regulations merely require the
applicant to state whether he has an interest, nothing
more. The Regulations show that an "applicant" and
an "owner" are not necessarily the same. Accordingly
the applications by the plaintiffs for injunctions must
fail.
(Frescati Estates Ltd. v. Marie Walker—unreported
—Kenny J.—3 December 1973.)
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