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she had no intention of developing it. Kenny J. on 3
December 1973 refused to grant an injunction to re-
strain the defendant's application as well as a man-
datory injunction ordering her to withdraw it. (See
January-February Gazette, 1974, p. 22). The defendant
based her claim on the fact that in applications for
development permission under Sections 25 and 26 of
the Planning Act, 1963, reference was made to "the
applicant" and not to the owner or occupier; the Court
accepted this. The Defendant however went further
and contended that, because no limiting qualifications
are laid down by the relevant sections for an applicant,
anyone
can be an applicant for development per-
mission. It was said that there was nothing to debar
a pauper from making an application for permission
for a multi-million pound development of a property
which he has only read about in the newspaper. This
proposition could lead to strange incongruities. It is
clear that the powers given by the Act must be read as
being exercizable in the interests of the Common good,
as set out in the long title to the Act. Accordingly
the Courts should lean against a construction which
would make the exercise of those powers available to
an individual for advancing a purely personal motive.
The inequities and anomalies that would follow if there
is to be an unrestricted right to apply for permission to
develop another person's property is shown by the terms
of many provissons in the Act.
When these proceedings were taken on 12th Novem-
ber 1973, the decisions of the planning authority were
still being considered, and were only made on 27th
November, 1973. On 30th November, 1973, the
plaintiffs appealed, but the appeal had not yet been
heard by the Minister and is still outstanding. Since
the defendant ranks ao respondent in the appeal, she is
no longer a moving party so She cannot be restrained
in the pending proceedings by means of either the
negative or mandatory injunction sought. In the present
case, the defendant's application was invalid and
should n ot have been entertained. If the Minister
allows the appeal, it would negative the planning
authority's decision on the ground of the defendant's
lack "of standing.
The Court would have decided the substantive point
in favour of the plaintiffs, but, for the procedural
reasons given, dismisses the appeal.
[Frescati Estates Ltd. v. Walker; Full Supreme
Court per Henchy J.; unreported; 30 July 1974.]
Custody of two infants granted to father, in view of
mother's association.
The parents were married in October 1967. Two
children were born of the marriage, a son (Stephen),
now 5£ years and a daughter (Amanda), now 3£ years.
They lived in Cashel until 1969, and then bought a
farm at Summerhill, Co. Meath. Relations between the
husband and wife became unhappy in 1970, and the
wife left the home three times, but returned. She blames
the irretrievable breakdown of the marriage on the
husband's concentration on training horses; he blames
it on her instability and emotional immaturity. The
wife finally left the home in July, 1973, took the children
with her and went to live with her parents in Donny-
brook. When proceedings were taken by the wife for
the custody of the children, a consent was signed in
September, 1973, by the parties by which they agreed
that they were to have joint custody, but the care of
the children was to be given to the wife, subject to
access by the husband, who was to pay £1,040 per
annum for their maintenance. The wife has since
bought a bungalow and land of 11 acres near Naas.
The husband and wife have sold the farm at Summer-
hill, and he has bought another one at Enfield, which
is not yet ready for occupation; meanwhile he lives in
a flat in Dublin. Both the husband and wife are
children of wealthy parents, accustomed to high stan-
dards of living. The wife had in 1972 committed
adultery with an employee, which the husband had
detected, yet had returned to the matrimonial home
from April to July, 1973 to resume residence only. The
case was first listed before O'Keeffe P. in December,
1973, and the parties consented to the joint custody of
the children, who were to be given in the care of the
mother, subject to the father's access and other con-
dition, and to the payment of the aforementioned sum
of £1,040, payable monthly in respect of the children's
maintenance.
On 20 December 1973 the husband, through his
solicitor, complained about the wife's failure to honour
the arrangements; he also complained of the wife's
association with Mr. X, and specifically that Mr. X
was allowed to associate with the children. The letter
required that such association should cease immediately.
The association of Mr. X with the children was re-
jected by the wife's solicitor on the 15th January, 1974.
When the matter was listed before Kenny J. on 24
May 1974, the wife gave the following personal under-
takings: (1) that Mr. X would not be allowed to take
the children on outings, (2) that, if the children were
in the house, Mr. X would only visit the wife between
8.30 p.m. and midnight, and would not engage in
improper conduct. The evidence showed that there was
a permanent adulterous relationship between the wife
and Mr. X. In order to support this, the wife alleged
that she had been seeking an annulment in the Eccles-
iastical Courts, but had given no thought to the legal
position. Thereupon Kenny J. gave custody of the
children to the wife. The appeal was allowed, because
the first and paramount consideration was the religious,
moral, intellectual and social welfare of the children,
which should be considered globally. The facts here
warrant the order that the children be placed in the
custody of their father, as the mother here has been
so greatly wanting in her duty towards them. The
marriage in this case has undoubtedly irretrievably
broken down. Apart from the welfare of the children,
there is no question of doing justice as between hus-
band and wife. The difference lies in the social, moral
and religious aspects of the children's welfare. The un-
stable life of the mother is a manifest repudiation of
the social and religious values with which the children
should be inculcated. On the facts the permanent home
of the children would be the husband's home. The
rights of access should continue and the wife should
have ample opportunity of seeing and caring for the
children. In this case it is the wife who has broken up
the family home. The appeal is accordingly allowed.
[K. v. K.; Full Supreme Court; Separate judgments
by FitzGerald C.J.; Walsh and Henchy JJ.; unreported;
31 July 1974.]
Redemption price fixed by County Council in respect of
purchase of cottage unenforceable, as wrong prin-
ciples applied.
The plaintiff is the registered owner of a cottage on
Folio 50107, Co. Cork. The cottage was built subject
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