402 / 406
GAZETTE
JULY/AUGUST
1985
terminated on 12 November 1974 the
Defendants became trespassers. Because
the premises have not been a "tenement"
at the relevant time there is no question of
a new tenancy arising.
Per McCarthy J. (dissenting)
The true construction of the events that
occurred after 30 June 1974 was that the
Defendants held the premises as tenants
from month to month. No notice to quit
purporting to terminate such tenancy
having been served they were entitled to
retain possession against all people and
the claim in this action for recovery of
possession must be dismissed. The sum of
£ 1,500.00 is due as rent not as mesne rates
or mesne profits.
Irish Shell & B.P. Limited -v- John
Costello Limited - Supreme Court (per
O'Higgins CJ and Henchy J., McCarthy J.
dissenting), 21 December, 1984.
Joanne Sheehan
PLANNING
Local Government (Planning & Develop-
ment) Acts 1963-1982 — Planning Appeal
— Rights of Third Parties.
The Hibernian Shirt Company & R.E.
Flanagan applied to Dublin Corporation
for planning permission for a shop/office
development at Great Strand Street and
Liffey Street, Dublin. The application
was refused by Dublin Corporation but
on appeal to An Bord Pleanala outline
permission was granted. There was no
oral hearing of the appeal and Dublin
Corporation appeared to have been the
only party to make direct representations
to the Bord in connection with the appeal.
The site in question is situate within an
area that had been earmarked by Coras
Iompair Eireann for development as part
of a projected Dublin Transportation
Centre. C.I.E. had made some indirect
representations to the Bord through the
planning department of Dublin Corpora-
tion but was not a party to the appeal.
Part of the Bord's reasons for allowing
the appeal were:—
"While the site is within an area which
may be affected by C.I.E. proposals
for Dublin Transportation Centre the
Bord is not satisfied that it is an
essential part of the land required for
such a centre and having regard to the
status of the relevant C.I.E. proposal
it is not considered that a refusal of
outline permission for the proposed
development would be warranted by
reference to those proposals."
C.I.E. obtained a conditional order of
certiorari
quashing the order of the Bord
but the cause shown by the Bord was
allowed and the order discharged by the
High Court. C.I.E. appealed to the
Supreme Court against the discharge.
The Court noted that C.I.E. had in
1976 adopted a proposal for a Dublin
Transportation Centre which would be
sited on each side of the Liffey between
O'Connell Street and Capel Street and
connected by a tunnel under the Liffey.
C.I.E. proceeded to acquire many
properties in the area designated and
Dublin Corporation as planning
authority gave recognition to the C.I.E.
proposal in its Dublin 1980 Development
Plan which stated:—
"The Planning Authority notes that
Coras Iompair Eireann is considering
a proposal to establish centre city
transportation termini adjoining
Ormond Quay Lower and Wellington
Quay and generally over the stations
in the proposed Rapid Rail Transit
system and will co-operate in the
provision by C.I.E. of any such
termini required for more efficient
transport services."
In fact no application for development
within the designated areas which would
materially interfere with the implemen-
tation of C.I.E.'s proposal for the Dublin
Transportation Centre has been granted
by Dublin Corporation.
I was in conformity with that policy
that Dublin Corporation twice turned
down the developers' application for
planning permission in this case. Dublin
Corporaiton has no reason to expect that
in the appeal their policy of seeking to
give effect to the C.I.E. proposals would
be interfered with without hearing C.I.E.
but that is what happened. The Court
stated that it was a classical example of
departure from the rule of
audi alterem
partem.
The court noted that the failure
to observe natural justice was particularly
serious because the party affected was
C.I.E., which under Article 65 of the
Local Government (Planning & Develop-
ment) Regulations 1977 was designated
as a "public authority for the purposes of
Section 5 of the Local Government
(Planning & Development) Act 1976"
and accordingly there was a duty on the
Bord "so far as may in the opinion of the
Bord be necessary for the performance of
its functions" to keep itself informed of
"the policies and objections for the time
being" of C.I.E. In this case the Bord not
only breached a rule of natural justice but
also disregarded the spirit, if not the
letter, of the liaison which the statute
envisaged as operating between the Bord
and C.I.E. in a case such as this.
The Court allowed the appeal and
granted an absolute order of
certiorari
to
quash the order of the Bord.
The State (Coras Iompair Eireann) -v- An
Bord Pleanala - Supreme Court (per
Henchy J.). 12 December, 1984 -
unreported.
John F. Buckley
Copies of judgments in the above
cases are available on request from
the Society's Library. The photo-
copying rate is lOp per page.
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