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GAZETTE
JULY/AUGUST 1985
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitdr
PLANNING
Local Government (Planning and Develop-
ment) Acts 1963-1982 — Application under
Section 27 1976 Act — Onus of Proof —
Nature of Evidence — Intensification of Use.
The Applicants sought orders under Section
27 of the 1976 Act (a) prohibiting the con-
tinuance of an unauthorised use of premises,
70 Beechwood Avenue, as a multiple dwelling
and, presumably as an alternative remedy, (b)
prohibiting the use of the premises as a
structure comprising 5 dwellings and restrain-
ing intensification of the use of the premises
beyond such extent as may be shown to have
been regularly in operation on or before 1st
October 1964.
The Court decided a preliminary issue of
Law as to the onus of proof. The Applicants
argued that the onus of establishing the date
on which the premises were first used or dates
on which they were used as multiple dwellings
rested on the Respondent and relied on two
cases
Nelsovil Ltd. & Ors.
-v-
The Minister
for Housing & Local Government
(1962]
1 WLR 404 and
Lambert
-v-
Lewis &
Kiely
unreported High Court 24 Novem-
ber 1982 Gannon J. The Court disting-
usihed the two cases from the instant case
the first on the grounds that the first case
involved an appeal based on grounds that a
person was entitled to exemption which
obviously led to the conclusion that the onus
of establishing the grounds of exemption
rested upon the appellant and the later case
being one in which the respondents sought to
justify a change of user on the grounds that it
came within the regulations as a statutory
exemption, in which case the onus clearly lay
on the respondents to establish that he came
within the regulations.
The Court held that as the remedy being
sought by the applicants was a permanent
injunction under Section 27 of the Act there
were no grounds for admitting in support of
the case made either by the Applicant or the
Respondent hearsay evidence of information
and belief such as would be appropriate in the
exercise of a discretion as to whether or not to
grant an interlocutory application.
Secondly the Court held that since the
Applicants came seeking relief which would
affect the ordinary property rights of the
Defendant and which potentially could cause
him loss that in the absence of any express
provision to the contrary the general position
must be that it is upon the Applicants that
rests the onus of proving the case which they
are making. The Court held that the onus was
on the Applicant to establish facts from
which the Court could raise a probable infer-
ence that the dwellinghouses were used at and
immediately before 1 October 1964 as a single
dwelling and that use subsequent to 1
October 1964 changed to a use as a multiple
dwelling which still continued.
The Facts:
1. The evidence offered by the Applicants
consisted of an affidavit of a planning
inspector which contained no direct evi-
dence as to user of the premises until the
year 1974 when he inspected the premises
and found them set into 5 separate flat units.
2. There was also an affidavit from a local
resident who stated that the premises were
used as a private dwelling until they were
purchased by a Mrs. Doyle who look in a
female lodger in the late 1960s after her
husband died.
3. There was a further affidavit from another
resident who staled that she was familiar
with the premises being a private residence
which was bought by a Mrs. Doyle and
that from her taking occupation in or
about 1967 she kept a lodger and only one
in the house and it was not at that stage
let into flats but was converted into flat
units by an Oliver Morgan who purchased
the premises from Mrs. Doyle.
4. A statutory declaration made on 19 Dec-
ember 1973 by Philip Doyle was produced
in which he stated that his mother pur-
chased the premises in 1951 and continued
to reside in them up to the date of her
death in 1973. He slated that in 1955 his
mother made a letting of the top flat to a
Mr. Kenneth Edwards. A further declar-
ation of Mr. Doyles, dated 31 July 1975,
stated that at the date of purchase of the
premises by his mother in March 1951
they were occupied by several tenants and
that in 1961 one flat became vacant and
his mother went to reside in the premises.
5. The solicitor for the Respondent made an
affidavit in which he exhibited two tenancy
agreements one dated 6 April 1951 made
between Grace Doyle and Wm. Scott
being a letting of the bottom flat in the
premises consisting of three rooms com-
bined bathroom and toilet, kitchenette
and fuel cellar. The second agreement
being dated 18 April 1955 between Grace
Doyle and Kenneth Edwards being a let-
ting of the top flat consisting of three
rooms and combined bathroom and toilet
kitchenette and fuel house.
The Court was satisfied that the terms of
the agreements were in total conflict with the
affidavits of the two local residents and as the
affidavits of the two local residents were the
only direct evidence as distinct from hearsay
upon which the Applicants could rely the
Court was satisfied that the Applicants had
not discharged the onus of establishing a
change of user after the operative date.
On the question of intensification the
Court said that it was satisfied that as a
matter of common sense intensification of
user could not really be established by prov-
ing the existence of separate tenancies. The
evidence indicated that the premises consist
of 5 separate flat units and that the house was
occupied by a total of seven persons. There
was evidence from the planning inspector as
to complaints which the court considered
were hearsay and which it must disregard.
The only direct evidence with regard to the
consequence of the alteration came in the
affidavit of one of the residents which stated:-
"I say that I am concerned that the said
premises should have this intensive occu-
pation as increases in the number of
residents in the area generally lower the
character of the neighbourhood which I
have known for a considerable time and
diminish the value of property in the area."
The Court held that this statement of
opinion or belief was not sufficient discharge
by the Applicants of the onus of proof of
establishing that the conversion of the prem-
ises from a premises containing two separate
flats each of which could well have contained
a family of four or even five people into five
separate flat units is such an intensification of
user as would constitute a change of user
within the meaning of the Planning Acts. The
Court therefore refused the application for
the Order under Section 27.
Dublin Corporation -v- Gerard Sullivan The
High Court (per Finlay P.) 21
December,
1984 - unreported.
John F. Buckley
LANDLORD AND TENANT
Landlord and Tenant Act 1980 — Terms of
New Lease — Whether to be the same as
Expired Lease.
The Applicants obtained an order from the
Circuit Court on 6 March 1981 directing the
Respondent to grant them a new lease of a
lock up shop and ancillary accommodation
used for a dry cleaning premises on the
ground floor of premises in Dungarvan at a
yearly rent of £2,600 "but otherwise subject
to the terms and conditions of the previous
tenancy of the Applicants in the premises in
so far as such terms shall be applicable, and
that in assessing the said rent no allowance
shall be made to the Applicants on foot of
their claim for compensation for improve-
ments in the said premises."
A dispute arose between the Applicants
and Respondents as to the terms and con-
ditions which should be incorporated in the
new lease. The Respondent wished to have
covenants restricting the change of user from
the dry cleaning business without her prior
consent and restricting the rights of assign-
ment sub letting or parting with possession of
the premises without such consent. The Res-
pondent was unable to establish by evidence
that the terms and conditions in the original
letting included the restrictions on change of
use and right of alienation which she now
sought. A fresh application was made to the
Circuit Court and a further Order was made
directing that the lease should contain the
provisions which were sought by the Res-
pondent but without any finding of fact that
the like provisions had ever formed part of
the original letting. The Applicants appealed
against this Order to the High Court.
The Court held that the learned Circuit
Court Judge was
functus
officio
once he
made his first Order on 6 March 1981. As the
Respondent could not establish that there
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