404 / 406
GAZETTE
JULY/AUGUST 1985
were formerly any restrictions on change ot
use or rights of alienation the Court held that
they did not form part of a letting agreement.-
The subsequent direction that the restriction
should be introduced into the new lease was
inconsistent with the terms of the original
Order made in March 1981.
The Court however agreed with the view
obviously taken by the Circuit Court Judge
that a modern letting would normally include
restrictions on change of user and alienation
without the lessors consent and believe that
had these matters been present in the minds
of the parties they would have readily been
disposed of in the manner sought to be
achieved by the later order.
In the circumstances as the Court believed
that omission to have these matters dealt with
in the original hearing was attributable to an
oversight on the part of both parties and as
the only way this could be achieved was by
way of an appeal to the High Court against so
much of the Order of 6 March 1981 as
directed that the new lease should be subject
to the terms and conditions of the previous
tenancy the Court extended the time for lodge-
ment of a notice of appeal against that part of
the Order of 6 March 1981 up to a date 18
days after the date of the Judgement.
Francea Hill & Ors
-v-
Kathleen
Mulcahy
The High Court (per O 'Hanion J.) 30 April,
1984 - unreported.
PLANNING
Validity of permission — inadequate des-
cription of lands in advertisement — challenge
may be made by any party affected by per-
mission — planning authority has no power
to grant permission based on invalid appli-
cation — planning authority need not be party.
The Respondent, the E.S.B., had sought
an injunction against the Appellant, Carmel
Gormley, permitting it to enter on her lands
and exercise the purported powers contained
in Section 53(5) of the Electricity Supply Act,
1927, as amended.
Mrs. Gormley resisted the application on
the grounds (1) that the section was uncon-
stitutional and (2) that the planning permis-
sion obtained by the E.S.B. for the erection
of an electricity transmission line on her lands
was invalid. Notwithstanding the success of
the constitutional plea*, the Court gave a
decision on the planning issue.
The E.S.B. advertised its intention to apply
for planning permission in the Irish Indep-
endent on 8.1.76 in the following terms:—
"County Wexford.
The Electricity Supply Board intends to apply
to Wexford County Council for permission
to erect that portion of the Great Island
Arklow 220 k.v. line which lies between the
townlands of Forthchester Lower and Bally-
kilty Upper, near Coolgreaney, Co. Wexford.
J. F. Williams, Secretary."
The length of the proposed transmission
line was over 40 miles and the townlands ref-
erred to were those at which, so far as
Wexford County was concerned, the trans-
mission line would commence and terminate.
Wexford County Council notified its
intention to grant permission for the erection
of a 220 k.v. transmission line from Great
Island, Campile to Forthchester Lower, Inch
on 10.2.76 The final permission was granted
on 24.3.76. At this time the lands and
premises owned and occupied by Mrs.
Gormley were owned and occupied by a Mr.
Corcoran. These lands were situate in the
townland of Skeamanagh or
Farmley,
Barony of Scarawalsh County of Wexford
and were purchased by Mrs. Gormley in
October 1977 without notice of the granting
of the planning permission or of any intention
by the E.S.B. to place portion of its trans-
mission line across the lands involved.
Mrs. Gormley contended that the newspaper
advertisement was inadequate and not in
accordance with the statutory regulations
governing the making of planning applications •
and therefore the purported decision was
invalid.
The regulations applicable at the time of
the application for and granting of the pur-
ported permission were those contained in
S.I. No. 221 of 1964. The relevant provisions
of thse permission regulations are, firstly,
Article 9(1) which provides that prior to
making a planning application, the applicant
shall publish notice of his intention either in a
newspaper circulating in the district in which
the relevant land is situate or by erecting on,
or affixing a notice to, the land; and secondly,
Article 9(4) (b) which requires the newspaper
notice to set out "the location of the land or
the address of the structure to which the
application relates (as may be appropriate)".
The E.S.B. contended Mrs. Gormley could
not now assert or rely on any such invalidity
even if it existed on three grounds:—
1) Since Mrs. Gormley was not the owner or
occupier of the lands at the time the permis-
sion was sought and obtained, she could not
have been affected by the inadequacy of the
advertisement (this was the basis on which the
High Court had rejected her challenge);
2) Her application to set aside the permission
was statute-barred;
3) She could not seek to impugn a permission
in proceedings to which the planning author-
ity was not party.
HELD:—
The townlands mentioned in the advertise-
ment merely indicated the area in which the
line commenced and left Co. Wexford. It
would not have notified an owner or occupier
of lands that the townland in which he
resided might be affected, let alone inform
him his actual property might be affected —
except insofar as might have applied to those
persons living in either of the two named
townlands. Evidence was given that other
planning authorities required at least a list of
the townlands through which an electric wire
would be erected. Compliance with such a
requirement would at least have given a reas-
onable indication of the probable route to be
taken by the line. The advertisement did not
therefore comply with the permission regul-
ations and, following its decision in
Crodaun
Homes Limited
-v-
Kildare County
Council
[1983] I.L.R.M. 1 the planning authority had
no power or jurisdiction to grant permission
in respect of that application, since Section 26
of the Local Government (Planning & Dev-
elopment) Act, 1963, confines the exercise of
that power to cases where application has
been made in accordance with the permission
regulations. In the
Crodaun Homes
case, the
Court decided that in order " to satisfy the
requirement of stating the location of the
land, both the letter and spirit of the regu-
lations require that the site on which it is pro-
posed that the development should take place
must be correctly and accurately so described
in relation to the district in which the land is
situate as to be readily and reasonably identi-
fiable."
Reversing the High Court decision, that a
challenge to the validity of a permission,
based on non-compliance with the permission
regulations, can properly be made by any
person who is affected by the permission
granted. It does not depend upon the person
making the challenge being able to show the
non-compliance directly affected him. If non-
compliance is established, the permission is
invalid by reason of a want of power or
jurisdiction on the part of the planning auth-
ority to exercise their right of granting or
refusing permission.
The statutory time limit affecting the chal-
lenge to a validity of a permission is con-
tained in Section 82(3) (a) of the 1963 Act.
This Section was interpolated by Section 42
of the 1976 Planning Act, which was brought
into operation by S.l No. 56 of 1977 on 15.3.77.
Following the Court's decision in
Pine Valley
-v-
Dublin County Council
[1982] I.L.R.M.
169, the Section does not apply to a challenge
now made to a permission granted in 1976.
If a developer seeks to rely upon a grant of
permission directly affecting the interest of a
member of the public, and if the permission
can be shown to have been made without
authority, there is no requirement of pro-
cedure or justice to prevent a member of the
public successfully challenging the validity of
the permission without the necessity of
joining the planning authority.
The Court did not express any view as to
whether the E.S.B. was exempt from the pro-
visions of the Planning Acts.
The Electricity
Supply Board
-v-
Carmel
Gormley — Supreme Court (per Finlay Jnem-
diss) 21 May, 1985 - unreported.
Sarah Cox
•This plea was the subject of a separate decision of the Court
given on 21 March 1985.
CONTRACT
Retenlion of Title — Section
36
of The Agri-
cultural Credit Act 1978 — Whether Clause
amounted to Bill of Sale of Slock within the
meaning of the 1978 Act.
The Plaintiff was appointed as Receiver
over Charles Dougherty & Co. Limited which
carried on the business of manufacture and
sale of animal feeding compounds. The
Defendant was a supplier to the Company of
various components used in the preparation
and manufacture of the feeding compound.
The product was supplied on credit and the
Contract for Sale contained a condition No. 9
as follows:-
" T he transfer of title to you of the goods as
detailed in this Contract shall not occur until
the invoice covering same has been paid in
full, and, accordingly, the goods wherever
situate shall be thereupon at your sole risk".
Section 36 of The Agricultural Credit Act
1978 provides as follows:-
(1) A Bill of Sale of Stock (whether including
or not including any other chattels) made
after the commencement of this Act shall,
notwithstanding anything contained in the
Bills of Sale (Ireland) Acts 1879 and 1883,
xxxiv