Previous Page  319 / 330 Next Page
Information
Show Menu
Previous Page 319 / 330 Next Page
Page Background

GAZETTE

MARCH 1986

Recent

Irish

Cases

Edited by

Gary Byrne, Solicitor

PLANNING

Local Government (Planning and Develop-

ment) Act 1976 — whether Planning Authority

entitled to Mandatory Orders under Section

27(1).

The applicant brought an application to

the High Court under Section 27 of the Local

Government (Planning & Development) Act

1976 seeking Orders restraining the respond-

ent from demolishing Allenton House, of

which the respondents were the owners and

occupiers, or any wall or structure within the

curtilage thereof and from demolishing Kill-

ininny Tower or any other wall or structure

within the grounds of Allenton House unless

and until planning permission therefor had

been granted. The applicants^ also sought

orders directing the respondents to reinstate

the house to its pre-demolition condition and

if necessary for an Order that certain works be

carried out to close off the building including

the cleaning away of demolished brickwork,

the bricking up of existing openings and the

provision of a weather screen to the front of

the building. The purpose of the works were

to protect the building from further damage

and/or deterioration.

The respondents argued that the Orders

sought requiring them to reinstate the house

and carry out works were not within the com-

petence of the Court.

The Section of the Act reads as follows:-

"(1) where - (a) development of land,

being development for which a permission

is required under Part IV of the Principal

Act is being carried out without such a

permission, or

(b) an unauthorised use is being made of

land, the High Court may, on the appli-

cation of a Planning Authority or any

other person, whether or not the person

has an interest in the land, by Order

prohibit the continuance of the develop-

ment or unauthorised use.

(2) Where any development authorised by

a permission granted under Part IV of the

Principal Act has been commenced but

has not been, or is not being, carried out

in conformity with the permission because

of non-compliance with the requirements

of a condition attached to the permission

or for any other reason, the High Court

may, on the application of a Planning

Authority or any other person, whether or

not that person has an interest in the land,

by Order require any person specified in

the Order to do or not to do, or to cease

to do, as the case may be, anything which

the Court considers necessary to ensure

that the development is carried out in con-

formity with the permission and specifies

in the Order.

(3) An application to the High Court for

an Order under this Section shall be by

Motion and the Court when considering

the matter may make such interim or inter-

locutory order (if any) as it considers

appropriate. The Order by which an

application under this Section is deter-

mined may contain such terms and con-

ditions (if any) as to the payment of costs

as the Court considers appropriate".

The respondents submitted that the circum-

stances to which the application related fell

only within Sub Section (I) and that Sub

Section (2) was not applicable.

The applicants cited the Supreme Court

decision in

Dublin County Council

-v-

Tal-

laght Block Company Limited

(17 May 1983)

as authority for the proposition that the High

Court had authority to make a mandatory

order requiring work to be done. The Court

noted that the unreported judgment of the

Supreme Court did not seem to contain any

statement of principle or ruling on the point

of law as to whether the High Court was

entitled to make such a mandatory Order nor

did it show whether or to what extent the

point of law was argued in that Court.

The Court held that Sub Section (1) of

Section 27 made provision for circumstances

in which the apparent occupier of land made

such use of it as came within the definition of

"development" or "authorised use" without

having complied with the statutory require-

ment in relation to planning permission. The

Court thought that it would be exceptional if

in those circumstances that the planning

authority or any member of the public could,

save with great difficulty, assert or hope to

prove any significant factor other than the

absence of a planning permission. The inter-

vention of the High Court invoked by the

prescribed summary procedure in such cir-

cumstances was limited to prohibiting the

continuance of whatever development or

unauthorised use had been commenced. This

did not preclude the planning authority from

instituting proceedings in the normal way

founded on pleadings nor invoking such other

statutory remedies as might be appropriate.

Sub Section (2) of Section 27 on the other

hand applied to the circumstances in which

the apparent occupier of land engaged in a

use of it within the definition of development

being a person to whom planning permission

has been granted and who has commenced

work not in conformity with such permission.

In such circumstances the obligations under-

taken by the developer were readily ascertain-

able and were known to him and were easily

defined. Sub Section (2) therefore permitted

the authority of the High Court to be invoked

in a summary manner for the purpose not

merely of prohibiting the doing of work but

also of compelling the performance or obli-

gations in relation to development with the

necessity of proceedings instituted in the

normal way. The Court held that the sub-

missions on behalf of the respondent were

well founded and correct and that the appli-

cants were not entitled to proceed with their

application.

The County Council of the County of Dublin

-v- Kevin Kir by The High Court (per Gannon

J.) 10 May 1984 — unreported.

John F. Buckley

NF.GLIGENCK

Liability of Builder/Vendor of secondhand

house - Liability of Local Authority as Mort-

gagee.

The First-Named Defendant ("the Vendor")

who had no qualifications or experience in

the building trade bought a site in 1974 and

later set about building a bungalow on it with

the aid of his father (described as a "handy-

man") and his brother. The planning permis-

sion obtained by him contained a condition

"that the standard of materials, workmanship

and building practice is at least equal to that

specified in the Local Government Depart-

ment Outline Specification for Houses". The

house was commenced in the summer of 197S

and the Vendor moved into the bungalow in

May 1977.

In June 1980 the Vendor entered into an

oral agreement for sale, with the Plaintiff;

there were no verbal warranties express or

implied in the agreement nor were any repre-

sentations as to the fitness of the premises

made prior to the sale. The written contract

entered into subsequently made provision for

the sale of a parcel of land with no mention

of the house erected on it and it contained no

warranties relating to the building. The Plain-

tiff and his wife had inspected the house both

before and after the verbal agreement but did

not have it professionally inspected. When

they moved in, in December 1981, they dis-

covered that there was no flue in the chimney

and had to engage a builder to put one in.

They also discovered the house was extremely

damp.

In 1982 they engaged a contractor to instal

a central heating system, but when he opened

up the floor he declined to do any further

work on the premises. A consultant engineer

reported that the house was grossly sub-

standard, structurally unsound, a source of

risk and a danger to health whereupon the

Plaintiff then left the premises. He instituted

proceedings against the Vendor for damages

for breach of contract or in the alternative for

breach of a common law duty of care which

the Vendor owed to him as a builder and

vendor. The Plaintiff claimed damages

against the Second-Named Defendant ("the

Council") which advanced money by way of

mortgage on the premises on the grounds that

they owed the Plaintiff a common law duty

of care when exercising their statutory function

when granting the loan. The Plaintiff also

claimed damages against the Third-Named

Defendant a firm of Auctioneers who valued

the premises for the Local Authority before

the loan sanction was granted, on the grounds

that they owed a common law duty of care to

the Plaintiff when carrying out the valuation.

1. The Claim against the Vendor

The Court noted that there was a conflict

of evidence between the professional witnesses

called on behalf of the Plaintiff on the one

hand and those called on behalf of the Council

and the Vendor on the other hand but prefer-

red the testimony of the Plaintiff's witnesses.

The Court accepted that there were defects in

the construction of the roof timbers, that all

the floors were sub-standard - a four or six