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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