The Gazette 1975

Henchy J. a nd Walsh J. would have dismissed the appeal. Wh en McGurk made his application for per- mission to modernise the plant he was making concrete blocks and bricks. It was not stated that McGurk had executed an agreement with the plaintiffs granting them an option to purchase the premises for £20,000. The in- tention was that, as soon as development permission was granted the plaintiffs would exercise their option to purchase, and would then become free to use the development permission for the distribution by lorry from the site of "readymix" concrete. Thus McGurk was in fact only an ostensible applicant. The plain- tiffs then took up their option, and the property was conveyed to them. They then carried out the permit- ted modernisaton and distributed readymix concrete. Neighbouring occupiers complained that the use of the site for this purpose was not within the scope of the permission granted. In an effort to resolve the dis- put, the defendant Council referred the matter to the Minister. There is no doubt but that the "replacement plant" in the application came within the definition of "devel- opment" and so required Ministerial permission. In this case, as the permission incorporated by reference also the plans, the decision of the County Council must also be notified by reference to the plans. Every noti- fied permission has to be entered on an official Register, and anyone who acts on the basis of the correctness of the Register is entitled to do so. Since the permission is a public document, it must be construed objectively. The submission by the Council that this permission is to be construed as having the meaning given to it by the Council, is rejected, as this would not be objective. Th e use for which the structure is here designed must be determined by an ordinary reading of the applicat- ion, plans, etc. The permission duly specified a pur- pose for which the structure was to be used, i.e. the production of concrete. In other words the permission did specify a purpose. The ultimate use by the plain- tiffs of the plant for the production of readymix con- crete is within the permission granted. In this case permission has been granted by the plan- ning authority to an extent not intended by them. Per- tinent enquiries by the Council here would have brought to light the specific use to which the structures were to be put. This type of non-disclosure is easily avoidable by planning authorities. Finally it is desirable that a permission should be clear and specific in its terms, and as far as possible self-contained, so as not to incorporate unnecessary documents. Accordingly the majority of the Supreme Court held that the appeal should be allowed and the injunction granted by Pringle J. should be disallowed. (Readymix (Eire) Ltd. v Dublin County Coun- cil and Minister for Local Government — Sup- reme Court—separate judgments by Budd J. and Griffin J., and dissenting judgment by Henchy J. — unreported —30 July, 1974).

The plaintiffs then issued a plenary summons against the Council and the Minister claiming declarations that the permission of October, 1969, was a valid and sub- sisting permission and the Council was not entitled to derogate from it. The Minister in his defence stated that he was lawfully entitled to decide the matter. The plaintiffs contend that any change in the structure does not amount to "development". Pringle J. decided in favour of the plaintiff, because the grant of permission did not specify the purpose for which the structures were granted, therefore the plaintiffs could use them for the purpose for which they were designed. In the application, what was clearly meant was that the one plant was to be demolished because of dilapi- dation, and that a new modern plant was to be erected 'n its place. The intention was to grant permission for a replacement of the existing plant for the carrying out of the production of concrete blocks but in a modernised fashion; this did not mean the substitution of an entire- ly new plant, and for the new process of manufactur- ing readymix concrete. "Development" means the carry- ing out of any work on or under land, or the making of any material change inthe structure of the land. Here a question has to be answered as to whether or not the new structures are or are not "development", and the matter must be referred to the Minister. FitzGerald C. J. and Budd J. would accordingly allow the appeal, and dismiss the plaintiff's claim. Griffin J. concurred in allowing the appeal. He said there were certain additional facts which were material. 6 years before the sale, James McGurk open- ed another plant in a site of 16 acres at Baldonnell. From the time the bulk of his business was done in Baldonnell, and some days there was no work at Black- rock, he was prepared to sell it for £20,000 for a valu- able site. The business carried on by McGurk was that of a conventional concrete plant. All the processes of manufacture were at that time completed on the site. However the process intended to be carried on by the plaintiffs was completely different. The new plant has a large output, and the cement is delivered to the site in large bulk containers of 20 tons each; in fact a large truck moves into or out of the site every 10 minutes for 10 hours a day. The usetowhich the land had been put was in fact a material change in the use of the land which has been properly referred to the Minister. Wh e n any development is proposed, it is essential that the proposal should be brought in unambigious terms to the residents of the neighbourhood. Any person can then inspect the document, and, if dissatisfied, ap- peal to the Minister. The press notice in this case did not give adequate notice of the extent and nature of the development required, as the words "readymix plant" are carefully omitted. Th e County Council had not the proper particulars on which to act. The grant of Permission specified the purpose for which the structures Were to be used as the existing ones of a concrete plant and not of a readymix plant. The question whether the plaintiffs have made a change in the use of the struct- ures of the land is essentially one that was properly referred to the Minister.

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