High Court of Ireland Decisions

1. The matters in respect of which complaint is made are set forth at paragraph 6 of the affidavit of Daniel J. Nolan sworn on the 7th November, 1996. They are as follows:-

2. In May of 1995 the Applicant received a complaint from a member of the public concerning the illuminated neon tubes erected to the Stephen's Place frontage of the premises and concerning the giant contoured wolf or gargoyle fixed to the facia of the premises.

3. In October 1995 the Applicant received a further complaint from a member of the public regarding changes to the front and side part of the premises and in particular the facade for the nightclub known as "Howl at the Moon" .

4. On foot of these complaints, inspections were carried out by Mr. Nolan on the 8th November, 1995, the 20th November, 1995 and the 14th February, 1996. Those inspections revealed the matters which are set forth at paragraph 6 of his affidavit and which I have reproduced in substance earlier in this judgment.

5. As a result of the inspections carried out, a letter was sent to the Manager of the premises in question warning that all unauthorised developments must cease and that all unauthorised signs must be removed from the premises. A similar letter was sent to the Secretary of Toji Holdings, which was the entity which had applied for planning permission in respect of the premises some years beforehand. Neither letter appears to have been answered.

6. A further letter dated the 31st May, 1996 was written to the Respondent Company at its registered office warning that all unauthorised developments must cease and that all unauthorised signs must be removed. That letter does not appear to have been responded to, hence these proceedings.

7. These proceedings were commenced by Notice of Motion dated the 8th November, 1996 and were first listed before the Court on the 9th December, 1996. After various adjournments and exchanges of affidavits, they ultimately came for hearing before me on the 29th April, 1997.

8. Having regard to the material deposed to in the replying affidavits, it is clear that the focus of this inquiry has now narrowed down considerably. At paragraph 4 of the replying affidavit of James Scully, sworn on the 28th April, 1997, it is conceded that all but two of the matters complained of in paragraph 6 of Mr. Nolan's affidavit constitute unauthorised development. The two matters in respect of which this concession is not made are the Foster's sign dealt with a paragraph 6(ii) and the yard which has been roofed over dealt with at paragraph 6(vii) of Mr. Nolan's affidavit. However, the Applicant no longer makes complaint in respect of this latter matter so I need not concern myself with it any further.

9. There is one other matter, apart from the Foster's sign, that I have to deal with and that is the question of the unauthorised change of use from the restaurant to the nightclub. In that regard two things are said by way of defence. First, it is contended that there is inadequate evidence of such change of use to permit of the grant of an injunction and, secondly, there is a denial of an unauthorised change of use of the premises. It is said that they are used as a public house with restaurant facilities. (See paragraph 4 of the affidavit of Liam O'Dwyer, sworn on the 28th April, 1997 and paragraph 7 of the affidavit of James Scully, sworn on the same day).

10. Insofar as the admitted unauthorised developments are concerned, I am asked to place a stay upon whatever order I may make in favour of the Applicant in respect of them so as to enable the Respondent to make an application for retention permission in respect of them to the planning authority and, if necessary, to appeal to An Bord Pleanala.

11. I will consider each of these matters in turn.

12. Two points are raised by way of defence.

13. The Respondent contends that this sign was a replacement for a similar sign which was erected on the premises in the 1950's. It argues that the erection of the sign as a replacement of the earlier one is exempted development insofar as it falls within the provisions of Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963. It is accepted that no planning permission was obtained for the sign but it is argued that enforcement proceedings cannot be taken in relation to it having regard to the operation of the enforcement time limits within the planning legislation. I will deal with this point first.

14. This argument appears to me to have no basis in law having regard to the decision of Finlay P. in Dublin Co. Council v. Mantra Investments Ltd (1980) ILTR p. 201. There that judge held that the limitation provisions in the planning legislation dealing with prosecutions have no application per se in the jurisdiction conferred on the High Court under Section 27.

15. Even if such a defence was tenable at law, there is not, in my view, the necessary evidence to support a contention that the proceedings might be time-barred. In the affidavit of Niall Murphy, who is an official of the Applicant, he avers as to a conversation which he had with Mr. Matt O'Dwyer whilst carrying out inspections on the premises on the 19th and 22nd September, 1994. Those inspections were in relation to a complaint which had been received in relation to a Foster's Beer sign on the premises in question. In fact his inspection revealed a number of such unauthorised signs. Mr. Matt O'Dwyer is described as one of the owners of the public house in question. It is said that he informed Mr. Murphy that the signs had been erected approximately eighteen months previously and he agreed to undertake to have the signs removed. No mention was made of any earlier sign being replaced. This averment is dealt with in the replying affidavit of Liam O'Dwyer, sworn on the 28th April, 1997. In it he says that Mr. Matt O'Dwyer is a nephew of his and was never an owner of the premises. He goes on to say that Mr. Matt O'Dwyer worked as a barman on the premises for a period but, insofar as he gave any undertakings as alleged, he was not authorised to do so. This is a carefully drafted paragraph and whilst it takes issue with the entitlement of Mr. Matt O'Dwyer to give any undertakings, it is to be noted that it does not deny the accuracy of the statement alleged to have been made by him to the effect that the sign in question had been erected some eighteen months beforehand. Such being the case, I reject the Respondent's attempt to suggest that these proceedings are in some way time-barred.

16. The next point which is taken by the Respondent is by way of reliance upon the provisions of Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963. That subsection provides that certain developments shall be exempted developments and it includes "development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures".

17. Having regard to the photograph of the offending sign which has been exhibited in the affidavits before me, I am of opinion that as a matter of fact the Respondent is not entitled to rely upon this provision. I am quite satisfied that the erection of the sign did materially affect the external appearance of the structure and did so in such a way as to render it inconsistent with the character of neighbouring structures and in particular the house which can be seen in Exhibit NM1 of the affidavit of Niall Murphy.

18. Accordingly, in my view, the Foster's sign in question is an unauthorised development and the Applicant is entitled to an injunction in respect of it.

19. The principal point which is taken by the Respondent in respect of this matter is that there is insufficient evidence before the Court to demonstrate an unauthorised change of use of the premises to that of nightclub. In his replying affidavit of the 28th April, 1997, Liam O'Dwyer says:-

20. In the course of his submission, Counsel on behalf of the Respondent, in addition to contending that there was insufficient evidence of an unauthorised change of use, asserted that as a matter of fact the Respondent does not operate a nightclub on the premises.

21. The evidence adduced by the Applicant in this regard can be found at paragraph 6(i) of Mr. Nolan's affidavit. In that paragraph he avers that having carried out three inspections of the premises between November 1995 and February 1996 there were two pairs of doors leading to "the nightclub in the basement". He then goes on to complain about the change of use from a restaurant to a nightclub. He also exhibits the original complaint from one of the members of the public, namely, Magdalen O'Connell, dated the 26th October, 1995. She speaks of the facade for the nightclub in the course of her letter. In Mr. Murphy's affidavit he specifically complains of the change of use which he asserts to be unauthorised. Furthermore, he speaks of a sign which at the time of his inspection advertised what was called "Night Train" and which he says referred to a nightclub in the basement of the premises.

22. Given this evidence adduced on behalf of the Applicant, I would have expected a denial in somewhat more specific and forthright terms than that which I find in paragraph 4 of Mr. O'Dwyer's replying affidavit of the 28th April, 1997. He simply asserts that there has been no unauthorised change of use of the premises which is used as a public house with restaurant facilities. He does not address the specific complaints of the premises being used as a nightclub. I regard this approach as unsatisfactory. It is particularly so when one considers the piece of evidence from the Respondent's architect which I deal with in the next section of this judgment. It seems to me that there is sufficient evidence of the premises being used as a nightclub and, in the absence of a more satisfactory response, I propose to grant an injunction in respect of it. If what I have been told by Counsel is correct, this injunction will have no effect on the Respondent since they say, as a matter of fact, that they do not use the premises as a nightclub. When I put this proposition to Counsel, his response was that equity does not act in vain and so an order should not be made. I do not consider that the grant of an injunction concerning the use of the premises as a nightclub would be acting in vain since I am satisfied that there is prima facie evidence of such unauthorised use and I am not satisfied with the purported denial of such use. Accordingly, there will be an injunction to restrain that unauthorised use.

23. In the replying affidavits and in the course of his submissions, Counsel sought a stay from this Court in respect of any injunctive relief which it might grant. The purpose of this stay is to enable the Respondent to apply for retention permission in respect of the unauthorised developments. It asks that the stay should continue until such time as the matter is finally decided by An Bord Pleanala. If the decision goes against it, then it asks for a further period of six weeks so as to enable it to carry out the necessary works to bring the unauthorised developments to an end.

24. I regard this request as having little merit and I find the whole approach of the Respondent to these proceedings to be undeserving of much sympathy from this Court.

25. I have come to these conclusions for the following reasons. First, the Respondent was first notified of the complaints of the Applicant concerning these premises as far back as the 21st December, 1995. The letters written by the Applicant appear to have been ignored. The Respondent was further written to on the 31st May, 1996 and again that correspondence appears to have been ignored. These proceedings were commenced in November 1996 and were first before the Court in December 1996. The final affidavits in which the concessions were made concerning the unauthorised developments were filed only on the 28th April, 1997, that is the day upon which this motion was listed for full hearing. Because of pressure on the list, it did not get on for hearing until the following day.

26. Throughout all of the time from December 1995, the Respondent made no efforts to apply for retention permission. The first step that it took in that regard was on Saturday last when I am told by Counsel, (although I have no evidence of it on affidavit) that advertisements were placed in the newspapers concerning its intentions in this regard. Even in his affidavit sworn as long ago as the 20th January, 1997, Mr. Scully referred to some of the unauthorised developments and said that the Respondent would be willing to make an application for retention. The Respondent was, therefore, fully alert as to the necessity to apply for retention permission in respect of at least some of the unauthorised development in January of this year, yet did nothing about it.

27. I have examined the exhibit to Mr. Scully's affidavit of the 28th April, 1997. It is a copy of a plan which he drew up for submission to the planning authority for retention of the statuary on the premises. The date which is shown on this plan is "1/1996". That suggests that the plan was prepared as far back as January 1996, yet to this day it has not been submitted to the planning authority. No explanation has been furnished as to why an application for retention has not been submitted to date and it would appear that the plans in that regard were prepared as far back as January of 1996.

28. It is also of interest to note that the plan in question, prepared by the Respondent's own architect, describes the entrance on the right hand side of the premises as being "entrance to nightclub" . This clearly demonstrates his understanding of the use of the premises. To my mind it renders entirely hollow the attempt to convince me that the Court should not enjoin the use of the premises as a nightclub.

29. The unauthorised developments at this premises have, I am satisfied, been carried out with a view to enhancing its commercial development and the profit which it makes for its owners. Notwithstanding these clear breaches of the Planning Acts, I am nonetheless asked to permit the Respondent to continue to profit from its wrongdoing by placing a stay upon my injunction so as to enable it to commence another procedure with a view to regularising its position. It has already, in effect, obtained a stay on any action against it since December 1995. By carefully ignoring the correspondence from the Applicant, by contesting these proceedings right up to the very last moment necessitating their adjournment from December 1996 until April 1997 and by avoiding filing its final affidavits until the day upon which the Court had the matter listed for hearing, it has succeeded in delaying matters until now. At any time during that period it could have made the necessary application for retention but did not do so and, indeed, to date has not done so.

30. In my view, the observations of Murphy J. in Dublin Corporation v. Maiden Poster Sites (1983) ILRM 48 are apposite. There he said:-

31. There is nothing in the attitude and behaviour of the Respondent in relation to this litigation which would permit of the Court's discretion being exercised in its favour. I am not prepared to assist in the Respondent's continuation of these unauthorised developments any longer. If the Respondent is put to cost and expense, it has only itself to blame in this regard.

32. There will, accordingly, be injunctions to restrain all of the unauthorised developments. Insofar as a number of these will require the dismantling or removal of material from the premises, I will allow a stay on that part of the Order solely to enable such work to be done. I will discuss with Counsel the length of such a stay.