High Court of Ireland Decisions

1. This matter comes before the court as an application for an interlocutory injunction restraining the defendants its servants or agents and any other person or persons whomsoever from carrying out and/or continuing any works in relation to the construction and/or erection and/or development of a permanent halting site and/or hard stand at Croghran Road, Birr, Co Offaly.

The circumstances in which the application arises can be summarised, in so far as is relevant to the present application, as follows.

The respondents propose to develop and construct two permanent hard stand and/or halting sites to accommodate members of the travelling community at Croghran Road, Birr, Co Offaly and on the Roscrea Road, Birr, Co Offaly. This application relates to the proposed development at Croghran Road.

As it is relevant to the defence advanced by the respondents I set out in short form the history of this proposed development.

The development of these sites has been in the contemplation of the respondents since May of 1994. Advertisements were inserted in the newspapers, reports were circulated and meetings were held between interested parties and the Birr Urban District Council in and around the months of June and July of 1994. As a result of representations the halting sites were reduced in size so as to accommodate six members of the travelling community instead of ten. A decision was made at that time to proceed with the proposed development.

It was not until November of 1996 that finance for the development was sought by the Birr Urban District Council. This was sanctioned in September of 1997. Tenders had already been sent out in May of 1997 and on the 4 of November, 1997 contracts were signed with the contractors for the carrying out of the work. Works commenced on the 6 of November, 1997 and the applicants sought leave to challenge the development by way of judicial review on the 15 of December, 1997.

The case being advanced by the applicants is that this development is an unauthorised development and in judicial review proceedings they have sought inter alia a declaration that this work is unlawful and is in breach of section 39(2) of the Local Government (Planning and Development) Act, 1963. Leave to seek this relief by way of judicial review was granted to the applicants by order of Geoghegan, J on the 15 of December, 1997.

It is not anticipated that these judicial review proceedings will be disposed of for some considerable time.

The applicants now apply for interlocutory relief on the basis that they wish to preserve the status quo pending the determination of the judicial review proceedings.

The submissions made by the applicant can be summarised as follows. It is accepted by the applicants that a development by a Council of an Urban District in such a district is an exempted development by virtue of section 4 of the Local Government (Planning and Development) Act of 1963. However, such a development loses this status if it is a development which "contravenes materially the development plan" (see section 29(3)) of the Local Government (Planning and Development) Act, 1963.

The applicants submit that an examination of the relevant Development Plan clearly establishes that the proposed development is a material contravention of the Development Plan. The relevant part of the 1988 Birr Urban District Council Development Plan is paragraph 4.7 under the heading "Temporary Dwellings, Caravans etc". That paragraph is in the following terms;

"for the purpose of this written statement, temporary dwellings are taken to include caravans, chalets, mobile homes and huts. It is an objective of the Development Plan to prohibit the use of temporary dwellings for permanent residential purposes on the grounds that such structures are generally unsuitable for human habitation throughout the year. Exceptions will however be made in dealing with acute housing emergencies. In this case, any permission granted will be for a limited period only and such temporary homes should not be obtrusively sited. The placing of caravans and temporary structures on isolated sites will not be allowed to proliferate. However the provision of such caravan parks and chalet estates as may be essential to meet social needs for specific groups in the community will be considered for limited periods. In the layout of such sites full account will be taken of the appropriate standards for same".

In the zoning matrix a reference to "caravan park holiday" and "caravan park residential" appears.

The respondents claim that paragraph 4.7 is in sufficiently broad terms to embrace a development of a hard stand and halting site for the use of members of the travelling community.

In the determination of this application for interlocutory relief I apply the well established test approved in the Supreme Court in Campus Oil Limited v Minister for Industry and Energy and Others 1983 IR 88 namely "that probability of success at the trial is not the proper test to be applied: the applicant for an interlocutory injunction, to be successful, must establish first that there is a fair question to be determined at the trial of the action concerning the existence of the right which he seeks to protect or enforce by injunction and secondly that the circumstances are such that the balance of convenience lies on the side of granting the injunction".

While not purporting to determine the overall issue in the case I am left in no doubt that the applicants have established that there is a fair question to be determined at the trial of the action.

I next pass to consider the balance of convenience.

On behalf of the applicants it is submitted by Mr Walsh that if the work is not halted then when the elected members come to consider the revised Development Plan for the Birr Urban District Council, which is now in the course of preparation, they will without any doubt pass a plan which would protect and validate halting sites which have been constructed and completed rather than not do so and so waste the monies already expended on the construction of the site and moreover expose the Urban District Council to the additional cost of removing the development and making good the lands. In these circumstances he submits that if the applicants are to obtain any effective relief justice requires that the works be halted.

On behalf of the respondents Mr Finlay submits that the halting of the works now will expose the respondents to a substantial claim by the contractor for damages for the loss that he will have sustained by being unable to complete the works.

In the determination of this issue I am left in no doubt that the balance of convenience is in favour of granting the injunction. In making this judgment I take into account the fact that the loss sustained by the contractor and possibly recoverable from the respondents can at least to some extent be cushioned by the fact that he is able to occupy part of his work force for some time on the halting site on the Roscrea Road which is not to be effected by any order made by this court. Moreover it is apparent that the respondents or at least some of them are persons of good standing who have given an undertaking as to damages which would appear to protect the respondents against loss.

There remains to consider the significant point advanced by the respondents relating to the applicants alleged laches to the extent as to deprive them of the relief claimed.

The submission is made that ever since June of 1994 the applicants have been aware of the proposal to develop the halting sites and yet took no active step in relation to them until the 15 December, 1998 when they sought leave to seek relief by way of judicial review.

In my view the earliest date upon which the applicants could reasonably be expected to realise that the proposal to construct these halting sites was becoming a reality was when the finance for the project was sanctioned. This occurred in September of 1997. By July of 1997 the applicants solicitors Messrs John J Reidy and Company were in correspondence with the respondents in relation to this matter and it was not until November of 1997 that an acknowledgement was received to this correspondence. It is my view that the applicants moved with all due expedition and certainly without undue delay by bring the matter before the court and seeking relief by way of judicial review on the 15 December, 1997.

There is another factor in relation to this issue. In Mahon and Others v Butler and Others (heard 1 of August, 1997) the Supreme Court has held that the High Court had no jurisdiction to make an order under section 27 of the 1976 Planning and Development Act in relation to an anticipated breach of the planning code nor did it have jurisdiction to extend the statutory jurisdiction by way of the general equitable jurisdiction of the High Court. On the basis of this decision it would appear that it was only open to the applicants to seek relief when work commenced on the 6 November, 1997.

Accordingly, I grant the applicants the relief sought.