High Court of Ireland Decisions

1. It seems clear from the terms of Article 9 of the Local Government (Planning and Development) Regulations, 1994 (S.I. No.86 of 1994) when read in conjunction with Clause 29, Part I of the second Schedule to those Regulations, that the development complained of does not fall within the exemptions contained in those provisions. It was not an "exempted development" within the meaning of the Planning Act.

2. It follows that Cavan County Council is acting properly in seeking injunctions under Section 27 of the 1976 Act, as amended.

3. The only question which arises is whether this Court, in its limited discretion, should refuse such injunctions. I fail to see that there are any grounds which would justify such refusal or even an adjournment of the application.

4. It undoubtedly happens from time to time that a County Council consents to an adjournment of a Section 27 Application pending the outcome of an application for retention permission. But there is no such consent in this case. The Council had given the Respondent an earlier opportunity to regularise its planning permission obligations for all its similar developments throughout the county but that opportunity had not been availed of.

5. A Court should be slow to adjourn a Section 27 application pending an application for retention permission if such adjournment is opposed by the Planning Authority vested with the important statutory obligation to enforce the planning laws within the county. There are cases where it might be appropriate, as for instance, where an individual quite innocently went ahead with a single development unaware that the permission was required.

6. But this case is quite different. The developer here is a major commercial company in competition with another major company in the same business. It is a subsidiary of one of the most important semi-state companies in the country. It seems to me inconceivable that such a company would not have got the best legal advice on the planning implications of its intended erections of poles and antennae. If it did not, it was reckless.

7. No where in Mr. Murtagh's affidavit is it stated that the company acted on legal advice.

8. There is a widespread belief (the truth or falsely of which is irrelevant) that a retention permission is easier to obtain than an original permission for development. It is important that there would not be a public perception that the Respondent might be abusing the system in this way in order to achieve its ends even if that is not in fact the case.

9. I understand that in another case Kearns J. may have delayed granting an injunction but I must decide this case on the facts before me.

10. I will grant the injunction sought at paragraph 3 of the Notice of Motion.