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Cite as: [2000] IEHC 161
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Dublin Corporation v. Lowe [2000] IEHC 161 (4th February, 2000)
High
Court
Lord
Mayor of Dublin v Lowe and Signways Limited
1999/45
MCA
4
February 2000
MORRIS J:
MORRIS J:
This
matter comes before the Court as an application pursuant to Section 27 of the
Local Government (Planning and Development) Act 1976 as substituted by Section
19(4)(g) of the Local Government (Planning and Development) Act 1992. The
Applicants seek
(a) an Order directing the Respondents and each of them to forthwith discontinue the unauthorised use of the exterior flank wall (Chancery Place elevation) at first and second floor level of the premises situate at and known as No 3 Inns Quay, Dublin 7 for advertisement purposes.
(b) An Order directing the Respondents and each of them to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (Chancery Place elevation) of the premises situate at and known as no 3 Inns Quay, Dublin 7 by the Respondents and each of them without the benefit of planning permission.
The first named Respondent is the owner of premises no 3 Inns Quay, Chancery Place, Dublin 7. The second named Respondents carry on the business of erecting and maintaining advertising hoardings.
On the 3 January 1996 Mr Daniel J Nolan a Corporation Official with the Planning Department of Dublin Corporation carried out an inspection of the premises no 3 Inns Quay, Dublin. He says that he observed a new advertisement hoarding with a name plate "Signways" on the exterior flank wall of the premises no 3 Inns Quay, Dublin 7. The dimensions of this hoarding were 6 metres x 3 metres. It is common case that this hoarding is the property of the second named Respondent and it is maintained there pursuant to a licence granted to the second named Respondent by the first named Respondent for which the first named Respondent is paid a rent or licence fee. There is no planning permission in existence for the hoarding.
I am satisfied that prior to the month of December 1995 a hoarding of exactly the same dimensions existed on this building erected and maintained there by another company David Allen Holdings Limited. This hoarding was removed because this Company and the first named Respondent decided to terminate their business association in December 1995. The premises were inspected by a Corporation Official on the 18 December 1995 and on that date the hoarding had been removed. The exact date upon which it was removed is not clear. The evidence is that it was due to be removed on the 13 December 1995. However, the first named Respondent says that it was removed "during the course of the weekend commencing on the 15 December 1995." Accordingly, on the balance of probabilities I am satisfied that the hoarding which had been the property of David Allen Holdings Limited was removed two or three days before the hoarding owned by the second named Respondent was erected on Tuesday 19 December 1995. This change came about as a result of a decision on the part of the first named Respondent to permit the second named Respondent to maintain its advertising hoarding in place of the one maintained by David Allen Holdings Limited.
The Applicant's Planning Department does not know when the flank wall of the premises was first used for advertisement purposes but it is accepted by it that it had been used for this purpose since in or about the year 1979. The Respondents claim that the hoarding has been in position since prior to 1961 and the first named Respondent claims that it has been in position since "the 1950s or perhaps even earlier."
The Respondents have raised a number of points by way of defence which I now propose to consider
1. Delay on the part of the Applicants
It has been submitted by the Applicants that apart from the statutory limitation period of five years created by Section 27(6) of the 1992 Act there is vested in the Court a discretion to refuse the relief sought in an application under Section 27 in circumstances where there has been unreasonable delay on the part of the Applicants in making application to the Court which the Court should interpret as acquiescence on the part of the Planning Authority to the unauthorised use of the premises (see Dublin Corporation v Mulligan and Dublin Corporation v Kevans Quay and others).
I am satisfied that the order of the Assistant County Manager authorising the institution of the proceedings in this case was made on the 18 January 1996. The proceedings were not commenced until the 18 May 1999. However, on the 15 September 1998 the second named Respondent made application for planning permission for an advertising sign on this site. This application was refused by the Applicants on the 21 October 1998 and this refusal having been appealed to An Bord Pleanala was affirmed on the 13 March 1998. Accordingly, I am satisfied that the Applicants acted entirely reasonably following their normal procedures in holding off the institution of proceedings pending the determination of this planning application and this action could not be interpreted as being an acquiescence on their part in what they claim to be an unauthorised user of the premises. This does however leave unexplained the period between the 13 March 1998 and the 18 May 1999 when the Notice of Motion was issued. No explanation as such has been tendered for this period of one year and two months. However, it appears to me that this period of delay could be construed as acquiescence only if there was something more in the case than the mere passage of time, given that there had been a positive policy decision to hold off proceedings while the planning permission application was being processed. In my view it is far more likely that the process of communication between the Enforcement Department of Dublin Corporation and An Bord Pleanala accounts for this passage of time and in my view it would be unreasonable to, in effect, punish the Applicants for delay when they had in the first instance stood back and withheld prosecution of the matter in order to permit the Applicant bring a planning application.
2. Claim of an Established User
The Respondents have claimed that this site has been used for the purpose of an advertising hoarding since prior to the 1 October 1964 and accordingly Section 2(b)(i) excludes the structure from the definition of "unauthorised structure" under the 1963 Act.
In my view even if the Respondents should succeed in establishing that the flank wall of the premises had been used for the purpose of displaying an advertising hoarding since prior to the 1 October 1964 and so, prior to its removal, would be entitled to the benefit of Section 2(b)(1) of the Act, when it was removed by its owner from the building there was a break in continuity which in effect destroys any rights which existed at that time.
I recognise that the period of time during which there was no structure on the building is short amounting to no more than some days but in my view what is relevant is that the advertising hoarding was deliberately removed from the building by its owner. What was erected in its place was not the original but a new structure owned by a different company.
When considering this matter in County Council the County of Galway v Connaught Proteins Limited (unreported 28 March 1980) Mr Justice Barrington had to consider a case where a mill had been totally gutted by fire. The status of what remained of the mill building was considered by Mr Justice Barrington and his Judgment contains the following passage
"It appears to me that when the mill perished, that permission to use those premises for a specific purpose perished also."
In exactly the same way whatever permission or immunity existed prior to the removal of this hoarding this "perished" with the removal of the hoarding. I believe that there must, in planning terms, be a significant difference between a temporary removal for repair and maintenance with the intention of the original or repaired structure being reinstated after such repair and the removal of such a structure with no intention of its reinstatement by its owner but the replacement of a different (or be it similar) structure by a third party. I am of the view that it is irrelevant that the new structure corresponded in all respects with the original structure. The removal of the original hoarding by David Allen Holdings Limited without the intention of replacing it must be regarded as an abandonment of any rights which they may have acquired up to that time (see Dublin County Council v Tallaght Block Company Limited 1985 ILRM 512). Hederman J in the course of his Judgment said "where a previous use of land has not merely suspended for a temporary or determined period but has ceased for a considerable time with no evidenced intention of resuming it at any particular time, the Tribunal in fact was entitled to find that the previous use had been abandoned so that their resumption constituted a material change of use.
I am satisfied in this case that the action of David Allen Holdings Limited constituted a suspension of the previous use of the land. There was no evidence of any intention on their part of resuming it at any time in the future.
Accordingly in my view this defence fails.
Submission Section 27 Procedure Inappropriate
The second relief sought by the Applicants in their Notice of Motion is
"an order directing the Respondents and each of them to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (of the premises)"
As long ago as 1985 Gannon J said in Dublin County Council v Kirby 1985 ILRM 325 said. "The distinction between the extent of the intervention by the High Court which may be invoked in a summary manner under Section 27(1) as compared with subsection (2) of the Section is clearly evident from the wording of the two subsections, is very significant and is in accordance with procedures founded upon principles of justice. There cannot be any doubt but that such distinction was intentional on the part of the legislature. It leaves no room for inferring that the High Court may in such summary proceedings be moved to make orders of the mandatory nature which are made only after full and fair investigation in the course of proceedings instituted in the ordinary way.
With this view Blayney J in John Louglinane and Anne Loughnane v Patrick Hogan expressed himself to be in "complete accordance."
For my part I respectfully agree. Keane J as he then was in Dublin Corporation v McGowan 1993 1 IR 405 adopted these views when he said "(The Section) is intended as a "Fire Brigade" Section to deal with an urgent situation requiring immediate action to stop clear breaches of the Act."
Accordingly I do not propose to make any Order under the second paragraph of the Notice of Motion.
With regard to the first relief sought in the Notice of Motion, from the outset both Respondents have made it clear that they propose to rely on an established user of the premises. In the letter of the 26 January 1996 Denis Mumaghan & Company, Solicitors on behalf of the first named Respondent said that an advertisement hoarding had been on the building "back into the fifties or perhaps even earlier." In their letter of the 25 January 1996 the second named Respondents made the case that "The same size of sign has been in situ, since 1961."
In those circumstances in the ordinary way section 27 proceedings would have been inappropriate as there would be a clear issue to be tried which could only be tried, in my view, on full plenary hearing. The issue being whether there was a pre statute established user. However in the particular circumstances of this case I believe that this issue becomes moot because of the conduct of David Allen Holdings Limited in removing their hoarding in circumstances, which I am satisfied amount to an abandonment of any rights which may have been established prior to that time.
Accordingly in the particular circumstances of this case I am satisfied that Section 27 proceedings are appropriate. I am satisfied that the hoarding is not protected by the Local Government (Planning and Development) Regulations 1994 or any aspect of Regulation 9 thereof or any part of the Second Schedule thereto.
Accordingly I make the Order sought in the terms of Paragraph 1 of the Notice of Motion.
(a) an Order directing the Respondents and each of them to forthwith discontinue the unauthorised use of the exterior flank wall (Chancery Place elevation) at first and second floor level of the premises situate at and known as No 3 Inns Quay, Dublin 7 for advertisement purposes.
(b) An Order directing the Respondents and each of them to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (Chancery Place elevation) of the premises situate at and known as no 3 Inns Quay, Dublin 7 by the Respondents and each of them without the benefit of planning permission.
The first named Respondent is the owner of premises no 3 Inns Quay, Chancery Place, Dublin 7. The second named Respondents carry on the business of erecting and maintaining advertising hoardings.
On the 3 January 1996 Mr Daniel J Nolan a Corporation Official with the Planning Department of Dublin Corporation carried out an inspection of the premises no 3 Inns Quay, Dublin. He says that he observed a new advertisement hoarding with a name plate "Signways" on the exterior flank wall of the premises no 3 Inns Quay, Dublin 7. The dimensions of this hoarding were 6 metres x 3 metres. It is common case that this hoarding is the property of the second named Respondent and it is maintained there pursuant to a licence granted to the second named Respondent by the first named Respondent for which the first named Respondent is paid a rent or licence fee. There is no planning permission in existence for the hoarding.
I am satisfied that prior to the month of December 1995 a hoarding of exactly the same dimensions existed on this building erected and maintained there by another company David Allen Holdings Limited. This hoarding was removed because this Company and the first named Respondent decided to terminate their business association in December 1995. The premises were inspected by a Corporation Official on the 18 December 1995 and on that date the hoarding had been removed. The exact date upon which it was removed is not clear. The evidence is that it was due to be removed on the 13 December 1995. However, the first named Respondent says that it was removed "during the course of the weekend commencing on the 15 December 1995." Accordingly, on the balance of probabilities I am satisfied that the hoarding which had been the property of David Allen Holdings Limited was removed two or three days before the hoarding owned by the second named Respondent was erected on Tuesday 19 December 1995. This change came about as a result of a decision on the part of the first named Respondent to permit the second named Respondent to maintain its advertising hoarding in place of the one maintained by David Allen Holdings Limited.
The Applicant's Planning Department does not know when the flank wall of the premises was first used for advertisement purposes but it is accepted by it that it had been used for this purpose since in or about the year 1979. The Respondents claim that the hoarding has been in position since prior to 1961 and the first named Respondent claims that it has been in position since "the 1950s or perhaps even earlier."
The Respondents have raised a number of points by way of defence which I now propose to consider
1. Delay on the part of the Applicants
It has been submitted by the Applicants that apart from the statutory limitation period of five years created by Section 27(6) of the 1992 Act there is vested in the Court a discretion to refuse the relief sought in an application under Section 27 in circumstances where there has been unreasonable delay on the part of the Applicants in making application to the Court which the Court should interpret as acquiescence on the part of the Planning Authority to the unauthorised use of the premises (see Dublin Corporation v Mulligan and Dublin Corporation v Kevans Quay and others).
I am satisfied that the order of the Assistant County Manager authorising the institution of the proceedings in this case was made on the 18 January 1996. The proceedings were not commenced until the 18 May 1999. However, on the 15 September 1998 the second named Respondent made application for planning permission for an advertising sign on this site. This application was refused by the Applicants on the 21 October 1998 and this refusal having been appealed to An Bord Pleanala was affirmed on the 13 March 1998. Accordingly, I am satisfied that the Applicants acted entirely reasonably following their normal procedures in holding off the institution of proceedings pending the determination of this planning application and this action could not be interpreted as being an acquiescence on their part in what they claim to be an unauthorised user of the premises. This does however leave unexplained the period between the 13 March 1998 and the 18 May 1999 when the Notice of Motion was issued. No explanation as such has been tendered for this period of one year and two months. However, it appears to me that this period of delay could be construed as acquiescence only if there was something more in the case than the mere passage of time, given that there had been a positive policy decision to hold off proceedings while the planning permission application was being processed. In my view it is far more likely that the process of communication between the Enforcement Department of Dublin Corporation and An Bord Pleanala accounts for this passage of time and in my view it would be unreasonable to, in effect, punish the Applicants for delay when they had in the first instance stood back and withheld prosecution of the matter in order to permit the Applicant bring a planning application.
2. Claim of an Established User
The Respondents have claimed that this site has been used for the purpose of an advertising hoarding since prior to the 1 October 1964 and accordingly Section 2(b)(i) excludes the structure from the definition of "unauthorised structure" under the 1963 Act.
In my view even if the Respondents should succeed in establishing that the flank wall of the premises had been used for the purpose of displaying an advertising hoarding since prior to the 1 October 1964 and so, prior to its removal, would be entitled to the benefit of Section 2(b)(1) of the Act, when it was removed by its owner from the building there was a break in continuity which in effect destroys any rights which existed at that time.
I recognise that the period of time during which there was no structure on the building is short amounting to no more than some days but in my view what is relevant is that the advertising hoarding was deliberately removed from the building by its owner. What was erected in its place was not the original but a new structure owned by a different company.
When considering this matter in County Council the County of Galway v Connaught Proteins Limited (unreported 28 March 1980) Mr Justice Barrington had to consider a case where a mill had been totally gutted by fire. The status of what remained of the mill building was considered by Mr Justice Barrington and his Judgment contains the following passage
"It appears to me that when the mill perished, that permission to use those premises for a specific purpose perished also."
In exactly the same way whatever permission or immunity existed prior to the removal of this hoarding this "perished" with the removal of the hoarding. I believe that there must, in planning terms, be a significant difference between a temporary removal for repair and maintenance with the intention of the original or repaired structure being reinstated after such repair and the removal of such a structure with no intention of its reinstatement by its owner but the replacement of a different (or be it similar) structure by a third party. I am of the view that it is irrelevant that the new structure corresponded in all respects with the original structure. The removal of the original hoarding by David Allen Holdings Limited without the intention of replacing it must be regarded as an abandonment of any rights which they may have acquired up to that time (see Dublin County Council v Tallaght Block Company Limited 1985 ILRM 512). Hederman J in the course of his Judgment said "where a previous use of land has not merely suspended for a temporary or determined period but has ceased for a considerable time with no evidenced intention of resuming it at any particular time, the Tribunal in fact was entitled to find that the previous use had been abandoned so that their resumption constituted a material change of use.
I am satisfied in this case that the action of David Allen Holdings Limited constituted a suspension of the previous use of the land. There was no evidence of any intention on their part of resuming it at any time in the future.
Accordingly in my view this defence fails.
Submission Section 27 Procedure Inappropriate
The second relief sought by the Applicants in their Notice of Motion is
"an order directing the Respondents and each of them to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (of the premises)"
As long ago as 1985 Gannon J said in Dublin County Council v Kirby 1985 ILRM 325 said. "The distinction between the extent of the intervention by the High Court which may be invoked in a summary manner under Section 27(1) as compared with subsection (2) of the Section is clearly evident from the wording of the two subsections, is very significant and is in accordance with procedures founded upon principles of justice. There cannot be any doubt but that such distinction was intentional on the part of the legislature. It leaves no room for inferring that the High Court may in such summary proceedings be moved to make orders of the mandatory nature which are made only after full and fair investigation in the course of proceedings instituted in the ordinary way.
With this view Blayney J in John Louglinane and Anne Loughnane v Patrick Hogan expressed himself to be in "complete accordance."
For my part I respectfully agree. Keane J as he then was in Dublin Corporation v McGowan 1993 1 IR 405 adopted these views when he said "(The Section) is intended as a "Fire Brigade" Section to deal with an urgent situation requiring immediate action to stop clear breaches of the Act."
Accordingly I do not propose to make any Order under the second paragraph of the Notice of Motion.
With regard to the first relief sought in the Notice of Motion, from the outset both Respondents have made it clear that they propose to rely on an established user of the premises. In the letter of the 26 January 1996 Denis Mumaghan & Company, Solicitors on behalf of the first named Respondent said that an advertisement hoarding had been on the building "back into the fifties or perhaps even earlier." In their letter of the 25 January 1996 the second named Respondents made the case that "The same size of sign has been in situ, since 1961."
In those circumstances in the ordinary way section 27 proceedings would have been inappropriate as there would be a clear issue to be tried which could only be tried, in my view, on full plenary hearing. The issue being whether there was a pre statute established user. However in the particular circumstances of this case I believe that this issue becomes moot because of the conduct of David Allen Holdings Limited in removing their hoarding in circumstances, which I am satisfied amount to an abandonment of any rights which may have been established prior to that time.
Accordingly in the particular circumstances of this case I am satisfied that Section 27 proceedings are appropriate. I am satisfied that the hoarding is not protected by the Local Government (Planning and Development) Regulations 1994 or any aspect of Regulation 9 thereof or any part of the Second Schedule thereto.
Accordingly I make the Order sought in the terms of Paragraph 1 of the Notice of Motion.
© 2000 Irish High Court