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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Fingal County Council v. H. E. Services (Ireland) Ltd. [2002] IEHC 36 (25 January 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/36.html
Cite as: [2002] IEHC 36
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THE HIGH COURT
2001 No. 102 MCA
IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963 TO 1999 AND IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF FINGAL
BETWEEN
THE COUNTY COUNCIL OF THE COUNTY OF FINGAL
APPLICANT
AND
H.E. SERVICES (IRELAND) LIMITED
RESPONDENT
JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered the 25th day of January 2002
1. This matter comes before the court pursuant to Notice of Motion of the 5th October, 2001 in which the applicant seeks orders pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 as inserted by Section 19(4)(g) of the Local Government (Planning and Development) Act, 1992, as follows:-
1. An order restraining the respondent, its servants or agents, licensees or any other person acting in consort with it and all persons having knowledge of the making of this order from carrying out any (or any further) unauthorised development and/or unauthorised use at premises in the ownership and/or occupation and/or in the control of the respondent, its servants or agents at Unit 5, Baldoyle Industrial Estate, Baldoyle in the County of the City of Dublin, including the unauthorised use of buildings situated thereon as office premises.
2. An order directing the respondent, its servants or agents or any person acting in consort with it and all persons having knowledge of the making of this order to cease forthwith the unauthorised use of buildings situated on the said lands as office premises.
3. An order directing the respondent by itself or through its servants or agents to take down, dismantle or remove forthwith any building or structure on the said premises being used as unauthorised office premises.
4. An order directing the respondent by itself or through its servants or agents to take down and dismantle all unauthorised signage erected on the said premises.
5. An order directing the respondent by itself or through its servants or agents to carry out all works at or, on, in or to the said premises necessary for the purpose of complying with the planning permissions (and conditions attaching thereto) granted to the respondent, its servants, agents or predecessors in title relating to the said lands including
(i) The carrying out of landscaping works to the forecourt area of the said premises, and
(ii) the provision of a car park at the said premises.
6. An order restraining the respondent its servants, agents, licensees and any person acting in consort with it and all persons having the knowledge of the making of this Order from using the forecourt area of the said premises or any part thereof for the storage of machinery.
2. The essential issues in these proceedings relate to the use by the respondent of the forecourt area of its premises at the Baldoyle Industrial Estate for the storage of significant quantities of machinery including JCB’s, High Loaders and other items of machinery which are leased by it in the course of the business. Furthermore, the relief sought relates to the presence on the respondent's lands of a temporary office structure which was the subject matter of a planning permission granted in 1994 for a three year period and is in the nature of a port-a-cabin structure.
3. The evidence before this court indicates that the forecourt area of the respondent’s premises has been used for many years for the storage of items of machinery which have been leased in the past, and this use has continued to the present time. However, the essential gravamen of the applicant’s case is that since 1998 there has been an intensification of the previous use, which apparently was not authorised, such that the forecourt area has generally been completely crowded with machinery, resulting in a situation where there is no space in the forecourt area to accommodate cars of those visiting the premises and other machinery being brought to the premises, such that the presence on the roadway and on the adjoining footpath of machinery has been a feature of the situation for the last number of years. In addition to the situation governing the use of the forecourt area of the subject premises, the applicant complains about the maintenance of the port-a-cabin offices, in respect of which a temporary permission was granted, which has expired for some years at this stage.
4. The applicant’s case is grounded upon the affidavit of Joseph Gorman, who is a planning inspector with the applicant. In his affidavit he indicates that on the 22nd March, 1994 the applicant granted planning permission to the respondent for the retention of temporary offices, subject to the condition which provided that the use in question should cease on or before the 31st March, 1997, and that the offices be removed on or before the 31st March, 1997, unless, before that date, permission for its retention is granted by the planning authority or by An Bord Plenála on appeal. Mr. Gorman indicates that for several years the respondent has engaged in the business of hiring construction machinery and equipment from its premises. He says that the site consists of light industrial buildings, stores and single storey offices to the side with a large forecourt area to the front of the building. He points out that the office, in respect of which the respondent was granted planning permission, continues to operate from the premises despite the fact that no application for planning permission for retention of such temporary use has ever been sought or obtained by the respondent. He points out that the forecourt area has been used by the respondent as an area for the parking and storage of several items of machinery. He says that due to the use of the forecourt area for the storage of equipment and machinery, there is a lack of off street parking for the vehicles, vans and low loaders used by the customers of the respondent, who are obliged to park on the public roadway to the front of the respondent’s premises. He points out that the parking of vehicles on the roadside outside the respondent’s premises represents a serious road hazard and has caused serious damage to the roadside kerbs and verges.
5. In his affidavit Mr. Gorman details the results of nine particular inspections carried out by him of the respondent's premises commencing with an inspection of the 11th March, 1998. As of the 6th July, 1998 the respondent was written to by the Council pointing out that the storage of heavy machinery to the front of the building on its premises was unauthorised and required it to provide off the street parking to the front forecourt area and to remove the unauthorised sign erected to the front of the building. In fact in the course of these proceedings it was indicated that the sign is no longer the issue insofar as it has already been removed by the respondent. Correspondence from the managing director of the respondent of the 17th July, 1998 to the applicant indicated that the respondent was then seeking alternative premises suitable for the business. It appears, however, that it was unable to secure appropriate accommodation at a price for which it was prepared to pay and in these circumstances it has remained in the said premises since that time. The further inspections carried out by Mr. Gorman indicate a continuing situation where he found that the forecourt to the respondent’s premises was overcrowded with machinery, that the grass verge outside the unit was not reinstated, levelled, soiled or seeded and that the concrete roadside kerb was damaged by vehicles parking up on it.
6. In October, 1998 Mr. Gorman found that the front yard or forecourt of the respondent's premises was still seriously overcrowded with large machinery and equipment being stored there and he found a low loader lorry being parked opposite the respondent’s premises. He also saw two JCB’s owned by the respondent which were parked partly on the public pathway outside the respondent’s premises. At this stage he found that the grass verge was non-existent. In July, 1999 he found that the situation on the site had deteriorated since his previous inspections and that there had been a serious intensification of storage of heavy vehicles and equipment on site with the result that vehicles and low loaders were now being parked on the public footpath outside the respondent’s premises as well as over the forecourt area to the front of the premises.
7. In August, 1999 the managing director of the respondent wrote a letter to the applicant indicating that it had been unsuccessful in attempting to relocate, but indicated that the operations had been scaled down since July of the previous year and that the quantity of plant operating from the depot was now approximately half the level operated twelve months prior to that date. It was indicated that the respondent had designated three bays within the depot specifically for parking of the vehicles of customers and visitors. Notwithstanding these assertions, Mr. Gorman found in November, 1999 that there had been a major intensification of storage and parking of heavy vehicles and machinery in the forecourt of the respondent’s premises and that the parking of equipment and machinery on the public footpath outside the respondent’s premises was still taking place.
8. This situation had not changed on the inspection on the 5th April, 2000 and further on the inspection on the 11th May, 2000. He indicated that at this point there had been an intensification of the activities taking place on the site. It is pointed out that the planning permission granted in respect of the premises contained a condition that the forecourt to the premises was to be landscaped and laid out for car parking to the standards of the Council’s development plan.
9. On the 29th May, 2000 Mr. Gorman found on inspection that there was on the forecourt up to sixteen vehicles including Hymacs, JCB’s, forklifts, small trucks and machine parts. He said that there was no parking available for customers within the curtilage of the respondent’s premises. A further inspection was carried out by Mr. Gorman on the 2nd May, 2001. He says that the storage of machinery and equipment in the forecourt area of the premises had intensified. He found that there were sixteen large vehicles parked in the forecourt and several parts of machines. Outside the premises he indicated that there was a low loader and equipment parked on the public footpath. The affidavit of Mr. Gorman is supported by a number of photographs illustrating the congestion of the forecourt area. The photographs also indicate the presence of vehicles owned by the respondent outside the premises either on the roadway or parked on footpaths and grass margins outside the premises. The several reports made by Mr. Gorman over the period indicate that he recommended court action be taken but in fact it was not until the 10th November 2001 that an application was first brought to this court.
10. An affidavit has been sworn by Mr. Kenneth Dillon, the managing director of the respondent. He indicates that the respondent company purchased the subject premises in March, 1995 and immediately thereafter went into occupation. He believes that the occupier, Dublin Plant Hire Limited operated a similar business to that of the respondent, in a similar manner and by a similar use of the premises. His understanding is that this was the use to which the premises was put for several years before it ceased trading in August, 1994. He says that by nature of the business a large quantity of heavy plant and machinery and equipment is required to be maintained and he admits that of necessity the entire forecourt of the premises is constantly being used by the respondent for the storage of plant and machinery and equipment from the date when it first took occupation of the premises down to the present time. He says that had this not been possible that the business could not have continued. He acknowledges that the respondent’s use of the forecourt area entirely for storage purposes has removed all scope for off the street parking at the premises but he indicates that at the time of its purchase of the premises the respondent was not aware that this use of the forecourt area was other than an authorised use under the Planning Acts or otherwise. He says that he was not aware of the situation until July, 1998 when the matter was brought to his attention by a letter from the applicant. He says that prior to this the respondent had determined that the premises were not sufficiently large or sufficiently well adapted to properly accommodate its business and that the respondent failed in ongoing attempts to secure a suitable relocation. He says that alternative premises which were explored have been found to be either unsuitably adapted in some material respect or too expensive. He says that surplus equipment was disposed of to alleviate the congestion and he engaged a landscaper to reinstate damaged areas of the grass verge along the public road outside the premises.
11. Mr. Dillon has indicated that there was a reduction in the number of vehicles which were hired from or stored at the premises in 1998 where a reduction from 120 machines or vehicles to 80 took place. He also said that there was a reduction in the office staff of the premises from 12 to 6 in 1998 and that there was a reduction from 2 to 1 in the number of large lorries operating from the premises. He says that previously the use of a second lorry had frequently resulted in one of them being parked on the public road while the other was being loaded inside the forecourt. He says that by the end of 1999 the surplus equipment which was either scrap or in need of immediate repair work had been removed from the forecourt and permanently disposed of.
12. Mr. Dillon also indicates that an arrangement has been made with the Baldoyle Badminton Centre to accommodate parking of cars belonging to the respondent’s staff and to visitors to its premises on the adjoining lands owned by the Baldoyle Badminton Centre. He says that this arrangement has operated successfully for over five years. Mr. Dillon has indicated a desire on the part of the respondent, not to infringe planning regulations and he says that the respondent wishes to be in a position to comply with all planning regulations while at the same time operating its business in a proper and orderly manner. In addition Mr. Dillon says that since the business of the respondent was scaled down that no vehicles belonging to the respondent could have been parked on the public road outside the premises. He admits that particularly during wet weather when there is less work for the respondent’s drivers, there are occasions when the parking of heavy vehicles does take place. He says that the frequency and extent of these instances have considerably reduced over the last three years as the respondent now operates with a smaller number of vehicles in a tidier forecourt area. Mr. Dillon further suggests that the operators of other businesses in the area habitually park heavy vehicles on the public road in the vicinity of his premises. He says that the low loader and service van are generally out on business approximately 80% of the time as they are the vehicles most frequently used. He further suggests that the Badminton Centre operates a restaurant during the day which is popular with lorry drivers and that visitors to this restaurant invariably park on the public roadside. He says that, given the number of industrial occupiers in the neighbourhood and the number and type of vehicles which they or their visitors use, there is very rarely any occasion when the full stretch of the public roadway is free of parked lorries and other heavy vehicles. However, he accepts that damage to the roadside kerbs and grass verges has been caused by the presence of the parked vehicles belonging to the respondent and he accepts responsibility to pay for the costs of repairing this damage.
13. Mr. Dillon indicates in his affidavit that the applicant’s notification to him in relation to the absence of renewed planning permission for the temporary office use was not given to him at the time of the inspection which took place on the 11th March, 1998 but was first given by letter dated the 6th July, 2000. He further says that on the 31st March, 1997 the respondent was not aware that a temporary authorisation for office use at the premises had expired. Mr. Dillon says that the respondent’s delay in taking steps to regularise the office use relates to the fact that the respondent at all times remained hopeful and optimistic that a successful move to alternative premises could be achieved in the near future. He says that the lack of suitable facilities at the premises, combined with the apparent absence of authorisation under the Planning Acts for much of the respondent’s commercial activity added a compelling aspect to this aspiration. He says that a suitable alternative to these premises has yet to be found.
14. A fresh planning application has been made by the respondent in respect of a two storey office building as a replacement for the existing port-a cabin at the premises.
15. While Mr. Dillon complains of delay and laches to the part of the respondent in moving in respect of the office accommodation, he says that an order restraining the continuing use and/or directing the removal of the temporary office accommodation would have an extremely damaging consequence to the respondent’s business which would be effectively incapable of operation. He says that, if it is obliged to cease trading the five office employees at the premises will be unemployed. Mr. Dillon asks this court to exercise its discretion by not granting the order restraining the use of the buildings situated on the premises as office premises and not making a mandatory order directing the dismantling and removing of the accommodation pending the outcome of its planning application, which is designed to regularise the matter of organised office user at the premises. Mr. Dillon puts forward a number of matters, which are in reality argument, but he denies that any intensification has taken place in relation to the use of the forecourt area over the years. He says that intensification has always been impossible since, from the time when it first went into occupation of the premises in March, 1995, the respondent has constantly used the entire forecourt area for the same purpose of storing its vehicles and machinery and/or equipment and not otherwise. He says that the use of parking on the public roadway has reduced over the years and now occurs less frequently and by fewer vehicles than it did formerly.
16. In a supplemental affidavit Joseph Gorman says that the respondent’s use of the forecourt to the front of its premises for the parking and storage of heavy machinery, vehicles and other materials has been ongoing for several years and is likely to have been commenced by the respondent shortly after it had acquired the premises in or about 1995. However, the storage and placing of heavy machinery, vehicles and other materials on the lands has intensified significantly and to such an extent since that time and up to the present so as to amount to a material change of use of the forecourt. He says that at the time of his first inspection, while there was a significant amount of heavy machinery stored over the entire area of the forecourt, the forecourt area was not filled to capacity with machinery but rather was partially used for this purpose. He says that at this time it would have been relatively easy to drive around the forecourt area as the aisles were kept clear of machinery. He says that it would also have been possible to load and unload machinery in the forecourt area at that time. He says that there was insufficient parking space in the forecourt for all the respondent’s machinery and the lack of space for customers parking in the forecourt area of the respondent’s premises meant that vehicles and machinery belonging to the respondent and its customers were being parked on the grass verge and public footpath to the front of the respondent’s premises. He says that this parking and storage of vehicles on the public footpath constituted a serious danger and hazard. He says that in July, 1998 it was pointed out that the lack of off street parking was resulting in large vehicles parking on the public roadway and that machinery was being loaded on to and unloaded from low loaders on the public roadway.
17. Mr. Gorman says that the respondent has enjoyed a very significant commercial benefit by reason of the intensification of the unauthorised storage of heavy machinery, vehicles, and equipment on its lands. In July, 1998 the respondent wrote to the applicant stating that it was aware of the problem to which the Council referred and indicating the shortage of appropriate property within the area and also the high prices then being asked for the same. The respondent said that it seemed that it would be able to find alternative premises within the next few months in order to comply with the requests and that it would try and sell some of its surplus equipment which would give it the required base for manoeuvring, loading and parking within its facilities. It was stated that it was setting about this task and hopefully that it would be able to reduce the numbers to an appropriate level fairly quickly.
18. Mr. Gorman deals with the intensification that took place between the period of 1998 and May, 2001. He says that there was a significant degree of storage over the entire area of the forecourt in March, 1998 and this developed to a point where the forecourt was packed to its capacity with heavy machinery and vehicles making loading of machinery or attempts to manoeuvre any other vehicle inside the respondent’s premises impossible.
19. Mr. Gorman indicates that considerable forbearance was exercised by the applicant council in relation to the respondent’s activities and, while he had recommended action being taken in court, in view of the stated intentions of the respondent, that it was decided not to press the matter. The applicant understood that the respondent was attempting to relocate to other suitable premises and it was also aware of the likely negative effect that any court order which might obtained against the respondent would have on the respondent’s business. In view of the stated desire on the part of the respondent to co-operate with the council, the council decided to refrain from issuing proceedings and to keep the situation under review. However, further inspections indicated that not only was use of the forecourt area for storage of heavy machinery, vehicles, equipment and other materials intensifying but that the volume of machinery and equipment being parked on the public footpath was also increasing, thereby causing an even greater hazard and danger. Mr. Gorman says that when he inspected the respondent’s lands in May, 2001 there were sixteen large vehicles parked in the forecourt as well as several parts of machines. Outside the premises there was a low loader and equipment on the public footpath and the grass verges had become non-existent. He points out that the use of the forecourt area had increased for the storage of its heavy vehicles, equipment and other machinery to a level where the forecourt was now packed to capacity. The road outside the respondent’s premises is the main road in the Baldoyle Industrial Estate and is a busy thoroughfare. The loading and unloading of machinery by the respondent onto and from low loaders causes serious traffic congestion and the frequent parking of the respondent’s vehicles and machinery on the roadside verges on both sides of the road means that there is only a narrow gap on the public road through which road users must use their vehicles.
20. The respondent has submitted an application for planning permission for extension of the existing warehouse and associated works at the premises in circumstances where it had previously indicated its intention to relocate. The application in question was submitted on the 30th November, 2001. Mr. Gorman indicated that on several occasions he spoke over the past number of years to the respondent’s managing director when he was passing through the Baldoyle Industrial Estate and they always discussed the situation regarding the use of the forecourt on the respondent’s premises and the problems connected with the parking of the respondent’s vehicles and machinery on the public footpaths and the loading and unloading of the respondent’s machinery on the public road. He says that often their conversations occurred in situations where the public road was impassable due to the fact that loading or unloading of machinery belonging to the respondent on the public road outside the premises was occurring. In this context Mr. Gorman denies the assertion that the Council had ignored the respondent’s request to meet with it.
21. Mr. Gorman was cross-examined on his evidence in relation to carrying out inspections on at least nine occasions. Fingal County Council has responsibility for an area of three hundred square miles. He indicated the proceedings were based on his inspections. Apart from the inspections carried out specifically in relation to the respondent’s premises, he passes the area regularly once per week and notes what is going on. He says that he noticed a change in the circumstances giving rise to his report back in 1998. He says that at that time items were spread over the forecourt area; prior to this time there were motor vehicle parked on the forecourt area, subsequently, there were two long rows of vehicles parked tightly one to another. He says that due to the lack of off street parking the vehicles were being parked along the roadside and on the footpath. He indicated that because of congestion of the forecourt area that low loaders could not enter the premises for loadings. Formerly while the forecourt had vehicles and machinery throughout, it was not located in a systematic way as it is now. He indicated that off-street parking is not available. With regard to the claims of serious intensification of use, he indicated that the situation developed to a point where footpaths on both sides of the road were being used to accommodate vehicles belonging to the respondent. He says that due to the building boom there were more vehicles being hired out by the respondent. Mr. Gorman indicated that the estate was intended for light industry with units used for warehousing purposes. He indicated that there were other enforcement files in relation to other property on the Baldoyle Industrial Estate.
22. Mr. Gorman, under cross-examination, disagreed with the assertion that the business of the respondent had been scaled down. He said that going back down the years there was a centre passage where vehicles could be moved up and down within the yard or forecourt area. He says that the area was essentially only suitable for accommodating pedestrians in the more recent past. He noted that in the past few weeks prior to this matter coming before the court that there had been a recent change in the use of the forecourt such that cars could be driven into the forecourt area. Prior to this one had to walk in or out. He noted that in recent weeks the place had been tidied up and was cleaner and that the access areas had been hosed down and that it appeared that the respondent was taking good care at the moment.
23. With regard to the port-a-cabin or offices used in the temporary building he says that he spoke to Mr. Dillon about these in 1999. He recalls speaking to Mr. Dillon on one occasion asking him to remove vehicles from the roadway. He says that on this occasion they were moved immediately and that Mr. Dillon apologised.
24. With regard to the area along the footpath he noticed that clay had been thrown down on the area on one occasion but that this had not been levelled, rolled or seeded. It was indicated that the port-a-cabin is of the dimensions of six hundred square feet and is the size of a small three bedroom house. Mr. Gorman referred to a letter written by Mr. Dillon on the 8th August, 1996 inquiring, in relation to the retention of the port-a-cabin, whether further planning permission was required. The letter of the 8th August, 1996 indicated an awareness on the part of the respondent that permission for the retention of a temporary office was until the 31st March, 1997 and that this had been granted in 1994. The letter at the time indicated that it would be the respondent’s proposal that these offices be retained on a permanent basis. The letter indicated an acknowledgement that permission from the County Council had to be given for this. Mr. Kenneth Dillon on behalf of H. E. Services Ireland Limited asked to be advised as to whether a formal planning application needed to be submitted to this end or whether the matter could be considered by the Council on foot of this particular letter. The letter continued:-
“If a planning application is needed, could you please send back to me the appropriate forms, together with details of the fee that would be needed as well as any other information that I may need to know in preparation of the application?”
This letter of the 8th August, 1996 was acknowledged by the Council and it was indicated that in order to retain the offices that planning permission must be sought from Fingal County Council and in this regard the necessary forms were furnished to the respondent company.
25. Dealing with the question of intensification in the use of the forecourt area Mr. Gorman indicated that the area used for holding of vehicles and equipment would have been close to 50% in 1998 as opposed to the subsequent situation. He says that at that time it was possible to move within the curtilage of the forecourt area albeit in a haphazard fashion.
26. Mr. Kenneth Dillon was cross-examined on his affidavit. He indicated that in 1998 the respondent company had approximately one hundred and twenty vehicles and this had been reduced in number. He indicated that in 1998 there may have been some obsolete machines but these would have numbered three or four. He indicated that the workshop area is used to do repairs to machinery and equipment kept in the forecourt area. In the early days there was some room for customers vehicles. The respondent company got extremely busy over the years. However, there was room for two vehicles to be parked at the top of the yard where previously there had been three.
27. Mr. Dillon confirmed the difficulty that the respondent company had in obtaining suitable alternative accommodation. He suggested that there was a 60% reduction in the business since 1998. Some stock had been sold and other items returned to the United Kingdom. He indicated that 80% of the vehicles and equipment are off site at any one time. He indicated that the current stock is in relatively good repair. Mr. Dillon disagreed with Mr. Gorman’s assessment of the situation in 2001. He further indicated that the vehicles retained on the forecourt today are smaller than those previously retained on the forecourt area. He indicated that there was space in the middle of the yard at all times, in circumstances where a loader could be reversed up the yard. In support of his contention that there was a downturn in the applicant’s business, Mr. Dillon referred to some turnover figures. He also introduced into evidence tachographs showing that vehicles spend a considerable portion of time on the road.
28. Having heard the evidence of both Mr. Gorman and Mr. Dillon in circumstances where they were cross-examined, I am satisfied that the picture painted by Mr. Gorman is an accurate one and that there indeed has been a significant intensification of the use of the respondent’s premises in the period under review from 1998 to the year 2001. I am also satisfied that the situation in 1998 represents some increase in the previous use. Insofar as 80% of the respondent’s vehicles are stated to be on the road at any one time, the mere fact that there has been a reduction in the overall number of vehicles owned by the respondent company is in no way an assurance that the area occupied on the forecourt of the respondent’s premises will not itself be fully utilised for the storage of vehicles. I am satisfied that in fact the situation has developed to a stage where a greater number of vehicles are parked on the roadway and that these represent a serious hazard in the area and a danger insofar as they give rise to congestion of a main roadway through the industrial estate. The photographs produced in evidence before me also demonstrate the serious situation witnessed by Mr. Gorman. I am satisfied that only in the very recent past has the respondent taken any serious steps to try and reduce the congestion in the forecourt area and to remove vehicles from the roadway and from being parked on the footpaths. I am furthermore satisfied that insofar as the intensification of use of the forecourt area is such as to give rise to more and more vehicles being parked on the roadway with the consequent danger associated therewith that this represents a material change of use of the respondent’s premises and in particular the forecourt area.
29. While counsel on behalf of the applicant has referred me to a number of authorities including the decision of O’Sullivan J. in the case of Molumby & Ors. v. Kearns (unreported, High Court, 19th January, 1999), I am satisfied that that case, as indeed were most other cases cited to me, was decided upon its own facts. It does, however, support the proposition that an intensification of use may amount to material change for planning purposes. In the instant case the use of the forecourt went from a situation where the entire was being used on a partial basis to store heavy vehicles, equipment and machinery and a certain amount of scrap or obsolete material, to a situation where the vast majority of the area covered by the forecourt was being crammed with machinery. The material change relates to the fact that the intensification of use is such that it results in more and more vehicles being kept on the roadway in a situation where they represented a serious danger to other users of the roadway. Accordingly, I am satisfied that the increase in intensity of the use of the forecourt and the consequent increase of on street parking on the public road outside the respondent’s premises is such as to give rise to the parking, loading and unloading of heavy machinery on the roadway and adjacent areas, such that this has resulted in serious damage to the grass margins and the roadside kerbing and furthermore has created a serious safety hazard to other users of the roadway.
30. In the instant case the respondent has accepted that it is obliged to repair and/or pay for the repair of the damaged footpath, kerbing and grass verges on the public road outside of the premises. However, it is submitted on behalf of the applicant that for the court to direct such action would be futile unless the court were at the same time to make an order restraining the respondent from parking its vehicles on the public road as future parking of vehicles and machinery will reverse any such repairs.
31. With regard to the port-a-cabin, the applicant seeks an order requiring the removal of same insofar as no planning permission exists at present for the retention of the port-a-cabin and no application has been made for same.
32. Counsel on behalf of the respondent has relied heavily upon the decision of Murphy J. in the case of Dublin County Council v. Carthy Builders & Co. Ltd. [1987] 1 IR 355 where consideration was given to the issue as to whether an intensification of use could amount to a change of use or change in use. It is clear from that authority and from the authority cited in the judgment of Murphy J. in that case that an intensification of use does not necessarily amount to a change in use or a material change of use, but it is equally true to say that intensification of use does not exclude the possibility of material change of use.
CONCLUSIONS:
33. In the instant case I have referred to the effect of the great intensification of the usage of this ground on the surrounding area outside of the respondent’s premises and I am satisfied on the evidence that that amounts to a material change of use of the subject premises. With regard to the port-a-cabin offices on the site, I am satisfied that the respondent knew at all relevant times that it was not authorised to retain these premises on the site. It is clear that it sought some forbearance from the applicant in relation to these structures and has endeavoured to seek alternative premises. However, I am satisfied that the forbearance exercised on the part of the applicant cannot give rise, on the facts of this case, to a successful plea of laches on the part of the respondent.
34. The respondent has clearly had the benefit of the use of this port-a-cabin structure for a number of years but it itself sought from the County Council information as to whether it would be entitled to maintain the structure or whether a fresh planning application was warranted. It was furnished with an application form which clearly indicated to it that if it wanted to retain the structure it should apply to do so to the applicant. This it has failed to do. In the circumstances I am satisfied that this also represents an unauthorised use of the subject premises. I am satisfied, accordingly, that the applicant has established its case that there has been a breach by the respondent of the provisions of the Planning Acts and that the applicant council is entitled to the relief it seeks under the provisions of Section 27 of The Local Government Planning and Development Act 1976 as amended.
35. In conclusion, I am satisfied that the respondent should keep at least 40% of the forecourt area of the subject premises free to enable vehicles to be put on to the forecourt and to permit circulation on the forecourt area. In taking this view I am satisfied that, while the forecourt was originally intended as ancillary to the building on the premises, in the instant case the building is ancillary to the use of the forecourt. This clearly was not the intention of the original development but I am satisfied that a significant portion of the forecourt area has been used for the storage of machinery and vehicles for many years.
36. Accordingly, I am disposed to grant the applicant the relief which it seeks at paragraphs 1, 2, 3, and 6 of the Notice of Motion, but in the case of paragraph 6, which relates to the use of the forecourt area, it will be limited to the user of the forecourt or any part thereof to the extent of 60%, such that 40% must be kept clear for vehicles to enter onto the premises and circulate there.
37. With regard to the port-a-cabin structure on the respondent’s lands, I am disposed to recognise the fact that this has been there for some time, but, as I have indicated, the failure of the applicant Council to move earlier was in appreciation of the respondent's position and did not amount to any acquiescence in the unauthorised use in question. Accordingly, I am disposed to give to the respondent a stay of execution of six months from today’s date in respect of the port-a-cabin structure. This, however, does not preclude it pursuing its current planning application or any other planning application through the appropriate means with the applicant.