High Court of Ireland Decisions

 


HC 173/04

THE HIGH COURT

[2001 No. 73 JR]

BETWEEN/

BRENDAN MOLLOY, PAULINE WALLEY, MARGUERITE PHELAN, BRIAN KAVANAGH, MARION DEE, BREDA McCORMACK, EDWARD DEMPSEY, MAURA GLEESON, DESMOND MAGAHY, DAVID FARRELL, EILEEN CLARKE AND THOMAS CUNNIAM

APPLICANTS

AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE MINISTER FOR FINANCE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice Paul Gilligan delivered the 30^th day of April, 2004.

By Order of O'Higgins J. on the 12^th February, 2001, the applicants herein were given leave to apply by way of an application for judicial review for the following reliefs:

1. A Declaration by way of application for judicial review that any change of use of the premises known as Broc House, Nutley Lane, Dublin 4, from use for the purposes of a Religious Body to use for the purposes of a reception centre and/or premises for the accommodation of asylum seekers amounts to a material change of use within the meaning of s. 3 of the Local Government (Planning & Development) Act, 1963, as amended.

2. Further, or in the alternative, a Declaration by way of application for judicial review that any change of use of the premises known as Broc House, Nutley Lane, Dublin 4, from its existing use to use for the purposes of a reception centre and/or premises for the accommodation of asylum seekers amounts to a material change of use within the meaning of s. 3 of the Local Government (Planning & Development) Act, 1963, as amended.

3. A Declaration by way of application for judicial review that the said change of use of the said premises known as Broc House, Nutley Lane, Dublin 4, from its existing use or its use as a religious institution and/or its use for the purposes of a religious institution and/or as a monastery to use for the purposes of a reception centre and/or the accommodation of asylum seekers constitutes development for the purpose of s. 3 of the Local Government (Planning & Development) Act, 1963, as amended, and is not exempted development for the purposes of s. 4 of the said Act and the Regulations made thereunder.

4. If necessary, an Order pursuant to s. 27 of the Local Government (Planning & Development) Act, 1976, as amended, prohibiting the respondents, their servants or agents or any persons having knowledge of the making of the said Order or otherwise from operating, maintaining or using the premises known as Broc House, Nutley Lane, Dublin 4, as a reception centre and/or premises for the accommodation of asylum seekers, unless and until planning permission is granted in respect of the change of use involved.

The grounds upon which relief is sought are as follows:

1. The use of a building as a reception centre and/or premises for the accommodation of asylum seekers involves materially different planning implications than the use of premises for the purposes of a religious body and/or as a monastery and, on this basis, constitutes a material change of use. The use history of the subject premises confirms that the last use of Broc House was for the purposes of a religious body and/or as a monastery and is therefore a type of use which falls within Class 7 of Part IV of the Second Schedule to the Local Government (Planning & Development) Regulations, 1994, as amended, or a cognate class of uses. The existing use of Broc House includes a residential component and occasional visitor accommodation on a small scale. The said use for residential purposes and/or for the purposes of occasional visitor accommodation is ancillary to the primary use of the premises for the purposes of a religious body and/or amounts to a de minimis use which does not alter the character of the primary use as aforesaid. The use of the premises for the purposes of a reception centre and/or premises for the accommodation of asylum seekers would amount to a use of a materially different character to the primary use of the said premises as a religious institution within the said Class 7 of Part IV of the Second Schedule to the said Regulations of 1994, or cognate use grouping.

2. Furthermore, the use of the said premises as a reception centre and/or premises for the accommodation of asylum seekers is a use materially different in character from the existing use of the said premises by reason of the fact that the said proposed use involves a number of activities, whether part of the said overall proposed use or ancillary to that use, which do not form part of the existing use of the premises and/or are not ordinarily incidental to the said existing use. These activities include medical screening, the provision of social services involving social workers and other trained personnel, interpretative and orientation services, and the processing of applications for asylum seekers, none of which activities are normally associated with the existing use of the said premises.

3. The existing or last use of the said premises is materially different in character from the proposed use of the said premises by reason of the temporary nature of the accommodation provided in the proposed use which it is intended would be operated on the basis that asylum seekers would be accommodated for a period of 1-2 weeks for the purposes of needs assessment, health screening, the provision of information and the processing of the initial stages of their asylum applications before being resettled at other locations around the country. To the extent that this type of user involves a residential element, it is materially different from the pre-existing use of the premises for the purposes of a religious body where the residential use was of a permanent nature involving the accommodation of a religious community which was integrated into the local community. The proposed use therefore raises, inter alia, planning implications in relation to community planning and residential amenities having regard to the transient nature of the accommodation to be provided.

4. The proposed use of the said premises for the purposes of a reception centre and/or premises for the accommodation of asylum seekers would amount to an unauthorised use of the said premises by reason of the fact that the proposed use would necessarily involve a material change of the use of the said premises which is not permitted under any existing grant of planning permission enuring for the benefit of land. In particular, the use of the premises for the purposes of a hostel (in conjunction with the use of the said premises for the purposes of a religious body) on foot of a grant of planning permission made by Dublin Corporation on the 25^th April, 1969, (PR No. 160/69) has ceased and/or been abandoned and/or been displaced by the existing use of the premises for the purposes of a religious body as aforesaid. The change of use of the existing premises from its existing use to use as a hostel would amount to a material change of use requiring planning permission. In any event, the proposed use of the subject premises as a reception centre and/or premises for the accommodation of asylum seekers is materially different in planning terms from the use of the subject premises as a hostel (which is currently not taking place). In particular, the proposed use of the subject premises involves a number of activities not normally associated with hostels, i.e. medical screening, social services involving community and social workers, interpreters, and the processing of applications for asylum seekers.

5. Further, or in the alternative, the change of use from the existing use of the subject premises to the proposed use as aforesaid would amount to an intensification of use which is material in planning terms. The proposed use would involve an intensification of use by reason of the dramatic increase in the number of persons accommodated at the said premises and in the numbers of staff and persons providing ancillary services which are necessary to support such a reception centre. The proposed use would have significant planning implications in terms of generating traffic and parking demand, with consequent off-site parking requirements. The proposed use is likely to give rise to traffic congestion, traffic hazard and as a consequence be injurious to the amenities of residents and businesses in the vicinity of the subject premises.

6. In respect of the grounds set forth in the preceding paragraphs herein, reliance will be placed on s. 3 of the Local Government (Planning & Development) Act, 1963, as amended, wherein the expression "development" is defined to include the making of any material change in the use of any structures or other lands.

7. The change of use from use for the purposes of a Religious Body and/or Monastery or the existing use of the subject premises to use as a Reception Centre and/or premises for the accommodation of asylum seekers is not exempted development for the purposes of the Local Government (Planning & Development) Act, 1963, as amended, or Regulations made thereunder.

8. If necessary, the applicants will rely upon the above referred to grounds in support of an application for an Order pursuant to s. 27 of the Local Government (Planning & Development) Act, 1976, as amended, (as substituted by s. 19(4)(g) of the Local Government (Planning & Development) Act, 1992), prohibiting the first or second named respondents, their respective servants, agents, licensees or any other persons with knowledge of the making of the said Order from operating, maintaining or using the said premises known as Broc House, Nutley Lane, Dublin 4 as a Reception Centre and/or premises for the accommodation of asylum seekers without first obtaining planning permission for such change of user.

9. The grounds as advanced above are repeated and relied upon mutatis mutandis in support of the said application (if necessary) for an Order pursuant to s. 27 of the said Act of 1976, as amended.

The applicants all reside in houses immediately adjoining Broc House, Nutley Lane, Dublin 4.

The planning history of Broc House is as follows:

On the 25^th April, 1969, planning permission was granted pursuant to application 160/69 by Dublin Corporation to the Franciscan Fathers for the erection of a three storey residential hostel block at Beechmount, 57 Nutley Lane, Dublin, 4. Broc House was then built in 1971, pursuant to the 1969 planning permission. On the 22^nd October, 1969, a second application 160/69a was applied for and permission was granted for a basement store and a caretaker's flat. A further planning application, No. 2217/84, was made by the Franciscan Fathers for a single storey building to the rear of the existing residential hostel at the premises for staff accommodation, which application was granted. In early 1972 a planning application was made by the Franciscan Fathers for a proposed change of use from a residential hostel for students at the premises to residential hostel and hotel at the premises. By a letter dated the 22^nd February, 1972, Dublin Corporation informed the Franciscan Fathers that "the change of use proposed comes within Class 10 of Part IV of the Schedule to the Local Government (Planning & Development) Act, 1963 (Exempted Development) Regulations, 1967 (S.I. No. 176 of 1967) and hence the permission of the planning authority is not required".

The premises was owned by the Franciscan Fathers until it was purchased by the Commissioners for Public Works in Ireland on the 29^th June, 2000. The premises was purchased for the purpose of accommodating asylum seekers. It was initially envisaged that the premises would be used as a reception centre and that persons would be accommodated there for periods of approximately 1-2 weeks. However, that proposal was subsequently abandoned following an appraisal of the planning permission which exists in relation to the premises. The intention of the first named respondent is to use the premises for the accommodation of asylum seekers.

Against this background the applicants contend that the 1969 grant of planning permission permitted a dual or composite use for the purposes of a student hostel and for the purposes of a religious community and, in particular, the applicants make reference to Part IV of the Second Schedule of the Local Government (Planning & Development) Regulations, 1994, which set out two use classes relevant to these proceedings; the first being Class 6 "Use as a residential club, a guesthouse or a hostel (other than a hostel where care is provided)" and the second being Class 7 "Use – (a) for public worship or religious instruction; (b) for the social or recreational activities of religious bodies; (c) as a monastery or convent."

In effect the applicants contend that the 1969 grant of planning permission permitted both uses as set out in Class 6 and Class 7 of Part IV of the Second Schedule of the Regulations of 1994.

The applicants further contend that the use of Broc House as a student hostel was as a matter of law capable of being abandoned or displaced and that this is in fact what occurred from 1977 onwards when the premises was used for religious purposes and in this regard the applicants contend that the premises was in fact used for the purposes referred to in Class 7 of Part IV of the Second Schedule of the Regulations of 1994. The applicants further contend in this regard that this use did not constitute a material change of use from the permitted use and was therefore an authorised use and that, even if the use for religious purposes in accordance with Class 7 was unauthorised, as a matter of law such use ought not to be disregarded in determining the last use of the premises. In effect, the applicants contend that even if the use of Broc House by the Franciscan Order from 1977 onwards was a material unauthorised use as a matter of law this use should not be disregarded in determining the last use of the premises prior to Broc House being purchased by the first named respondent and accordingly, if the first named respondent now wants to use Broc House for the purpose of accommodating asylum seekers, it is necessary to make an application for planning permission on the basis of a proposed material change of use.

The respondents contend that the original planning permission for Broc House permits the use of the premises as a residential hostel which is a Class 6 use, and that this permission is extant and valid and permits the user of Broc House in accordance with the terms of the planning permission. It is further contended on behalf of the respondents that a planning permission is a property right that enures for the benefit of the land and it cannot be abandoned or distinguished at law due to non-use.

The respondents say that they bought the premises, Broc House, with the benefit of the 1969 planning permission which allowed for the use of the premises as a residential hostel and that is the use that they propose to make of the premises. They submit that they do not need to apply for any planning permission for such proposed user.

The first issue that has to be determined is whether or not the 1969 grant of planning permission permitted a dual or composite use for the purposes of a student hostel and for the purposes of a religious community, in effect for Class 6 and Class 7 uses.

On the basis of the evidence adduced, I come to the conclusion that the 1969 grant of planning permission did not constitute a dual or composite permission for the use of Broc House for the purposes of a student hostel and a religious community. In my view it is clear that the permission as granted was for the use of the premises as a residential hostel, and that was the use for which the premises was intended, although provision was also made for an oratory with 30 seats, a sanctuary, an altar, a tabernacle and a chaplain's office with adjoining bedroom and bathroom.

John O'Malley, Town Planning Consultant in his affidavit of the 12^th February, 2001, referred specifically to Broc House having been built originally by the Franciscan Fathers to serve as student residential accommodation for former Gormanstown students attending U.C.D. and trainee Franciscan priests. He accepts that there was no reference in the description of the development to a religious user but relies on the drawings showing the premises as designed for purposes normally associated with a religious institution and in this regard he refers to a cross on each front gate pier, easily identifying the property, and the altar tabernacle, sanctuary, 30 seat oratory, chaplain's office, chaplain's bedroom and stained glass windows.

He says that the premises had between inception and the mid 1970s a composite use as a class 6 hostel and class 7 religious institution. I reject this assertion because, in my view, the factual situation is that the premises was quite clearly a residential hostel for students and that was, in my view on the evidence, its sole purpose and any subsequent planning applications that were made and any correspondence entered into referred to the premises as a residential hostel and never made any mention of a Class 7 religious user.

I equally have no doubt on the evidence adduced in being satisfied that from 1997 onwards the situation changed. It appears that the running of Broc House as a residential hostel for students was no longer viable and it appears that at or around that time the premises was opened to the public and they attended for Mass in the oratory and the change in character is succinctly set out by Brendan Molloy in his second affidavit as sworn on the 24^th July, 2001, at para. 8, wherein he states:

"The above averments concerning the religious user of Broc House is further supported in the extracts from the Dublin Diocesan Guide Book produced for the Roman Catholic Archdiocese of Dublin for the years 1972, 1978, 1979, 1980, 1981, 1983, 1994 and 1996. Under the chapter heading 'Houses of Religious', Broc House is listed under the title of Franciscans, Order of Friars Minor (OFM). In 1972 and 1978 it is listed as a residence/hostel for third level students. From 1979 it is no longer described as students' residence but listed as retreats diaconate, programme, counselling, vocation and youth work. Since 1996 its work is described as 'provincial administration' and the number of resident religious increases from two priests in 1978 to ten priests and one brother in 1996."

I am satisfied on the evidence that initially Broc House was used as a residential hostel between 1971 and 1977 for the purpose of accommodating students. Approximately twenty of the thirty bedrooms in the hostel were available for student accommodation. The students attended University College Dublin. Trainee Franciscan priests also resided at the premises. Between 1977 and June, 2000, Broc House was used by the Franciscan Fathers for religious purposes (class 7 use) with the premises achieving the status that by 1996 it was described as the Provincial office of the Franciscan Fathers.

In my view this was a material unauthorised change of use.

The applicants contend that the 1969 grant of planning permission for the use of Broc House as a residential hostel was abandoned by the Franciscan Fathers and a question of law arises as to whether or not a valid grant of planning permission is capable of being abandoned.

It is of importance that there has been no other material grant of planning permission which affects the premises and thus in this instance the Court is dealing with a valid grant of planning permission in 1969 for use of Broc House as a residential hostel and subsequently from 1977 onwards a material unauthorised use up until the sale of the premises by the Franciscan Fathers to the respondents herein.

Section 28(5) of the Local Government (Planning and Development) Act, 1963, (the Act of 1963) provides as follows:

"Where permission to develop land or for the retention of a structure is granted under this Part of this Act, then, except as may be otherwise provided by the permission, the grant of permission shall enure for the benefit of the land or structure and of all persons for the time being interested therein, but without prejudice to the provisions of this Part of this Act with respect to the revocation and modification of permissions granted thereunder."

The applicants contend that where a planning permission authorises the use of a premises for a particular purpose, the permission will be spent once the planning permission has been implemented.

Counsel for the applicants rely on the ratio in Young v. Secretary of State for the Environment [1983] J.P.L. 465 (Court of Appeal) as subsequently endorsed by the Court of Appeal in Cynon Valley Borough Council v. Secretary of State for Wales and Oi Mee Lam [1986] 53 P. & C.R. 68. In the course of his judgment in the Court of Appeal in Young, Watkins L.J. stated that the concept of abandonment was inappropriate in circumstances where, without interruption, one use is followed by another:

"The use of the word "abandonment" in such a circumstance was inappropriate and potentially misleading. The position that has then arisen is simply that the latter use, whether unlawful or rendered lawful by reason of the operation of Article 3 of the Order of 1977, has in fact supplanted the former, which cannot be revived without operation of law, for example, s. 23(9) or the grant of planning permission. A lawful use became attached to the land; it enures for the benefit of it; see s. 33(1) of the Act. It remains, contrary to the submissions of counsel for the appellant, attached to that land only so long as it it is not supplanted by the introduction of another use or is detached by some other process such as abandonment following interruption of use".

Counsel for the applicants submits that the judgment in Young supports the proposition that a use authorised by planning permission can be displaced by a subsequent unauthorised use and that the former authorised use cannot be recommenced without a grant of planning permission. Counsel in his submissions specifically refers to the fact that the particular passage referred to as quoted from the judgment of Watkins L.J., is not quoted or explicitly endorsed by any of the Law Lords in the House of Lords which decided the appeal before it on the quite narrow ground of the proper interpretation of s. 23(9) of the Town and Country Planning Act, 1971. However, counsel refers to the judgment of Lord Fraser of Tullybelton with whom the other members of the court agreed in his endorsement of the decision of the Court of Appeal and the fact that no dissent or disagreement was taken with any facet of the judgment of Watkins L.J. and that Lord Fraser, in the course of his judgment, stated as follows:

"During the period 1970 to 1977 when the land was being used as a laundry, any change of use back to use for food processing would have required planning permission, because, although it would have been a change from general to light industrial use, the general industrial use was unlawful. That was disputed by the appellant at an earlier stage of the appeal, but he no longer contends that he was entitled to change from general to light industrial use, if the former was unlawful. It would be strange if the appellant was in a better position now, after a further unlawful change of use in 1977, than he … would have been during the period 1970 to 1977."

Counsel for the applicant further relies on the decision of the Court of Appeal in Cynon Valley Borough Council v. Secretary of State for Wales and Oi Mee Lam [1986] 53 P & C.R. 68 at 69-70.

The facts of this case are neatly summarised at the outset of the judgment of Balcombe L.J. in the Court of Appeal, as follows;

"No. 38 Glancynon Terrace, Abercynon is an end of terrace shop with residential accommodation above. In 1958 planning permission was granted for the use of the premises as a fish and chip shop and this permission was implemented. In January 1978 the premises were acquired as a going concern by Mrs. Oi Mee Lam, who intended to carry on the business. Owing to ill health she was unable to carry out that intention at the time, and accordingly she let the premises on a temporary basis to a Mr. and Mrs. Evans who there carried on the business of an antique shop. However, it remained Mrs. Lam's intention to use the premises for the sale of hot take-away foods as soon as she was able to do so. In March 1983 Mrs. Lam, having regained her health, recovered possession of the premises. She was unable to recommence the business as she was informed that a fresh planning permission was required for the proposed use. She applied to the Cynon Valley Borough Council for permission, which was refused generally on amenity grounds in May, 1983. From that refusal she appealed to the Secretary of State for Wales, who appointed an Inspector to determine the appeal.

By his decision of July, 9 1984 the Inspector held that no development requiring planning permission was involved. He arrived at this decision for two reasons: first, because resumption of the fish and chip use (which it was agreed included use as a Chinese take-away) was permitted by Section 23(8) of the Town and Country Planning Act, 1971, and, secondly, in the alternative, because the change of use to an antique shop did not mean that the premises had lost the benefit of the 1958 planning permission for a fish and chip use. The Cynon Valley Borough Council then applied to the High Court under Section 245 of the 1971 Act for an Order to quash the decision of the Inspector. ..

Counsel for the applicants interprets the relevant authorities in the following manner:

"At the very outset of his Judgment, Balcombe, L.J. quoted extensively from the Judgment of Lord Scarman in Pioneer Aggregates (UK) Limited v. Secretary of State for the Environment [1985] AC 1 32

Having recited a number of statutory provisions, including Section 33(1) of the 1971 Act, which provided that a grant of planning permission "shall ... enure for the benefit of the land", Balcombe, L.J. referred once again to the Pioneer Aggregates decision, as follows:

"Finally, before considering the effect of these provisions in the circumstances of the present case, we should mention that the effect of the decision in the House of Lords in the Pioneer Aggregates case was that a valid planning permission capable of implementation according to its terms cannot be abandoned."

Counsel for the applicants contends that from the judgment, it is clear that Balcombe, L.J. fully accepted the authority of Pioneer Aggregates. The Court of Appeal accepted that the 1958 planning permission could not, as a matter of law, have been abandoned. However, in Cynon Valley the fish and chip shop use was replaced by an antique shop. It was not a case of abandonment as such (see per Watkins, L.J. in Young). Balcombe, L.J. stated as follows: at p. 73 of the judgment.

"The short, but by no means easy, point in this part of this appeal is whether the change back from antique shop to fish and chip shop (and Chinese take-away) is development to which the 1958 planning permission applies. Since the 1958 planning permission cannot have been abandoned (see Pioneer Aggregates) the question is whether it was fully implemented, or "spent", once the initial change of use took place in 1958 or thereabouts. Mr. Kelly for the local authority submits that it was: Mr. Laws for the Secretary of State submits that it was not."

He then summarised the local authority's argument as follows:

"Mr. Kelly submits that the scheme of Sections 22 and 23 of the Act requires the grant of planning permission for a particular development. Where that development is a change of use from use A to use B, the use from which the change takes place is just as important as the new use, so that once a particular

change of use has occurred that development is complete and the planning permission is spent. ..."

Balcombe, L.J. then went on to approve the passage of Watkins, L.J. in Young .v. Secretary of State for the Environment, and then addressed the strong policy argument raised by the local authority –

"(3) The practical consequences. Mr. Kelly stresses the practical difficulties which a local planning authority may face if a planning permission, not currently being implemented, may be lying dormant capable of subsequent revival. Good planning considerations may require a limit to the number of premises used in a particular manner within a given area. If a planning permission for this type of user, once given, remains indefinitely valid, notwithstanding that the premises may for many years have been used for a different purpose, less harmful to the amenities of the area, it can have the effect of an unexploded bomb, liable to go off at any time when the owner of the premises chooses to revert to the user for which permission has once been given. How, then, can the local planning authority safely grant any further similar permissions, notwithstanding that, so long as the original permission is still not being implemented, there may be a legitimate demand for other premises of this type? We find this a powerful argument."

Having recited the arguments put forward on behalf of the Secretary of State, Balcombe, L.J. in the end prefers the arguments put forward by the local authority. He states:

"We have come to the conclusion that Mr. Kelly's submissions are to be preferred to those of Mr. Laws. In particular we accept Mr. Kelly's submission that where the development for which planning permission is required is a material change of use, the permission is to change from use A to use B, and is not merely a permission to use the property for use B for the indefinite future. We appreciate that most, if not all, planning permissions are expressed in the latter form, but that is no guide to the true construction of the Town and Country Planning Act 1971".

Balcombe L.J. offered the Court of Appeal's opinion that the House of Lords in Young v. Secretary of State for the Environment had endorsed the dicta of Watkins, L.J. quoted above. He said:

"But in the end we are persuaded that a careful consideration of the decision of the House of Lords in Young v Secretary of State for the Environment [1983] 2 AC 662, [1983] 3 All ER 1105 does indeed involve an endorsement of the passage cited from the Judgment of the Court of Appeal in that case."

The permission in the Young case was a permission granted on foot of Article 3(1) of the Town and Country Planning General Development Order, 1977. It was permission for a change from use as a general industrial building (a laundry) to use as a light industrial building (for food processing). Subject to the grant there was a change of use back to use as a laundry (the original established use which did not enjoy the benefit of planning permission). Planning permission was not available for this change of use under the Town and Country Planning General Development Order, 1977. Subsequently there was a further change of use from use as a laundry (general industrial) to use as a light industrial building. Referring to the conclusion of the House of Lords on this last change of use, Balcombe, L.J. states as follows:

"The subsequent changes of use, in 1970 to use as a laundry (general industrial) and in 1977 to storage and processing (light industrial) were not lawful because they required planning permission. Counsel for the applicant contends that there is implicit in this reasoning a conclusion that the planning permission granted in 1969 for use as a light industrial building was spent once the change was complete and did not cover the further change to light industrial use in 1977. The rest of Lord Fraser's speech dealing with the construction of section 23(9) follows on that implied assumption. Indeed, there would have been no point in considering the effect of section 23(9) if the 1977 development - change from general industrial user (laundry) to light industrial (storage etc) - was already covered by the 1969 permission."

The Court of Appeal took the view that the decision in the Young case was conclusive on the point before them. "Balcombe L.J. states at p. 77 of the judgment:

"We appreciate that this involves giving a restricted construction to Section 33(1) as well as making a significant qualification to Lord Scarman 's classification in the Pioneer Aggregates case, but it seems to us inescapable from the decision in Young, and we are encouraged in reaching this conclusion that it follows the express finding of the Court of Appeal in the Young case."

Counsel for the applicants submits that the essential principle in Cynon Valley is that a planning permission on foot of which a particular use is permitted cannot authorise a reversion to the permitted use in circumstances where the permitted use has, in the meantime, been replaced by an intervening use.

Counsel contends that on the facts of the present case there has been an intervening use namely for the purposes of a religious community and that the change from this use to the proposed hostel use is not authorised by the 1969 grant of permission which has already been implemented and must be regarded as having been spent. Counsel contends that the 1969 grant of permission only authorised the continuance of the use of the premises for the purposes of a hostel and it did not purport to authorise a subsequent reversal to hostel use from some other use, in this case a Class 7 use for religious purposes.

The respondents contend that a valid planning permission capable of implementation cannot be abandoned by the conduct of an owner or occupier of land and they rely on the leading authority in the United Kingdom on this issue being the judgment of the House of Lords in Pioneer Aggregates (U.K.) Ltd. v. Secretary of State for the Environment [1985] 1 A.C. 132. Counsel for the respondents submit that there is no authority in this jurisdiction that an existing planning permission authorising a particular use can be lost, abandoned or displaced by a subsequent unauthorised use and that this is the significance of the planning register. Counsel submits that a planning permission authorising a specific use of a premises is not a personal right but a right which runs with the land and which is evidenced on an inspection of the planning register. Counsel contends that the respondents are bona fide purchasers of Broc House and are entitled to rely as a matter of public law on a public inspection of the planning register and that a planning permission enures for the benefit of the land and cannot be overridden by personal testament. Counsel urges that if this system was to be overridden by a material unauthorised change of use, a situation would arise whereby various parties could give personal testimony as regards the use that was being made of land or premises. This would lead to extensive and complicated litigation to resolve issues of conflict which run contrary to the content of the planning register. Furthermore, in respect of every day conveyancing matters it is absolutely essential that purchasers can rely on the statutorily recorded rights in relation to planning permission and that this is a fundamental corner stone of any dealings relating to the sale and purchase of land and property.

The facts in Pioneer Aggregates (U.K.) Ltd. v. Secretary of State for the Environment [1985] 1 A.C. 132, were that in 1950 the Minister of Town and Country Planning granted a mining company planning permission to win and work limestone from a quarry subject to conditions, inter alia, regarding the restoration of the site on completion of quarrying. The company extracted limestone from the site from 1950 to 1966 at which time they wrote to the local planning authority giving notice that they would cease quarrying at the end of that year. In January, 1967 the Planning Authority wrote to the company informing them that the restoration conditions had been met to its satisfaction. In 1978, the new owner of the site wished to resume quarrying and inquired from the Planning Authority whether planning permission would be necessary. The Planning Authority replied that the 1950 permission had been abandoned or, alternatively, on a construction of the 1950 permission, the permitted development had been completed and could not be resumed without the grant of a fresh permission. After some token quarrying by the owner, the Planning Authority served an enforcement notice on the owner requiring it to cease excavating minerals. The owner appealed to the Secretary of State who, disagreeing with his inspector, held that the permission had been abandoned. The owner's appeal from the Minister was allowed by Glidewell J. The Court of Appeal dismissed the Planning Authority's appeal of Glidewell J.'s decision. On appeal to the House of Lords the appeal was dismissed on the basis that the Town and Country Planning Act, 1971, as amended, provided a comprehensive code of planning control under which, by virtue of s. 33(1), a grant of planning permission enured for the benefit of the land and all persons for the time being interested in it and it followed that a valid permission capable of implementation could not be abandoned by the conduct of an owner or occupier of land. Accordingly, the decision in 1966 to cease to win and work limestone could not amount to an abandonment of the 1950 permission nor on the true construction of its terms had the permitted development on the site been completed so as to require fresh permission before resumption of mineral workings.

Section 33(1) of the Town and Country Planning Act, 1971, as amended, is of significant importance. It provides:

"Without prejudice to the provisions of this Part of this Act as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except insofar as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested therein."

I am satisfied as a matter of interpretation that s. 28(5) of the Act of 1963 and s. 33(1) of the Town and Country Planning Act, 1971, as amended, are of the same purport and effect; namely, that a grant of permission shall enure for the benefit of the land or structure and of all persons for the time being interested therein.

Scarman L.J. at p. 139 of the judgment of the House of Lords in dealing with the question of abandonment states as follows:

"If the board is right, a valid planning permission can be abandoned by the conduct of a landowner or occupier of lands, and the effect of the party's conduct will be to bind all persons interested in the land now or hereafter whether or not they have notice of the abandonment. The planning permission would be entered in a public register; but not so its abandonment. Nor would it be possible by inspection of the land to discover whether the permission had been abandoned, for the absence of implementation of a planning permission is no evidence that a valid permission does not exist. It is perhaps not surprising that no trace of any such rule can be found in the planning legislation. If there be such a rule, it has been imported into the planning law by judicial decision."

Scarman L.J. referred extensively to the decision of the House of Lords in Slough Estates Ltd. v. Slough Borough Council (No. 2) [1971] A.C. 958 and refers to it as being the only reported case in which a rule of abandonment has been recognised as applicable to a planning permission. It is clear however, that in Slough the Court of Appeal ruled that a particular letter, upon its true construction, was a valid outline planning permission but held that the party concerned, by claiming and obtaining compensation, had elected to abandon its rights under the permission and could not now revive the permission. The party concerned had made its election between inconsistent rights, the effect of which was to extinguish the permission. On appeal, the House of Lords held that the purported permission that was involved was ineffective because it failed to identify the land to which it related. Lord Pearson in giving the judgment of the House of Lords expressly reserved the question as to whether planning permission could be abandoned.

Scarman L.J. further clarified the situation at p. 140 of his judgment by stating:

"[B]ut I am satisfied that the Court of Appeal in the Slough case erred in law in holding that the doctrine of election between inconsistent rights is to be incorporated into the planning law either as the basis of a general rule of abandonment or (which the courts below were constrained to accept) as an exception to the general rule that the duration of a valid planning permission is governed by the provisions of the planning legislation".

Scarman L.J. went on to state:

"Planning control is the creature of statute. It is an imposition in the public interest of restrictions upon private rights of ownership of land. The public character of the law relating to planning control has been recognised by the House in Newbury District Council v. Secretary of State for the Environment [1981] A.C. 578. It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. The planning law, though a comprehensive code imposed in the public interest, is, of course based on the land law. Where the code is silent or ambiguous, resort to the principles of the private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of parliament as evinced by the statute, or statutory code, considered as a whole."

Scarman L.J. went on to conclude at p. 145 that in his view:

"[T]here is no principle in the planning law that a valid permission capable of being implemented according to its terms can be abandoned".

Scarman L.J. referred to three possible classes of exceptions to this general rule; the first class is concerned not with planning permission but with existing use and reference was made to the Court of Appeal decision in Hartley v. Minister of Housing and Local Government [1970] 1 Q.B. 413 where the Court held that the Minister, as the tribunal of fact, was entitled to find on the evidence that the resumption of car sales use on a site where previously there had been two uses, namely car sales and a petrol filling station, was, after a cessation of the car sales use for some four years a material change of use and so properly the subject of an enforcement notice.

I am satisfied, in the particular circumstances, that this class of exemption is not relevant because it is not concerned, as I am in this case, with a valid planning permission but rather with an existing use.

The second class has been described as that of the "new planning unit", a term used by Widgery L.J. in Petticoat Lane Rentals Ltd v. Secretary of State for the Environment [1971] 1 W.L.R. 1112. This class of exception deals with existing use rights which were lost by reason of a new development sanctioned by a planning permission and, again, I take the view that this class has no relevance to the present situation as the use involved was not lost by reason of a new development, the subject matter of a valid planning permission.

The third class concerns not the existing use rights but two planning permissions in respect of the same land. As Scarman L.J. says:

"It is, of course, trite law that any number of planning permissions can validly co-exist for the development of the same land, even though they be mutually inconsistent. In this respect planning permission reveals its true nature - a permission that certain rights of ownership may be exercised but not a requirement that they must be."

This third class in my view has no relevance to the issue before me because what is concerned is two valid planning permissions affecting the same land.

I am satisfied that the decision in Young is a decision concerning the interpretation of a specific statutory provision appearing in the British planning code which does not have a statutory equivalent under the Irish planning code. The decision of the House of Lords in Pioneer Aggregates is the only one of the three cases principally relied on herein which has been expressly acknowledged by the Supreme Court, (See Kenny & Hussey v. An Bord Pleanala Unreported 13^th December 1984 page 6 McCarthy J.) and applied by the High Court (Meath County Council v. Daly [1987] I.R. 319 and Westmeath County Council v. Michael F. Quirke and Sons (Unreported, High Court, 23^rd May, 1996).

Section 28(5) of the Local Government (Planning and Development) Act 1963 states;

"Where permission to develop land or for the retention of a structure is granted under this Part of this Act, then, except as may be otherwise provided by the permission, the grant of permission shall enure for the benefit of the land or structure and of all persons for the time being interested therein, but without prejudice to the provisions of this Part of this Act with respect to the revocation and modification of permission granted thereunder."

I take the view that it follows from the decision of the House of Lords in Pioneer Aggregates that a valid planning permission cannot be abandoned as planning permission enures for the benefit of the land. However a planning permission for a change of use is spent on implementation of that permission and this follows from the decision of the Court of Appeal in Cynon Valley and, therefore, that permission cannot be relied upon at a later date for the purpose of authorising the recommencement of that use. Little Planning controls and their enforcement, 7^th Edition at par. 1.6.1 states:

"It is to be noted also that a planning permission granted for a material change of use is a permission simply to make the specified change. It is not a permission at any time in the future to carry on the new use. Once the change has been made the permission is spent, and if a further change of use is made subsequently, the planning permission will have no effect to authorise a resumption of that use which it originally permitted."

It accordingly appears to follow that where a use of land is permitted under a valid planning permission, the use of the land cannot be abandoned as the permission enures for the benefit of the land and can presumably only be extinguished if abandoned as per Lord Scarman's exceptions in Pioneer, where applicable. A use permitted under a planning permission is more securely protected under the law and this will be reflected in the planning register. However a permission for a change of use does not have the same certainty as, although the permission authorises the continuance of the use, the planning permission becomes spent once the use is put into being and cannot be re-invoked at a later stage to revert to a permitted use after an intervening use. In determining whether a permitted use (as opposed to a planning permission) is spent, the court will have to look to the facts on the ground which may not be reflected in the planning register.

I take the view that where there is an existing valid planning permission for a specific use of land or property and no subsequent planning permission has been granted for the use of the land or property concerned and where a material unauthorised change of use has taken place and has been carried on even for a period in excess of twenty years and notwithstanding that there may have been no complaint raised by any adjoining interested party in respect of the material unauthorised change of use and no enforcement action has been taken by the appropriate Planning Authority, where in circumstances that the original planning permission is capable of being implemented and by this concept I mean where there has been no material structural alteration to the land or property which would render the original planning permission for use incapable of being implemented, I hold that the original valid planning permission cannot be lost or abandoned.

It follows accordingly that in the particular circumstances of this case, the 1969 valid planning permission relating to Broc House is extant and valid and has not been lost or abandoned by reason of the material unauthorised change of use that has taken place since 1977.

I appreciate in coming to this conclusion that planning authorities may face practical difficulties if a valid planning permission not currently being implemented and lying dormant is capable of subsequent revival and that from time to time good planning considerations may of necessity require that only a limited number of uses be permitted in respect of land and buildings in certain areas and that an unused valid planning permission could have a material effect on planning considerations at any time were the owner of the premises to revert to the user for which the valid permission had previously been given.

However, I take the view that the converse situation would lead to untold practical difficulties because, if the actual situation pertaining on the ground was to be taken in preference to the content of the planning register, then in effect the planning register would be of no benefit and the actual situation pertaining on the ground could be open to controversy bringing about a situation of untold litigation as to whether there was or was not a user of a particular type being carried on, as to when one user ceased and another commenced, as to whether such user was a material change of user or not and the reality of such a situation would be that a prospective purchaser could never be sure precisely as to the planning situation pertaining to land or property, if he could not rely on the register.

I am aware of the concerns regarding reversion to a permitted user after a long interval and the potential for neighbouring property owners to feel aggrieved by such a reversion, particularly if the neighbouring property holder had purchased his property at a time when the property was not being used for the purpose of the permitted user. However, I am satisfied that any prospective purchaser would be able to effect a planning search in relation to adjoining properties, and the planning search would reveal that the property did benefit from a planning permission for a user for which the property was not currently being used. The material concern of the purchaser would be whether or not the original planning permission was capable of being implemented.

Similarly, a purchaser of a property will be able to effect a planning search to determine what use of the property is permitted and will able to rely on the results of the search. In this case, the prospective purchaser of Broc House, being the respondents herein, were entitled to rely on the planning register which indicated to them that Broc House had planning permission for use as a residential hostel.

Accordingly it follows that it is of some significance as to whether or not I take the view that the 1969 planning permission in respect of Broc House is capable of being implemented and in this regard it is quite clear on the evidence that there has been no material structural alteration to Broc House and it is, in effect, as it was in 1971 following construction and thus quite clearly on the evidence, the planning permission is capable of being implemented.

The remaining issue to be determined is as to whether or not the proposed use of Broc House will give rise to an intensification so as to cause the respondents to have to apply for planning permission for a change of use from the previously held unauthorised use since 1977 of Broc House for religious purposes. The applicant contends that the proposed use will result in an intensification of the previous residential use.

The applicant relies on the provisions of s. 3 of the Act of 1963 where development is defined as including the making of any material change in the use of any structure. The applicant contends that the concept of material change involves two components: firstly, there must be a change in use, and secondly, the change must be material and that material in this context means "material for planning purposes".

The applicant relies on a number of decisions on the materiality of a change of use such as occurred in Carrick Hall Holdings Ltd v. Dublin Corporation [1983] I.L.R.M. 268, Butler v. Dublin Corporation [1999] 1 I.R. 565, Galway County Council v. Lackagh Rock Ltd [1985] I.R. 120 and Westmeath County Council .v. Michael F. Quirke and Sons (Unreported, High Court, 23^rd May, 1996).

In effect these cases deal with intensification to the point where it amounts to a material change of use.

The applicant contends that the proposed change of use of the premises to accommodate asylum seekers is a materially different use from the former use, and that in effect the proposed change to asylum residential hostel would constitute an intensification and various reasons are advanced in support of this contention.

It is accepted by the respondent that an intensification of use can constitute a material change of use in circumstances which would amount to development under the Planning Acts and would accordingly require planning permission. In my view, the respondent can use Broc House as a residential hostel and any significant intensification may lead to a material change of use but that situation at the moment is hypothetical and is a matter for another day as appropriate.

I have already held that the original valid planning permission of 1969 is not capable of being abandoned or lost and, thus, it follows that the use of Broc House for religious purposes has been a material unauthorised use and in my view in these circumstances it follows that the only valid planning permission for user attaching to Broc House is that of use as a residential hostel and the intervening unauthorised use, while it may not be capable of being prevented by the Planning Authority because it has continued for a period in excess of five years, nevertheless, does not in my opinion as a matter of law gain precedence over the existing valid planning permission for use of the premises as a residential hostel.

I take the view that in the particular circumstances of this case there has been a development in respect of Broc House and this took place in 1971 pursuant to the valid planning permission of 1969. I do not construe the relevant provisions of the Act of 1963 or any provisions in the Act of 2000 as in any way giving rise to a situation that planning permission is required for a change of use from a material unauthorised use to use as provided for in a subsisting valid planning permission.

Accordingly, I hold that the material unauthorised use of Broc House for religious purposes since 1997 until the premises was sold to the respondents in the year 2000 is of no legal effect and does not take precedence over the original valid planning permission of 1969 which is still extant and in my view remains extant while being capable of implementation until altered by a subsequent valid planning permission.

In these circumstances I refuse the various reliefs as sought by the applicants herein.