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Cite as: [2004] IESC 106

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Judgment Title: Dublin Corporation -v- Lowe

Neutral Citation: [2004] IESC 106

Supreme Court Record Number: 84/03

High Court Record Number: 1999 45 MCA

Date of Delivery: 17/12/2004

Court: Supreme Court

Composition of Court: Murray C.J., McCracken J., Kearns, J

Judgment by: McCracken J.

Status of Judgment: Approved


Judgments by	Result	Concurring
McCracken J.	Appeal dismissed - affirm High Court Order	Murray C.J., Kearns, J.

Outcome: Dismiss

THE SUPREME COURT

084/03

Murray CJ
McCracken J
Kearns J

IN THE MATTER OF SECTION 27(1) OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1976 AS AMENDED BY SECTION 19(4) OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1992

AND

IN THE MATTER OF AN APPLICATION BY THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

Between:

The Right Honourable the Lord Mayor
Aldermen and Burgesses of Dublin

Applicant/ Appellant

AND

Arnold Lowe and Signways Limited

Respondents

Judgment of Mr Justice McCracken delivered the 17th day of December 2004
_________________________________________________________

This is a matter with a somewhat lengthy history. By notice of motion dated 18th May 1999 the Appellant sought the following reliefs pursuant to s.27 of the Local Government (Planning and Development) Act 1976 as amended, namely:-

“1 An order, directing the respondents and each or either of them, to forthwith discontinue the unauthorised use of the exterior flank wall (Chancery Place elevation) at first and second floor level of the premises situate at and known as Number 3, Inns Quay, Dublin 7, for advertisement purposes.

2 An order, directing the respondents and each or either of them, to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (Chancery Place elevation) of the premises situate at and known as Number 3, Inns Quay, Dublin 7, by the respondents and each and either of them, without the benefit of planning permission.”

By order of Morris P dated 4th February 2000 an order in the terms of paragraph 1 of the notice of motion was granted to the Appellant, but an order in the terms of paragraph 2 of the notice of motion was refused. The Respondents appealed to the Supreme Court and by order dated 15th May 2001 the Respondents’ appeal was allowed and the matter was remitted to the High Court for the determination of the remaining issues with directions as to the filing of points of claim and points of defence. The matter was duly re-entered before the High Court and by order dated 4th February 2003 the application of the Appellant was dismissed. Now before the Court is an appeal by the Appellant against such dismissal.

The only issue now before the Court is the claim set out at paragraph two of the notice of motion.

The claim relates to the gable wall on the first and second floors of premises known as Number 3, Inns Quay, which premises are situate at the corner of Inns Quay and Chancery Place. The gable wall in question in fact fronts onto Chancery Place. There is a large advertisement hoarding attached to the gable wall, and it is alleged by the Respondents, and found as a fact by the learned trial Judge, that an advertisement hoarding has been erected and in place on that wall since the late 1950s or even earlier, and that the wall had except for very short periods been used continuously for the purpose of appending to it a hoarding. Prior to December 1995 the use of the hoarding had been contracted out to David Allen Holdings by the first named Respondent and indeed the hoarding that had been then present had presumably been erected by David Allen Holdings. Their contractual arrangements with the first named Respondent terminated in December 1995 and new contractual arrangements were entered into between the first named Respondent and the second named Respondent. The David Allen Holdings hoarding was removed on or about 15th December 1995 and the second named Respondent erected a new advertisement hoarding on the gable wall on 19th December 1995, which has remained there ever since.

The Appellant’s claim is that the erection of the new hoarding on 19th December 1995 constitutes a development within the meaning of s.3 of the Local Government (Planning and Development) Act 1963, where “development”, save where the context otherwise requires, is defined as:-

“The carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land.”

“Works” is defined in s.2 of the Act as:-

“Includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.”

The relevant portion of the definition of “unauthorised structure” in s.2 is:-

“… a structure other than (i) a structure in existence on the commencement of the appointed day …”

The trial Judge has found as a fact that on the appointed day, namely 1st October 1964, there was in existence the gable wall with a hoarding affixed to it. He also found that hoardings had been renewed or replaced from time to time, with the time periods between the removal and replacement being no more than a few days on any occasion. There is no evidence as to the exact dimensions of the hoarding which was in place in 1964, but it is not suggested by the Appellant that the hoarding which was erected in 1995 by the second named Respondent is in any material way different from that which was on site in 1964, and it is expressly found by the learned trial Judge that the new hoarding erected in December 1995 is identical in its dimensions with that which immediately pre-existed it. The sole issue, therefore, is the effect of such removal and renewal.

I am quite satisfied that this operation constituted “works” within the meaning of the planning legislation, and further that it was a “development”. That being so, the structure which is now on site was not in place or in existence on the commencement of the appointed day, but was placed there in December 1995.

This leads to a consideration of the final portion of the definition of “unauthorised structure” in s.2, namely:-

“… A structure other than (ii) a structure the construction, erection or making of which was the subject of a permission for development granted under s.26 of this Act, being a permission which has not been revoked, or which exists as a result of the carrying out on or after the appointed day of exempted development.”

Clearly no permission for development was granted under s.26 of the Act, but the Respondents argue that what was carried out was an exempted development under s.4(1)(g) of the Act. This provision reads:-

“(1) The following shall be exempted developments for the purposes of this Act

……………

(g) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.”

It is accepted by the Respondents that what took place was not maintenance or improvement, but they argue that it was an alteration. “Alteration” is, not very helpfully, defined in s.2 of the Act as:-

“Includes any plastering or painting which materially alters the external appearance of a structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.”

Clearly s.4(1)(g), by referring to “other alteration”, implies that there can be alterations which do not materially affect the external appearance of the structure or render such appearance inconsistent with the character of the structure or of neighbouring structures. In that context, therefore, “alteration” cannot be confined to something which materially affects the appearance of the structure. The alteration which is contended for in the present case is the replacement on the gable wall of a new hoarding in place of the then existing hoarding.

One of the essential findings of the learned trial Judge was that what he called “the planning unit” consisted of the gable wall with the hoarding attached to it. It follows logically from this finding that there has been an alteration to that planning unit by the substitution of one hoarding by another. I would also put it another way, and hold that the structure with which we are concerned is the structure which has been in place since prior to October 1964, and is in fact the building or gable wall of the building with an advertisement hoarding attached to it.

In Cairnduff v. O’Connell [1986] IR 73 a balcony and staircase were erected at the rear of a building on which there had, some years previously, been a balcony and staircase, although of different dimensions. At page 77 Finlay CJ said:-

“On the facts of this case I am satisfied that the erection of the balcony and staircase and the opening of the window are works which materially affect the external appearance of the structure. It is, I think, clear that if a structure had a particular adjunct such as a balcony and stairway, and if for a relatively short period of time that had been removed or had become demolished, its replacement with one of substantially the same size and appearance would not materially affect the external appearance of the structure on the basis that immediately when that work commenced no balcony or staircase existed.”

While it can be said that that statement is obiter, as those were not the circumstances of the case being considered, nevertheless it does provide some guidance to the Court.

The Appellant also referred to Dublin Corporation v. Regan Advertising Ltd & Ors, which dealt with a situation where there had initially been advertising material painted on the exterior of a wall, which advertised the business of the occupiers of the premises, but subsequently this was changed into advertising material fixed to the wall which did not relate to the occupiers’ business. The Appellant also relied on Finglas County Council v. Crean & Anor (Unreported O’Caoimh J 19th October 2001), which concerned the replacement of and addition to freestanding advertising hoardings which did not form part of any other structure. I do not think that either of these cases are particularly helpful, as the former case was concerned primarily with change of use and the latter case did not deal with advertising as a part of a building, nor did it consider the question of whether there might have been an alteration within the meaning of s.4(1)(g).

For reasons I have already stated, I am of the view that the word “alteration” must apply to something wider than a mere visual alteration. I think the learned trial Judge was correct in treating the gable wall with the hoarding affixed to it as a unit or structure within the meaning of the planning legislation, and that removing the hoarding and replacing it with a new hoarding altered the structure. Indeed, it could at least be argued that the removal of the hoarding could itself be an alteration to the gable wall which would not come within the exemption provided by s.4(1)(g), insofar as it might materially affect the external appearance of the structure.

I think it is unreal to look at a hoarding of this nature as a structure in isolation from the rest of the building. I also think it is unreal to suggest, as seems to be implicit in the Appellant’s case, that it would be lawful to replace all the constituent parts of the hoarding provided the parts were replaced separately, while it is unlawful to replace the entire hoarding at the same time.

The Appellant also submits that in any event the advertisement hoarding did materially affect the external appearance of the premises so as to render its appearance inconsistent with the character of the premises itself or that of neighbouring structures. It is, of course, true that the building itself is an old Georgian building, and no doubt advertising hoardings such as the present one would not have been present or in contemplation of the owners of the original building in Georgian times. However, what this Court is concerned with is the alteration of the hoarding by the substitution of a new hoarding, and that in itself in my view cannot possibly be said to have materially affected the external appearance of the premises.

For the reasons given, therefore, I would dismiss this appeal.