The Gazette 1967/71

PLANNING Purposes for which permitted structures to be erected are to be used may be implied in planning permission Plaintiffs in June 1969 acquired an option to purchase from James McGuirk for an initial deposit of £2,000 about threequarters or an acre at Newtownpark, Blackrock, to cost altogether £20,000. There was no reference to planning permission, but an advertisement to that effect appeared on June 28 and an application for planning permission was received by defendant county council on July 2. The application, though signed by McGurk, was drafted by an engineer employed by plaintiffs; it was accompanied by three plans. The council required further parti culars of drainage. Finally on 29 August 1969 the council's permission for the proposed replacement of existing concrete plant, subject to the condition that the Minister was to decide whether the pro posed use by the plaintiffs was exempted develop ment within the Local Government (Town Plan ning) Act, 1963, was granted. Permission to comply with trie plans was given by the council on 9 October 1969. By agreement of October 24 the plaintiffs agreed to purchase the land from Mr. McGurk and by a conveyance of December 12 the lands were conveyed to the plaintiff. On 20 January 1970 the Planning Department informed the plaintiff that the operations they had in mind for the site constituted a change of devel opment, which had to be decided by the Minister under Section 5 of the Act and were duly so notified by the Minister. The plaintiffs thereupon issued proceedings on February 12, claiming a declaration that the permission of 9 October 1969 was a valid and unalterable permission, which the council could not derogate from. There was no suggestion, however, that the plaintiffs have in any way infringed the relevant permission. Much evidence was given to the question as to whether the use which the plaintiffs intended to make of the premises amounted to a material change of use. The question to be answered was : Did the grant of permission specify the purposes for which the structure thereby permitted to be erected might be used? The plans submitted clearly showed a ready-mix concrete plant: clearly then, an inspection of the plans lodged should have disclosed to the county council that the new struc tures were intended to be used for the production of ready-mix concrete, and not as formerly for 102

from the Divisional Court's dismissal of their appeal against conviction for having indicated at their Northwich shop that they were offering to supply washing powder at a price less than that at which it was in fact offered, contrary to Section 11 (2) of the Trade Descriptions Act, 1968. [Tesco Supermarkets Ltd. v Nettress; The Times, 21 July 1970.] Defendant motorist who knocks down and kills or injures pedestrians as a result of a black-out is not guilty of negligence The plaintiff was standing on the right hand footpath on an afternoon in June 1965 in Exche quer Street, Dublin, talking to a friend, when a car, driven by the defendant, mounted the foot path, drove the two men through the plate-glass windows of a shop, seriously injured the plaintiff, and killed his friend. The plaintiff, in the action before Butler J. and a jury, did not call any wit nesses, relying on the principle of res ipsa loquitur. The jury awarded the plaintiff £7,200 damages in May 1969. The defendant appealed. Held by a majority of the Supreme Court (Budd, Fitzgerald and McLoughlin J.J.; 6 Dalaigh C.J. and Walsh J. dissenting) that the appeal should be allowed on the following grounds. (1) The evidence of the witnesses clearly estab lishes that the defendant's car, after nearly stop ping at Dame Court, went diagonally across the road with the engine accelerating and finally crashing into Nicholl's window. There was no emergency created by any traffic or pedestrian problem for this wholly abnormal occurrence. The defendant was slumped over the wheel, and this condition is consistent with a sudden attack. There was no evidence to contradict this. (2) The defendant, although sixty-eight years of age, had not suffered from blackouts or fainting fits before. The medical evidence established that the defendant's collapse was caused by some dis turbance of the arteries associated with high blood pressure which caused the cutting off of the blood supply to the brain resulting in unconsciousnesj. This incapacity could not have occurred in George's Street. The attack was sudden and dis abling, and such as to leave the defendant with no capacity for considered action. [Kelly v Gilmore; Supreme Court; Unreported; 28 July 1970.] Note— This decision has given rise to much criticism on the ground that a plaintiff may be killed, or suffer severe injuries in similar circum stances and be unable to recover anything.