The Gazette 1979

JULY-AUGUST

1979

GAZETTE

RECENT IRISH CASES TOWN PLANNING Planning Authority not estopped by representations made by an official. The Defendant erected a building measuring 64 feet in length, 31 feet in breadth and 19 feet in height in the rere garden of a premises at Ballygall Road, Dublin. The Defendant did not get Planning Permission for the development which was commenced in 1975. During the progress of the work an Inspector from the Dublin Corporation (Complainants) Planning Department paid a number of visits to the site and according to the evidence of the Defendant's husband assured him that he could proceed with the erection of the building and that the Inspector believed that there would be no objection by the Planning Authority if he completed the building. The Inspector was later suspended from duty and subsequently dismissed. The Dublin Corporation served an enforcement notice under Section 31 of the Local Government (Planning and Development) Act 1963 requiring the Defendant to remove the structure and subsequently brought proceedings in the District Court against the Defendant for failure to comply with the Enforcement Order. The District Justice held that by reason of the misleading representations made to the Defendant's husband by the Inspector that the Dublin Corporation were estopped from denying that the building was an exempted development and dismissed the summons. He stated a case for the High Court to determine the following question of law: "Was I correct in holding that the Comp l a i nan t s, qua Planning Authority, were estopped from denying the representations made by their former employee". Held (per McMahon, J.), having considered the English cases of Southend-on-Sea Corporation v. Hodgson Limited [1961] 2 A.E.R. 41; Wells v. Minister of Housing [1967] 2 A. E . R. 1041; Lever (Finance) Limited v. Westminster Corporation [1970] 3 A.E.R. 496; Minister for Agriculture and Fisheries v. Matthews [1951] K.B. 148; Rhyl U.D.C. v. Rhyl Amusement Limited [1959] 1 A.E.R. 257 and Minister for Agriculture and Fisheries v. Hulkin (unreported) and

the Irish case of Greendale Building Co. v. Dublin County Council (Supreme Court 13 / 5 / 1977 - unreported, 185/1976) that if the Dublin Corporation had told the defendant that the building which her husband was erecting was an exempted development they would be acting 'ultra vires', and could not be held to have estopped themselves from asserting subsequently that Planning Permission was necessary for the development in question and, accordingly, no representation by their agent could work a similar estoppel. Insofar as the representation referred to in the question of law in the case stated included a representation that Planning Permission would be granted for the development this could not bind the Dublin Corporation to grant Planning Permission. Any undertaking by the Dublin Corporation to grant Planning Permission without compliance with the provisions of Section 26 of the Local Government (Planning and Development) Act 1963 would clearly be 'ultra vires'. The Right Honourable The Lord 1 Mayor Aldermen and Burgesses of Dublin (Dublin Corporation), Complainants, v. Elizabeth McGrath (Defendant) — High Court (per McMahon J.) — 17 November 1978 — unreported. SALE OF LAND — FAMILY HOME PROTECTION ACT 1976 — Assurance void in absence of wife's consent — Doctrine of Notice. In March 1961, the Defendant's husband purchased a house by way of lease in Artane, Dublin. He married the Defendant in July 1961 and the house became the family home. There were four children of the marriage which proved an unhappy one. The Defendant claimed that the husband's improvidence, drinking and physical cruelty to her caused her to leave home with her four children in October 1973. She got a tenancy from the Dublin Corporation firstly in a house in Kilbarrack and later, in June 1976, in a house in Coolock. On leaving the Family Home the defendant went to the FLAC Law Centre in Coolock because she wanted to have custody of the children and to be free of interference from the husband. On the 20 November 1974 a written Separation Agreement was executed by the

defendant and her husband which made no provision for any payments by the husband for the maintenance of the wife or children and was silent as to the family home. On the 2 August 1976 the husband entered into an agreement to sell his interest in the Artane house to the Plaintiff for £6,400. The Family Home Protection Act 1976 had come into force on the 12 July 1976 and both the husband's solicitors and the plaintiff's solicitors were aware of its provisions. The Plaintiffs solicitors, by letter of 10 August 1976, requested that the Defendant's consent to the sale (assignment) be endorsed on the purchase deed, "unless there is an official Separation Deed, in which case we require a copy of same". On the 11 August 1976 the husband's solicitors wrote in reply: "Our client and his wife have been separated for some years. Our client's wife has been housed by Dublin Corporation and is therefore no longer relying on the Artane house as her family home. We understand that a Separation Deed has been entered into but we did not act for either party at the time and do not have a copy of the Agreement. We understand from our client that he has never had a copy of the Agreement and that the same is with FLAC. We understand that Mr. P.M. of this organisation was dealing with the matter. We did in fact try to make contact with the Coolock Branch of FLAC for the purpose of obtaining a copy of the Agreement but this we understand is at present closed for holidays. We do not have the address or telephone number of any other branch and cannot trace any in the telephone directory. In view of the fact that the premises are not now a family home and your client is the purchaser for full value, we cannot see how your client is concerned with the matrimonial situation". The husband was at that stage in Canada (but was back in Ireland by the 16 August 1976) so his solicitor could not get the Defendant's address from him. The Plaintiffs solicitors did not wait for the Defendant's husband to return nor for the FLAC centre to re-open but prepared a statutory declaration stating that since the execution of the Separation Agreement the wife had not relied on the Artane house as her family home and that "by virtue of said Separation Agreement has now no