The Gazette 1981

DECEMBER 1981

GAZETTE

effect that any successor in title would be immune from the making of an order under Section 27 were he to use the basement premises for office use. ( Dublin Corporation v. Mulligan - The High Court (Finlay P.) - 6 May 1980 — unreported. SALE OF LAND Statute of Frauds — Suffiency of Memorandum. The Dublin Auctioneer, Mr. Corry Buckley, was a customer of his local licensed premises, known as "The Silver Tassie" which was being run by the first named defendant Michael O'Neill and had from time to time discussed with Mr. O'Neill the possibly of the premises being sold. He telephoned Mr. O'Neill on Friday the 13 January 1978 to say that he had a purchaser who would pay £190,000 for the premises. Mr. O'Neill responded by saying that he would telephone his solicitor Mr. Black. Mr. Black had three telephone conversations on the following day with Mr. Buckley who told Mr. Black the Plaintiff was the purchaser, that £190,000 was the maximum that he was prepared to pay and that "everything was subject to contract". Aflcr some telephone conversations between Mr. O'Neill and Mr. Black, Mr. O'Neill agreed to the sale at £ 190,000 saying that "it was subject to the usual documentation attached to the sale of property". The auctioneer, who was due to go to America that week-end, dictated three letters on a tape recorder intending that they would be typed and sent out by his secretary while he was away. All three were posted on the 17 January and presumably did not rcach their addresses before the 18 January. The first letter was to the plaintiff confirming that his offer was being accepted and that Mr. Black would forward a contract to the Plaintiffs solicitor "for his perusal and approval". The second letter was to Mr. O'Neill marked "Subject to Contract" confirming that he had been authorised to accept the plaintiffs offer of £190,000 and suggesting that Mr. Black should send a draft contract to the plaintiffs solicitor. The third letter to Mr. Black

be interpreted as making in this case an unauthorised change of use which had occurred more than 5 years before the institution of proceedings into an authorised change of use, losing its unlawful and unauthorised character. The Court held that it could find no warrant for so construing Section 31. On the second submission the Court held that the lapse of time between the commencement of an unauthorised use or the making of an unlawful development and the time when application is made to the Court must remain one of but not the only material factor in regard to the exercise by the Court of its discretion as to whether to make an order under Section 27. In the instant case the Court was not satisfied that the applicant was guilty of laches and delay. The Court held that there was another aspect of the relevance and importance of the lapse of time, namely the position in which the Respondent finds himself, if after a very considerable number of years following the breach of the Acts without any attempt to enforce the Acts he suddenly faces an order under Section 27. The Court construed Section 31 of the 1963 Act and Section 30 of the 1976 Act as an acceptance by the legislature that with regard to those forms of enforcement it would be unjust that a person, after the lapse of 5 years, should face the relevant court proceedings. The Court noting that there was no question of the respondent concealing the fact that he was using the premises as a solicitors office, and that the public first drew this matter to the attention of the applicants in Spring 1978, came to the conclusion that the use by the Respondent for a period of 5 years although undoubtedly in breach of the Planning Acts was not such a breach causing real damage to the amenity and convenience of the area as instigated complaints by persons or residents near by to the Planning Authority. The Court held that by reason of the lapse of time since the commencement of the change of use before the institution of proceedings it should refuse an order in respect of the basement. Such decision should not be construed as being equivalent to a decision that this user had now become lawful or authorised or to the

solicitor. At that time the Respondent lived with his wife in the upper floors of the house. Following a visit by an official of the Dublin Corporation, (the planning authority) in May of 1978 a warning notice was served under Section 29 of the Local Government (Planning and Development) Act 1976 on the Respondent in relation to the unauthorised use of the basement for the purpose of carrying on an office business in it. and his wife vacated the upper floors and extended the solicitors practice to the entire of the premises. The Planning Authority served a notice of motion under Section 27 of the 1976 Act seeking an order for the discontinuance of the unlawful use. The respondent did not contest the application in respect of the upper doors. In respect of the basement the Respondent first submitted that since the unauthorised use had continued for a period in excess of 5 years at the time of the making of the application, having regard in par- ticular to the provisions of Section 3 1 of the Local Government (Planning and Development) Act 1963 and the general construction of the Acts of 1963 and 1976 the Court had no jurisdiction now to make an order under Section 27 in respect of the unauthorised use. The Respondents second submis sion was that even if there were a dis- cretion to make an Order under Section 27, having regard to that lapse of time and to the other facts of the case the Court should not exercise its discretion in favour of granting an order. The Court held, referring to its decision in the case of Dublin County Council i'. Matra Investments Ltd., (no written judgement given) that there were no grounds for implying into Section 27 of the 1976 Act the time limit created by Section 3 1 of the 1963 Act. Section 27 of the 1976 Act is an entirely new section in the Planning Code and gives the Court an entirely new power. There is nothing in Section 27 nor in any other section of the Act of 1976 in anyway restricting the time during which the planning authority or any other interested party may apply to the Court for an order under that section. The Respondent also submitted on this issue that Section 31 should

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