The Gazette 1983

GAZETTE

NOVEMBER 1983

pursuant to Section 4 (1) (h) of the Planning and Development Acts, 1963. The Right Honourable, the Lord Mayor Aldermen and Burgesses of Dublin -v- Laurence Moore and Carmel Moore - Supreme Court (per McCarthy and Hederman, JJ.). 29 July, 1983. Unreported. Unreported. Daniel F.' Murphy

affirmative. The Council thereupon applied unsuccessfully to the High Court for an Order of Certiorari. The basis of this application was that the Circuit Judge, having no further evidence before him, had no jurisdiction at the second hearing to decide the Appeal in favour of the landowners on different grounds. On appeal to the Supreme Court it was held that the Circuit Judge was entitled to uphold the Appeal on different grounds. It was assumed that he would have due regard to the judgment of the High Court, and would approach the case, notwith- standing that there was no further evidence adduced, from a different standpoint. The fact that he reached the same conclusion but for a different — and this time valid — reason could not be said to indicate any wrongful exercise of jurisdiction. He was entitled to change his mind either as to the result or as to the reason for the result. The Court affirmed its decision in Dolan -v- Corn Exchange [1975] I.R. 315 where it was stated on page 330 "The decisions of the Courts be they verdicts of juries or judgments of judges must yield to the overriding requirement that they truly accord with the law and the facts as they appear at the time of the decision. The State (Cork County Council) -v- Judge Fawsitt and Others - Supreme Court - (per Hency J. Nem. Diss.) - 27th July, 1983. Unreported. George Bruen PLANNING Tlie keeping of ice-cream vans in the driveway of a private residence while not in use for the sale of goods is not development within the meaning of Section 3 of the Planning and Development Acts, 1963. The Appellants who have lived at 144, New Cabra Road, Dublin, since June, 1980, carried on business as retailers of ice-cream from two ice-cream vans which they parked in the driveway of their home. The vans were normally only parked there at night and if stock was not fully sold in the course of the daily business, a freezer installed in one or both vans was connected to the electricity supply in the house for the night. As a result of complaints from residents in the area, an Inspector from the Planning Authority, on 14 August, 1980, saw the two vans in the driveway. Subsequently, Section 26 proceedings under the Planning and Development Acts, 1963, were served on the Appellants but were not proceeded with and were subsequently withdrawn. On 18 January, 1982, a Section 27 Notice under the Planning and Development Acts, 1976, was served on the Appellants to prevent them from causing, permitting or authorising the parking of commercial

vehicles within the curtilage of the premises. A hearing took place in the High Court on 20 April, 1982, and in addition to the evidence on Affidavit the Judge heard oral evidence adduced on behalf of both parties. The Appellants had sought to make a case that the driveway of their home had been used for parking commercial vehicles for many years before their purchase of the property but the Judge rejected this and accepted the evidence on behalf of Dublin Corporation that the driveway was not used to park commercial vehicles before the Appellants had occupied the house. The Judge further held that the use of the front driveway for keeping vans was a development within the meaning of Section 3 of the Local Government (Planning and Development) Act, 1963, was not an exempted development under Section 4 (1) (h) as it was not used for a purpose incidental to the enjoyment of the dwellinghouse as such. Accordingly, the Judge ordered that the Appellants be prevented from causing, permitting or authorising the parking of commercial vehicles within the curtilage of the premises 144, New Cabra Road, Phibsboro, Dublin 7. The order was made pursuant to Section 3 (2) (b) (i) of the 1963 Act. Section 3(1) states; "Development" in this Act means, save where the context otherwise requires, 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." Section 3 (2) (b) (i) states; "For the purpose of subsection (1) of this Section and without prejudice to the generality thereof— (b) where land becomes used for any of the following purposes;— (i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collap- sible, for the purpose of caravanning or camping or the sale of goods the use of the land shall be taken as having materially changed." The Appellants appealed on the grounds that the High Court decision was wrong in law in holding that the parking of the vehicles within the curtilage of their grounds was a breach of Section 3 (2) (b) (i) of the Planning and Dvelopment Acts, 1963. The Supreme Court HELD that the use of the premises was not a development within the meaning of Section 2 of the Planning and Development Acts, 1963, as there was no evidence that the keeping of vans overnight on the premises was for the purpose of the sale of goods on the premises or that at any time ice-pream was sold from the vans while parked at the premises 144, New Cabra Road, Phibsboro, Dublin 7. The Court agreed that the keeping of vans at the premises did not constitute exempted development xxxix

Edited by Gary Byrne

Copies of judgments in the above cues are available to members on requestfrom the Society's Library.