The Gazette 1984

GAZETTE

SEPTEMBER 1984

galvanised sheeting which formed the original shell of the structure. This work could not be completed satisfactorily without gaining access to the Plaintiffs back garden for part of the work. Reilly completed such of the work as could be done without such access. Further, he built a loft area within the building so that the activities of the joinery workshop could be carried out on two different levels and again ran into trouble with the planning authorities. The Court held it could not find any intention to deliberately flout the provisions of the Planning Acts. The Defendant's family had carried on a joinery workshop business on the site at the rere of the house for a very long time past, extending back into the latter half of the 19th Century. The original premises were somewhat lower but otherwise comparable in size with the structure which was the subject matter of the proceedings. The Court would not grant a Mandatory Injunction to remove the structure. Part of the reason why the conditions of An Bord Pleanala had not been complied with was attributable to an unreasonable refusal on the part of the Plaintiff to help the Defendant in any way in making good his previous defaults. (Thomas J. Morris -v- Peter Garvey [1982] ILRM 177 Distinguished). The Court further had evidence given that an Application was made to the Local Urban District Council for permission regarding the altering of the internal layout and permission by default was obtained and no communication had been received from the Planning Authority. The Court was prepared to overlook the default of the Defendant in failing to comply with the Undertaking made to the High Court and felt that the Defendant was a man who was trying to keep an old established business in operation and coping at the same time with the hostility of his neighbours, the wear and tear of proceedings in three different Courts and the intervention of the Planning Authorities. The Court held with respect to diminution of light the 1954 Ordnance Survey Map shows almost complete coverage of the site to the rere of the Defendant's premises to a much greater extent than was now achieved by the present workshop in its reconstructed form. The Court felt that the testimony of persons affected by alleged diminution of light is generally regarded in this type of case as carrying as much weight as, if not more weight than, the testimony of experts who attempt to measure diminution of light in mathematical terms. On considering all the evidence no significant diminution of light was felt to have taken place. The Court held that in respect of the nuisance by dust that that would be eliminated when the extraction system was installed which, the Defendant said in evidence, it was his intention to provide

for the benefit of his staff. With respect to nuisance by noise the Court held that the Plaintiff had to endure an unreasonable amount of noise over a long period of time between 1979 and 1983, but with the Defendant's professed intention to close off the remaining gaps and openings in the building whenever he could do so with the co-operation of the Plaintiff that this situation would be remedied in full by the Defendant. With respect to nuisance by flooding evidence was given that water poured from a gutter on the new galvanised structure which, in the early stages, caused flooding right into the Plaintiffs kitchen, but when the building was reduced in size by 15'/ 2 feet the water now falls into the Plaintiffs back garden which is less of a nuisance. The Court, in awarding £1,000.00 damages to the Plaintiff pointed out that the nuisances could have been minimised and, perhaps, terminated altogether had she not taken up an entrenched position in relation to her complaints against the Defendant. The question of costs was reserved for a further hearing. May Leech -v- Rose Reilly and Patrick Reilly - High Court (per O'Hanlon J.). 26 April, 1983 - unreported. The Plaintiff and the Defendant were married in May 1974. Their family home and 8 acres were purchased by the husband for £45,000 in 1979 of which £15,000 was borrowed from his mother and the remaining £30,000 from the Building Society, the second named Defendant. The husband executed a mortgage in favour of the Building Society and the wife endorsed her consent thereon. No repayments of the mortgage were ever made by the husband. The Plaintiff and the husband separated in March 1980 when the Plaintiff left the family home and went to live in Dublin in a house owned by her brother. Proceed- ings were commenced against the husband only in November 1980 and claims were made lor the custody of the children, for maintenance, for a barring order against the husband and for a declaration that the Plaintiff was entitled to the beneficial ownership of the entire of the family home or of such percentage as the Court might determine and for an Order for the sale of the family home. In May 1981, the parties entered into a consent which was received and filed in Court and the action was adjourned generally with liberty to re-enter. One of the terms of the consent was that the husband would expedite the sale of the xv Daniel F. Murphy FAMILY HOME PROTECTION ACT Failure to pay mortgage instalments, whether conduct leading to loss of interest in the family home.

family home and pay the balance of the purchase price remaining, after the discharge of the amount due to the Building Society, to the Plaintiffs solicitor to be invested in a house for the use of the Plaintiff and her children during her lifetime with remainder to the children absolutely. As no repayments were made on foot of the mortgage and the premises were not sold by the husband the Building Society issued proceedings against him by Summons in July of 1982. An Order for Possession was made in those proceedings on 26 July 1982 and the premises were subsequently sold for £48,000 being less than the sum then due to the Building Society so that there was no surplus to be applied for the purchase of a house by the Plaintiff. There was some confusion at the hearing of the application for the Order for Possession; and the Plaintiff was represented before the Master of the High Court and an objection to an Order was made on her behalf although the husband consented to the Order being made. When the matter came into the Judge's list it was heard at the end of a very long list and in the absence of the Solicitor for the Plaintiff an Order was made with the consent of the husband. In September 1982 the Plaintiffhad the Building Society joined as a Defendant in these proceedings and an interim injunction was granted restraining the Building Society from selling the family home. The Plaintiff sought liberty to amend the Special Summons by including a claim under Section 5 of The Family Home Protection Act. 1976. for the protection of the family home, requiring the husband to discharge all arrears due on foot of the mortgage, joining the Building Society as a Defendant and preventing the Building Society from taking any steps on foot ol the Order lor Possession obtained bv the Society 26 July 1982. In September 1982. the application for an Order restraining the Building Society from selling the family home was refused and the other matters were adjourned. Following further applications made on behalf of the Plaintiff the Summons was amended to include a claim against the husband under the provisions of the Act of 1976 for compensation for loss of the family home, a claim against both defendants for damages for the sale of the family home and a Declaration that the Order of 26 July 1982 was obtained collusively by the Defendants in breach of the Plaintiffs rights and thus was null and void and of no effect. The following arguments were put forward on behalf of the Plaintiff: 1. The Plaintiffs consent to the

mortgage was invalid, apparently based on the fact that the husband was an Agent for the Building Society and on an allegation that the Plaintiff gave her consent to the mortgage in his office and signed it a