The Gazette 1985

JULY/AUGUST

1985

GAZETTE

terminated on 12 November 1974 the Defendants became trespassers. Because the premises have not been a "tenement" at the relevant time there is no question of a new tenancy arising. Per McCarthy J. (dissenting) The true construction of the events that occurred after 30 June 1974 was that the Defendants held the premises as tenants from month to month. No notice to quit purporting to terminate such tenancy having been served they were entitled to retain possession against all people and the claim in this action for recovery of possession must be dismissed. The sum of £ 1,500.00 is due as rent not as mesne rates or mesne profits. Irish Shell & B.P. Limited -v- John Costello Limited - Supreme Court (per O'Higgins CJ and Henchy J., McCarthy J. dissenting), 21 December, 1984. Joanne Sheehan PLANNING Local Government (Planning & Develop- ment) Acts 1963-1982 — Planning Appeal — Rights of Third Parties. The Hibernian Shirt Company & R.E. Flanagan applied to Dublin Corporation for planning permission for a shop/office development at Great Strand Street and Liffey Street, Dublin. The application was refused by Dublin Corporation but on appeal to An Bord Pleanala outline permission was granted. There was no oral hearing of the appeal and Dublin Corporation appeared to have been the only party to make direct representations to the Bord in connection with the appeal. The site in question is situate within an area that had been earmarked by Coras Iompair Eireann for development as part of a projected Dublin Transportation Centre. C.I.E. had made some indirect representations to the Bord through the planning department of Dublin Corpora- tion but was not a party to the appeal. Part of the Bord's reasons for allowing the appeal were:— "While the site is within an area which may be affected by C.I.E. proposals for Dublin Transportation Centre the Bord is not satisfied that it is an essential part of the land required for such a centre and having regard to the status of the relevant C.I.E. proposal it is not considered that a refusal of outline permission for the proposed development would be warranted by reference to those proposals." C.I.E. obtained a conditional order of certiorari quashing the order of the Bord but the cause shown by the Bord was allowed and the order discharged by the High Court. C.I.E. appealed to the Supreme Court against the discharge. The Court noted that C.I.E. had in

1976 adopted a proposal for a Dublin Transportation Centre which would be sited on each side of the Liffey between O'Connell Street and Capel Street and connected by a tunnel under the Liffey. C.I.E. proceeded to acquire many properties in the area designated and Dublin Corporation as planning authority gave recognition to the C.I.E. proposal in its Dublin 1980 Development Plan which stated:— "The Planning Authority notes that Coras Iompair Eireann is considering a proposal to establish centre city transportation termini adjoining Ormond Quay Lower and Wellington Quay and generally over the stations in the proposed Rapid Rail Transit system and will co-operate in the provision by C.I.E. of any such termini required for more efficient transport services." In fact no application for development within the designated areas which would materially interfere with the implemen- tation of C.I.E.'s proposal for the Dublin Transportation Centre has been granted by Dublin Corporation. I was in conformity with that policy that Dublin Corporation twice turned down the developers' application for planning permission in this case. Dublin Corporaiton has no reason to expect that in the appeal their policy of seeking to give effect to the C.I.E. proposals would be interfered with without hearing C.I.E. but that is what happened. The Court stated that it was a classical example of departure from the rule of audi alterem partem. The court noted that the failure to observe natural justice was particularly serious because the party affected was C.I.E., which under Article 65 of the Local Government (Planning & Develop- ment) Regulations 1977 was designated as a "public authority for the purposes of Section 5 of the Local Government (Planning & Development) Act 1976" and accordingly there was a duty on the Bord "so far as may in the opinion of the Bord be necessary for the performance of its functions" to keep itself informed of "the policies and objections for the time being" of C.I.E. In this case the Bord not only breached a rule of natural justice but also disregarded the spirit, if not the letter, of the liaison which the statute envisaged as operating between the Bord and C.I.E. in a case such as this. The Court allowed the appeal and granted an absolute order of certiorari to quash the order of the Bord.

Copies of judgments in the above cases are available on request from the Society's Library. The photo- copying rate is lOp per page.

The State (Coras Iompair Eireann) -v- An Bord Pleanala - Supreme Court (per Henchy J.). 12 December, 1984 - unreported. John F. Buckley

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