The Gazette 1985

JULY/AUGUST 1985

GAZETTE

rests the onus of proving the case which they are making. The Court held that the onus was on the Applicant to establish facts from which the Court could raise a probable infer- ence that the dwellinghouses were used at and immediately before 1 October 1964 as a single dwelling and that use subsequent to 1 October 1964 changed to a use as a multiple dwelling which still continued. The Facts: 1. The evidence offered by the Applicants consisted of an affidavit of a planning inspector which contained no direct evi- dence as to user of the premises until the year 1974 when he inspected the premises and found them set into 5 separate flat units. 2. There was also an affidavit from a local resident who stated that the premises were used as a private dwelling until they were purchased by a Mrs. Doyle who look in a female lodger in the late 1960s after her husband died. 3. There was a further affidavit from another resident who staled that she was familiar with the premises being a private residence which was bought by a Mrs. Doyle and that from her taking occupation in or about 1967 she kept a lodger and only one in the house and it was not at that stage let into flats but was converted into flat units by an Oliver Morgan who purchased the premises from Mrs. Doyle. 4. A statutory declaration made on 19 Dec- ember 1973 by Philip Doyle was produced in which he stated that his mother pur- chased the premises in 1951 and continued to reside in them up to the date of her death in 1973. He slated that in 1955 his mother made a letting of the top flat to a Mr. Kenneth Edwards. A further declar- ation of Mr. Doyles, dated 31 July 1975, stated that at the date of purchase of the premises by his mother in March 1951 they were occupied by several tenants and that in 1961 one flat became vacant and his mother went to reside in the premises. 5. The solicitor for the Respondent made an affidavit in which he exhibited two tenancy agreements one dated 6 April 1951 made between Grace Doyle and Wm. Scott being a letting of the bottom flat in the premises consisting of three rooms com- bined bathroom and toilet, kitchenette and fuel cellar. The second agreement being dated 18 April 1955 between Grace Doyle and Kenneth Edwards being a let- ting of the top flat consisting of three rooms and combined bathroom and toilet kitchenette and fuel house. The Court was satisfied that the terms of the agreements were in total conflict with the affidavits of the two local residents and as the affidavits of the two local residents were the only direct evidence as distinct from hearsay upon which the Applicants could rely the Court was satisfied that the Applicants had not discharged the onus of establishing a change of user after the operative date. On the question of intensification the Court said that it was satisfied that as a matter of common sense intensification of user could not really be established by prov- ing the existence of separate tenancies. The evidence indicated that the premises consist of 5 separate flat units and that the house was occupied by a total of seven persons. There was evidence from the planning inspector as

to complaints which the court considered were hearsay and which it must disregard. The only direct evidence with regard to the consequence of the alteration came in the affidavit of one of the residents which stated:- "I say that I am concerned that the said premises should have this intensive occu- pation as increases in the number of residents in the area generally lower the character of the neighbourhood which I have known for a considerable time and diminish the value of property in the area." The Court held that this statement of opinion or belief was not sufficient discharge by the Applicants of the onus of proof of establishing that the conversion of the prem- ises from a premises containing two separate flats each of which could well have contained a family of four or even five people into five separate flat units is such an intensification of user as would constitute a change of user within the meaning of the Planning Acts. The Court therefore refused the application for the Order under Section 27. Dublin Corporation -v- Gerard Sullivan The High Court (per Finlay P.) 21 December, 1984 - unreported. John F. Buckley LANDLORD AND TENANT Landlord and Tenant Act 1980 — Terms of New Lease — Whether to be the same as Expired Lease. The Applicants obtained an order from the Circuit Court on 6 March 1981 directing the Respondent to grant them a new lease of a lock up shop and ancillary accommodation used for a dry cleaning premises on the ground floor of premises in Dungarvan at a yearly rent of £2,600 "but otherwise subject to the terms and conditions of the previous tenancy of the Applicants in the premises in so far as such terms shall be applicable, and that in assessing the said rent no allowance shall be made to the Applicants on foot of their claim for compensation for improve- ments in the said premises." A dispute arose between the Applicants and Respondents as to the terms and con- ditions which should be incorporated in the new lease. The Respondent wished to have covenants restricting the change of user from the dry cleaning business without her prior consent and restricting the rights of assign- ment sub letting or parting with possession of the premises without such consent. The Res- pondent was unable to establish by evidence that the terms and conditions in the original letting included the restrictions on change of use and right of alienation which she now sought. A fresh application was made to the Circuit Court and a further Order was made directing that the lease should contain the provisions which were sought by the Res- pondent but without any finding of fact that the like provisions had ever formed part of the original letting. The Applicants appealed against this Order to the High Court. The Court held that the learned Circuit Court Judge was functus officio once he made his first Order on 6 March 1981. As the Respondent could not establish that there

Recent Irish Cases

Edited by Gary Byrne, Solicitdr

PLANNING Local Government (Planning and Develop- ment) Acts 1963-1982 — Application under Section 27 1976 Act — Onus of Proof — Nature of Evidence — Intensification of Use. The Applicants sought orders under Section 27 of the 1976 Act (a) prohibiting the con- tinuance of an unauthorised use of premises, 70 Beechwood Avenue, as a multiple dwelling and, presumably as an alternative remedy, (b) prohibiting the use of the premises as a structure comprising 5 dwellings and restrain- ing intensification of the use of the premises beyond such extent as may be shown to have been regularly in operation on or before 1st October 1964. The Court decided a preliminary issue of Law as to the onus of proof. The Applicants argued that the onus of establishing the date on which the premises were first used or dates on which they were used as multiple dwellings rested on the Respondent and relied on two cases Nelsovil Ltd. & Ors. -v- The Minister for Housing & Local Government (1962] 1 WLR 404 and Lambert -v- Lewis & Kiely unreported High Court 24 Novem- ber 1982 Gannon J. The Court disting- usihed the two cases from the instant case the first on the grounds that the first case involved an appeal based on grounds that a person was entitled to exemption which obviously led to the conclusion that the onus of establishing the grounds of exemption rested upon the appellant and the later case being one in which the respondents sought to justify a change of user on the grounds that it came within the regulations as a statutory exemption, in which case the onus clearly lay on the respondents to establish that he came within the regulations. The Court held that as the remedy being sought by the applicants was a permanent injunction under Section 27 of the Act there were no grounds for admitting in support of the case made either by the Applicant or the Respondent hearsay evidence of information and belief such as would be appropriate in the exercise of a discretion as to whether or not to grant an interlocutory application. Secondly the Court held that since the Applicants came seeking relief which would affect the ordinary property rights of the Defendant and which potentially could cause him loss that in the absence of any express provision to the contrary the general position must be that it is upon the Applicants that

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