The Gazette 1985

JULY/AUGUST 1985

GAZETTE

were formerly any restrictions on change ot use or rights of alienation the Court held that they did not form part of a letting agreement.- The subsequent direction that the restriction should be introduced into the new lease was inconsistent with the terms of the original Order made in March 1981. The Court however agreed with the view obviously taken by the Circuit Court Judge that a modern letting would normally include restrictions on change of user and alienation without the lessors consent and believe that had these matters been present in the minds of the parties they would have readily been disposed of in the manner sought to be achieved by the later order. In the circumstances as the Court believed that omission to have these matters dealt with in the original hearing was attributable to an oversight on the part of both parties and as the only way this could be achieved was by way of an appeal to the High Court against so much of the Order of 6 March 1981 as directed that the new lease should be subject to the terms and conditions of the previous tenancy the Court extended the time for lodge- ment of a notice of appeal against that part of the Order of 6 March 1981 up to a date 18 days after the date of the Judgement. Francea Hill & Ors -v- Kathleen Mulcahy The High Court (per O 'Hanion J.) 30 April, 1984 - unreported. PLANNING Validity of permission — inadequate des- cription of lands in advertisement — challenge may be made by any party affected by per- mission — planning authority has no power to grant permission based on invalid appli- cation — planning authority need not be party. The Respondent, the E.S.B., had sought an injunction against the Appellant, Carmel Gormley, permitting it to enter on her lands and exercise the purported powers contained in Section 53(5) of the Electricity Supply Act, 1927, as amended. Mrs. Gormley resisted the application on the grounds (1) that the section was uncon- stitutional and (2) that the planning permis- sion obtained by the E.S.B. for the erection of an electricity transmission line on her lands was invalid. Notwithstanding the success of the constitutional plea*, the Court gave a decision on the planning issue. The E.S.B. advertised its intention to apply for planning permission in the Irish Indep- endent on 8.1.76 in the following terms:— "County Wexford. The Electricity Supply Board intends to apply to Wexford County Council for permission to erect that portion of the Great Island Arklow 220 k.v. line which lies between the townlands of Forthchester Lower and Bally- kilty Upper, near Coolgreaney, Co. Wexford. J. F. Williams, Secretary." The length of the proposed transmission line was over 40 miles and the townlands ref- erred to were those at which, so far as Wexford County was concerned, the trans- mission line would commence and terminate. Wexford County Council notified its intention to grant permission for the erection of a 220 k.v. transmission line from Great Island, Campile to Forthchester Lower, Inch on 10.2.76 The final permission was granted on 24.3.76. At this time the lands and

posed that the development should take place must be correctly and accurately so described in relation to the district in which the land is situate as to be readily and reasonably identi- fiable." Reversing the High Court decision, that a challenge to the validity of a permission, based on non-compliance with the permission regulations, can properly be made by any person who is affected by the permission granted. It does not depend upon the person making the challenge being able to show the non-compliance directly affected him. If non- compliance is established, the permission is invalid by reason of a want of power or jurisdiction on the part of the planning auth- ority to exercise their right of granting or refusing permission. The statutory time limit affecting the chal- lenge to a validity of a permission is con- tained in Section 82(3) (a) of the 1963 Act. This Section was interpolated by Section 42 of the 1976 Planning Act, which was brought into operation by S.l No. 56 of 1977 on 15.3.77. Following the Court's decision in Pine Valley -v- Dublin County Council [1982] I.L.R.M. 169, the Section does not apply to a challenge now made to a permission granted in 1976. If a developer seeks to rely upon a grant of permission directly affecting the interest of a member of the public, and if the permission can be shown to have been made without authority, there is no requirement of pro- cedure or justice to prevent a member of the public successfully challenging the validity of the permission without the necessity of joining the planning authority. The Court did not express any view as to whether the E.S.B. was exempt from the pro- visions of the Planning Acts. The Electricity Supply Board -v- Carmel Gormley — Supreme Court (per Finlay Jnem- diss) 21 May, 1985 - unreported. Sarah Cox CONTRACT Retenlion of Title — Section 36 of The Agri- cultural Credit Act 1978 — Whether Clause amounted to Bill of Sale of Slock within the meaning of the 1978 Act. The Plaintiff was appointed as Receiver over Charles Dougherty & Co. Limited which carried on the business of manufacture and sale of animal feeding compounds. The Defendant was a supplier to the Company of various components used in the preparation and manufacture of the feeding compound. The product was supplied on credit and the Contract for Sale contained a condition No. 9 as follows:- " T he transfer of title to you of the goods as detailed in this Contract shall not occur until the invoice covering same has been paid in full, and, accordingly, the goods wherever situate shall be thereupon at your sole risk". Section 36 of The Agricultural Credit Act 1978 provides as follows:- (1) A Bill of Sale of Stock (whether including or not including any other chattels) made after the commencement of this Act shall, notwithstanding anything contained in the Bills of Sale (Ireland) Acts 1879 and 1883, •This plea was the subject of a separate decision of the Court given on 21 March 1985.

premises owned and occupied by Mrs. Gormley were owned and occupied by a Mr. Corcoran. These lands were situate in the townland of Skeamanagh or Farmley, Barony of Scarawalsh County of Wexford and were purchased by Mrs. Gormley in October 1977 without notice of the granting of the planning permission or of any intention by the E.S.B. to place portion of its trans- mission line across the lands involved. Mrs. Gormley contended that the newspaper advertisement was inadequate and not in accordance with the statutory regulations governing the making of planning applications • and therefore the purported decision was invalid. The regulations applicable at the time of the application for and granting of the pur- ported permission were those contained in S.I. No. 221 of 1964. The relevant provisions of thse permission regulations are, firstly, Article 9(1) which provides that prior to making a planning application, the applicant shall publish notice of his intention either in a newspaper circulating in the district in which the relevant land is situate or by erecting on, or affixing a notice to, the land; and secondly, Article 9(4) (b) which requires the newspaper notice to set out "the location of the land or the address of the structure to which the application relates (as may be appropriate)". The E.S.B. contended Mrs. Gormley could not now assert or rely on any such invalidity even if it existed on three grounds:— 1) Since Mrs. Gormley was not the owner or occupier of the lands at the time the permis- sion was sought and obtained, she could not have been affected by the inadequacy of the advertisement (this was the basis on which the High Court had rejected her challenge); 2) Her application to set aside the permission was statute-barred; 3) She could not seek to impugn a permission in proceedings to which the planning author- ity was not party. HELD:— The townlands mentioned in the advertise- ment merely indicated the area in which the line commenced and left Co. Wexford. It would not have notified an owner or occupier of lands that the townland in which he resided might be affected, let alone inform him his actual property might be affected — except insofar as might have applied to those persons living in either of the two named townlands. Evidence was given that other planning authorities required at least a list of the townlands through which an electric wire would be erected. Compliance with such a requirement would at least have given a reas- onable indication of the probable route to be taken by the line. The advertisement did not therefore comply with the permission regul- ations and, following its decision in Crodaun Homes Limited -v- Kildare County Council [1983] I.L.R.M. 1 the planning authority had no power or jurisdiction to grant permission in respect of that application, since Section 26 of the Local Government (Planning & Dev- elopment) Act, 1963, confines the exercise of that power to cases where application has been made in accordance with the permission regulations. In the Crodaun Homes case, the Court decided that in order " to satisfy the requirement of stating the location of the land, both the letter and spirit of the regu- lations require that the site on which it is pro-

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