The Gazette 1986

MARCH 1986

GAZETTE

the Order to do or not to do, or to cease to do, as the case may be, anything which the Court considers necessary to ensure that the development is carried out in con- formity with the permission and specifies in the Order. (3) An application to the High Court for an Order under this Section shall be by Motion and the Court when considering the matter may make such interim or inter- locutory order (if any) as it considers appropriate. The Order by which an application under this Section is deter- mined may contain such terms and con- ditions (if any) as to the payment of costs as the Court considers appropriate". The respondents submitted that the circum- stances to which the application related fell only within Sub Section (I) and that Sub Section (2) was not applicable. The applicants cited the Supreme Court decision in Dublin County Council -v- Tal- laght Block Company Limited (17 May 1983) as authority for the proposition that the High Court had authority to make a mandatory order requiring work to be done. The Court noted that the unreported judgment of the Supreme Court did not seem to contain any statement of principle or ruling on the point of law as to whether the High Court was entitled to make such a mandatory Order nor did it show whether or to what extent the point of law was argued in that Court. The Court held that Sub Section (1) of Section 27 made provision for circumstances in which the apparent occupier of land made such use of it as came within the definition of "development" or "authorised use" without having complied with the statutory require- ment in relation to planning permission. The Court thought that it would be exceptional if in those circumstances that the planning authority or any member of the public could, save with great difficulty, assert or hope to prove any significant factor other than the absence of a planning permission. The inter- vention of the High Court invoked by the prescribed summary procedure in such cir- cumstances was limited to prohibiting the continuance of whatever development or unauthorised use had been commenced. This did not preclude the planning authority from instituting proceedings in the normal way founded on pleadings nor invoking such other statutory remedies as might be appropriate. Sub Section (2) of Section 27 on the other hand applied to the circumstances in which the apparent occupier of land engaged in a use of it within the definition of development being a person to whom planning permission has been granted and who has commenced work not in conformity with such permission. In such circumstances the obligations under- taken by the developer were readily ascertain- able and were known to him and were easily defined. Sub Section (2) therefore permitted the authority of the High Court to be invoked in a summary manner for the purpose not merely of prohibiting the doing of work but also of compelling the performance or obli- gations in relation to development with the necessity of proceedings instituted in the normal way. The Court held that the sub- missions on behalf of the respondent were well founded and correct and that the appli- cants were not entitled to proceed with their application.

The County Council of the County of Dublin -v- Kevin Kir by The High Court (per Gannon J.) 10 May 1984 — unreported. John F. Buckley NF.GLIGENCK Liability of Builder/Vendor of secondhand house - Liability of Local Authority as Mort- gagee. The First-Named Defendant ("the Vendor") who had no qualifications or experience in the building trade bought a site in 1974 and later set about building a bungalow on it with the aid of his father (described as a "handy- man") and his brother. The planning permis- sion obtained by him contained a condition "that the standard of materials, workmanship and building practice is at least equal to that specified in the Local Government Depart- ment Outline Specification for Houses". The house was commenced in the summer of 197S and the Vendor moved into the bungalow in May 1977. In June 1980 the Vendor entered into an oral agreement for sale, with the Plaintiff; there were no verbal warranties express or implied in the agreement nor were any repre- sentations as to the fitness of the premises made prior to the sale. The written contract entered into subsequently made provision for the sale of a parcel of land with no mention of the house erected on it and it contained no warranties relating to the building. The Plain- tiff and his wife had inspected the house both before and after the verbal agreement but did not have it professionally inspected. When they moved in, in December 1981, they dis- covered that there was no flue in the chimney and had to engage a builder to put one in. They also discovered the house was extremely damp. In 1982 they engaged a contractor to instal a central heating system, but when he opened up the floor he declined to do any further work on the premises. A consultant engineer reported that the house was grossly sub- standard, structurally unsound, a source of risk and a danger to health whereupon the Plaintiff then left the premises. He instituted proceedings against the Vendor for damages for breach of contract or in the alternative for breach of a common law duty of care which the Vendor owed to him as a builder and vendor. The Plaintiff claimed damages against the Second-Named Defendant ("the Council") which advanced money by way of mortgage on the premises on the grounds that they owed the Plaintiff a common law duty of care when exercising their statutory function when granting the loan. The Plaintiff also claimed damages against the Third-Named Defendant a firm of Auctioneers who valued the premises for the Local Authority before the loan sanction was granted, on the grounds that they owed a common law duty of care to the Plaintiff when carrying out the valuation. 1. The Claim against the Vendor The Court noted that there was a conflict of evidence between the professional witnesses called on behalf of the Plaintiff on the one hand and those called on behalf of the Council and the Vendor on the other hand but prefer- red the testimony of the Plaintiff's witnesses. The Court accepted that there were defects in the construction of the roof timbers, that all the floors were sub-standard - a four or six

Recent Irish Cases

Edited by Gary Byrne, Solicitor

PLANNING Local Government (Planning and Develop- ment) Act 1976 — whether Planning Authority entitled to Mandatory Orders under Section 27(1). The applicant brought an application to the High Court under Section 27 of the Local Government (Planning & Development) Act 1976 seeking Orders restraining the respond- ent from demolishing Allenton House, of which the respondents were the owners and occupiers, or any wall or structure within the curtilage thereof and from demolishing Kill- ininny Tower or any other wall or structure within the grounds of Allenton House unless and until planning permission therefor had been granted. The applicants^ also sought orders directing the respondents to reinstate the house to its pre-demolition condition and if necessary for an Order that certain works be carried out to close off the building including the cleaning away of demolished brickwork, the bricking up of existing openings and the provision of a weather screen to the front of the building. The purpose of the works were to protect the building from further damage and/or deterioration. The respondents argued that the Orders sought requiring them to reinstate the house and carry out works were not within the com- petence of the Court. The Section of the Act reads as follows:- "(1) where - (a) development of land, being development for which a permission is required under Part IV of the Principal Act is being carried out without such a permission, or (b) an unauthorised use is being made of land, the High Court may, on the appli- cation of a Planning Authority or any other person, whether or not the person has an interest in the land, by Order prohibit the continuance of the develop- ment or unauthorised use. (2) Where any development authorised by a permission granted under Part IV of the Principal Act has been commenced but has not been, or is not being, carried out in conformity with the permission because of non-compliance with the requirements of a condition attached to the permission or for any other reason, the High Court may, on the application of a Planning Authority or any other person, whether or not that person has an interest in the land, by Order require any person specified in