This
matter comes before the Court as an application pursuant to
Section 27 of the
Local Government (Planning and Development) Act 1976 as substituted by
Section
19(4)(g) of the
Local Government (Planning and Development) Act 1992. The
Applicants seek
(a)
an Order directing the Respondents and each of them to forthwith discontinue
the unauthorised use of the exterior flank wall (Chancery Place elevation) at
first and second floor level of the premises situate at and known as No 3 Inns
Quay, Dublin 7 for advertisement purposes.
(b)
An Order directing the Respondents and each of them to forthwith remove the
advertisement hoarding (including all fixtures and fittings) erected on the
exterior flank wall (Chancery Place elevation) of the premises situate at and
known as no 3 Inns Quay, Dublin 7 by the Respondents and each of them without
the benefit of planning permission.
The
first named Respondent is the owner of premises no 3 Inns Quay, Chancery Place,
Dublin 7. The second named Respondents carry on the business of erecting and
maintaining advertising hoardings.
On
the 3 January 1996 Mr Daniel J Nolan a Corporation Official with the Planning
Department of Dublin Corporation carried out an inspection of the premises no 3
Inns Quay, Dublin. He says that he observed a new advertisement hoarding with a
name plate "Signways" on the exterior flank wall of the premises no 3 Inns
Quay, Dublin 7. The dimensions of this hoarding were 6 metres x 3 metres. It is
common case that this hoarding is the property of the second named Respondent
and it is maintained there pursuant to a licence granted to the second named
Respondent by the first named Respondent for which the first named Respondent
is paid a rent or licence fee. There is no planning permission in existence for
the hoarding.
I
am satisfied that prior to the month of December 1995 a hoarding of exactly the
same dimensions existed on this building erected and maintained there by
another company David Allen Holdings Limited. This hoarding was removed because
this Company and the first named Respondent decided to terminate their business
association in December 1995. The premises were inspected by a Corporation
Official on the 18 December 1995 and on that date the hoarding had been
removed. The exact date upon which it was removed is not clear. The evidence is
that it was due to be removed on the 13 December 1995. However, the first named
Respondent says that it was removed "during the course of the weekend
commencing on the 15 December 1995." Accordingly, on the balance of
probabilities I am satisfied that the hoarding which had been the property of
David Allen Holdings Limited was removed two or three days before the hoarding
owned by the second named Respondent was erected on Tuesday 19 December 1995.
This change came about as a result of a decision on the part of the first named
Respondent to permit the second named Respondent to maintain its advertising
hoarding in place of the one maintained by David Allen Holdings Limited.
The
Applicant's Planning Department does not know when the flank wall of the
premises was first used for advertisement purposes but it is accepted by it
that it had been used for this purpose since in or about the year 1979. The
Respondents claim that the hoarding has been in position since prior to 1961
and the first named Respondent claims that it has been in position since "the
1950s or perhaps even earlier."
The
Respondents have raised a number of points by way of defence which I now
propose to consider
1.
Delay on the part of the Applicants
It
has been submitted by the Applicants that apart from the statutory limitation
period of five years created by Section 27(6) of the 1992 Act there is vested
in the Court a discretion to refuse the relief sought in an application under
Section 27 in circumstances where there has been unreasonable delay on the part
of the Applicants in making application to the Court which the Court should
interpret as acquiescence on the part of the Planning Authority to the
unauthorised use of the premises (see Dublin Corporation v Mulligan and Dublin
Corporation v Kevans Quay and others).
I
am satisfied that the order of the Assistant County Manager authorising the
institution of the proceedings in this case was made on the 18 January 1996.
The proceedings were not commenced until the 18 May 1999. However, on the 15
September 1998 the second named Respondent made application for planning
permission for an advertising sign on this site. This application was refused
by the Applicants on the 21 October 1998 and this refusal having been appealed
to An Bord Pleanala was affirmed on the 13 March 1998. Accordingly, I am
satisfied that the Applicants acted entirely reasonably following their normal
procedures in holding off the institution of proceedings pending the
determination of this planning application and this action could not be
interpreted as being an acquiescence on their part in what they claim to be an
unauthorised user of the premises. This does however leave unexplained the
period between the 13 March 1998 and the 18 May 1999 when the Notice of Motion
was issued. No explanation as such has been tendered for this period of one
year and two months. However, it appears to me that this period of delay could
be construed as acquiescence only if there was something more in the case than
the mere passage of time, given that there had been a positive policy decision
to hold off proceedings while the planning permission application was being
processed. In my view it is far more likely that the process of communication
between the Enforcement Department of Dublin Corporation and An Bord Pleanala
accounts for this passage of time and in my view it would be unreasonable to,
in effect, punish the Applicants for delay when they had in the first instance
stood back and withheld prosecution of the matter in order to permit the
Applicant bring a planning application.
2.
Claim of an Established User
The
Respondents have claimed that this site has been used for the purpose of an
advertising hoarding since prior to the 1 October 1964 and accordingly
Section
2(b)(i) excludes the structure from the definition of "unauthorised structure"
under the 1963 Act.
In
my view even if the Respondents should succeed in establishing that the flank
wall of the premises had been used for the purpose of displaying an advertising
hoarding since prior to the 1 October 1964 and so, prior to its removal, would
be entitled to the benefit of
Section 2(b)(1) of
the Act, when it was removed
by its owner from the building there was a break in continuity which in effect
destroys any rights which existed at that time.
I
recognise that the period of time during which there was no structure on the
building is short amounting to no more than some days but in my view what is
relevant is that the advertising hoarding was deliberately removed from the
building by its owner. What was erected in its place was not the original but a
new structure owned by a different company.
When
considering this matter in County Council the County of Galway v Connaught
Proteins Limited (unreported 28 March 1980) Mr Justice Barrington had to
consider a case where a mill had been totally gutted by fire. The status of
what remained of the mill building was considered by Mr Justice Barrington and
his Judgment contains the following passage
"It
appears to me that when the mill perished, that permission to use those
premises for a specific purpose perished also."
In
exactly the same way whatever permission or immunity existed prior to the
removal of this hoarding this "perished" with the removal of the hoarding. I
believe that there must, in planning terms, be a significant difference between
a temporary removal for repair and maintenance with the intention of the
original or repaired structure being reinstated after such repair and the
removal of such a structure with no intention of its reinstatement by its owner
but the replacement of a different (or be it similar) structure by a third
party. I am of the view that it is irrelevant that the new structure
corresponded in all respects with the original structure. The removal of the
original hoarding by David Allen Holdings Limited without the intention of
replacing it must be regarded as an abandonment of any rights which they may
have acquired up to that time (see Dublin County Council v Tallaght Block
Company Limited 1985 ILRM 512). Hederman J in the course of his Judgment said
"where a previous use of land has not merely suspended for a temporary or
determined period but has ceased for a considerable time with no evidenced
intention of resuming it at any particular time, the Tribunal in fact was
entitled to find that the previous use had been abandoned so that their
resumption constituted a material change of use.
I
am satisfied in this case that the action of David Allen Holdings Limited
constituted a suspension of the previous use of the land. There was no evidence
of any intention on their part of resuming it at any time in the future.
Accordingly
in my view this defence fails.
Submission
Section 27 Procedure Inappropriate
The
second relief sought by the Applicants in their Notice of Motion is
"an
order directing the Respondents and each of them to forthwith remove the
advertisement hoarding (including all fixtures and fittings) erected on the
exterior flank wall (of the premises)"
As
long ago as 1985 Gannon J said in Dublin County Council v Kirby 1985 ILRM 325
said. "The distinction between the extent of the intervention by the High Court
which may be invoked in a summary manner under Section 27(1) as compared with
subsection (2) of the Section is clearly evident from the wording of the two
subsections, is very significant and is in accordance with procedures founded
upon principles of justice. There cannot be any doubt but that such distinction
was intentional on the part of the legislature. It leaves no room for inferring
that the High Court may in such summary proceedings be moved to make orders of
the mandatory nature which are made only after full and fair investigation in
the course of proceedings instituted in the ordinary way.
With
this view Blayney J in John Louglinane and Anne Loughnane v Patrick Hogan
expressed himself to be in "complete accordance."
For
my part I respectfully agree. Keane J as he then was in Dublin Corporation v
McGowan 1993 1 IR 405 adopted these views when he said "(The Section) is
intended as a "Fire Brigade" Section to deal with an urgent situation requiring
immediate action to stop clear breaches of
the Act."
Accordingly
I do not propose to make any Order under the second paragraph of the Notice of
Motion.
With
regard to the first relief sought in the Notice of Motion, from the outset both
Respondents have made it clear that they propose to rely on an established user
of the premises. In the letter of the 26 January 1996 Denis Mumaghan &
Company, Solicitors on behalf of the first named Respondent said that an
advertisement hoarding had been on the building "back into the fifties or
perhaps even earlier." In their letter of the 25 January 1996 the second named
Respondents made the case that "The same size of sign has been in situ, since
1961."
In
those circumstances in the ordinary way section 27 proceedings would have been
inappropriate as there would be a clear issue to be tried which could only be
tried, in my view, on full plenary hearing. The issue being whether there was a
pre statute established user. However in the particular circumstances of this
case I believe that this issue becomes moot because of the conduct of David
Allen Holdings Limited in removing their hoarding in circumstances, which I am
satisfied amount to an abandonment of any rights which may have been
established prior to that time.
Accordingly
in the particular circumstances of this case I am satisfied that Section 27
proceedings are appropriate. I am satisfied that the hoarding is not protected
by the Local Government (Planning and Development) Regulations 1994 or any
aspect of Regulation 9 thereof or any part of the Second Schedule thereto.
Accordingly
I make the Order sought in the terms of Paragraph 1 of the Notice of Motion.
