Horne v. Freeney

Factual and Procedural Background

This opinion concerns an application for relief under Section 27 of the Local Government (Planning and Development) Act, 1976. The Applicant resides at a residential address on Strand Road, The City, while the Respondent operates an Amusement Arcade business at premises also located on Strand Road.

On 6 October 1978, the Respondent submitted an application for planning permission to the Urban District Council for constructing new buildings to replace the existing Amusement Arcade. The application was accompanied by three sets of drawings and an outline specification.

In prior proceedings, it was held that planning permission pursuant to that application was deemed granted as of 23 September 1979.

In the present application, the Applicant contends that the Respondent's ongoing construction works deviate from the approved plans in several material respects, including the roof construction, ground floor layout, and first floor facilities.

Legal Issues Presented

1. Whether the construction works carried out by the Respondent conform to the planning permission granted.
2. Whether the variations from the approved plans constitute exempted development under Section 4(1)(g) of the Local Government (Planning and Development) Act 1963.
3. Whether an injunction prohibiting further development works is appropriate in the circumstances.

Arguments of the Parties

Applicant's Arguments

• The Respondent has departed from the approved plans by constructing a steel roof instead of the envisaged concrete slab roof.
• The ground floor contains additional concrete pillars and rooms, contrary to the approved open space layout for dodgem cars.
• The first floor lacks the toilet and other facilities provided for in the plans and is used for dodgem cars, apparently transposing the intended ground floor use.
• The Applicant does not rely on other incomplete works at this stage.

Respondent's Arguments

• The variations are works of maintenance, improvement, or alteration affecting only the interior structure and thus constitute exempted development under Section 4(1)(g) of the Local Government (Planning and Development) Act 1963.
• It would be illogical to require strict adherence to plans initially if the developer could later make changes without permission.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined conflicting evidence regarding the nature and thickness of the roof specified in the approved plans. Oral evidence from the Applicant’s architect and the Respondent’s planning consultant established that the plans envisaged a roof approximately three inches thick, not ten inches as initially believed by the Applicant’s architect.

It was found that the Respondent substituted metal sheets separated by insulation for the concrete slab roof, resulting in a roof thickness of approximately three inches but constructed of steel rather than concrete as envisaged.

The court accepted that the Applicant’s architect’s misunderstanding was bona fide and understandable.

The critical legal question was whether the admitted departures from the approved plans meant the development was not being carried out in conformity with the permission granted. The court held that planning permission is indivisible and authorises the totality of the works approved, not parts selectively. Thus, a developer cannot elect to implement only part of the approved plans.

Consequently, the court rejected the Respondent’s argument that the changes constituted exempted development under the relevant statutory provision.

The court therefore decided to grant an injunction prohibiting further development works until the Respondent obtains appropriate permission to regularise the variations.

The Respondent was granted liberty to apply to the court to retain the existing structure or seek further permissions to authorise the variations, with the possibility that the injunction may be lifted if such permissions are granted.

Holding and Implications

The court’s final decision was to GRANT AN INJUNCTION prohibiting the Respondent from carrying out further development works in breach of the planning permission.

The Respondent remains free to apply for permission to retain the existing structure or to seek new permissions to authorise the departures from the original plans. If such permissions are granted, the injunction can be lifted.

This decision directly affects the parties by enforcing strict compliance with planning permission and clarifying that partial or selective implementation of approved plans is impermissible. No new precedent beyond this immediate effect was established.