Factual and Procedural Background
This case concerns an application brought under Section 27 of the Local Government (Planning and Development) Act 1976, as amended by the 1992 Act. The Applicant, a municipal authority, sought orders to discontinue and remove an unauthorised advertisement hoarding erected on the exterior flank wall of premises located at No 3 Inns Quay, The City. The first named Respondent owns the premises, and the second named Respondent operates a business erecting and maintaining advertising hoardings.
Inspection in January 1996 revealed a new advertisement hoarding owned by the second Respondent on the premises, without planning permission. This hoarding replaced a previous hoarding of identical dimensions that had been removed in December 1995, previously owned by a third party company. The replacement followed a decision by the first Respondent to permit the second Respondent to maintain the new hoarding.
The Applicants acknowledged that the flank wall had been used for advertising purposes since approximately 1979, while the Respondents claimed use dating back to at least 1961 or even the 1950s. The matter proceeded after the refusal and subsequent appeal dismissal of a planning permission application by the second Respondent for the hoarding.
Legal Issues Presented
- Whether the Court should grant an order requiring the Respondents to discontinue the unauthorised use of the exterior flank wall for advertisement purposes.
- Whether the Court should order the removal of the unauthorised advertisement hoarding erected without planning permission.
- Whether the Respondents could rely on an established user defence based on historical use of the site for advertising.
- Whether delay by the Applicants in instituting proceedings constituted acquiescence and barred relief.
- Whether Section 27 proceedings were appropriate given the factual and legal circumstances.
Arguments of the Parties
Respondents' Arguments
- Claimed that the advertisement hoarding had been in place since prior to 1961, or even the 1950s, and thus qualified as an established user exempting it from being an unauthorised structure under the relevant planning legislation.
- Raised a defence based on alleged delay by the Applicants in initiating proceedings, suggesting acquiescence to the unauthorised use.
Applicants' Arguments
- Asserted that the hoarding was erected without planning permission and sought orders for discontinuance and removal under Section 27 of the Planning and Development Act.
- Contended that any previous rights to display advertising on the flank wall were extinguished by the removal of the prior hoarding by the former owner, breaking continuity of use.
- Argued that delay in commencing proceedings was reasonable and did not amount to acquiescence, particularly given the pending planning application by the Respondents.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Dublin Corporation v Mulligan and Dublin Corporation v Kevans Quay |
Discretion to refuse relief under Section 27 for unreasonable delay/acquiescence by planning authority. |
Used to assess whether delay by Applicants constituted acquiescence; Court found delay was reasonable and did not bar relief. |
| County Council the County of Galway v Connaught Proteins Limited (unreported, 1980) |
Principle that permission to use premises for a specific purpose perishes when the structure is destroyed or removed. |
Applied analogy to conclude that removal of prior hoarding destroyed any established user rights. |
| Dublin County Council v Tallaght Block Company Limited (1985 ILRM 512) |
Abandonment of previous use occurs when use ceases for a considerable time without intention to resume. |
Supported finding that removal of prior hoarding constituted abandonment of established user rights. |
| Dublin County Council v Kirby (1985 ILRM 325) |
Distinction between summary intervention under Section 27(1) and more extensive orders requiring full hearing under Section 27(2). |
Guided Court's decision not to make a mandatory removal order under the second paragraph of the Notice of Motion. |
| John Loughnane and Anne Loughnane v Patrick Hogan |
Agreement with principle that summary proceedings under Section 27 are intended for urgent situations. |
Supported view that summary orders should be limited and not replace full trial where factual disputes exist. |
| Dublin Corporation v McGowan (1993 1 IR 405) |
Section 27 intended as urgent "Fire Brigade" measure for clear breaches of planning law. |
Reinforced limitation on scope of Section 27 orders and appropriateness in this case. |
Court's Reasoning and Analysis
The Court first considered the delay alleged by the Respondents, concluding that the Applicants acted reasonably by waiting for the outcome of the planning application before initiating proceedings, thus no acquiescence was found. The unexplained delay after the appeal dismissal was insufficient alone to infer acquiescence.
Regarding the established user defence, the Court emphasized that the removal of the previous hoarding by its owner, with no intention to reinstate it, constituted an abandonment of any pre-existing rights. The brief gap between removal and erection of the new hoarding did not preserve continuity of use. The Court analogized to a precedent where destruction of a structure extinguished associated permissions.
The Court distinguished between temporary removal for maintenance and deliberate removal with replacement by a different party, finding the latter applied here. Consequently, the Respondents' claim to an established user exemption failed.
On the appropriateness of Section 27 proceedings, the Court acknowledged that ordinarily, the existence of a factual dispute on established user would preclude summary relief. However, given the abandonment finding, the Court held that Section 27 was suitable in this instance.
Finally, the Court declined to order removal of the hoarding under the second paragraph of the Notice of Motion, citing established jurisprudence that such mandatory orders require full hearings and are not appropriate in summary proceedings under Section 27(1).
Holding and Implications
The Court granted an order directing the Respondents to discontinue the unauthorised use of the exterior flank wall for advertisement purposes. However, the Court refused to order the immediate removal of the advertisement hoarding under the summary procedure.
The decision effectively requires the cessation of the unauthorised advertising use but does not mandate removal of the physical structure at this stage. The ruling clarifies that established user rights are extinguished by deliberate removal of a structure, even if replaced shortly thereafter by a different owner. No new precedent beyond these direct effects was established.