High Court of Ireland Decisions

6 February 2000



MORRIS P: This matter comes before the Court as an application under Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19 of the Local Government (Planning and Development) Act 1992.

When the proceedings were commenced the title was "Fyffes Group plc, RFS Limited and Sean Blackbourne." However by Order of the 12 July 1999 it was ordered that the motion against Fyffes Group plc, the first named Defendant be struck out and that Kinsealy Farms Limited be joined as a Respondent. This Order was necessary because it became apparent that the lands were transferred by Fyffes Group plc to Kinsealy Farms Limited, who became registered as owners of the lands, on the 2 February 1982.

The property, to which this Application relates, is a site with a large warehouse thereon situate at Kinsealy Lane, Kinsealy, in the County of Dublin. The lands are registered on Folio 29904F of the Register County of Dublin.

The Order which the Applicants seek is an Order under Section 27 restraining Kinsealy Farms Limited from the carrying on of an unauthorised development on the premises "for the storage and warehousing and use of the premises for office use." They seek secondly an Order directing the Respondents to cease the unauthorised development of the site and to remove the portacabins and office units, it is unnecessary for the Court to consider this relief since Counsel on behalf of the Party responsible for maintaining the portacabins on site has given an undertaking on behalf of his client to remove the portacabins forthwith. I have no reason to believe that this undertaking has not been complied with.

In essence therefore the complaint which is made against Kinsealy Farms Limited is that described in paragraph 7 of Mr Joseph Gorman's first Affidafit when he says that on the 15 February 1999 when he visited the premises (apart from the second hand cars which are no longer part of this case and the portacabins) he noticed the unauthorised use of the sheds for the storage of timber, cardboard, polyfilla, some machinery parts and the storage of potatoes.

In his further supplemental Affidavit of the 8 December 1999 Mr Joseph Gorman describes, with photographs, the use to which the premises is now being put. This could be best described as the warehousing of dry goods. This in reality is the use which the Fingal Council now seek to prevent.

The Planning history of the premises is as follows: a planning permission was granted in respect of the site under planning reference 87A/8 862. This permission was granted for the use of the large storage shed on the site to be used as a chill room and food processing unit. Eleven other planning applications have been made in respect of the premises. It is claimed by Mr Robert Knox, Property Manager for Kinsealy Farms that the relevant history of the lands extends to a time prior to the 1 October 1964 when the site was developed by Archers Limited for carrying on a business of the preparation for sale, packaging and distribution of fruit and vegetables. Subsequently Archers Limited sold the lands to Fyffes Group plc who in turn sold them to Kinsealy Farms Limited.

The use that was made of the lands and the buildings thereon is described by Mr Knox in the following terms. He says that both Messrs Archers and Kinsealy Farms Limited brought fruit and vegetables on to the site sourced both from the immediate area of the site in North County Dublin and the surrounding area and imported from abroad. It is said that these goods were transported on to the site in articulated lorries and heavy rigid vehicles. These brought the bulk product to the site and there in the premises the product was repackaged for local deliveries. It is submitted that this use was made of the lands since prior to the coming into operation of the Planning Acts on the 1 October 1964 up until 1994 without interruption. On the 8 September 1994 the site was leased to Laurence Flood and a term of the lease provided that the premises were not to be used for any other purpose "other than as a warehouse for the storage of cardboard boxes, printing papers, labels, flour, starch, gelatine, dehydrated peas and beans and tinned fruit and for no other purpose whatsoever without the written consent of the Landlord." The Lessees vacated this site in November 1997 and Kinsealy Farms recommenced using the property until it was leased to the second named Respondent, Sean Blackbourne and William Greene. The activity of storing imported Japanese cars and the maintenance of portacabins on site is the responsibility of the Lessee of the premises.

An examination of the relevant planning permissions in respect of the lands was carried out by Mr John D O'Keeffe, an Architect and he refers to planning permission reference number 87A/8862 which he says granted permission for use of the large storage shed on the site for use as a chill room and food processing unit. He says apart from that there have been eleven planning applications made in respect of the premises since the 1 October 1964 and he says that the premises have been used as a major warehousing and distribution facility since 1987. In particular he refers to an inspection which he carried out on the 18 December 1998 and he says the visual appearance of the premises and his schedule of accommodation is consistent with the use of the premises and yard for the purpose of storage and packaging and distribution since October 1, 1964.

I believe that there are a variety of issues of a factual nature which remain to be resolved in this matter before an Order granting the reliefs visualised in Section 27 should be considered. I am of the view that an issue relating to whether or not a pre statute established user has been established and if so exactly what this use is. I am satisfied that an issue arises as to when the development or unauthorised use commenced, so as to make relevant the five year limitation period within which Section 27 proceedings can be invoked. I am satisfied that given that the onus of proof rests on the Applicants of establishing facts from which the Court could raise a probable inference that the premises had been used at and immediately prior to the 1 October 1964 otherwise than in the manner now described that they have failed to discharged this onus. I do not propose in these circumstances to make the Order sought.

Accordingly it falls to consider the Order that should be made.

I am satisfied that it was entirely reasonable for the Applicants to institute proceedings under Section 27 for the purpose of preventing the use of the premises as a site for portacabins. In this regard it appears to me that the costs, of bringing the proceedings up to and including the first day of the hearing of this matter should be borne by Mr Sean Blackbourne. Those costs being the costs of the Applicant.

Insofar as the costs of Kinsealy Farms Limited are concerned I am of the view that they have been less than co-operative with the Applicants in ensuring that the unauthorised use (as a site for the portacabins) was abated. I am satisfied that the appropriate way in which to deal with this situation is to make no Order as to costs as between the Applicant and Kinsealy Farms Limited. Fingal County Council v RFS Limited

High Court

1999/59 MCA (Transcript)

HEARING-DATES: 6 February 2000

6 February 2000
PANEL: Morris P

JUDGMENTS:
MORRIS P: This matter comes before the Court as an application under Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19 of the Local Government (Planning and Development) Act 1992.

When the proceedings were commenced the title was "Fyffes Group plc, RFS Limited and Sean Blackbourne." However by Order of the 12 July 1999 it was ordered that the motion against Fyffes Group plc, the first named Defendant be struck out and that Kinsealy Farms Limited be joined as a Respondent. This Order was necessary because it became apparent that the lands were transferred by Fyffes Group plc to Kinsealy Farms Limited, who became registered as owners of the lands, on the 2 February 1982.

The property, to which this Application relates, is a site with a large warehouse thereon situate at Kinsealy Lane, Kinsealy, in the County of Dublin. The lands are registered on Folio 29904F of the Register County of Dublin.

The Order which the Applicants seek is an Order under Section 27 restraining Kinsealy Farms Limited from the carrying on of an unauthorised development on the premises "for the storage and warehousing and use of the premises for office use." They seek secondly an Order directing the Respondents to cease the unauthorised development of the site and to remove the portacabins and office units, it is unnecessary for the Court to consider this relief since Counsel on behalf of the Party responsible for maintaining the portacabins on site has given an undertaking on behalf of his client to remove the portacabins forthwith. I have no reason to believe that this undertaking has not been complied with.

In essence therefore the complaint which is made against Kinsealy Farms Limited is that described in paragraph 7 of Mr Joseph Gorman's first Affidafit when he says that on the 15 February 1999 when he visited the premises (apart from the second hand cars which are no longer part of this case and the portacabins) he noticed the unauthorised use of the sheds for the storage of timber, cardboard, polyfilla, some machinery parts and the storage of potatoes.

In his further supplemental Affidavit of the 8 December 1999 Mr Joseph Gorman describes, with photographs, the use to which the premises is now being put. This could be best described as the warehousing of dry goods. This in reality is the use which the Fingal Council now seek to prevent.

The Planning history of the premises is as follows: a planning permission was granted in respect of the site under planning reference 87A/8 862. This permission was granted for the use of the large storage shed on the site to be used as a chill room and food processing unit. Eleven other planning applications have been made in respect of the premises. It is claimed by Mr Robert Knox, Property Manager for Kinsealy Farms that the relevant history of the lands extends to a time prior to the 1 October 1964 when the site was developed by Archers Limited for carrying on a business of the preparation for sale, packaging and distribution of fruit and vegetables. Subsequently Archers Limited sold the lands to Fyffes Group plc who in turn sold them to Kinsealy Farms Limited.

The use that was made of the lands and the buildings thereon is described by Mr Knox in the following terms. He says that both Messrs Archers and Kinsealy Farms Limited brought fruit and vegetables on to the site sourced both from the immediate area of the site in North County Dublin and the surrounding area and imported from abroad. It is said that these goods were transported on to the site in articulated lorries and heavy rigid vehicles. These brought the bulk product to the site and there in the premises the product was repackaged for local deliveries. It is submitted that this use was made of the lands since prior to the coming into operation of the Planning Acts on the 1 October 1964 up until 1994 without interruption. On the 8 September 1994 the site was leased to Laurence Flood and a term of the lease provided that the premises were not to be used for any other purpose "other than as a warehouse for the storage of cardboard boxes, printing papers, labels, flour, starch, gelatine, dehydrated peas and beans and tinned fruit and for no other purpose whatsoever without the written consent of the Landlord." The Lessees vacated this site in November 1997 and Kinsealy Farms recommenced using the property until it was leased to the second named Respondent, Sean Blackbourne and William Greene. The activity of storing imported Japanese cars and the maintenance of portacabins on site is the responsibility of the Lessee of the premises.

An examination of the relevant planning permissions in respect of the lands was carried out by Mr John D O'Keeffe, an Architect and he refers to planning permission reference number 87A/8862 which he says granted permission for use of the large storage shed on the site for use as a chill room and food processing unit. He says apart from that there have been eleven planning applications made in respect of the premises since the 1 October 1964 and he says that the premises have been used as a major warehousing and distribution facility since 1987. In particular he refers to an inspection which he carried out on the 18 December 1998 and he says the visual appearance of the premises and his schedule of accommodation is consistent with the use of the premises and yard for the purpose of storage and packaging and distribution since October 1, 1964.

I believe that there are a variety of issues of a factual nature which remain to be resolved in this matter before an Order granting the reliefs visualised in Section 27 should be considered. I am of the view that an issue relating to whether or not a pre statute established user has been established and if so exactly what this use is. I am satisfied that an issue arises as to when the development or unauthorised use commenced, so as to make relevant the five year limitation period within which Section 27 proceedings can be invoked. I am satisfied that given that the onus of proof rests on the Applicants of establishing facts from which the Court could raise a probable inference that the premises had been used at and immediately prior to the 1 October 1964 otherwise than in the manner now described that they have failed to discharged this onus. I do not propose in these circumstances to make the Order sought.

Accordingly it falls to consider the Order that should be made.

I am satisfied that it was entirely reasonable for the Applicants to institute proceedings under Section 27 for the purpose of preventing the use of the premises as a site for portacabins. In this regard it appears to me that the costs, of bringing the proceedings up to and including the first day of the hearing of this matter should be borne by Mr Sean Blackbourne. Those costs being the costs of the Applicant.

Insofar as the costs of Kinsealy Farms Limited are concerned I am of the view that they have been less than co-operative with the Applicants in ensuring that the unauthorised use (as a site for the portacabins) was abated. I am satisfied that the appropriate way in which to deal with this situation is to make no Order as to costs as between the Applicant and Kinsealy Farms Limited. Fingal County Council v RFS Limited

High Court

1999/59 MCA (Transcript)

HEARING-DATES: 6 February 2000

6 February 2000
PANEL: Morris P

JUDGMENTS:
MORRIS P: This matter comes before the Court as an application under Section 27 of the Local Government (Planning and Development) Act 1976 as substituted by Section 19 of the Local Government (Planning and Development) Act 1992.

When the proceedings were commenced the title was "Fyffes Group plc, RFS Limited and Sean Blackbourne." However by Order of the 12 July 1999 it was ordered that the motion against Fyffes Group plc, the first named Defendant be struck out and that Kinsealy Farms Limited be joined as a Respondent. This Order was necessary because it became apparent that the lands were transferred by Fyffes Group plc to Kinsealy Farms Limited, who became registered as owners of the lands, on the 2 February 1982.

The property, to which this Application relates, is a site with a large warehouse thereon situate at Kinsealy Lane, Kinsealy, in the County of Dublin. The lands are registered on Folio 29904F of the Register County of Dublin.

The Order which the Applicants seek is an Order under Section 27 restraining Kinsealy Farms Limited from the carrying on of an unauthorised development on the premises "for the storage and warehousing and use of the premises for office use." They seek secondly an Order directing the Respondents to cease the unauthorised development of the site and to remove the portacabins and office units, it is unnecessary for the Court to consider this relief since Counsel on behalf of the Party responsible for maintaining the portacabins on site has given an undertaking on behalf of his client to remove the portacabins forthwith. I have no reason to believe that this undertaking has not been complied with.

In essence therefore the complaint which is made against Kinsealy Farms Limited is that described in paragraph 7 of Mr Joseph Gorman's first Affidafit when he says that on the 15 February 1999 when he visited the premises (apart from the second hand cars which are no longer part of this case and the portacabins) he noticed the unauthorised use of the sheds for the storage of timber, cardboard, polyfilla, some machinery parts and the storage of potatoes.

In his further supplemental Affidavit of the 8 December 1999 Mr Joseph Gorman describes, with photographs, the use to which the premises is now being put. This could be best described as the warehousing of dry goods. This in reality is the use which the Fingal Council now seek to prevent.

The Planning history of the premises is as follows: a planning permission was granted in respect of the site under planning reference 87A/8 862. This permission was granted for the use of the large storage shed on the site to be used as a chill room and food processing unit. Eleven other planning applications have been made in respect of the premises. It is claimed by Mr Robert Knox, Property Manager for Kinsealy Farms that the relevant history of the lands extends to a time prior to the 1 October 1964 when the site was developed by Archers Limited for carrying on a business of the preparation for sale, packaging and distribution of fruit and vegetables. Subsequently Archers Limited sold the lands to Fyffes Group plc who in turn sold them to Kinsealy Farms Limited.

The use that was made of the lands and the buildings thereon is described by Mr Knox in the following terms. He says that both Messrs Archers and Kinsealy Farms Limited brought fruit and vegetables on to the site sourced both from the immediate area of the site in North County Dublin and the surrounding area and imported from abroad. It is said that these goods were transported on to the site in articulated lorries and heavy rigid vehicles. These brought the bulk product to the site and there in the premises the product was repackaged for local deliveries. It is submitted that this use was made of the lands since prior to the coming into operation of the Planning Acts on the 1 October 1964 up until 1994 without interruption. On the 8 September 1994 the site was leased to Laurence Flood and a term of the lease provided that the premises were not to be used for any other purpose "other than as a warehouse for the storage of cardboard boxes, printing papers, labels, flour, starch, gelatine, dehydrated peas and beans and tinned fruit and for no other purpose whatsoever without the written consent of the Landlord." The Lessees vacated this site in November 1997 and Kinsealy Farms recommenced using the property until it was leased to the second named Respondent, Sean Blackbourne and William Greene. The activity of storing imported Japanese cars and the maintenance of portacabins on site is the responsibility of the Lessee of the premises.

An examination of the relevant planning permissions in respect of the lands was carried out by Mr John D O'Keeffe, an Architect and he refers to planning permission reference number 87A/8862 which he says granted permission for use of the large storage shed on the site for use as a chill room and food processing unit. He says apart from that there have been eleven planning applications made in respect of the premises since the 1 October 1964 and he says that the premises have been used as a major warehousing and distribution facility since 1987. In particular he refers to an inspection which he carried out on the 18 December 1998 and he says the visual appearance of the premises and his schedule of accommodation is consistent with the use of the premises and yard for the purpose of storage and packaging and distribution since October 1, 1964.

I believe that there are a variety of issues of a factual nature which remain to be resolved in this matter before an Order granting the reliefs visualised in Section 27 should be considered. I am of the view that an issue relating to whether or not a pre statute established user has been established and if so exactly what this use is. I am satisfied that an issue arises as to when the development or unauthorised use commenced, so as to make relevant the five year limitation period within which Section 27 proceedings can be invoked. I am satisfied that given that the onus of proof rests on the Applicants of establishing facts from which the Court could raise a probable inference that the premises had been used at and immediately prior to the 1 October 1964 otherwise than in the manner now described that they have failed to discharged this onus. I do not propose in these circumstances to make the Order sought.

Accordingly it falls to consider the Order that should be made.

I am satisfied that it was entirely reasonable for the Applicants to institute proceedings under Section 27 for the purpose of preventing the use of the premises as a site for portacabins. In this regard it appears to me that the costs, of bringing the proceedings up to and including the first day of the hearing of this matter should be borne by Mr Sean Blackbourne. Those costs being the costs of the Applicant.

Insofar as the costs of Kinsealy Farms Limited are concerned I am of the view that they have been less than co-operative with the Applicants in ensuring that the unauthorised use (as a site for the portacabins) was abated. I am satisfied that the appropriate way in which to deal with this situation is to make no Order as to costs as between the Applicant and Kinsealy Farms Limited.