Thomas McMahon and Others (plaintiffs) v The Right Honourable The Lord Mayor, Aldermen and Burgesses of Dublin.

Planning - Development - Houses designed for owner, occupiers - Planning permission excluded non residential use - Whether short term letting of houses as holiday homes a residential rise - Test to apply when planning permission silent as to purpose of a development Local Government (Planning and Development) Act 1963 (No 28), section 28(6).

The High Court (before Mr Justice Barron); judgment delivered 19 June 1996.

SECTION 28(6) of the Local Government (Planning and Development) Act 1963, provides, inter alia . . . it no purpose is specified [in respect of a development] the permission shall be construed as including permission to use the structure for the purpose for which it was designed." In applying this provision, a court should look to the relevant documentation, including the planning application, the documents and plans submitted with it and to the permission itself.

Mr Justice Barron so held in determining that the use, for short term lettings as holiday homes, of houses which were designed and intended for owner occupiers was not a permitted use under a planning permission which excluded non residential use but which did not state the nature of the permissible residential use.

Philip O'Sullivan SC and Rory Brady SC for the plaintiff; George Brady SC and Paul Burns BL for the defendants.

MR JUSTICE BARRON said that in April 1984, the defendants had granted permission for the development of certain lands allowing for the erection of 35 houses and 56 maisonettes. Among a number of conditions imposed was condition No 7 which provided that no part of the proposed houses or apartments shall be used for non residential purposes such as offices, surgeries or consulting rooms." The purpose of the condition was stated to be the facilitation of residential amenity.

At that time, tax advantages were available for the use of houses as holiday homes and the relevant legislation deemed the use of homes in this manner to be the business of hotel keeping. A number of homes in the development took advantage of the scheme and since then had been used for short term lettings operated by a management company.

Following a complaint that this use was not a permitted use, the matter was referred to An Bord Pleanala by the defendants in June 1988, and in July 1989, An Bard Pleanala ruled that the use of the homes as holiday homes was development and not exempted development within the meaning of the Planning Acts. Mr Justice Barron said that, arising out of the foregoing facts, the plaintiffs sought a declaration that the use to which the houses were being put was an authorised use and, in addition, appealed against the decision of An Bord Pleanala.

He said that he was satisfied on the evidence that he had heard, that while the holiday homes appeared to be well managed it was inevitable that the lifestyle of persons on holiday would differ from that of more permanent residents and that, to that extent, many of the complaints made by the permanent residents of the development with respect to matters such as noise at night time were justified.

Mr Justice Barron was further satisfied that the use to which the holiday homes were being put, although not necessarily hotel keeping, was a commercial use. In his view the real issue in these proceedings was what was the permitted use of the impugned houses and maisonettes. In this respect be referred to section 28(6) of the Local Government (Planning and Development) Act 1963, which states, inter alia, that if no purpose is ... specified [in respect of a development] the permission shall be construed as including permission to use the structure for the purpose for which it was designed." He said that the proper application of the provision had been considered in Readymix (Eire) Ltd v Dublin County Council and The Minister for Local Government (unreported, Supreme Court, 30 July 1974) where it was held that to determine whether or not a use was indicated, it was necessary to look to the relevant documentation including the planning application, the documents and plans submitted with it and to the permission itself.

Mr Justice Barron said that, in the instant case, the facts were clear. The position was that the homes, the subject matter of the referral to An Bord Pleanala, were being used commercially for short term lettings. Such a use differed from use as a private residential dwelling but the question remained whether or not both of the uses was permitted by the permission granted in April 1984. In his view, a medium sized residential development such as this would, prima facie, have been intended for private residential purposes; in addition, condition No 7 of the permission had been inserted expressly in order to facilitate residential amenity. The fact that condition No 7 referred to impermissible non residential use did not, in the view of Mr Justice Barron, mean that any form of residential use was being permitted. It was clear that the purpose for which the development was designed was an estate essentially for owner occupiers and private residential use.

In the circumstances, Mr Justice, Barron dismissed the appeal against the decision of An Bord Pleanala and refused the relief sought by the plaintiffs.

Solicitors: George D. Fottrell & Sons (Dublin) for the plaintiffs; Aveen Barry, Law Agent, for the defendants.