THE HIGH COURT
Record No. 2000/21/MCA
IN THE MATTER OF 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
AND
IN THE MATTER OF AN APPLICATION BY FINGAL COUNTY COUNCIL 

BETWEEN 
THE COUNTY COUNCIL OF THE COUNTY OF FINGAL
APPLICANT
AND
PATRICK CREAN AND KATHLEEN CREAN
FIRST NAMED RESPONDENTS
AND
SIGNWAYS HOLDINGS LIMITED 
SECOND NAMED RESPONDENTS

Judgment of Mr Justice Aindrias Ó Caoimh delivered on the 19th day of October 2001
	This is an application brought by the Applicant Council for Orders : 
1.	restraining the respondents their servants or agents, licensees and all persons having knowledge of the making of the Order from maintaining an unauthorised development at North Road Finglas in the town land of Coldwinters that is unauthorised advertising hoardings/signs;  
2.	directing the respondents or one or other of them to forthwith remove the unauthorised advertising hoardings/signs erected on the lands of the first named respondent by the second named respondent.  
3.	restraining the respondents their servants or agents, licensees and all persons having knowledge of the making of the Order from carrying out any further unauthorised development on the land of the first named respondents at North Road, Finglas, in the townland of Coldwinters unless and until permission therefore under Part IV of the Local Government (Planning and Development) Act, 1963 as amended is first had and obtained.  
The application is grounded on an affidavit of the Planning Inspector Mr Richard Dunne of Fingal County Council.  He traces the planning history of the site as follows: In or about 1981 Messrs More O’Ferrall erected two hoardings on the first named respondents’ land without planning permission.  These unauthorised hoardings remained in place until November 1997 when he says he inspected the site and found the hoardings removed.   He says that he carried out an inspection of the property on the 3rd of March 1998; he found that two new hoardings had been newly erected on their land.  He says that on examining the structures he found that the concrete in place at the foot of the metal supports was freshly laid.  The metal supports, the framework and the sheet metal were all new.  These newly erected hoardings were again erected without planning permission.  Mr Dunne has referred to photographs taken by him on the 3rd of March 1998.  Mr Dunne said that from investigations carried out it appeared that an agreement was entered into by the first named respondents and the second named respondents whereby the second named respondent would enter into a rental agreement for the use of the sites.  He says that this information was confirmed by faxed letter from the second named respondent on the 6th of May 1998.  Mr Dunne says that on the 20th of July 1998 a letter was written to the first named respondents requesting the removal of the unauthorised advertising structures.  He says that on the same day a similar letter was written to the second named respondent company.  He says that despite these letters no responses were received from either respondent.  He says that an inspection on the 24th of January 2000 revealed that the advertising hoardings remained in place.  He says that these hoardings have been erected without the benefit of planning permission and do not enjoy the benefit of an exemption under the Planning Regulations.  He further says that the erection of the hoardings is an unauthorised development.  
On behalf of the first named respondents an affidavit has been sworn by Kathleen Crean.  She says that her husband purchased lands comprising six acres of agricultural land on the Ashbourne Road in or around 1963.  They had a house built on the lands and partly used it for grazing five cattle which they had.  The triangular piece of land, upon which the advertising hoardings the subject matter of these proceedings have been placed, was originally a wood and was bought separately from the land connected to the house.  The wood was subsequently cut down and the land was used to cut hay each year.  They have continued this over the years.  In or about 1981 a representative of More O’Ferrall Limited, an advertising company, approached the Creans with proposals to place an advertising hoarding on the site for use as an advertising station.  About this time they entered into an agreement with More O’Ferrall Limited for the erection and use of an advertising hoarding in respect of which they obtained an annual fee.  She refers to a subsequent written agreement which is in fact exhibited by Mr Dunne in an affidavit.  
In or about April 1996 Mr Rory Black, Director of Signway Holdings Limited the second named respondent, approached the Creans with a proposal to take over the advertising station and the sign, which had been erected by More O’Ferrall Limited, at the termination of their agreement with More O’Ferrall Limited.  An agreement was entered into between the company and herself dated the 15th of October 1996 which was to take effect on the 1st of December 1997.  She says that following this agreement she wrote to More O’Ferrall Limited advising them of the situation and that the agreement would be terminated on or about the 30th of November 1997.  On or about the 1st of December 1997 they received a cheque from Signway Holdings Limited in respect of the quarterly fee in the sum of £500 pursuant to the agreement.  
Mrs Crean says that the advertising structure was damaged and needed to be repaired.  The company continued to use the existing advertisement structure up until February or March in 1998 when it was rebuilt and replaced by another advertising structure.  At the same time the company erected a second advertisement structure and in this regard she says that the affidavit of Mr Dunne is inaccurate.  Mrs Crean contends, based on the advice from her legal representatives, that, having commenced in or about 1981, the exhibition of advertisements is immune from enforcement insofar as the advertisement structure erected at that date is concerned.  She is advised that the repair/replacement of the said structure amounts to exempted development having regard to the fact that the structure concerned is of the same dimensions and constructed of the same materials as the preceding structure which had been erected in 1981.  She says that for seventeen years between 1981 and 1998 there was never  any complaint from the applicant concerning the advertisement structure which was erected in or about 1981.  She says that until the applicant County Council informed them, neither her husband nor herself were aware that the structure required planning permission.  She accepts that More O’Ferrall Limited ought reasonably to have been aware of the necessity of obtaining planning permission.  She says that her husband is now ninety years of age and because of health difficulties is not in a position to work.  The income obtained from the advertising structures makes a very significant contribution to the ordinary living needs of her husband and herself.  She says that the applicant has acquiesced in relation to the use of the subject lands for the purpose of the exhibition of advertisements on the lands which has taken place since 1981 and that it has been guilty of considerable delay since the issuing of warning letters on the 20th of July 1998 and the date of the institution of these proceedings which delay amounts to almost two years.  In the circumstances she asks for the court’s indulgence to make a retention application in respect of the advertisement structure erected in or about February or March of 1998.  
On behalf of Signways Holdings Limited Mr Rory Black a director of the company has sworn an affidavit.  He says that the involvement of the company is as set out in the affidavit of Mrs Crean.  In 1996 he contacted the Creans with a view to acquiring the advertising station.  He says that at the time there was one advertising sign at the location and he says that Mr Dunne the Planning Inspector is factually incorrect in asserting in paragraph 3 of his affidavit that there were two hoardings at the location.  Mr Black has referred to a licence agreement entered into by the company with the Creans for the exclusive right to use, for advertising purposes, the land 20 ft x 10 ft sign (“the Site”) outside the premises situate known as Creehan Land, Johnstown, Ashbourne, Finglas, Dublin 11.  He says that the licence agreement was for a period of three years from the 1st of December 1997 and was subject to the terms and conditions therein contained.  
Mr Black says that by the beginning of 1998 it was clear that the advertising sign was in need of repair and maintenance.  He says that as a result it was rebuilt with new mouldings.  He contends that the repair/replacement/rebuilding of the structure at that date amounts to exempted development having regard to the fact that the structure concerned is of the same dimensions and constructed of the same materials as the preceding structure which had been erected in 1981.  He says further that the advertising structure used the same location and was not removed before it was rebuilt.  He says that at the same time they erected a second advertisement structure.  He says that the assertion by Mr Dunne in his affidavit that there was no response to the letters dated the 20th of July 1998 is incorrect and he refers to letters addressed to the County Council dated the 21st of July 1998 and the 7th of September 1998.  The correspondence in question has been exhibited and it was asserted in the correspondence that the company did replace old mouldings with new mouldings and also repainted the site.  
On behalf of the applicant, Mr. Patrick Butler, Senior Counsel has submitted that the reference to seeking the court’s indulgence to make a retention application is indicative of the fact that the respondents were aware that the advertisement structure required planning permission; this in particular relates to that constructed in 1998.  With regard to the replacement of a structure in 1998 for that previously built in 1981, counsel submits that a distinction has to be drawn between rebuilding, on one hand, and refurbishing, on the other.  It is submitted that a rebuilding requires permission.
On behalf of the respondents Mr Eamon Galligan Senior Counsel referred to factual areas of dispute between the parties.  In the first place while Mr Dunne in his affidavit says that he inspected the site in November 1997, when he found the hoardings removed, on behalf of the respondents, it is submitted that the items in question were not removed before being rebuilt.  In this regard counsel refers to the letter of the 7th of September 1998 from Signways to Fingal County Council referring to the company having replaced old mouldings with new mouldings and also having repainted the site.   It is submitted in this regard that the 1981 structure remains with the mouldings replaced.  In this regard reliance is placed on paragraph 6 of the affidavit of Mrs Crean where she refers to the advertisement structures being damaged and needing to be repaired.  In her affidavit she says that the third named respondent continued to use the existing advertisement structure up until February or March of 1998 when it was rebuilt and replaced by another advertisement structure.  Further reliance is placed on paragraph 5 of the affidavit of Mr Black where he refers to the sign being in need of repair and maintenance and having been rebuilt with new mouldings.  It is submitted that there is the old structure there with the original vertical beams.  With regard to Mr Dunne’s affidavit, it is submitted that the inaccuracy relates to the ownership in the first place, the fact that there were two hoardings in circumstances where it is conceded that there was originally one hoarding built in 1981 and the question of whether the hoardings were removed.  What is essentially at issue is whether there was a newly erected hoarding in 1998 or simply the repair of the existing hoarding.  Furthermore, with regard to the affidavit of Mr Dunne, the agreement in question appears to have been with a separate entity to that contended for and finally with regard to paragraph 7 it is now accepted that the letters which he said were not received were in fact received.  
On behalf of the respondents it is submitted that there is no evidence before the court of an order having been made by the County Manager authorising the taking of proceedings.  It is submitted that in its discretion this court should refuse the relief sought and decline to receive further evidence.  Counsel refers to the fact that no steps were taken from 1981 until 1998 when initial warning letters were sent.  Proceedings were not commenced for upwards of two years thereafter.  The submissions made on behalf of the respondent have been summarised as follows:-
1.	The works which were carried out in 1998 to the advertising hoarding which had been erected in 1981 fall within the scope of an exemption contained in Section 4(1)(g) of the Local Government (Planning and Development) Act, 1963.
2.	It is submitted that the works amounted to an alteration and/or amounted to a replacement of part of an advertisement structure which does not materially alter the external appearance of the said structure so as to render it inconsistent with the character of the structure itself or of neighbouring structures.
	Mr Galligan has referred me to the decision of the Supreme Court in the case of Ciaran Duff v. O’Connell [1986] IR 73 where it was held that the replacement of part a  structure within a short period of time is within the scope of exemption under Section 4(1)(g).  In that particular case the works involved the replacement of an external balcony and staircase to the rear of number 58 Waterloo Road.  In particular counsel has referred me to a portion of the judgment of the Chief Justice where at page 77 of the report he stated as follows:-
	“On the facts of this case I am satisfied that the erection of the balcony and staircase at the opening of the window are works which materially affect the external appearance of the structure.  It is clear that if the structure had a particular adjunct such as a balcony and stairway, and if for a relatively short period of time that had been removed or become demolished, its replacement with one of substantially the same size and appearance would not materially affect the external appearance of the structure on the basis that immediately when the work commenced no balcony or staircase existed.” 
	He continued:
	“In the present case, however it would appear that a period of at least fifteen years had elapsed since any form of staircase or landing existed at these premises and that when it did exist it was very significantly different in appearance from that which is now being constructed.”
	
	Counsel has further referred me to the judgment of Morris P. in the case of Dublin Corporation v. Arnold Lowe & Signways Holdings Limited (Unreported High Court, 4 February 2000).  This case involved the removal by an advertising company known as David Allen Holdings Limited of an advertisement hoarding which had been erected on the external facade of a building and its replacement approximately three days later by another advertisement hoarding by a different advertising company which had secured a licence for that purpose.  In that particular case the President indicated inter alia at page 9 of his judgment as follows:-
“I believe that there must, in planning terms, be 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 albeit (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 there may have been acquired up to that time. (See Dublin County Council v. Tallaght Block Company Limited [1985] ILRM 512.)

	It is submitted by counsel that neither the structure which was erected in 1981 and subsequently altered, nor the use of the said structure is amenable to enforcement pursuant to Section 27 of the 1976 Act as amended having regard to the time limits provided for under subparagraphs (a)(ii) and (b)(i) of subsection 6 of the said Section.  In this regard reference is made to a statutory limitation period of five years created by Section 27 subsection 6 of the Act of 1992.
	Further submissions were made on behalf of the respondent on the basis of which it is submitted that the applicant is not entitled to the relief sought as follows:-
(a)	The proceedings were brought on foot of evidence obtained unlawfully by reason of the unlawful entry onto the land of the first and second named respondent by the applicant itself in breach of the provisions of Section 83 of the 1963 Act.
(b)	The applicant has been guilty of unreasonable delay in bringing these proceedings having regard in particular to the existence of an advertisement structure on the said lands since 1981 and having regard to the failure of the applicant to issue proceedings under Section 27 of the 1976 Act as amended within a period of two years from the date of serving the initial warning letters upon the respondent.
(c)	The applicant acted unreasonably in failing to respond to the replying correspondence sent to the applicant by the respondents.
On behalf of the applicant County Council Mr Patrick Butler submits as follows:-
1.	With regard to the facts, that the evidence contained in the affidavit of Mr Dunne is to the effect that when he examined the property on the 3rd of March 1998 he found two newly erected hoardings on the land of Mr and Mrs Crean and further that on examining the structure he found that the concrete in place at the foot of the metal supports was freshly laid.  The metal supports, the framework and the sheet metal were all new.  Further counsel refers and relies upon the averment at paragraph 6 of the affidavit of Kathleen Crean to the effect that the existing advertisement structure was rebuilt and replaced by another advertisement structure.  Further reliance is placed upon the fact that Mr Black concedes that in 1998 the advertising sign was in need of repair and maintenance and that it was rebuilt with new mouldings.  He uses the term repair/replacement/rebuilding of the structure.  Mr Butler further refers to the photographs produced in evidence before me and says that no challenge has been taken to these photographs.  With regard to the provision of Section 4(1)(g) the applicant stands on the evidence of a new structure.  However, it is conceded that if the Court considers that there was a refurbishment and that this was within Section 4(1)(g), that on public policy grounds the applicant is entitled to avail of the provision of the Act in respect of the unauthorised structure erected in 1998.  
2.	Mr Butler has further referred this Court to the decision of Carroll J. in the case of Christina Lambert v. Patrick Lewis and Joseph Kiely (Unreported, High Court 24 November 1982).  In that particular case the High Court held that the onus of establishing exemption falls on the respondent in circumstances where there was evidence of a change of use.  It is submitted by Mr Butler that no matter how long the unauthorised structure was on the respondent’s lands that it remains an unauthorised structure.  Mr Butler concedes that the onus of proof is on the applicant Council but where an exemption is pleaded the onus rests on the person claiming same.  
3.	Counsel has further referred this Court to the decision of the Supreme Court given by Finlay C.J. in the case of Philip Dillon v. Irish Cement Limited referred to in Irish Planning Law and Practice where the Chief Justice is quoted as saying that “insofar as a developer seeks to rely upon exemption regulations he must clearly and unambiguously come within them”.  It is further indicated in the same judgment that the regulations should be strictly construed by a court.  In similar vein it is submitted by Mr Butler that the same approach applies to an exemption provided for under Section 4(1)(g) of the Act.
Mr Butler concedes that if the pre-existing uprights had been used in the new structure that he would be in some difficulty.  However, he relies four square on the averment contained in Mr Dunne’s affidavit that all the items in question in the new structure were new.  With regard to the exemptions contained in Section 4(1)(g) of the Act of 1963, it is submitted by Mr Butler that the intended exemption therein contained is not allowed by reference to Article 9(2)(b) of the Local Government (Planning and Development) Regulations of 1994.  In the instant case he refers to the fact that such exemption as is contained in paragraph 9 is subject to the provisions of paragraph 10 and in particular referable in the instant case to paragraph 10(viii) which indicates that the exception shall not apply where the development consists of or comprises extension, alteration, repair or renewal of an unauthorised structure or a structure, use of which is unauthorised use.  Mr Butler submits that by reference to the case of Lambert v. Lewis previously referred to that exemption cannot pertain to an unauthorised use and he submits that such is the effect of the submission made by Mr Galligan.  
With regard to the further points raised, in particular the absence of the manager’s order, it is submitted by Mr Butler that this matter was not raised prior to the hearing before me in court.  Mr Butler asks this court to receive the manager’s order if there is any particular difficulty in this regard.  He submits, however, by reference to the decision of Morris P. in Kildare County Council v. Goode (Unreported, High Court 13 June 1997) that this point should have been raised previously.  Essentially Mr Butler relies on the provisions of Regulation 11(1)(viii) contained in the Local Government (Planning and Development) Regulations, 1977 where it is indicated, in regard to restrictions or exemption, that development to which Article 10 relates should not be exempted development for the purposes of the Acts (a) if the carrying out of such development would - (viii) consist of or comprise the extension, alteration, repair or renewal of an unauthorised structure or structure the use of which is an unauthorised use.  Mr Butler further relies upon the fact that the development in the instant case is not exempted development for the purposes of Section 4(1)(g) of the Act of 1963.  He submits essentially that section 4(1)(g) does not apply to an unauthorised use of an authorised structure.  He submits that section 4(1)(g) cannot be construed by reference to subsequent regulations.  The regulations cannot amend the statutory provision in point. He further submits that no words should be implied into the Act if the Act is clear on the face.

Conclusions
I am satisfied on the evidence before me that at least a portion of the structure which was erected in 1998 is not in anyway in replacement of or repair of a pre-existing structure and this cannot be authorised.  I am further satisfied that insofar as the structures the subject matter of these proceedings fall to be construed as unauthorised structures within the definition of same appearing in Section 3 to the Act of 1963 that the exemption contended for under Section 4(1)(g) does not apply.  I am further satisfied that the onus rests upon the respondents to satisfy this Court that the exemption contended for is one to which they are entitled.  On the basis of the evidence before me I am satisfied that the work carried out by the second named respondent company was work to replace the pre-existing hoarding with a new structure and that this is borne out by the photographs.  I am satisfied that insofar as any conflict is concerned that the onus would rest upon the respondent to satisfy this Court that the work carried out was an exempted development.  I am of the view that the respondents have failed to satisfy this Court that the complained of development constitutes an exempted development under the terms of the Act or Regulations made thereunder.  In all of the circumstances I am satisfied that the applicant is entitled to the relief set forth at paragraphs 1 and 2 of the Notice of Motion before this Court.