Planning Injunctions

What is a planning injunction?

Section 160 of the Planning and Development Act, 2000 provides a procedure whereby an application may be made to either the High Court or the Circuit Court for orders in respect of an unauthorised development. The wording of section 160(1) is very wide and provides for the making of an order requiring “any person” to do or not to do, or to cease to do, as the case may be, anything that the court considers necessary

It is not the function of the Court to review, alter or set aside a planning decision. The Court will consider whether there is a breach of law.

Procedure

A document called a Notice of Motion is prepared and filed in Court. This seeks from the Court a number of Orders or Reliefs. This is supported by a document called a ‘Grounding Affidavit’ which is sworn by the client. This sets out the reasons why an injunction is being sought from the Court.

Whilst the procedure allows for oral evidence it can be assumed that evidence will be on Affidavit only. Oral evidence is usually only required where complex questions of ‘fact’ arise.

The Respondent will be required to file a Replying Affidavit. They must disclose in this Affidavit any defence to the application. The general rule is that they will not be entitled to subsequently rely on a defence not placed on Affidavit.

Interlocutory Relief

Commonly in injunctions an interlocutory relief (immediate relief pending the hearing of an action is sought). If such a relief is sought from the Court it will usually be necessary to give an undertaking as to damages. This is an undertaking required as if you cause something to be done or for example works to be ceased and subsequently when the matter is fully heard it is found to be unwarranted they can seek their losses. It is not always necessary to seek interlocutory relief.

Hearing

The Affidavits are opened to the Court and there are legal arguments presented. The Judge then makes their decision.

Prior to issuing proceedings for an injunction full instructions have to be taken and careful consideration given to determine whether this is the appropriate course of action.

Our offices have been involved in a number of Planning Injunctions in respect of a number of developments. For further information or should you have any queries please do not hesitate to contact our offices at (01)8728233 or by e-mail at bg@bowlergeraghty.ie