Case-study
1. A development is carried out on a site located within a residential area. This consists of a dwelling house and a barn. The latter is unused for some time.
2.
Subsequently, the owner of the property begins to use the vacant barn
for repairing cars and agricultural machinery. Under the prevailing
planning laws, this is considered a change in use for which the planning
authority must grant permission. The prevailing laws further provide
that a use of this kind is not permitted in a residential area. The
owner does not apply for permission in any event.
3. The neighbour occupying the adjoining residential property makes a complaint to the competent public authority about noise emissions and requests an order prohibiting and terminating the illegal use of the barn. The public authority investigates. In response, the barn owner promises to search for a new location for the workshop. As a result, the public authority declines to intervene.
Questions :
(a)
What are the legal conditions for making the order which the neighbour
seeks ? Is formal illegality (viz the lack of permission) sufficient ?
Or must substantive unlawful use also be demonstrated ?
(b)
If the conditions necessary for making an order of prohibition [or its
equivalent] are satisfied, is the relevant public authority obliged to
make such an order ? Or is the making of such an order discretionary,
within the authority’s margin of appreciation ?
(c) If the making of an order of prohibition [or its equivalent] is discretionary and not mandatory, what are the legal rules and principles governing the exercise of the authority’s discretion ?
4. Following 6 months of inaction on the part of the public authority, the neighbour decides to initiate legal proceedings.
Questions :
(a) Is a legal remedy available for the failure of the public authority to act ?
(b)
If “yes”, please describe briefly the nature of the relevant legal
proceedings/litigation. In particular : which Court is competent to
exercise jurisdiction ? Who are the parties to the proceedings ? What
are the conditions for bringing an action of this kind ? Which legal
rules and principles govern the Court’s determination of the merits of
the action ? If the action is successful, what remedy is the Court
likely to grant ? In particular, will the remedy consist of a mandatory
order [injunction] or a mere finding/declaration of illegality ?
(c) If a legal remedy is not available for the failure of the public authority to act, does the neighbour have any other recourse for pursuing his complaint ?
5. Having initiated proceedings, the neighbour wishes to obtain interim relief.
Questions :
(a) Is the Court competent to grant interim relief ?
(b) If “yes”, which court ?
(c) If “yes”, what are the main features of the procedure ?
6. The neighbour successfully challenges the failure of the public authority to act, obtaining from the Court an appropriate remedy. Notwithstanding, the unlawful use of the barn continues.
Questions :
(a) Can the Plaintiff apply for enforcement/execution of the judgment and order of the Court ?
(b) If “yes”, what are the main features of the procedure ?
(c) If “no”, is any other recourse or remedy available to the Plaintiff ?
Notes :
(i) Please answer the above questions on the basis of the domestic legislation prevailing in your country.
(ii) If the legal system of your country does not accommodate any of the above questions, please explain why.
(iii) If considered desirable, specific references to and the text of relevant domestic legislation may be included in footnotes.