Adminstrative Enforcement
Planning and Development Act
PART VIII
Enforcement
Annotations
Modifications (not altering text):
C125
Application of Part extended with modifications (3.07.2017) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 10(5)(b), S.I. No. 270 of 2017.
Supplemental provisions to section 9
10. …
(5) …
(b) Part VIII of the Act of 2000 shall apply to any case where a strategic housing development is carried out otherwise than in compliance with a permission under section 9 or any condition to which the permission is subject as it applies to any unauthorised development with the modification that a reference in that Part to a permission shall be construed as a reference to a permission granted under section 9.
Offence.
151.—Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.
Warning letter.
152.—(1) Where—
(a) a representation in writing is made to a planning authority by any person that unauthorised development may have been, is being or may be carried out, and it appears to the planning authority that the representation is not vexatious, frivolous or without substance or foundation, or
(b) it otherwise appears to the authority that unauthorised development may have been, is being or may be carried out,
the authority shall issue a warning letter to the owner, the occupier or any other person carrying out the development and may give a copy, at that time or thereafter, to any other person who in its opinion may be concerned with the matters to which the letter relates.
(2) Notwithstanding subsection (1), where the development in question is of a trivial or minor nature the planning authority may decide not to issue a warning letter.
(3) A planning authority shall issue the warning letter under subsection (1) as soon as may be but not later than 6 weeks after receipt of the representation under subsection (1).
(4) A warning letter shall refer to the land concerned and shall—
(a) state that it has come to the attention of the authority that unauthorised development may have been, is being or may be carried out,
(b) state that any person served with the letter may make submissions or observations in writing to the planning authority regarding the purported offence not later than four weeks from the date of the service of the warning letter,
(c) state that when a planning authority considers that unauthorised development has been, is being or may be carried out, an enforcement notice may be issued,
(d) state that officials of the planning authority may at all reasonable times enter on the land for the purposes of inspection,
(e) explain the possible penalties involved where there is an offence, and
(f) explain that any costs reasonably incurred by the planning authority in relation to enforcement proceedings may be recovered from a person on whom an enforcement notice is served or where court action is taken.
Decision on enforcement.
153.—(1) As soon as may be after the issue of a warning letter under section 152, the planning authority shall make such investigation as it considers necessary to enable it to make a decision on whether to issue an enforcement notice F656[or make an application under section 160].
(2) (a) It shall be the duty of the planning authority to ensure that decisions on whether to issue an enforcement notice are taken as expeditiously as possible.
(b) Without prejudice to the generality of paragraph (a), it shall be the objective of the planning authority to ensure that the decision on whether to issue an enforcement notice shall be taken within 12 weeks of the issue of a warning letter.
(3) A planning authority, in deciding whether to issue an enforcement notice shall consider any representations made to it under section 152(1)(a) or submissions or observations made under section 152(4)(b) and any other material considerations.
(4) The decision made by the planning authority under subsection (1) including the reasons for it shall be entered by the authority in the register.
(5) Failure to issue a warning letter under section 152 shall not prejudice the issue of an enforcement notice or any other proceedings that may be initiated by the planning authority.
F656[(6) F657[…]
F658[(7) Where a planning authority establishes, following an investigation under this section that unauthorised development (other than development that is of a trivial or minor nature) has been or is being carried out and the person who has carried out or is carrying out the development has not proceeded to remedy the position, then the authority shall issue an enforcement notice under section 154 or make an application pursuant to section 160, or shall both issue such a notice and make such an application, unless there are compelling reasons for not doing so.
(8) Nothing in this section shall operate to prevent or shall be construed as preventing a planning authority, in relation to an unauthorised development which has been or is being carried out, from both issuing an enforcement notice under section 154 and making an application pursuant to section 160. ]]
Annotations
Amendments:
F656
Inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 45(a) and (b), S.I. No. 477 of 2010.
F657
Repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 27(a), S.I. No. 474 of 2011.
F658
Substituted and inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 27(b), S.I. No. 474 of 2011.
Editorial Notes:
E294
Previous affecting provision: subss. (6) and (7) inserted (5.10.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 45(b), S.I. No. 477 of 2010; deleted and substituted as per F-note above.
Enforcement notice.
154.—(1) (a) Where a decision to enforce is made under section 153 or where urgent action is required under section 155, the planning authority shall, as soon as may be, serve an enforcement notice under this section.
(b) Where an enforcement notice is served under this section, the planning authority shall notify any person who made representations under section 152(1)(a) and any other person, who in the opinion of the planning authority may be concerned with the matter to which the notice concerned relates, not being a person on whom the enforcement notice was served, of the service of the enforcement notice.
(2) Where the planning authority decides not to issue an enforcement notice, it shall notify any person to whom the warning letter was copied under section 152 and any other person who made a representation under that section of the decision in writing within 2 weeks of the making of that decision.
(3) (a) An enforcement notice under subsection (1) shall be served on the person carrying out the development and, where the planning authority considers it necessary, the owner or the occupier of the land or any other person who, in the opinion of the planning authority, may be concerned with the matters to which the notice relates.
(b) If, subsequent to the service of the enforcement notice, the planning authority becomes aware that any other person may be carrying out development or is an owner or occupier of the land or may be affected by the notice, the notice may be served on that person and the period specified for compliance with the notice shall be extended as necessary to a maximum of 6 months, and the other person or persons on whom the notice had previously been served under paragraph (a) shall be informed in writing.
(4) An enforcement notice shall take effect on the date of the service thereof.
(5) An enforcement notice shall refer to the land concerned and shall—
(a) (i) in respect of a development where no permission has been granted, require that development to cease or not to commence, as appropriate, F659[…]
(ii) in respect of a development for which permission has been granted under Part III F660[or section 293], require that the development will proceed in conformity with the permission, or with any condition to which the permission is subject, F661[or]
F661[(iii) in respect of a development in respect of which a certificate has been issued by the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997 or by the Custom House Docks Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, require that the development will proceed in conformity with the planning scheme made under those Acts in respect of which the development was certified to be consistent and any conditions to which the certificate is subject, ]
(b) require such steps as may be specified in the notice to be taken within a specified period, including, where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, in so far as is practicable, the restoration of the land to its condition prior to the commencement of the development,
(c) warn the person or persons served with the enforcement notice that, if within the period specified under paragraph (b) or within such extended period (not being more than 6 months) as the planning authority may allow, the steps specified in the notice to be taken are not taken, the planning authority may enter on the land and take such steps, including the removal, demolition or alteration of any structure, and may recover any expenses reasonably incurred by them in that behalf,
(d) require the person or persons served with the notice to refund to the planning authority the costs and expenses reasonably incurred by the authority in relation to the investigation, detection and issue of the enforcement notice concerned and any warning letter under section 152, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers, and the planning authority may recover these costs and expenses incurred by it in that behalf, and
(e) warn the person or persons served with the enforcement notice that if within the period specified by the notice or such extended period, not being more than 6 months, as the planning authority may allow, the steps specified in the notice to be taken are not taken, the person or persons may be guilty of an offence.
(6) If, within the period specified under subsection (5)(b) or within such extended period, not being more than 6 months, as the planning authority may allow, the steps specified in the notice to be taken are not taken, the planning authority may enter on the land and take such steps, including the demolition of any structure and the restoration of land, and may recover any expenses reasonably incurred by it in that behalf.
(7) Any expenses reasonably incurred by a planning authority under paragraphs (c) and (d) of subsection (5) and subsection (6) may be recovered—
(a) as a simple contract debt in any court of competent jurisdiction from the person or persons on whom the notice was served, or
(b) secured by—
(i) charging the land under the Registration of Title Act, 1964, or
(ii) where the person on whom the enforcement notice was served is the owner of the land, an instrument vesting the ownership of the land in the authority subject to a right of redemption by the owner within five years.
(8) Any person on whom an enforcement notice is served under subsection (1) who fails to comply with the requirements of the notice (other than a notice which has been withdrawn under subsection (11)(a) or which has ceased to have effect) within the specified period or within such extended period as the planning authority may allow, not exceeding 6 months, shall be guilty of an offence.
(9) Any person who knowingly assists or permits the failure by another to comply with an enforcement notice shall be guilty of an offence.
(10) Particulars of an enforcement notice shall be entered in the register.
(11) (a) A planning authority may for stated reasons by notice in writing to any person served with the notice, and, where appropriate, any person who made a representation under section 152(1)(a), withdraw an enforcement notice served under this section.
(b) Where an enforcement notice is withdrawn pursuant to this subsection by a planning authority or where a planning authority finds that an enforcement notice has been complied with, the fact that the enforcement notice was withdrawn and the reason for the withdrawal or that it was complied with, as appropriate, shall be recorded by the authority in the register.
(12) An enforcement notice shall cease to have effect 10 years from the date of service of the notice under subsection (1) or, if a notice is served under subsection (3)(b), 10 years from the date of service of the notice under that subsection.
(13) A person shall not question the validity of an enforcement notice by reason only that the person or any other person, not being the person on whom the enforcement notice was served, was not notified of the service of the enforcement notice.
(14) A report of a local authority under section 50 of the Local Government Act, 1991, shall contain details of the number of enforcement notices issued under this section, warning notices issued under section 153, prosecutions brought under section 157 and injunctions sought under section 160 by that authority.
Annotations
Amendments:
F659
Repealed (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 31(a), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F660
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 22, S.I. No. 488 of 2022.
F661
Inserted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 31(b) and (c), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
Issue of enforcement notice in cases of urgency.
155.—(1) Where, in the opinion of the planning authority, due to the nature of an unauthorised development and to any other material considerations, it is necessary to take urgent action with regard to the unauthorised development, notwithstanding sections 152 and 153, it may serve an enforcement notice under section 154.
(2) Where an enforcement notice is issued in accordance with subsection (1), any person who made a representation under section 152(1)(a) shall be notified in writing within two weeks of the service of the notice.
Penalties for offences.
156.—(1) A person who is guilty of an offence under F662[section 32G, 58(4)], 63, F663[135(7),] 151, 154, 205, 230(3), F664[239, 247 or 287C] shall be liable—
(a) on conviction on indictment, to a fine not exceeding £10,000,000, or to imprisonment for a term not exceeding 2 years, or to both, or
(b) on summary conviction, to a fine not exceeding F665[€5,000], or to imprisonment for a term not exceeding 6 months, or to both.
(2) Where a person is convicted of an offence referred to in subsection (1) and there is a continuation by him or her of the offence after his or her conviction, he or she shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—
(a) on conviction on indictment, to a fine not exceeding £10,000 for each day on which the offence is so continued, or to imprisonment for a term not exceeding 2 years, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 2 years, or
(b) on summary conviction, to a fine not exceeding F665[€1,500] for each day on which the offence is so continued or to imprisonment for a term not exceeding 6 months, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 6 months.
(3) Where a person is convicted of an offence referred to in subsection (1) involving the construction of an unauthorised structure, the minimum fine shall be—
(a) on conviction on indictment, the estimated cost of the construction of the structure or £10,000, whichever is less, or
(b) on summary conviction, the estimated cost of the construction of the structure or F665[€2,500], whichever is less,
except where the person convicted can show to the court’s satisfaction that he or she does not have the necessary financial means to pay the minimum fine.
(4) Any person who is guilty of an offence under this Act other than an offence referred to in subsection (1) (or a further offence under subsection (2)) shall be liable, on summary conviction, to a fine not exceeding F665[€5,000] or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both.
(5) If the contravention in respect of which a person is convicted under section 46(11), 208(2)(b) or 252(9) is continued after the conviction, that person shall be guilty of a further offence on every day on which the contravention continues and for each such offence he or she shall be liable on summary conviction to a fine not exceeding F666[€1,500].
(6) In a prosecution for an offence under sections 151 and 154 it shall not be necessary for the prosecution to show, and it shall be assumed until the contrary is shown by the defendant, that the subject matter of the prosecution was development and was not exempted development.
(7) Where an enforcement notice has been served under section 154, it shall be a defence to a prosecution under section 151 or 154 if the defendant proves that he or she took all reasonable steps to secure compliance with the enforcement notice.
F666[(8) Where a person is convicted of an offence under section 154, the Court in addition to imposing a penalty referred to in subsection (1) or (2) as the case may be, may order the person so convicted to take all or any steps specified in the relevant enforcement notice within such period as the Court considers appropriate.]
F663[(9) Where a person is convicted, on indictment, of an offence under section 135(7), the court may, where it finds that the act or omission constituting the offence delayed the conduct of the oral hearing concerned referred to in section 135(7), order—
(a) the person convicted, or
(b) any body with whose consent, connivance or approval the court is satisfied the offence was committed,
to pay to the Board or to any party or person who appeared at the oral hearing such an amount as is equal to the amount of any additional costs that it is shown to the court to have been incurred by the Board, party or person in appearing or being represented at the oral hearing by reason of the commission of the offence.]
Annotations
Amendments:
F662
Substituted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 13, S.I. No. 715 of 2021.
F663
Inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 31, S.I. No. 525 of 2006.
F664
Substituted (1.10.2022) by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 72, S.I. No. 487 of 2022.
F665
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 46(a)-(d), S.I. No. 405 of 2010.
F666
Substituted (19.08.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 46(e)-(f), S.I. No. 405 of 2010.
F667
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 25, not commenced as of date of revision.
F668
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 25, not commenced as of date of revision.
Modifications (not altering text):
C126
Prospective affecting provision: subs. (1) amended by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 25, not commenced as of date of revision.
156.—(1) A person who is guilty of an offence under F667[section 32G, 32L, 37CE, 58(4)], 63, F663[135(7),] 151, 154, F668[182H,] 205, 230(3), F664[239, 247 or 287C] shall be liable—
Editorial Notes:
E295
Previous affecting provision: subs. (1) amended (9.10.2001) by Local Government Act 2001 (37/2001), s. 247(e)(ii), S.I. No. 458 of 2001; substituted (1.10.2022) as per F-note above.
E296
Previous affecting provision: subs. (1) amended (9.10.2001) by Local Government Act 2001 (37/2001), s. 247(e)(i), S.I. No. 458 of 2001; substituted (17.12.2021) as per F-note above.
Prosecution of offences.
157.—(1) Subject to section 149, summary proceedings for an offence under this Act may be brought and prosecuted by a planning authority whether or not the offence is committed in the authority’s functional area.
F669[(1A) Summary proceedings for an offence under this Part may be brought and prosecuted by the Maritime Area Regulatory Authority whether or not the offence is committed in the maritime area.]
(2) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, and subject to subsection (3) of this section, summary proceedings may be commenced—
(a) at any time within 6 months from the date on which the offence was committed, or
(b) at any time within 6 months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify proceedings comes to that person’s knowledge,
whichever is the later.
(3) For the purposes of this section, a certificate signed by or on behalf of the person initiating the proceedings as to the date or dates on which evidence described in subsection (2)(b) came to his or her knowledge shall be evidence of the date or dates and in any legal proceedings a document purporting to be a certificate under this section and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.
(4) (a) No warning letter or enforcement notice shall issue and no proceedings for an offence under this Part shall commence—
(i) in respect of a development where no permission has been granted, after seven years from the date of the commencement of the F670[development,]
(ii) in respect of a development for which permission has been granted under Part III F669[or section 293], after seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period within the meaning of section 40 or, as the case may be, of the period as extended under F670[section 42,]
F671[(iii) in respect of a development in respect of which a certificate has been issued by the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997 or by the Custom House Docks Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, after seven years beginning on the date the certificate ceases to have effect in accordance with Part 4 of the Dublin Docklands Development Authority (Dissolution) Act 2015.]
F672[(aa) Notwithstanding paragraph (a) a warning letter or enforcement notice may issue at any time or proceedings for an offence under this Part may commence at any time in respect of unauthorised quarry development or unauthorised peat extraction development in the following circumstances:
(i) where no permission for the development has been granted under Part III and the development commenced not more than 7 years prior to the date on which this paragraph comes into operation;
(ii) where permission for the development has been granted under Part III and, as respects the permission—
(I) the appropriate period (within the meaning of section 40), or
(II) the appropriate period as extended under section 42 or 42A,
expired not more than 7 years prior to the date on which this paragraph comes into operation.
(ab) Notwithstanding paragraph (a) or (aa) a warning letter or enforcement notice may issue at any time to require any unauthorised quarry development or unauthorised peat extraction development to cease and proceedings for an offence under section 154 may issue at any time in relation to an enforcement notice so issued.]
(b) Notwithstanding paragraph (a), proceedings may be commenced at any time in respect of any condition concerning the use of land to which the permission is subject.
(c) It shall be presumed until the contrary is proved that proceedings were commenced within the appropriate period.
(5) Proceedings for other offences under this Act shall not be initiated later than 7 years from the date on which the offence concerned was alleged to have been committed.
Annotations
Amendments:
F669
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 23, S.I. No. 488 of 2022.
F670
Substituted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 32(a), (b), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F671
Inserted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 32(c), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F672
Substituted (15.11.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 28, S.I. No. 583 of 2011.
Editorial Notes:
E297
Previous affecting provision: section amended by Planning and Development (Amendment) Act 2010 (30/2010), s. 47, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
Offences by bodies corporate.
158.—(1) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of a person being a director, manager, secretary or other officer of the body or a person who was purporting to act in any such capacity, that person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.
Payment of fines to planning authorities.
159.—Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under this Act, it shall provide by order for the payment of the amount of the fine to the planning authority and the payment may be enforced by the authority as if it were due to it on foot of a decree or order made by the court in civil proceedings.
Cases
Dublin Corporation v. O’Callaghan
[2001] IEHC 22 (13th February, 2001)
THE HIGH COURT
No. 1999 2386 SS
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
AND IN THE MATTER OF PROCEEDINGS IN THE DISTRICT COURT
BETWEEN:-
THE RIGHT HONOURABLE THE LORD MAYOR,
ALDERMAN AND BURGESSES OF DUBLIN
COMPLAINANT
AND
KEVIN O’CALLAGHAN
DEFENDANT
JUDGMENT of Mr. Justice Herbert delivered the 13th day of February, 2001
1. This is a Consultative Case Stated by Michael O’Leary, a Judge of the District Court, pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961, seeking the opinion of the High Court on a question of Law which has arisen in the above entitled proceedings.
Section 31(1)(a) of the Local Government (Planning and Development) Act, 1963 provides that:-
“Where any development of land, being neither exempted development nor development commenced before the appointed day, has been carried out after the appointed day without the grant of permission required in that behalf under this Part of this Act, ………. the Planning Authority may if they decide that it is expedient to do so, and shall, if they are directed by the Minister so to do serve on the owner, and on the occupier of the land a Notice under this Section.”
2. In this case the relevant Planning Authority, having regard to the provisions of Section 2(2) of the Local Government (Planning and Development) Act, 1963, is the Corporation of the City of Dublin, bearing by virtue of Section 12 of the Municipal Corporations (Ireland) Act, 1840, the name of the Complainant in these proceedings. The Defendant is alleged to have constructed, without the necessary grant of planning permission, a balustrade surrounding the flat roof of a single storey rear return at the dwelling house, 108, The Stiles Road, Clontarf, Dublin, 3, together with a steel staircase giving access to the flat roof from the garden of the said premises.
3. A Notice pursuant to Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, entitled “Enforcement Notice, (unauthorised development),” and dated 26th June, 1998 was served on the Defendant.
4. This Notice was signed by Mr. Christopher Geoghegan, to whom by an Order of the Dublin City Manager and Town Clerk, dated 22nd June, 1998, the powers, functions and duties of the Dublin City Manager and Town Clerk in relation to the provisions of the Local Government (Planning and Development) Act, 1963, in the County Borough of Dublin as regards the control of development were delegated, (subject to certain specified exceptions which it is admitted on all sides have no relevance to these proceedings).
5. It was in my judgment correctly conceded by both parties at the hearing before me that the taking of a decision to serve, and the service of such an Enforcement Notice was an Executive Function of the Complainant to be exercised and performed by the Dublin City Manager and Town Clerk who had in turn lawfully delegated the exercise of this function to Mr. Geoghegan by the Order to which I have referred made pursuant to the provisions of Section 17(1) of the City and County Management (Amendment) Act, 1955 as amended by Section 52 of the Local Government, Act, 1994.
6. The Enforcement Notice, inter alia , states as follows:-
“………..the Planning Authority for the area comprising the County of the Borough of Dublin considering the proper planning and development of the said area (including the preservations and improvement of the amenities thereof) regard being had to the provisions which have been included in the Development Plan, in exercise of the power conferred on it by Section 31 of the Local Government (Planning and Development) Act, 1963 and every other power in that behalf it enabling, has decided that it is expedient to serve this Enforcement Notice on the hereinafter described owner(s) and occupier(s) of the premises at 108 The Stiles Road, Clontarf, Dublin 3.”
7. The net issue for determination by this Court is whether the decision to serve an Enforcement Notice must be in the form of an Order of the City Manager and Town Clerk or his duly Delegated Officer, or may be taken informally by such Manager and Town Clerk or Delegated Officer.
Section 60(1) of the Local Government (Dublin) Act, 1930 as amended by Section 20(1) of the City and County Management (Amendment) Act, 1955, provides that:-
“Every act or thing done or decision taken by the Manager which, if done or taken by the council of a county or other borough or urban district, would be required by law to be done or taken by resolution of such council shall be done or taken by the Manager by Order in writing signed by him and containing a statement of the date of the day on which it was so signed.”
Section 17(2)(c) of the City and County Management (Amendment) Act, 1955 as amended and substituted by Section 52 (B) on the Local Government Act, 1994, provides that:-
“A provision made by or under this or any other Act which vests functions in the Manager or regulates the manner in which any function is to be performed shall, if and in so far as it is applicable to the designated function, have effect, for the purpose of the performance of that function by the officer, with the substitution of the officer for the Manager.”
8. It was submitted by Counsel for the Defendant and accepted by Counsel for the Complainant that the need for Mr. Geoghegan to comply with the provisions of Section 60(1) of the Local Government (Dublin) Act, 1930, was preserved by Section 8(2) of the Local Government Act, 1991 which statute otherwise brought about a significant relaxation in the doctrine of Ultra Vires as expounded in the decision in Ashbury Railway Carriage and Iron Company-v-Riche , (1875) L.R., 7. H. of L., 663.
9. Counsel for the Complainant contended that the decision to serve an Enforcement Notice, if it had been taken by the City Council exercising on its behalf the powers of the Corporation of the City of Dublin, would not be required by Law to be taken by a resolution of that Council. Accordingly, Counsel argued, no Order in writing of the duly delegated Officer, Mr. Geoghegan, signed by him and dated, was necessary in order to validate his decision to serve the Enforcement Notice. Counsel for the Complainant submitted that as the decision of Mr. Geoghegan to serve the Enforcement Notice was expressly recited in the Notice itself, it therefore constitutes a written record of that decision signed by Mr. Geoghegan and is therefore a sufficient compliance with the provisions of Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, without the necessity for any prior record of that decision.
10. Counsel for the Defendant argued that such a decision, if taken by the City Council exercising by virtue of Section 30(9) of the Local Government (Dublin) Act, 1930, the powers, functions and duties of the Corporation of the City of Dublin, was an expression of the will of a corporation aggregate, non trading, and in the absence of some express statutory authority must at common law be taken by a resolution of the City Council. In such circumstances, Counsel submitted, a prior Order in writing of Mr. Geoghegan signed by him and dated, setting out his decision to serve an Enforcement Notice was necessary before such a Notice could lawfully be served.
In my Judgment, Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, having regard to the clear and unambiguous words used, envisages two separate and distinct steps being taken by a Planning Authority in relation to an Enforcement Notice: the making of a decision that it is expedient to serve such a Notice followed then by the preparation and service of that notice.
11. In determining whether or not it is expedient to serve such a Notice, the Planning Authority is not at large, but is restricted by the provisions of Section 24 and Section 31(2) of the Local Government (Planning and Development) Act, 1976 and Section 7 of the Local Government (Planning and Development) Act, 1982, to considering the proper planning and development of the area of the Planning Authority including the preservation and improvement of the amenities of the area; the provisions of the Development Plan; any Special Amenity Area Orders relating to the area; any relevant Ministerial Directives; the terms of the planning permission (if any) and the probable effect which the decision might have on any place which is not within or is outside the area of the Planning Authority.
12. In my Judgment the Oireachtas in enacting Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, must clearly have intended that the making of a decision by a Planning Authority that it was expedient to serve an Enforcement Notice must be attended by some formality, by some recording of the fact that a decision to serve such a Notice had been taken and of the basis upon which it had been determined that it was expedient so to do. In the absence of such a record it would be impossible, for example, to ensure that the Planning Authority did not have regard to matters other than those authorised. In the absence of such a record the Courts would find it difficult if not entirely impossible to review a decision of a Planning Authority to serve an Enforcement Notice as the Planning Authority is not required to set out such particulars on the face of the Enforcement Notice itself. (See O’Connor-v-Kerry County Council , (1988), I.L.R.M., 660). It is equally clear, in my judgment that this formal record must have come in to existence prior to the Enforcement Notice being signed or served on the relevant owner and occupier. The Enforcement Notice cannot itself constitute this record which must both ante date it and be entirely separate from it.
13. Section 1 of the Municipal Corporations (Ireland) Act, 1840, repealed all laws, statutes, usages and so much of all royal and other charters grants and letters patent, rules orders and directions relating to the Borough of Dublin as were inconsistent with the said Act. Section 12 of the same Act provided that the boroughs named in the Schedule (A), to the Act, which included Dublin, should continue to be towns corporate. By Section 21(1) of the Local Government (Ireland) Act, 1898 the Borough of Dublin became an administrative county in itself, to be called a County Borough. Section 21(2), of that Act provided that the Mayor Aldermen and Burgesses of each County Borough should with certain exceptions, (which are not relevant to the issue before the Court), have the powers and duties of a County Council. By the provisions of Section 33(3) of the Local Government (Dublin) Act, 1930, all these powers, functions and duties became vested in the City Corporation. Section 30(9) of the Local Government (Dublin) Act, 1930, provides that:-
“All and every of the powers, functions and duties of the City Corporation shall be exercised and performed for and on behalf of the City Corporation by the City Council or the City Manager (as the case may require) subject to and in accordance with the provisions of this Act.”
14. At page 358 of, “A Practical Treatise on the Law of Corporations”, (1850), by James Grant, the learned author points out that:-
“Though the Council is not the Corporation yet it represents the Corporation and as appears is the only representative of it and the only mode or channel through which it can act, …….. Hence it seems a just conclusion that the meetings of Council are the Corporate Meetings”.
15. The learned author was commenting upon the provisions of Section 69 of the Municipal Corporations Act, 1835, which did not apply to Ireland, but so far as the issues in this case are concerned is the same terms as Section 92 of the Municipal Corporations (Ireland) Act, 1840.
16. I was referred by Counsel for the Defendant to page 398 of , “The Law Relating to Local Government” (1955), by the late Howard A. Street, where the learned author in a note to Section 15(1) of the Cork City Management Act, 1939 states as follows:-
“At common law the will of the Council can be expressed only by resolution. No statute prior to the Management Acts expressly requires such a resolution, and the effect of such requirement by certain sections of the County Management Act, (see Sched), II (22), is to reserve powers to the Council……”.
17. This reference to the “County Management Act”, is to the County Management Act, 1940 and the learned author at page VII lists the “Management Acts”, as :-
Cork City Management Act, 1929, (No., I of 1929).
Local Government (Dublin) Act, 1930, (No., 27 of 1930), Part II.
Limerick City Management Act, 1934, (No., 35 of 1934).
Waterford City Management Act, 1939, (No., 25 of 1939).
County Management Act, 1940, (No., 12 of the 1940).
18. Local Government (Dublin) Amendment Act, 1940, (No., 21 of 1940).
Cork City Management (Amendment) Act, 1941, (No., 5 of 1941).
County Management (Amendment) Act, 1942, (No., 13 of 1942).
Limerick City Management Act, 1950, (No., 24 of 1950).
19. The learned author did not cite any authority for his statement that “ at common law the will of the Council can be expressed only by resolution ”.
In Section 15(1) of the Cork City Management Act, 1929, the relevant words are:-
“which if done or taken by the council of a borough, county borough or urban district would be required by or under any enactment to be done or taken by a resolution of such council”.
In Section 60(1) of the Local Government (Dublin) Act, 1930 the wording is changed to read, “ would be required by Law ”, and this is repeated in the Limerick City Management Act, 1934 and in the Waterford City Management Act, 1939. In Section 19(1) of the County Management Act, 1940 the wording is changed and reads, “ would be required by Law (other than this Act)”.
20. Various Sections of the City and County Management (Amendment) Act, 1955 provide that the Local Authority, by resolution, may do and direct and require various things to be done and not to be done and shall by resolution do other things. Section 19 of that Act provides that:-
“Any function as respects which a resolution is provided for by this Act shall be a reserved function”.
21. The word, “law” is not defined in any of these Acts and does not find a definition in the Interpretation Act, 1937. In the case of Reg., (Taylor) -v- Darlington Local Board of Health, (1865) 6. Best and Smith’s Reports, 562, it fell to the Court to construe Section 73 of the Local Government Act, 1858, (England), whereby a Local Authority was prohibited from doing any act injuriously affecting any reservoir river or stream, (etc.), in cases where any company or individuals would, if the Act had not been passed, have been entitled by law to prevent (etc.). In the course of his judgment at page 569 of the Report, Erle, C.J., stated as follows:-
“I take “law” here, in its widest sense, as the equivalent to all proceedings for protecting civil rights equitable as well as legal”.
22. In a similar vein, in my judgment, “law” as used in Section 60(1) of the Local Government (Dublin) Act, 1930, was used in a wide sense as including both statutory and non statutory law which had “crossed the constitutional divide”, by virtue of Article 73 of the Constitution of the Irish Free State, 1922. This would include Common Law insofar as it was not inconsistent with the provisions of Article 73 of the 1922 Constitution, (and now with Article 50 of the Constitution of Ireland, 1937).
23. The term, “resolution” though used extensively is not defined in any of the Management Acts as listed by Mr. Street, or in any of the subsequent Acts of the Oireachtas amending extending or repealing any part or parts of those statutes. The term is not defined in the Interpretation Act, 1937, in the Interpretation Act, 1923, or in the Interpretation Act, 1889. Having regard to the definitions expressed in, Jowitt, “A Dictionary of English Law”, (1959), vol., 2, p. 1540; The Oxford English Dictionary, vol., 8 p. 722 Section 11(b); Osborn’s, “Concise Law Dictionary”, (8th Edition), (1993), p. 290 and Murdoch, “Dictionary of Irish Law”, (3rd Edition), (2000) p. 687, a. “Resolution” is a formal decision arrived at by vote at a meeting.
24. There can be no doubt but that the Corporation of the City of Dublin is a corporation aggregate, non trading. A, “Corporation Aggregate”, was defined in the following manner in, “a Treatise on the Law of Corporations”, (1792), Stewart Kyd, vol., 1 p. 13, and this definition is cited in, “The Law of Local Government in the Republic of Ireland”, (1982), Keane, p. 37, and in vol. 9 Halsbury, “Laws of England”, (4th Edition), p. 718, 719, par. 1204, the latter with the note that some or all of the members of a corporation aggregate may be other corporations rather than individuals:-
“A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation, or at any subsequent period of its existence.”
25. At vol. 1 p. 430 of the same work, the learned author states that:-
“Every corporate act must be done in a corporate assembly, properly constituted and duly assembled.”
26. At p. 154 of, “A Practical Treatise on the Law of Corporations”, (1850), James Grant, the learned author states as follows:-
“Every corporate act must be done at a meeting either of the whole body politic or of such select body as may have confided to it by the constitution, the performance of such act, which meeting must be duly convened by proper summons, and must be held in the usual place of meeting, the question (in all cases not expressly provided for by the constitution of the corporation) to be decided by a majority of those present at the meeting and voting on the question.”
27. In the course of his Judgment in the case of Reg. -v- John Kendall, Clerk , (1841), 1. Q.B. n.s., 366, (an issue relating to Mandamus), Lord Denman in the course of his Judgment at pages 383, 384 of the report says as follows:-
“Another passage of the return appeared to question the fact of the prosecutor’s presentation having been duly resolved upon by the majority of the corporation. This is the statement in the writ: the return alleges that no presentation has being made as a corporate act. This alone would be undoubtedly bad, for uncertainty what it might mean when he spoke of a corporate act. But he goes further, detailing what in truth was done. The vacancy was declared; the question of presenting it was put to the vote by the Master himself, every brother being separately asked, at a meeting held for the purpose, for whom he voted. Nine voted for the prosecutor: the Master and two brethren for another candidate: and one brother was absent. The vote so taken was recorded in the book in which acts of the Hospital were preserved. After this solemn proceeding, it was plain that nothing remains to put Mr. Morris in the proper course of being instituted and inducted, but that his presentation should be sealed. The resolution is a corporate act, if the body can act by a majority………..”
28. In my Judgment what was stated by Lord Denman in that case encapsulates the necessity at common law for a corporation aggregate to come to a decision by a corporate act in the form of a resolution and the matters necessary to constitute a valid resolution.
29. Counsel for the Defendant referred the Court to the report of the decision of the Court of Appeal in the case of The Mayor Constables and Company of Merchants of the Staple of England -v- Governor and Company of the Bank of England , (1887), 21., Q. B. D., 160, where Wills, J., in the course of his Judgment at page 165 of the report stated as follows with regard to corporations which were not trading bodies:-
“The acts of a corporation are those of the major part of the corporators, corporately assembled: Com. Dig. tit. Franchise, F. 11; and, omitting the words “corporately assembled” this is declared by 33 Hen. VIII., c. 27, to be the common law. This means that, in the absence of special custom, the major part must be present at the meeting, and of that major part there must be a majority in favour of the act or resolution. It was so decided in Easter Term, 1693: Hascard -v- Somany, Frcem, 504, quoted in Viner’s Abridgment, tit. Corporations, G. 3, pl. 7; and it was said by Lord Mansfield in Rex. -v- Monday, Cowp . 530 at 538 to be undoubted law. By ”corporately assembled” it is meant that the meeting shall be one held upon notice which gives ever corporator the opportunity of being present: see Smyth -v- Darley , 2., H. of L.C., 789. The notice need not necessarily be special, but there must be such knowledge, or such means of knowledge, as to give each corporator the opportunity of attending.
This, therefore, is the way in which the corporate authority must be exercised.”
30. The Statute of Henry VIII was enacted in the year 1541 and is entitled as follows:-
“An Acte for Leases of Hospitales Colledges and other Corporacons to be good and efectuall withe the Consent of the more partie.”
31. Dublin City Council is not the Corporation of the City of Dublin nor is it itself a corporation aggregate. In the absence of some clearly expressed statutory power in that behalf it may only act in the same manner in which the body it represents could itself lawfully act.
32. It was submitted by Counsel for the Defendant that the provisions of Section 92 of the Municipal Corporations (Ireland) Act, 1840 as amended by the Local Government (Ireland) Act, 1898, the Local Government (Dublin) Act, 1930 and the Local Government Act, 1941, did no more than give statutory form to the common law position that the will of a corporate aggregate can be expressed only by way of resolution. This section as amended provides as follows:-
“All acts whatsoever authorised or required by virtue of this Act to be done by the council of any borough and all questions of adjournments or others that may come before such council may be done and decided by the majority of the members who shall be present and vote at any meeting held in pursuance of this Act and at all such meetings the mayor, if present, shall preside; and the mayor, or, in case of his absence, such alderman or councillor as the members then assembled shall choose to be the chairman of that meeting, shall have a second or casting vote in all cases of equality of votes; and minutes of the proceedings of all such meeting shall be drawn up, and fairly entered into a book to be kept for that purpose, and shall be signed by the mayor, alderman or councillor presiding at such meeting; and the said minutes shall be open to the inspection of any burgess or voter at all reasonable times, on the payment of a fee of one shilling and any burgess or voter shall be at liberty at all reasonable times to make a copy or to take any extract from such book; provided always, that previous to any meeting of the council held by virtue of this Act a notice of the time and place of such intended meeting shall be given three clear days at least before any such meeting, by fixing the said notice on or near the door of the town hall of the borough; ……….etc.”
33. This Section has now been repealed by the Local Government Act, 1994 Section 4(1), Schedule I part 1, and replaced by Section 30 of that Act which became operative on 13th May, 1999, (S.I.128 of 1999). Under this Section the Minister for the Environment and Local Government may by regulations make provision in respect of all or any local authorities with respect to meetings and procedures or to any matter arising in connection therewith or related matter. The Local Authority (Interim) Regulations, 1999 (S.I.No., 129 of 1999), became operative on 13th May, 1999. The Regulations and the Act define, “Local Authority ”, as meaning a county council, a county borough corporation, a borough corporation, an urban district council or the commissioners of a town.
34. In my judgment Section 92 of the Municipal Corporations (Ireland) Act, 1840 must be read in the context of Section 12 of the same Act which having provided that the borough of Dublin, (amongst other boroughs named), should continue to be a town corporate bearing the name of the Right Honourable Lord Mayor Alderman and Burgesses of Dublin, and with perpetual succession in that name, went on to provide that it should be capable in law:-
“By the council hereinafter mentioned of such borough to do and suffer all acts which such bodies corporate lawfully may do and suffer………….etc.”
35. Section 57 of the same statute, repealed in part by the Local Government (Repeal of Enactments) Act, 1950, made provision for the election of a mayor alderman and councillors to be called ‘the Council’ of such borough.
36. In my judgment Section 92 of the Municipal Corporations (Ireland) Act, 1840 is a procedural section only which merely applied to the Council the same obligations to act by way of resolution as had applied for the previous three centuries at least to the corporation aggregate on behalf of which and in the name of which it was given statutory authority to act. The Section makes no reference to, “a resolution”, and the word “”resolution” is not used anywhere in the Section. However, subsequently in the same Act, in Section 140, repealed in part by the Local Government (Repeal of Enactments) Act, 1950, the term does appear. The relevant part of Section 140 provides as follows:-
“It shall not be lawful for the body corporate of any borough named in Schedule (A) (which includes Dublin), at any time after the passing of this Act, to sell, mortgage or alienate the lands tenements and hereditaments of the said body corporate or any part thereof [except in pursuance of some covenant contract or agreement bona fide made or entered into on or before the 20th day of August (1836), by or on behalf of the body corporate of any borough or of some resolution duly entered in the corporation books of such
body corporate on or before the said 20th day of August] ………..etc.” [R.].
37. In my judgment this shows that the framers of this Legislation and Parliament in enacting it were fully aware of the term and of its import in the context of decisions taken by bodies corporate. In my judgment there is no material difference between the requirements of Section 92 of the Municipal Corporations (Ireland) (Act 1840) as to the procedures to be observed by the Council and the pre-existing Common Law requirements as to the taking of decisions by the corporation aggregate which the council now represents.
In the case of In Re. Audit (Local Authorities) Act 1927 and In Re. A Decision of H. W. Magrath (1934) 2., K.B., – page 415 which was an Appeal to the Court of Appeal from a Divisional Court, Greer, L. J., in the course of his judgment at page 431 of the report said:-
“There is no decision by the Council that the consideration of paying him something additional in respect of the past years was postponed for further consideration, and the fact that some members of the Council had discussed such an intention is entirely irrelevant to the questions we have to consider. The Council could only act by a resolution duly proposed and passed and no discussion between the members of the Council either in Council or otherwise can properly be treated as a decision of the Council, …………………..etc.”
38. In the same case, Maugham, L.J., in the course of his Judgment at page 434 of the report said:-
“Such a body as a County Council necessarily acts by the resolution of a majority of the members present at a particular time……………………etc.”
39. These dicta as to the manner in which a council is obliged to act are not in any way dependant upon the facts of that particular case or on the provisions of the statute in question in that case.
40. Counsel for the Defendant furnished to the Court a checked and approved copy of a Judgment of the late Chief Justice O’Dalaigh, delivered on the 14th of May, 1970 in a case of Thomas Relihan-v-Kerry County Council . The other members of the Court were the late Mr. Justice Brian Walsh and the late Mr. Justice McLoughlin. I am unable to ascertain from the Judgment whether the Judgment of the late Chief Justice O’Dalaigh was a minority Judgment or whether one or both of the other members of the Court concurred with his decision. As appears from the Judgment the Plaintiff’s claim in that case was for a declaration that he held, under the Defendants, the permanent office of Clerk of Works. The Defendant/Appellant contended that the employment of the Plaintiff was in the nature of a temporary office only. In the course of his Judgment at page 21 the late Chief Justice O’Dalaigh, whose opinion must in any circumstances be regarded with the greatest respect, said:-
“But in any event where do we find an order by the deputy county manager appointing Mr. Relihan to an office on those terms?. There is none. The whole basis of the appointments system set up by the County Management Act, 1940, is that appointments are placed in the hands of the County Manager (Section 16) and that the county manager in making appointments can act only by order (Section 19). The contract purported to have been created by the county engineer’s offer on behalf of the deputy county manager and Mr. Relihan’s acceptance, in the absence of a managerial order, is a nullity.”
41. Counsel for the Defendant further referred the Court to, “Planning and Development Law”, (1979) by the late Edward M.Walsh SC, (as he then was), where the learned author at page 114 stated as follows:-
“The Planning Authority must have made a decision that it is proper to serve an Enforcement Notice or been directed by the Minister to do so. Since such a decision by a Planning Authority is an executive function, it should take the form of a manager’s order.”
42. The distinguished editor of the Second Edition (1984) of this Work makes no alteration to this statement, (pps. 147 and 148).
43. If I had any doubts in this matter, which I do not, they would be dispelled by the force of such weighty authority .
44. In the circumstances, I must answer in the negative the question submitted by for the opinion of the High Court by the learned Judge of the District Court as to whether he was correct in Law in holding that the Enforcement Notice dated 26th June, 1998 in this Case was valid and lawful notwithstanding that no Manager’s Order, (and for clarity, I should add, or Order of a duly Delegated Officer), was made sanctioning the decision of the Planning Authority that it was proper to serve the said Enforcement Notice on the Defendant.
45. The following cases were also referred to in argument:-
46. River Tone Conservators -v- Ashe (1829) 10. B. & C. 349
47. Attorney General -v- Great Western Railway (1880) 5. A. C. 473
48. Dublin Corporation -v- Moore (1984) ILRM 339
Mahon -v- Butler (1998) 1. ILRM 284: (1997) 3. IR.
49. Kildare County Council -v- Goode (13.6.97) Morris. J. (unreported/judgment available)
Clare County Council v Floyd
[2007] I.E.H.C. 48
JUDGMENT of Mr. Justice Charleton delivered on the 19th day of January 2007.
1. This is a consultative case stated referred to the High Court by Judge Mangan on 22nd October, 2004, from Ennis District Court, Co. Clare. Fundamentally, it concerns the interpretation of the criminal law doctrine of contemporaneity, which requires coincidence of the mental and external elements of an offence. The function of the criminal law is to concern itself only with the distinct criminal conduct of which the accused is charged, and not his general character. That is relevant to sentence only. A criminal offence may be committed in a moment or over a longer period of time. If the accused punches someone in the face, he is criminally liable for assault if he intends that blow during the moment it takes to deliver it. If a person attempts to swat a fly but accidentally hits a person, the absence of a coincident mental element means that the striking of the victim is not a criminal offence; that remains the principle notwithstanding that the accused is later delighted when he discovers that he has managed to hit the person he most dislikes in the eye.
2. This principle has led to some few difficulties of interpretation which point up the necessity for its subtle application. The commission of all criminal offences takes time. If the victim is kidnapped, the abduction by force will take more time than that required for a momentary assault. If the accused kills someone then it can be the case that a progressive series of acts is required which will eventually lead to the death of the victim. This could take some hours. Where the person kidnapped is held over a period of days, it is obvious that the nature of the offence requires the passage of time. It could be said that the kidnapping occurs once but the resultant false imprisonment takes place over a continuing period of time. The law therefore tends to draw distinction between a momentary offence and a continuing offence. An analysis of the facts will provide the answer as to whether the requirement that the mental element coincides with the external act has been met. Unlike in the instance of the man who accidentally swats an enemy, while intending to kill a fly, where an offence is continuous even if the mental element was not present at the start of the act, if it appears at any stage during its continued execution all the elements of criminal liability are in place. In Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439 the accused accidentally, or so he said, drove his car onto a policeman’s foot but then deliberately left it there for a minute or two. His defence was that the act of assault and the intent never coincided. The Divisional Court held that the accused’s conduct in driving the car onto the foot and leaving it there should be viewed as a continuing act; the fault element coincided when he realised what had happened and decided to leave the car where it was. The principle remains that the mental and external elements must coincide; R. v. Hehir [1895] 2 I.R. 709. Where an act is continuous it is easier to find that mental element in the behaviour of the accused. A homicidal assault which takes place over a period of time may be regarded, notwithstanding the existence of separate phases of it, as a continuing act. From the point where the accused has the intention to kill or seriously injure the victim criminal liability is established; Attorney General’s Reference (No. 4 of 1980) [1981] 1 W.L.R. 705.
3. In practical terms, if an offence occurs in an instant, the charge must specify that it occurred at that instant. Usually that is done by the indictment specifying that on a particular day the accused, for instance, murdered the victim. If an offence continues over time, like false imprisonment, then the indictment is correct if it alleges that it occurs between two dates, or by picking any date in between. It can be the case that every time a man opens his business on a particular day and shuts it in the evening, he commits a distinct offence each day.
4. The second principle, applicable to the set of facts to which I shall shortly turn, is that charges should not be double. It should be possible to know from the nature of the way the charge is framed that the accused has been convicted of a single and distinct offence and not of various elements of bad conduct over a period of time. Charges are framed in order to avoid duplicity by making reference to specific dates or sometimes, with a view to giving the accused information, by describing the events. Through these two rules, the criminal law concerns itself with conduct and not with character.
The Legislation
5. Whether the mental element must coincide with the external commission of the crime at one particular instant of time only, or at any stage during the continuation of an offence is a matter of construction. The Planning and Development Act, 2000, was passed to consolidate most of the existing law in relation to that subject and to introduce several amendments. Part VIII deals with enforcement, s. 151 provides “Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.”
6. Under s. 152 a planning authority may issue a warning letter to a person carrying out a development where they have either received a complaint or where they decide to act of their own motion. If the development is trivial the authority has the discretion not to issue a warning letter. Under s. 153 the authority may then investigate the matter, if it considers that necessary, and it may then decide to issue an enforcement notice. This is to be done “as expeditiously as possible”. Representations may be made by the person to whom the warning letter is addressed and these should be taken into account. This procedure, however, is not a bar to subsequent criminal proceedings as s. 153(5) plainly states that a failure to issue a warning letter does not prejudice the issue of an enforcement notice. Such a notice is issued under s. 154 and is served on the person “carrying out the development”. It takes effect as of the date of service. The particulars required by statute indicate that the enforcement notice must refer to the land concerned and then go on to indicate that no permission has been granted in respect of a development or that the development has not proceeded in conformity with the permission. The wording used in relation to these two situations all indicate a continuous course of action. If the development has commenced then the enforcement notice tells the recipient that it must cease. This implies that, of its nature, the development goes on over a period of time. If the development has commenced, but is not in conformity with the planning permission, then the enforcement notice indicates that it must proceed in conformity with the permission granted. From the perspective of remedying apparent breaches, the enforcement notice will indicate what works are to be taken and these may involve “the removal, demolition or alteration of any structure and the discontinuance of any use and, insofar as is practicable, the restoration of the land to its condition prior to the commencement of the development”. These are all indications of a continuous offence. Section 154(8) provides that a person who fails to comply with the requirements of a notice will be guilty of an offence. Under s. 155 an enforcement notice may be issued in cases of urgency, by-passing the previous procedures of complaint or decision and warning letter. Penalties are provided for under s. 156. This contemplates that there should firstly be a conviction and then, where that conviction is in place, a continuation constitutes an offence in itself. This will clearly, as the word implies, constitute a continued breach over time. The section therefore divides the offence by indicating it may be brought on a day by day basis:-
“156(2) Where a person is convicted of an offence referred to in subsection (1) and there is a continuation by him or her of the offence after his or her conviction, he or she shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable [the penalties are then specified].”
By s. 157 no warning letter or enforcement notice can issue and no proceedings for an offence under that part of the Act can commence when seven years have expired from the date of the commencement of the relevant unauthorised development.
7. On the basis of the foregoing, I have no hesitation in judging that a failure to comply with an enforcement notice is a continuing offence. The mental element required in a prosecution, and that would appear to be an intentional or reckless failure to comply with the requirements of an enforcement notice, must coincide with the external fault of carrying on an unauthorised development. That can happen at any stage while the unauthorised development is carried on or exists and so establish criminal liability.
The Case Stated
8. Three summonses came before the learned district judge and these related to two separate enforcement notices. For the purpose of understanding the answer to the questions in the case stated I now give a truncated history of the various proceedings. The first two summonses both related to an enforcement notice which was served on 23rd October, 2002. In this enforcement notice Clare County Council asked the accused, Derek Floyd, to “cease unauthorised development and use of road for commercial haulage, decommission quarry operations on site and restore the site to a satisfactory condition and restore the road to its original width” at certain lands in Ballybran, Ogonnelloe in the County of Clare. The accused was represented by Mr. James Nash, a distinguished solicitor practising from Scariff in County Clare. This first summons was dismissed at Tulla District Court on 19th June, 2003. The judge dismissed it because he accepted an inventive argument from Mr. Nash that the prosecution, to succeed in proving this offence of breaching an enforcement notice had to show, as part of their proofs in court, that a letter of complaint in relation to the quarrying works had been received from a member of the public.
9. A second summons was then issued, based on the same enforcement notice, and was returned ultimately to Killaloe District Court on 17th November, 2003. The prosecutor then told the court that, on legal advice, Clare County Council was not proceeding with this summons. The case was dismissed with costs to the accused.
10. A new warning notice was issued on 18th February, 2004, in the appropriate form and this was ultimately heard on 17th May, 2004, at Killaloe District Court. The charge read:-
“That the accused Derek Floyd on the 25th day of March, 2004, did knowingly fail to comply with the requirements of an enforcement notice served on him by the prosecutor, on 18th day of February, 2004, in respect of lands at Ballybran, Ogonnelloe in the County of Clare, contrary to the provisions of s. 154(8) and s. 156(1)(b) of the Planning and Development Act, 2000.”
Mr. Nash then argued that the case had already been heard, that the court had no jurisdiction to determine the offence alleged and that the accused should be acquitted again by reason of having been acquitted on the first enforcement notice and the first summons at Tulla District Court on 19th June, 2003.
11. Essentially the argument of Mr. Nash has been repeated before this court. It is well summarised at para. 31 of the written submissions on behalf of the accused as follows:-
“It is further submitted that there is no provision within the 2000 Act for the issue of further Enforcement Notices in the event of an acquittal in respect of an offence created under the Act. It is submitted that this omission of a specific power to issue further enforcement notices in respect of a particular development in circumstances where a prosecution in respect of that development has been dismissed must have been intended by the legislature in circumstances where the possibility of continuing offences was clearly within the contemplation of the Oireachtas. In the absence of an express statutory power within the Act which provides for the issuing of further enforcement notices in relation to a particular alleged unauthorised development, in the event of an acquittal on the merits on foot of a first enforcement notice in respect of the same alleged unauthorised development, it is submitted that the prosecutor has no power to issue such further notices.”
12. In reply, the prosecutor claims that the apparent acquittal of the accused on 19th June, 2003, was not a dismiss on the merits of the case and that it therefore did not operate as a bar to any future proceeding. Secondly, even if that argument is not accepted, the prosecutor argues that an examination of the two enforcement notices clearly shows that the first one, which was the subject of two separate summonses, relates to a period which was earlier than, and completely different to, the date mentioned in the second enforcement notice and hence in the third summons.
13. Arising from this, the learned district judge had asked for the advice of the High Court on two questions as to whether:-
1. Clare County Council are entitled, in the light of the Orders made at Tulla District Court on 19th June, 2003 and at Killaloe on 17th November, 2003, to bring a prosecution against Derek Floyd in relation to an alleged failure by him on 25th March, 2004, to comply with the requirements of the enforcement notice of 18th February, 2004?
2. Have I jurisdiction to hear and determine the offence alleged by Clare County Council against Derek Floyd in the summons issued on 23rd April, 2004, in the light of the orders made at Tulla District Court on 9th June, 2003 and at Killaloe District Court on 17th November, 2003?
Decision
14. My advice to the learned district judge is as follows. I do not agree with the inventive submission made by Mr. James Nash, Solicitor, that the prosecution must prove either that the planning authority made a decision of its own motion, or on foot of a letter from a member of the public, nor need they prove, if it arises, a warning letter before the issue an enforcement notice. These administrative requirements are not elements of the offence. This is made plain by s. 155 of the Planning and Development Act, 2000, which allows for the administrative mechanisms of the Act to be by-passed in cases of urgency. Nonetheless, the offence remains the same. The proofs required by the prosecution encompass the service of the enforcement notice and evidence of an unauthorised development or one not in accordance with a planning permission. The mental element may be inferred from evidence establishing the control of the accused over the development in question. If there is an issue as to letters, complaints or decisions prior to the enforcement notice, that may, on request, be dealt with in correspondence prior to the trial. Administrative law remedies, and not criminal ones, would apply to that. The prosecutor has argued that the accused was never at hazard of being convicted of the offence because the failure to prove a letter of complaint from a member of the public removed jurisdiction of the learned district judge. I do not agree with that submission. The District Court was at liberty to either accept the submission of Mr. Nash or to reject it. Having accepted it, the accused was acquitted. If he had rejected it then it would have been within the competence of the accused to decide to give evidence or to decline to give evidence. If he declined to give evidence, or gave evidence which was rejected, there may have been sufficient evidence relating to the enforcement notice and the continuation of the unauthorised development beyond the date stated on which it should stop to allow him to convict the accused. He decided to acquit the accused. This was a decision that the learned district judge was entitled to make. It was a decision on the merits of the case.
15. The next issue is as to whether the charge which the accused is currently facing, based on the second enforcement notice and the third summons, constitutes the same crime for which he was previously charged. It is undoubtedly the case that a man cannot be tried for a crime in respect of which he has been previously been acquitted; Connolly v. DPP [1964] AC 1254: this decision was approved by Gannon J. in The State (Patrick Brady) v. District Judge Michael J. McGrath (Unreported, High Court, 25th May, 1979). There are useful propositions of law within the case, as set out by Lord Morris of Borth-y-Gest at p. 1305 of the report. At proposition 4 he states:-
“that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty”.
16. On this issue I have found the decision of the Supreme Court in Dublin Corporation v. Francis Flynn [1980] I.R. 357 to be particularly helpful. That case concerned s. 34 of the Local Government (Planning and Development) Act, 1963. That section mirrors the one currently under consideration. The Supreme Court held that the prosecution must prove the making and service of the relevant enforcement notice under the section and that thereafter, upon conviction, offences may be charged on a daily basis for a continuance of the breach. Henchy J. offered the following observations at pp. 362-363 of the report:-
“Whether a statute has made an act or default a continuing offence, meriting repeated prosecutions, depends not on the use of a special verbal formula but on whether the statutory provision, properly interpreted, indicates an intention to that effect. It is not necessary that the offence be designated expressly as a continuing offence. Usually it will be sufficient if a penalty is provided for each day on which the prohibited act or default takes place, as occurs in s. 34, sub-section 5. It is true that in s. 24, sub-s. 3, Parliament both designated the contravention as a continuing offence and provided for a recurring penalty for each day of contravention. But a continuing offence would have been created none the less if the express nomination of a continuing offence had been omitted from s. 24, sub-s. 3, as it has been omitted from s. 31, sub-s. 8, and s. 35, sub-s. 8, of the Act of 1963, and s. 26, sub-s. 5, of the Local Government (Planning and Development) Act, 1976, as well as from s. 34, sub-s. 5, of the Act of 1963.
The judge considered that an offence under s. 34, sub-s. 5, of the Act of 1963 is a “once and for all offence.” I do not think so. The characteristic of such an offence is the fixing of a single penalty for a single or composite act or default. That is not what s. 34, sub-s. 5, has done. It has laid down a fine not exceeding £50 for each day, following the accused’s first conviction, on which he is in default in regard to any of the specified requirements of an enforcement notice. Such an offence is necessarily a continuing one; it is committed afresh on each day on which the accused is in default and a conviction must impose a fine for each day of default: see Westropp v. Commissioners of Public Works [1896] 2 I.R. 93 and Tyrrell v. Bray U.D.C [1957] I.R. 127. If s. 34, sub-s. 5, creates only a single offence, the penalty for a massive and continued breach of planning requirements would be only a single fine of a maximum amount which is scarcely sufficient to deter the breach. I do not think the wording of s. 34, sub-s. 5, permits the attribution of such an intention to Parliament. Support for the conclusion that s. 34, sub-s. 5, has created a continuing offence (for the repetition of which successive prosecutions will lie) is to be found in the fact that the corresponding provision in the English planning code has also been interpreted to that effect: see R. v. Chertsey Justices, Ex p. Franks [1961] 2 Q.B. 152 and St. Alban’s District Council v. Harper (Norman) Autosales (1977) 76 LGR 300.”
17. It follows that once a conviction occurs a prosecution may be brought on each and every day on which the unauthorised development continues in existence. An unauthorised development therefore is a continuing offence in itself. It happens every day the accused opens for business, in a change of use case, or every day the development continues, in the case of buildings or land. Because Clare County Council chose a different date for the second enforcement notice on which to focus their proofs in respect of the continuation of the alleged unauthorised development by the accused, this does not constitute a trial for the same offence in respect of which the accused has been acquitted by the learned district judge on 19th June, 2003. Nor could it be the case that the evidence to be heard in respect of the summons currently before the learned district judge would be the same as the two previously issued in respect of the other enforcement notice. Of necessity, that evidence will be different. It will deal, as to the material part, with proof that the unauthorised development continued after the day specified in the enforcement notice for its cessation. Once the dates as between the two enforcement notices are different, two separate offences are alleged and the principle of autrefois acquit can have no application. Echoing the words of Henchy J., I would regard it as wrong to construe an Act in such a way as would allow an offender to maintain an unauthorised development merely by reason of his acquittal in respect of a summons issued for an offence on one particular day, or a continuation thereafter on one particular occasion. That is not the law.
18. I would therefore answer the questions posed by the learned district judge as follows:-
1. Clare County Council is entitled to bring a prosecution against the accused in relation to an alleged failure by him on 25th March, 2004, to comply with the requirements of an enforcement notice of 18th February, 2004.
2. The learned district judge has jurisdiction to hear and determine the said offence and it is not part of the elements of the offence, in that regard, to show that the existence of a complaint, or an investigation of any kind, leading to a warning letter, or a warning letter in itself, prior to the issue of an enforcement notice under s. 154 of the Planning and Development Act 2000.
Wicklow County Council v Fortune
[2012] IEHC 406
JUDGMENT of Mr. Justice Hogan delivered the 4th day of October, 2012
1. This appeal from a decision of the Circuit Court raises difficult and, in some respects, novel issues concerning the application of the Planning and Development Act 2000 (“the Act of 2000”). The first issue concerns the nature of the seven year limitation period provided for in s. 160(6)(a)(i) of the Act of 2000. Does this section represent a jurisdictional bar to proceedings commenced after the seven year period or is it in the nature of a defence available to a respondent? Moreover, on whom does the burden of proof lie? The second issue relates to the nature of the “inviolability” of the dwelling as provided for in Article 40.5 of the Constitution (and for that matter the “respect” for the family home provided for in Article 8(1) ECHR). To what extent, if at all, can this constitutional provision be invoked by the home owner by way of defence to an application for an injunction which would seek to compel him or her to remove the dwelling for want of planning permission?
2. These important issues arise in the following circumstances. The defendant, Ms. Fortune, has at some stage within the last thirteen years or so constructed a small timber framed chalet approximately 70 sq. m. in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. Wooden decking in the form of a patio has been laid around two sides of the chalet. While it seems clear from the photographs supplied to the Court that the chalet has been sensitively constructed and is not immediately visible from the adjoining road, the stark fact remains that this chalet was built without planning permission.
3. This matter appears to have first come to the attention of the planning section of Wicklow County Council sometime in December, 2006. Officials from the Council visited the site on a number of occasions, noting that other parts of the site and immediately adjacent sites were used by other family members for such purposes as the storage of mobile homes and motor vehicles. A warning letter was duly sent pursuant to s. 152 of the Act of 2000 on 18th April, 2007.
4. The Council decided to postpone making an application to the Circuit Court for a statutory injunction under s. 160 pending an application by Ms. Fortune for retention planning permission. Two separate applications for retention were made on Ms. Fortune’s behalf. The process culminated in the decision of An Bord Pleanála to refuse to grant permission by decision of 18th November, 2008. The reasons which were given by the Board for this refusal for this refusal are of some importance:
“1. The site of the proposed development is at an elevated location designated in the Wicklow County Development Plan 2004-2010 as an “area of outstanding beauty”. According to Policy SS9 of the Settlement Strategy is the policy of the planning authority not to allow development of dwellings within areas so designated, unless it can be satisfactorily demonstrated that the applicant has a permanent note of residence of the immediate vicinity or has resided at the location for a minimum often years. This policy is considered reasonable. It is considered on the basis of the submissions made in accordance with the application of the appeal that it has not been demonstrated that the applicant comes under the scope of the criteria set out under this policy. The proposed development would, therefore, contravene this policy and would be contrary to the proper planning and sustainable development of the area.
2. The site of the proposed development is located off a lane that is substandard in horizontal and vertical alignment and in poor condition. The Board is not satisfied on the basis of the information provided in connection with the application of the appeal that the lane can be upgraded and maintained to a satisfactory standard to serve the development. The proposed development would, therefore, endanger public safety by reason of traffic hazard and obstruction of road users.”
Ms. Fortune herself has explained the circumstances in which the chalet was constructed. She has explained that in 1999 she found herself separated with two young children, then aged seven and nine. She had nowhere to live because she had previously lived with her husband in accommodation which was associated with his work. In those circumstances she was effectively destitute and her mother (who is sadly deceased since the date of the Circuit Court hearing) allowed her to place a mobile home on this site. She goes on to explain that with the assistance of her family:-
“I was able to fund the erection of a wooden chalet on the lands to provide a home for my children and I. The alternative was for me to seek social housing and I felt that I would be able to provide a better home for my children amongst their extended family than relying on the assistance of the State and living far removed from them. The chalet is small and has been designed in a manner as sensitive to its surrounding as possible. It is located in a discrete and isolated situation and is not visible from its surrounds.”
5. Other members of her extended family live in or use similar sites in the immediate vicinity.
6. By decision dated 8th February, 2011, Her Honour Judge Flanagan found for the applicant Council. In effect, the Circuit Court ordered that the site should be cleared and in particular that the occupation of the chalet should cease as a prelude to its demolition and removal. Ms. Fortune now appeals to this Court against the making of these orders.
Section 160(6)(a)(i) of the Act of 2000 and the seven year limitation period
7. It is against this general background that we can turn to consider the first issue, namely, that of the onus of proof in relation to the seven year limitation period. Ms. Fortune contends that the application in statute-barred because the Council have not shown that these proceedings were commenced within the seven year time limit. Section 160(6)(a) provides in relevant part that:-
“An application to the High Court or Circuit Court for an order under this section shall not be made:
(i) in respect of a development where no permission has been granted after the expiration of seven years from the date of the commencement of the development.” (italics supplied)
8. The first thing to note is that s. 160(6)(a)(i) does not impose a jurisdictional bar on the granting of a statutory injunction in the event that the proceedings have been commenced after seven years, the italicised words notwithstanding. The words “shall not be made” have been hallowed by statutory usage in the field of limitations law as creating simply a defence and not a jurisdictional bar. Given that the Supreme Court has stressed that the similar wording of s. 11 of the Statute of Limitations 1957 creates a full defence available (if applicable) to the defendant who elects to plead it (cf the comments of Henchy J. in O Domhnaill v. Merrick [1984] I.R. 151, 158), the same must be taken to be true by analogy in the case of an application for a statutory injunction given that the same formula has also been used ins. 160(6). The seven year time limit is, therefore, a matter of defence and is not one which goes to not jurisdiction.
9. Second, it is true that as Mr. Bradley S.C. pointed out, s. 156(6) of the Act of2000 expressly provides that:-
“In a prosecution for an offence under sections 151 and 154 it shall not be necessary for the prosecution to show, and it shall be assumed unless the contrary is shown by the defendant, that the subject matter of the prosecution was development and was not exempted development.”
10. Likewise, s. 162(1) provides that in any proceedings for an offence under this Act, the onus of proving “the existence of any permission granted under Part III shall be on the defendant”. But I cannot for several reasons regard these provisions as requiring the application of the expression unius maxim of statutory interpretation in the context of s. 160(6). The fact that the Oireachtas elected to lay down a special rule governing criminal prosecutions in respect ofunauthorised development offences (s.151) or offences relating to warning notices (s. 154) or more generally (s. 162(1)) cannot determine the onus of proof in relation to an aspect of the limitation period applicable to civil enforcement. No wider inference can therefore be drawn in relation to the lex specialis provided for in s. 156(6) or, for that matter, s. 162(1). Indeed, McKechnie J. already said as much on this very point in his seminal judgment in South Dublin City Council v. Fallowvale Ltd. [2005] IEHC 408 and I respectfully agree with his analysis.
11. Third, it is true in all the s. 160 cases to date (including the cases dealing with its statutory predecessor, s. 27 of the Local Government (Planning and Development) Act 1976) this Court has stressed that the general onus of proof in such cases rests with the applicant: see, e.g., Westport UDC v. Golden Ltd. [2002] 1 I.L.R.M. 439 per Morris P., Fingal County Council v. Dowling [2007] IEHC 258 per de Valera J. and Wicklow County Council v. Jessup [2011] IEHC 81 per Edwards J. This case-law can be traced back to the statement of Finlay P. in Dublin Corporation v. Sullivan, High Court 21st December, 1984, where he stated that:-
“I am satisfied since the applicants come seeking relief which would affect the ordinary property rights of the defendant and which potentially could cause him loss that in the absence of some express provision to the contrary which does not exist either ins. 27 of the 1976 Act or otherwise in the planning code that the general proposition must be that it is upon the applicants that the general proposition must be that it is upon the applicants there rests the onus of proof of proving the case which they are making….”
12. While fully accepting these comments so far as the general onus of proof in such cases is concerned, it may be recalled that prior to 1992 the old s. 27 procedure did not provide for a time limit along the lines of s. 160(6)(a) so that in Sullivan Finlay P. was obviously not addressing the question of on whom the burden of proof with regard to the time period actually rested. Nor do I read the comments of de Valera J. in Dowling as establishing any general proposition regarding the location of the burden of proof with regard to the time limits to s. 160(6)(a), as those comments were rather made following a consideration of the evidence of both the applicant and the respondent and it was in that context that the judge found against the applicant.
13. It is also true that in Fallowvale McKechnie J. rejected the argument that s. 160 created any reverse-onus types provisions:-
“To overcome this difficulty it has been suggested by the planning authority that this court shall read into s. 160 a provision which would have the effect of placing the onus of proof on a respondent in circumstances, inter alia, where that party wished to claim an exemption under the planning code either through its statutory provisions or by virtue of the exempted provisions of the Regulations or indeed if the defence should rely upon a pre-1964 user. In my opinion, there is no known rule of interpretation which would permit this court to so construe the provisions of s. 160 of the Act. On the contrary, it seems to me that given the express omission of any such provision or of any similar or comparable presumption to that contained in other sections of the Act, it would be entirely inappropriate for this court to construe the section in the manner suggested. Accordingly, I do not believe that by any acceptable method of construction can a like provision or rule with similar effect be read into the section in question.”
14. Yet at the same time McKechnie J.’s exceptionally thorough review of the applicable case-law- a review upon which I could not hope to improve- reveals that in some instances and in some circumstances the legal burden may be taken to have rested with the respondents with regard to at least some aspects of the s. 160 application procedure:-
“The onus of proof issue, which was keenly contested in this case, arises by virtue of the respondents’ reliance on s. 4(1)(h) of the Act of 2000 and on Class 32 and Class 39 of the Regulations. It is no part of their argument on the facts of this case that any of the development in question has the benefit of a pre-1964 user. Therefore, the views which I express on this point are confined to the statutory provisions as identified and do not purport to cover circumstances, which by virtue of their existence prior to the 1st October, 1964, are in effect excluded in their entirety from the provisions of the Act of 2000
In Lambert v. Lewis (Unreported, High Court, Gannon J., 24th November, 1984) the issue before the court required in the judge’s opinion “no more than an interpretation of the exemption regulations in S.I. No. 65 of 1977 ….”These regulations can be considered as predecessors to the 2001 Regulations and on the point at issue are indistinguishable from them. In that case, it was submitted to the court that the activities complained of fell within the class of “light industrial use” and that the premises in question had a history of such use prior to 1st October, 1964, or alternatively prior to 15th March, 1977, the date upon which these regulations came into force. Having found that the defendant’s premises did not have the benefit of any such use on either of the dates mentioned and having concluded that the use complained of constituted a material change of use, the learned judge, at pp. 10-11 of the judgment continued:-
‘Because there is no existing permission granted under the Planning Acts to use the subject premises other than as an amenity contiguous or adjacent to the curtilage of a private residence in an area zoned for primarily residential use and because the occupier Mr. Lewis has made applications for permission for retention of use the onus lies on him to establish the facts from which the court could reasonably infer that there has been no such material change of use. This he has failed to do.
From a further consideration of the judgment as to the manner in which the hearing proceeded, it is clear that the defendant assumed the responsibility of bringing the use of his premises within the exempted Regulations. Furthermore, in addition to the passage above quoted the learned trial judge at p. 14 of the judgment reaffirmed his opinion by saying “In my view any change of use from use for such purposes is an unauthorised use unless coming within the provisions for exempted development in either the 1963 Act or the Regulations of Statutory Instrument 65 of 1977. The onus of establishing exemption falls on the Respondents.'”
15. McKechnie J. then continued thus:-
“The decision of Finlay P., as he then was, in Dublin Corporation v. Sullivan, supports in my view, the limited proposition which can be deduced from Lambert v. Lewis. In Sullivan’s case it was admitted that a change of use from a single dwelling unit to a multiple dwelling unit had occurred after the material date. Both parties contended that the other party had the responsibility of establishing that this change of use had occurred after 1st October, 1964. Having expressly agreed with the views of Gannon J. in Lambert v. Lewis, the then President distinguished Sullivan from that case by saying at p. 3 that “… the unauthorised development relied upon by the applicants is an unauthorised change of use and the issue which arises is as to whether it is a prohibited unauthorised change of use not as to whether being a prohibited unauthorised change of use it is the subject matter of the statutory exemption”. In those particular circumstances he was satisfied that the onus rested upon the applicants to prove that the suggested material change of use had occurred after 1st October, 1964. It is therefore clear that Dublin Corporation v. Sullivan was not dealing with an exemption claimed on foot of a statutory provision or on the basis of exempted developments under the Regulations, but rather was concerned solely with the date upon which the admitted change of use had occurred. I therefore do not feel that this decision is on the point at issue in this case, but in any event by the express wording of his judgment, Finlay P., as he then was, agreed with Lambert v. Lewis. See also the decision of O’Caoimh J. in Fingal County Council v. Crean, (Unreported, High Court, 19 October, 2001) in which the learned judge concluded that the onus of proof rested upon the respondents to satisfy the court that the exemption relied upon, being that contained ins. 4(1)(g) of the Act of 1963 applied to the circumstances of that case.
Further support for this position is to be found in the decision of the Supreme Court in Philip Dillon v. Irish Cement Limited, (Unreported, Supreme Court, 26 November, 1986: see para. 2.654 in O’Sullivan and Shepherd, Irish Planning Law and Practice) In that case the net issue was whether the activities of the respondent were exempted under the 1977 Regulations and in particular under Class 34 thereof. Finlay C.J. speaking for the court said:-
‘I am not satisfied that this case comes within Class 34 as an exemption. I am satisfied that in construing the provisions of the Exemption regulations the appropriate approach for a Court is to look upon them as being Regulations which put certain users or proposed development of land into a special and in a sense privileged category. They permit the person who has that in mind to do so without being in the same position as everyone else who seeks to develop land, namely, subject to the opposition or views or interests of adjoining owners or persons concerned with the amenity and general development of the countryside. To that extent I am satisfied that these Regulations should by a court be strictly construed in the sense that for a developer to put himself within them he must be clearly and unambiguously within them in regard to what he proposes to do.’
Whilst it might be suggested that this passage deals more with the method of interpretation rather than with on whom the onus rests, nevertheless I feel, that read as a whole and also by reason of the particular reference to the developer putting himself within the Regulations, the judgment is endorsing the principle stated in Lambert v. Lewis. In addition the court also explains at least in part, the justification for placing this obligation on a respondent when the Regulations are being invoked.
Westport UDC v. Golden [2002] 1 I.L.R.M. 439 is the case most heavily relied upon by the respondents and in their submission is the preferred line of authority on the point at issue. [The relevant passage from the judgment of Morris P. reads] as follows:-
‘I approached this case on the basis that the onus is upon the applicant to establish to the courts satisfaction that one of the matters referred to in s. 27(1) of the 1976 Act has been or is occurring, that is to say that the onus is on the applicants to show that development of land, being development for which a permission is required under Part IV of the Principal Act, has been carried out or is being carried out without such permission or that an unauthorised use is being made of the land.
I do not accept that Dillon v. Irish Cement Ltd. is authority for the proposition that where the respondent seeks to establish an immunity on the grounds that a development is an exempted development under s. 4 of the 1963 Act that he must bring himself within the exemption. Dillon v. Irish Cement was a case in which Finlay C.J. considered that in the particular circumstances of that case and by reason of the unique exemption claimed there was such an onus on the respondent. However in the present case none of these considerations apply.’
The same judge also gave judgment in the earlier case Lennon v. Kingdom Plant Hire Ltd. (Unreported, High Court, Morris P., 13th December, 1991) where one of the issues was whether or not the works in question could be correctly categorised as land reclamation and thus exempt under the then exempting regulations. It would appear that the case proceeded on the basis that the onus of establishing the applicability of the exemption rested upon the respondents and accordingly on that ground can be clearly distinguished from Westport UDC. v. Golden. As a result of this concession there was, of course, no contrary submissions or debate on this point. It can, I think therefore, be accepted that the more concluded view of Morris P. is that as he outlined in the Westport UDC v. Golden decision.”
16. McKechnie J. then summed up thus:-
“In my opinion the stage presently reached is that there is clear preponderance of authority in favour of the proposition that when the development complained of is sought to be excused under cover of either s. 4 of the Act of 2000 or under the exempted developments provisions in the Regulations then the onus of establishing this point is upon he who asserts. In this context I cannot see any difference between the section and the Regulations. I also cannot accept that Lambert v. Lewis can be explained away as being a decision on its own facts and neither can the decision of the Supreme Court in Dillon v. Irish Cement. In reaching this conclusion, however, I am not in anyway suggesting that the onus of proof is not otherwise on the moving party. Such party must therefore satisfy the court by probable evidence of all the other proofs which may be essential to a successful application under s. 160 of the Act of 2000.”
17. It may also be observed that in Pierson v. Keegan Quarries Ltd. [2010] IEHC 404 Irvine J. noted the parties had agreed that “the onus of proof lies upon the party who seeks to rely on a statutory time limit to defeat a claim to prove that assertion”.
18. In the present case the respondent contends that the application is time-barred. It is specifically contended that the Council cannot show that the application was commenced within seven years of the commencement of the development. The present proceedings were commenced on 22nd September, 2009, and the Council can simply show that on diverse dates from 2006 onwards the chalet had been constructed and that mobile homes were on the site. The Council freely admits that it is simply not in a position to prove affirmatively the date on which the development commenced.
19. Here it may be recalled that the seven year time limit is, as we have already seen, simply a matter of defence, not jurisdiction. This means that the application will be regarded as statute-barred only if the respondent elects to raise this defence. In my view, in the light of Fallowvale the onus in this regard rests with her who asserts that this is so, namely, Ms. Fortune. This, however, she has signally failed to do. In particular, she has failed to tell the Court even the approximate dates on which the development commenced, even though this is a matter which of necessity is peculiarly within her own knowledge.
20. Indeed, it could be said that a more general principle of the law of evidence bearing on peculiar knowledge really underlies and explains decisions such as Lambert v. Lewis, Dillon v. Irish Cement and Fallowvale. This is perhaps especially true of matters such as the date of commencement of a particular development as distinct, for example, from the question of whether the development was unauthorised. The latter question lends itself to objective determination by reference to a public register to which the public have access. It is, therefore, not considered unfair or unreasonable that the onus of proof in this regard should – at least in general – rest with the applicant.
21. It is otherwise in the case of the date of commencement of a development. Take, for example, the present case where the chalet was constructed in a wooded area which was not readily visible from a public road or path. How could a planning authority (or, for that matter, a member of the public who sought s. 160 relief) be expected to prove the date on which the development was commenced so that the seven year period might be nicely calculated for the purposes of a limitation period? The chalet might well have been constructed for months or even years before its planning status came into question or matters came to the attention of a body such as the Council. An applicant seeking a s. 160 order would, for example, have no right in advance of the proceedings to demand details of matters such as architects’ drawings or invoices from builders so that the date of completion of the works might perhaps be objectively ascertained, even though, of course, such material might be obtained on discovery.
22. The fact remains, however, that it would be unreal and unduly burdensome on an applicant for relief under s. 160 if he or she were to be expected to carry this burden. This, after all, is the rationale for the peculiar knowledge rule. It represents a practical recognition of life’s realities that certain matters lie almost beyond the beyond the effective capacity of an outsider to prove where they relate to events which are largely personal and private to the other party. An old example is supplied here by the decision of the House of Lords in General Accident Fire and Life Assurance v. Robertson [1909] AC 404. Here the question was when a particular application form for life insurance had been received and registered by an insurance company. This date assumed importance because the insurance company had repudiated liability on the ground that the insured had not died within the twelve months of the registration of the policy and the policy had provided for such a limitation clause. Lord Lorebum L.C. held ([1909] AC 404, 413) that as the specific date on which the company had received and registered “was peculiarly and solely within their knowledge”, the burden of proof lay with them.
23. The precise date on which the development “commenced” is of necessity one such example. “Development” is defined by s. 3 of the Act of 2000 as the “carrying out of any works” on or over land or the “making of any material change in the use of the any structures or other land.” Who but the landowner could be expected to know or prove these facts? A landowner may endeavour to conceal the fact that unauthorised development has taken place or that there has been a change of use on the lands. Is it be said that an applicant for s. 160 relief is effectively to be denied the right to come to court because he or she cannot establish ex ante the precise date on which such a development commenced?
Conclusions on the seven year limitation period issue
24. Put in this fashion these questions effectively answer themselves. I would therefore conclude that because (i) the seven year limitation period is a matter of defence, the onus of proof lies with the party asserting it (in this case, Ms. Fortune) and (ii) by reason of the peculiar knowledge doctrine, the onus in this regard rests in any event with the landowner.
25. It follows, accordingly, that as Ms. Fortune has not informed the Court of the date even in approximate terms – on which the building was commenced, she has not established that this application is time-barred by reason of s. 160(6)(a)(i) of the Act of 2000.
The grant of a s. 160 injunction, discretionary factors and Article 40.5
26. There is no real dispute but that the construction of the chalet was unauthorised and that the necessary planning permission for this structure is not in existence. The real question, however, is whether I should exercise my discretion to grant an injunction under s.160. The existence of such a discretion is not really in dispute. It is true that as Barrington J. noted in Stafford v. Roadstone Ltd. [1980] I.L.R.M. 1 the nature of the discretion available to the Court under s. 27(1) of the Local Government (Planning and Development) Act 1976 (the statutory precursor to s. 160) was analogous to that available to a court of equity in an injunction application. There are, of course, some potential differences, since the statutory injunction is really a form of public law enforcement and to that extent the public interest may loom larger here than in the case of its private law cousin.
27. This was recognised by Henchy J. in Morris v. Garvey [1983] I.R. 319,324 where stressing the community’s interests in preserving communal environmental and ecological rights, he went on to observe that:-
“It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality of mere technicality of the infraction, gross or disproportionate hardship or suchlike extenuating or excusing factors) before the Court should refrain from making whatever order….as is ‘necessary to ensure that the development is carried out in conformity with the permission.”‘
28. In recent times this Court has stressed that the discretion is limited in those cases where the infraction is gross and the developer has not acted bona fide. Thus, for example, in Wicklow County Council v. Forest Fencing Ltd. [2007] IEHC 242 Charleton J. observed that the unauthorised development in question was large and substantial:-
“This is a major development for which there is no planning permission. It is a material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraints. I am obliged to decide in favour of the injunctive relief sought.”
30. In Lanigan v. Barry [2008] IEHC 29 Charleton J. also noted that in that case he was required to act:-
“to restrain major breaches of the planning code which have flaunted the legal rights of the community in favour of an unrestrained action that has seriously impacted on the character of a quiet area and the reasonable use by neighbours of their farms and dwelling.”
31. Likewise, in Meath County Council v. Murray [2010] IEHC 254 Edwards J. granted an injunction pursuant to s. 160 requiring the respondents to demolish an enormous dwelling house which was approximately “double the size of the dwelling for which planning permission had [already] been refused … and no planning permission was sought for same prior to its construction.” Having reviewed the case-law, Edwards J. concluded:-
“This is not a case of a minor infraction, or of accidental non-compliance, or of non compliance with some technicality. The unauthorised development carried by the respondents was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and that cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute an enormous hardship to the respondents to have to demolish their dwelling house, particularly in circumstances where the first named respondent is now a victim of the general downturn in the construction industry and has little work, nevertheless the law must be upheld. Though it gives me absolutely no pleasure to say it, and it is stating the obvious, they have brought this on themselves.
In all the circumstances of the case the Court must accede to the application and grant the relief sought by the applicants. However, the Court is prepared on a humanitarian basis to put a stay on its order of24 months from today’s date in the light of the particularly difficult economic times in which we are living which the Court recognises may make compliance with the Court’s order all the more difficult for the respondents. However, the order must be complied with in full on or before the expiry of the stay.”
32. It may be observed in passing that no argument based on Article 40.5 of the Constitution was advanced in that case. By contrast, this question is central to the present case and this appears to be the first time in which such an argument has been advanced by way of defence in a s. 160 application. I will address the Article 40.5 argument separately.
33. Other factors which might affect the exercise of discretion was whether the developer had relied in good faith on professional advisers (see, e.g., Pierson v. Keegan Quarries Ltd., Altara Developments Ltd. v. Ventola Ltd. [2005] IEHC 312); whether demolition might involve hardship to third parties (Pierson v. Keegan Quarries) or, indeed, hardship to the developer himself or herself. Normally, however, as the decisions of Henchy J. in Morris, Irvine J. in Pierson and that of Edwards J. in Murray all illustrate, courts are generally unsympathetic to the hardship which was eminently foreseeable and which results from the culpable behaviour of the developer and landowner in question.
34. If one applied the existing case-law to the present case, however, it may be observed that unlike the circumstances disclosed in cases such as Forest Fencing, Lanigan and Murray, Ms. Fortune has not engaged in a large scale construction project which manifestly violated proper planning and development considerations. Nor does the dwelling impact on the rights and amenities of her neighbours, unlike the situation disclosed in cases such as Lanigan and Pierson. At the same time, while it is true that there were extenuating circumstances- after all Ms. Fortune found herself with young children (and few resources) who she considered might best be raised in an extended family environment in a rural setting – it must be concluded that, objectively speaking, the development was not bona fide. After all, Ms. Fortune elected to build a dwelling in an area of high amenity in circumstances where she must have known that planning permission was required. Were it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Murray, i.e., grant the injunction, albeit subject to a two year stay.
35. We may now turn to examine the constitutional argument. A key feature of Mr. Bradley’s argument was that no injunction could or should be granted as this would infringe the guarantee of inviolability attaching to the dwelling as provided for in Article 40.5 of the Constitution. While this argument may well have been prompted by the fresh emphasis given to Article 40.5 by recent decisions such as Damache v. Director of Public Prosecution [2011] IESC 11 and The People (Director of Public Prosecutions) v. Cunningham [2011] IECCA 64, there is nevertheless no basis at all for the suggestion that Article 40.5 should be confined in its application to the sphere of criminal law and criminal procedure. As is highlighted by the judgment which I am also giving today in the quite separate and different case of Sullivan v. Boylan, the guarantee of “inviolability” of the dwelling in Article 40.5 is a free standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike.
36. It is also true that, as counsel for the planning authority, Mr. Sheridan readily acknowledged, in this respect Article 40.5 goes further than the parallel guarantee in Article 8(1) ECHR (which provides that everyone has the right “to respect for. …his home and correspondence…”). It follows that some weight must be accorded to the more emphatic language used by the constitutional provision. As I observed in EA v. Minister for Justice and Equality [2012] IEHC371 when contrasting the language of Article 41 on the one hand with Article 8 ECHR on the other:-
“Moreover, it must be recalled that while Article 8 ECHR simply guarantees the right “to respect” for family life, some weight must be given to the even more emphatic description of family rights contained in Article 41 -“inalienable and imprescriptible”- even if those rights are not, of course, to be regarded as absolute.”
37. It seems to me that the passage also applies by analogy to the issue in the present case. It may be recalled in passing, however, that the European Court of Human Rights has stressed that the demolition of or removal of a dwelling by a public authority engages the respect for the private house provided for in Article 8(1)ECHR. The decision making process here must be fair “and afford due respect to the interests safeguarded to the individual by Article 8”: see, e.g., Chapman v. United Kingdom [2011] ECHR 43, Horie v. United Kingdom [2011] ECHR 289.
38. It is also true that there are some legal contexts in which the word “inviolable” might bear the interpretation which Mr. Bradley S.C. has urged upon me. Thus, for example, Article 22(1) of the Vienna Convention on Diplomatic Relations (which is given the force of law by s. 5(1) of the Diplomatic Relations and Immunities Act 1967) provides that:-
“The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.”
39. The use of the word “inviolable” in that special and particular context might suggest something close to an absolute level of protection, although it might be a nice legal question as to whether a planning authority would be entitled to obtain a s. 160 injunction in circumstances where, for example, it transpired that a diplomatic mission had built an embassy premises without the requisite planning permission.
40. Yet the Constitution cannot be interpreted in such a desiccated fashion, divorced entirely from the context and object of the constitutional provision in question. If Mr. Bradley S.C.’s argument were correct, it would effectively mean that residential planning control would be virtually meaningless. It would mean, for example, that a residence which was unlawfully erected in defiance of the planning authorities was immune (or, at least, virtually immune) from the s. 160 procedure, even though, for example, the dwelling might constitute a fire hazard or pose a danger to road users or that it might occupy a prominent position in a region of great natural beauty to the detriment of that beauty spot. If, moreover, this construction of Article 40.5 were to be admitted, what would there be to stop the deliberate and unlawful construction of a dwelling on another’s land? Is it to be said that in such circumstances the rightful landowner could not secure an injunction compelling the removal of the dwelling on the ground that it was “inviolable”? The Constitution was not intended to bring about a situation where someone could profit from their own deliberate and conscious wrongful actions by asserting an immunity from legal action and appropriate enforcement by invoking Article 40.5.
41. At the same time, Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as the Article 40.5 speaks of “inviolability”, the drafters must be taken to have intended to convey through the use of rhetorical and philosophically inspired language drawn (as Hardiman J. pointed out in Cunningham) from the European constitutional tradition so that the dwelling should enjoy the highest possible level of legal protection which might realistically be afforded in a modem society. In the planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is “inviolable”. It rather means that the courts should not exercise the s. 160 jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom (1996) 22 EHRR 123, the case for such a drastic step is convincingly established.
Conclusions on the s. 160 and Article 40.5 issues
42. In this regard, it is not simply enough for the applicant Council to show – as, indeed, it already has – that the structure is unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.
43. Given the novelty of the point and, in particular, the fact that the critical Article 40.5 issue was highlighted only in the wake of the Supreme Court’s decision in Damache (which decision long post-dated the commencement of these proceedings), I propose to adjourn the question of whether this particular unauthorised dwelling should be demolished for further argument in the light of this judgment. I will, if necessary, allow both sides to adduce further evidence on the question of whether the necessity for a demolition order pursuant to s. 160(1) has, in fact, been convincingly established.
Smyth v Dan Morrissey Ireland Ltd
[2012] IEHC 14
JUDGMENT of Mr. Justice Hedigan delivered on the 25th day of January 2012
1. The applicant resides at Ballyburn, Castledermot, County Kildare. The respondent is a limited liability company in the quarrying and concrete production industry and has its registered office at Bennekerry, Carlow, County Carlow.
2. The applicant seeks the following reliefs:
(i) An order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent, its servants or agents, and all persons acting in concert with them to cease all unauthorised development of lands at Ballyburn Road Castledermot, County Kildare.
(ii) An order requiring the respondent, its servants or agents, and all persons acting in concert with them to carry out the development of lands the subject matter of planning permission 05/20091 in accordance with the said permission and the conditions attached thereto.
(iii) An order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent, its servants or agents, and all persons acting in concert with them to restore the lands at Ballyburn Road, Castledermot, County Kildare to their condition prior to the commencement of the unauthorised development.
Background Facts
3.1 On 1st September, 2005, the respondent submitted a planning application for a quarry to Kildare County Council. The application included upgrading of the Ballyburn Road which leads to the quarry. In October 2005, various letters of objection were sent to Kildare County Council on behalf of residents of the Ballyburn Road. On 26th October, 2005, Kildare County Council sought further information in relation to the planning application. On 18th May, 2006, Kildare County Council’s road design department wrote a letter outlining the conditions to apply to the road. On 27th September, 2006, Kildare County Council granted planning permission for the quarry requiring improvement of the Ballyburn Road. On 23rd October, 2006, this decision was appealed to An Bord Pleanála. On 8th August, 2007, An Bord Pleanála granted planning permission subject to 29 conditions.
3.2 Conditions 1 and 5 are relevant to the Ballyburn Road. Condition 1 states:-
“The development shall be carried out in accordance with the plans and particulars lodged with the application, as amended by further plans and particulars received by the planning authority on the 28th day of March 2006 and the 3rd day of August 2006, except as may be otherwise required in order to comply with the following conditions…”
Condition 5 states:-
“No works permitted by this grant of permission shall commence until the planning authority have confirmed in writing that the following works have been completed to their satisfactions:
“(a) the upgrading of the junction at Prumplestown Crossroads on the existing N9 to the west of the site;
(b) the Ballyburn Road has been improved in accordance with the details submitted to the planning authority on the 28th day of March, 2006 including public lighting and footpaths between the site entrance and Prumplestown Crossroads.”
3.3 The details submitted to the planning authority on 28th March, 2006 included a drawing of the proposed road works. The drawing provided for a footpath to be constructed in front of the applicant’s dwelling and provided for a roadway of between 6.0 and 6.5 metres outside the applicant’s dwelling. In order for the respondent to widen the road, it was necessary for it to acquire some land. The respondent made the applicant an offer of €150,000 for 2 metres in front of the applicant’s house. The applicant refused this offer. The respondent then acquired some land from the property across the road from the applicant’s property. Instead of constructing the footpath on the applicant’s side of the road, the respondent constructed a footpath on the opposite side of the road. The roadway eventually constructed had a width of 7.5 metres and the road has also been elevated by 0.2 metres.
3.4 In these proceedings, the applicant submits that the development has not been constructed in accordance with the planning permission granted and that it represents a danger to the applicant and other road users. The applicant is therefore seeking an order pursuant to s. 160 of the Planning and Development Act 2000, requiring the respondent to restore the Ballyburn Road to the condition it was in prior to the commencement of the development. This would involve a realignment of the road and the restoration of the level and width of the road to what it was before the works took place.
Applicant’s Submissions
4.1 The applicant submits that the failure to construct a footpath has resulted in a situation whereby his vehicle has to substantially enter the carriageway of the road before he can achieve a safe line of sight to the left and right of his entrance. The applicant points out that previously, his property was set back some 2 metres from the road, and this verge enabled him to achieve an adequate line of sight. The applicant further submits that if the footpath shown on the drawing referred to in Condition 1 of An Bord Pleanála’s permission was constructed as detailed, he would have adequate sight lines. Condition 1 of this permission required that the plans and particulars received by the planning authority on 28th March, 2006 be complied with insofar as they provided for a footpath in front of the applicant’s dwelling and a roadway of between 6 and 6.5 metres outside the applicant’s dwelling. While the width of the footpath is not specified in the drawing, an examination of the planning file discloses a letter from the roads design department of the Planning Authority dated 18th May, 2006, which said that the requirement of that department in relation to footpaths is that they be designed in accordance with the Department of the Environment and Local Government’s ‘Recommendations for Site Development Works for Housing Areas’. Those recommendations require that the width of such footpaths be 2 metres. It is evident from the expert evidence given by the applicant’s engineer, Mr. Brennan, that the relevant standard for sight lines is as set out by the National Roads Authority (NRA), NRA document (TD 41/95 Vehicular Access Two All –Purpose Trunk Roads- Volume 6, Section 2, Part 7) and requires that a road designed for a speed of 60 Km/h should have a set back of 2.4m in order to provide a sight line distance of 90 metres.
4.2 The reference in Condition 1 to the plans and particulars received by the Planning Authority on 3rd August, 2006, incorporates a requirement that the surface of the road be covered with porous asphalt. The respondent has failed to provide porous asphalt with the result that the road is noisier and the standard of grip is less than that which would have been afforded with the asphalt surface. Nothing in the plans and particulars referred to in Condition 1 permitted the raising of the height of the road by more than 20cm. This has resulted in a steep incline for the applicant when exiting his property. In effect, he now has to perform a hill start. It also means that if he wishes to bring a trailer into his paddock he must use a jeep.
4.3 The applicant submits that once it is established that the development is not in accordance with the permission granted, then he has a prima facie entitlement to the relief sought. It is further submitted that while s. 160 provides the Court with a discretion as to whether or not to grant relief, this discretion ought only be exercised in circumstances where the deviations from the permission are de minimus. In the instant case, the deviations from the plans and particulars lodged have removed a footpath from the front of the applicant’s property and this has given rise to a traffic hazard at the applicant’s property. The applicant submits that the deviation is not de minimus and is in fact very material. Moreover, no justification is advanced for the deviation.
4.4 The only matters that are advanced in defence are as follows:-
(a) The application has been brought for an ulterior motive.
(b) Any complaint should have been made to Kildare County Council.
(c) The relief sought will gravely discommode Kildare County Council and the public at large.
(d) The solution to the sight line issue is in the applicant’s own hands through the removal of the trees to the front of his property.
(e) That Kildare County Council is the appropriate respondent.
(a) Insofar as it is alleged that the applicant has brought these proceedings for an ulterior purpose i.e. to secure the payment of monies, this is denied. The within proceedings cannot result in the payment of monies. (b) The applicant is under no legal obligation to make a formal complaint to Kildare County Council. The applicant complained to an area engineer and received assurances which have not been effected. A complaint to the Planning Authority is not a prerequisite to the commencement of s.160 proceedings.
(c) The applicant seeks no relief that will discommode Kildare County Council. No orders are sought against Kildare County Council. The respondent did not carry out the works in accordance with the permission granted by Kildare County Council. It is the respondent’s obligation to put this situation right, not Kildare County Council’s. The public will also be served in remedying a traffic hazard. (d) In relation to the trees at the front of the applicant’s property, it is submitted that the applicant cannot be under an obligation to remove these trees at his own expense because the respondent has failed to comply with its permission. (e) Kildare County Council is not the developer of the road. They carried out no works in respect of its alignment. They are neither a proper respondent or notice party to these proceedings as the applicant has no quarrel with them. The respondent has sought to suggest that Kildare County Council have approved this alteration. No evidence is adduced in this regard. It is submitted that the onus of proving such satisfaction is on the respondent not the applicant. No certification of the road has occurred and there is no indication of any satisfaction on the part of the Council.
Respondent’s Submissions
5.1 The respondent submits that the evidence advanced by the applicant is unsatisfactory. The applicant’s grounding affidavit, which purports to be his own evidence, was largely lifted from a report by Mr. Brennan, the applicant’s engineer. The applicant’s affidavit did not state this, nor did it exhibit the said report. Therefore, a reader of the affidavit would have been wholly misled into thinking what it contained was Mr Smyth’s own evidence. The respondent submits that when one compares the affidavit to the report on which it was based, it is clear that it is a very selective summary of that report. All references to Kildare County Council being at fault, and being answerable for the problems that are alleged to have arisen were omitted. Moreover, Mr. Smyth swore that the appeal to An Bord Pleanála of 23rd October, 2006, was his appeal. In fact, it emerged during his cross-examination that his name was not among those on this appeal. It emerged that Mr. and Mrs. Smyth had in fact brought a wholly separate appeal to An Bord Pleanála which he failed to exhibit in circumstances which remain unclear.
5.2 In opening the case, the applicant’s counsel noted that it was a fairly draconian order that was being sought, insofar as the applicant was seeking the restoration of the levels to what they ought to be, the width of the road to what it ought to be, and a realignment of the road to the way it ought to have to been according to the original plan. It was conceded that quite a deal of expense would be incurred. It was conceded that, if the applicant was prepared, to transfer to the respondent 2 metres in front of his house and make that available, the problem could be solved. In the absence of any solution like that being suggested by the respondent, the position remained that the applicant had to simply insist that the road should be reconstructed in accordance with the strict terms of the planning permission. However, prior to the road being built, the respondent did make an offer to the applicant of €150,000 for the 2 metres in front of his house but the applicant said no. The applicant sat back whilst the road was built. Now that the road has been completed, the applicant has decided to come to Court to demand the draconian order that it is ripped up and suggests that the alternative is that the respondent makes an offer to buy the 2 metres. The respondent submits that this case is a classic example of a “hostage strip”. The applicant is using the threat of the road being ripped up to seek to compel the respondent to purchase a 2-metre strip in front of his home. The respondent further submits that it is an abuse of process to seek to use s.160 in this manner.
5.3 In a s.160 application, the applicant bears the onus of proof in relation to all aspects of his case. This was expressly stated by Finlay P. in Dublin Corporation v. O’Sullivan (Unreported, High Court, Finlay P., 21st December 1984). Similarly, in Ryan v Roadstone (Unreported, High Court, 6th March 2006), it was noted that the applicant must establish facts from which the court can raise the possible inference that what the applicant asserts is true. Despite the fact that the onus rests with the applicant, the applicant did not exercise his right to cross-examine any of the witnesses for the respondent who were in court throughout the case. Thus, for example, the applicant failed to challenge by way of cross-examination, paragraph 5.2 of Mr. Thompson’s expert opinion which concludes that “any deviations from planning are minimal.” By contrast, the applicant’s expert, Mr. Brennan, who has put no formal report before the Court, expresses no opinion on the nature of any deviations. The respondent submits that even if the applicant succeeded in making out that there were deviations from the plan, he has not satisfied the court that these are material. The applicant adduces no evidence that Kildare County Council is dissatisfied with the works that were completed. It is contended on behalf of the applicant that it was the respondent, and not Kildare County Council that surfaced the road. This is not so. In fact, the road was surfaced by Kildare County Council.
5.4 The respondent submits that the motivation for the within proceedings relates to matters other than any genuine concerns about the road. Both the applicant and the applicant’s father have instituted specific performance proceedings against the respondent. The s.160 proceedings are the third set of proceedings arising out of the road that were issued in or about the same period of time. The applicant is seeking to continue his opposition to the overall grant of permission for the quarry by mounting a collateral attack on the road. The applicant’s grounding affidavit does not fully set out the background to the application or the full nature of the dealings between the parties and, in particular, omits to mention that the respondent gave the applicant’s father a sum of €50,000 and the applicant’s wife a Volkswagen Passat motorcar in order to make up for any inconvenience caused whilst the road was being upgraded. Whether an applicant has made frank disclosure is a factor to which the courts should have regard when exercising their discretion whether to grant or refuse relief in a s.160 application.
5.5 The respondent does not control the road and has no legal title to the road. It is Kildare County Council that controls the road. It was Kildare County Council that made the upgrade of its road a condition of the planning permission for the quarry and it was Kildare County Council that supervised the upgrading of the said road. All works that were conducted on the road by the respondent were carried out with the acquiescence and under the supervision of Kildare County Council. Therefore, the respondent submits that if the applicant has any complaint about the road, his remedy does not lie against the respondent, but rather, it lies against Kildare County Council. The respondent refers to ‘Planning and Development Law’ (2nd Ed. 2007) where Simons notes in the context of s.160 that:-
“Generally, it would seem that the appropriate respondents to an application should be the owner and occupier of the relevant land” (p. 311)
Kildare County Council has taken the road in charge and is therefore in the position of owner or occupier of it. There is no evidence it would permit the respondent to engage in works on the road. The applicant is, effectively, asking this Court to order the respondent to make changes to someone else’s property. Before making what counsel for the applicant admitted would be a “draconian order”, the Court should at least have the benefit of knowing how this will affect other road users. Such a perspective could have been brought to these proceedings if Kildare County Council had been involved.
5.6 The respondent submits that there are a number of discretionary factors that militate against the grant of the relief sought in this case. Kildare County Council has not brought enforcement proceedings. In Grimes v Punchestown Developments Company Ltd. [2002] 1 ILRM 409 Herbert J.,in exercising his discretion to refuse an injunction under the predecessor to s.160, had regard, inter alia, to the fact that the Planning Authority, as “official watchdog”, was aware of the matters complained of and had not pursued enforcement action. This is the case herein. The respondent submits that the Court should exercise its discretion to refuse relief because of the practical difficulties and hardship which it would cause. Relief should also be refused on public interest grounds. In Amphitheatre Ireland Ltd. v HSS Developments [2009] IEHC 464, this Court held at 14:-
“While the Respondents may, in strict terms, be in technical breach of Condition 4, I am not satisfied that this is a ground on which relief should be granted to the Applicant under s.160 of the 2000 Act in this case. In exercising the Court’s discretion in this respect, I have taken into account the fact the Council are aware of the status of the draft agreement and did not consider it necessary to take any enforcement proceedings against the Respondents at this time. I am also mindful of the public interest.”
The respondent further submits that relief should be refused on the basis that the applicant is complaining about a situation which he helped to cause. The applicant complains about sight lines and his safety being put at risk, but declines to cut back his own hedge so as to preserve his safety, this is something which the court can and should take into account in deciding whether to accede to his s.160 application. The respondent submits that the balance of convenience lies in refusing the relief sought. After a huge amount of effort and expense the road has been upgraded from what was a country road to a modern road. The road is safe and there has not been a single accident on it. The road was built under the supervision of Kildare County Council. It would be disproportionate to now require the respondent to in effect tear up the road and it is hard to see how that would assist safety.
Decision of the Court
6.1 The applicant seeks the following reliefs:-
(i) An order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent, its servants or agents, and all persons acting in concert with them to cease all unauthorised development of lands at Ballyburn Road Castledermot, Co Kildare.
(ii) An order requiring the respondent, its servants or agents, and all persons acting in concert with them to carry out the development of lands the subject matter of planning permission 05/20091 in accordance with the said permission and the conditions attached thereto.
(iii) An order pursuant to section 160 of the Planning and Development Act 2000 requiring the respondent, its servants or agents, and all persons acting in concert with them to restore the lands at Ballyburn Road, Castledermot, County Kildare to the condition prior to the commencement of the unauthorised development.
6.2 Section 160(1) of the Planning and Development Act, 2000 provides:-
“Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) That the unauthorised development is not carried out or continued;
(b) Insofar as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) That any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.”
6.3 The relief which the applicant seeks is the restoration of the Ballyburn Road to the condition it was in prior to the commencement of the upgrading works carried out by the respondent. This would involve digging up and restoring the level and the width of the road, and realigning the road. The applicant’s counsel describes the relief sought as “a fairly draconian order” and admits that “quite a deal of expense” would be incurred. The road has been upgraded at the insistence of Kildare County Council to facilitate a quarry, which, I am told, is shortly due to open. The applicant’s engineer, Mr. Brennan. in his report of August 2009 suggested that Kildare County Council should be asked whether they were happy with the road. However, the applicant never took this simple step. In his evidence, the applicant’s engineer asserted that it was for the respondent to prove that Kildare County Council was satisfied that the road was not an unauthorised development. It seems to me that in circumstances where the applicant wishes to alter the status quo and obtain an order digging up the road, it is for the applicant to adduce evidence proving that what he asserts is true and that the road is an unauthorised development.
6.4 The evidence put forward by and on behalf of the applicant has not been satisfactory. Mr Brennan’s two affidavits do not comply with any of the rules applicable to expert witnesses. They do not set out Mr. Brennan’s qualifications or experience. They do not set out whether he has any disclosable interest in the case. Both of Mr Brennan’s affidavits pray for relief in terms of the notice of motion. It is inappropriate for an expert witness to do this. In his commenting on Mr. Thompson’s report, Mr. Brennan quotes conditions from the permission by Kildare County Council stating that they were never appealed and have not been complied with. This is irrelevant as that permission was superceded by the permission from An Bord Pleanála. The applicant complains that a path of 2 metres was not constructed outside his home to allow him adequate sight lines. The applicant himself, however, acknowledges that the plans and particulars lodged with the application did not specify a width for the path. The applicant points out that the roads design department of the Planning Authority referred to the Department of the Environment’s recommendations for site development works which stipulates that such paths should be two metres. The road department’s requirements were not a part of An Bord Pleanala permission. The Board is capable of setting out the conditions it requires. I note that Mr. Brennan exhibited photos taken by Mr. Thompson but was not aware of the date they were taken. Scant regard was had for basic methodology in preparing expert reports for use in court proceedings.
6.5 While the applicant made a complaint to the area Engineer for Kildare County Council, he did not make a formal complaint to Kildare County Council. It was open to the applicant to fill out an ‘Unauthorised Development Complaint Form’ and send this to the Planning Department of Kildare County Council. On receipt of a complaint, the Development Inspector would carry out an inspection, and if necessary, issue a warning letter. If the developer failed to comply with the warning letter within the time specified, then an Enforcement Notice would issue. If the developer failed to comply with the Enforcement Notice, the Planning Authority may take the developer to court. I cannot understand why no such complaint was made. The applicant has not satisfactorily explained his failure to make such a complaint. Furthermore, the applicant did not cross-examine the respondent’s expert engineer, Mr. Thompson. I must therefore accept the unchallenged evidence put forward by Mr. Thompson in paragraph 5.2 of his report that “any deviations from the planning are minimal”. The applicant also did not cross-examine Mr. Morrissey who averred in his affidavit that Kildare County Council supervised the works. The applicant has not made Kildare County Council a notice party to these proceedings, and as a result, the Court does not know their attitude to this matter. I must assume they were aware of the condition of the road as they put on the final surface on the road. I think I may assume that Kildare County Council would have taken enforcement action if they had deemed the road to be dangerous.
6.6 It seems to me that there is present in this case an issue of delay on the part of the applicant. The applicant first wrote to the respondent on 20th May, 2009, and stated that he intended to obtain an engineering report in respect of the works to be done. The notice of motion issued over one year later, on 4th June, 2010. It seems to me that in circumstances where the applicant claims that the road poses a serious danger, there was an onus on him to act promptly. In my view, he did not do so and I am not satisfied that the delay has been explained.
6.7 I understand that with the old road, the applicant could safely pull out of his drive as there was a 2-metre verge which allowed him adequate sight lines. That situation no longer pertains. However, the respondent had to build a road of a certain width. The respondent offered €150,000.00 to purchase two metres at the front of the applicant’s house. As is his undoubted entitlement, the applicant refused this offer. But this decision carried with it certain consequences. The respondent was forced to purchase land on the opposite side of the road. There was only a limited space for the widened road, so when the road was constructed, it was closer to the applicant’s front wall than he would have wished. The verge in front of the applicant’s house has been reduced to 0.8 meters and this affects his sight lines. Mr. Thompson has given evidence that safe site lines could be achieved by simply removing overgrown plants at the front of his house. He has not been cross-examined, and in any event, it seems on the evidence I have before me, that this is manifestly correct. In these circumstances, it seems to me that it would be wholly disproportionate to require the road to be torn up lowered and realigned.
6.8 Taking this disproportionality, together with the applicant’s failure to avail of the alternative remedy of complaining to Kildare County Council, together with his delay in issuing these proceedings against the respondent, it seems to me that I must refuse the relief sought.
Derrybrien Development Society Ltd v Saorgas Energy Ltd
2015] IESC 77
Judgment of the Court delivered on the 16th day of October, 2015, by Denham C.J.
1. This is an appeal by Derrybrien Development Society Limited, the applicant/appellant, referred to as “the appellant” from the judgment and order of the High Court (Dunne J.) dated the 3rd June, 2005 and the 10th June, 2005, respectively, wherein the learned High Court judge refused to restrain the respondents, their servants and agents, from deforesting lands owned by Coillte Teoranta.
Motion
2. The appellant had brought a motion to the High Court seeking an order:-
(i) Pursuant to inter alia s. 160(1)(a) of the Planning and Development Act, 2000, restraining the respondents their servants or agents from continuing the aforesaid unauthorised development.
(ii) A final order pursuant to s. 160(1)(b) and s. 160(2) of the Planning and Development Act, 2000, directing restoration of the respondent’s lands to their condition prior to the commencement of the unauthorised development inclusive of the re-planting of trees in the affected areas and the restoration of the pre-existing drainage channels.
The motion was refused by the High Court but stayed for twenty one days in the event of a notice of appeal within that time, and it was stated that if there was an appeal that execution of the costs order be stayed pending the determination of an appeal.
3. The first named respondent is referred to as “Saorgus”, the second named respondent is referred to as “Coillte”, and the third named respondent is referred to as “the wind farm”. The three respondents are referred to collectively as ”the respondents”.
The High Court
4. The High Court recorded that the appellant sought an interlocutory and/or final order, pursuant to the Planning and Development Act, 2000, and in particular s. 160 of the said Act, restraining the respondents from commencing and/or continuing the unauthorised development, namely the programme of de-forestation, on their lands in the ownership of Coillte, comprised within folio 27229, folio 17176F, folio 34119, folio 52971 and folio 54074F, situate on Cashlaundrumlahan Mountain, Derrybrien, Co. Galway, and directing the restoration of the said lands to their condition prior to the commencement of the said unauthorised development, inclusive of the replanting of trees in affected areas and the restoration of the pre-existing drainage channels.
5. Saorgus is the owner of the lands at Cashlaundrumlahan Mountain, in the said folios, which is referred to as “Derrybrien”. Coillte is the former owner of the said lands, and had been contracted to carry out the removal of the trees on the site. The wind farm is the owner and developer of a wind farm scheme at Derrybrien.
6. Saorgus applied for and obtained planning permission for the erection of 71 wind turbines on the site.
7. The learned High Court judge described the planning permission as follows:-
“97/3470 This application was for a wind farm of 23 wind turbines. The application was approved by Galway County Council on 12th March, 1998. Following an appeal to An Bord Pleanála permission was granted subject to conditions on 12th October, 1998. The third named respondent herein (hereinafter referred to as Gort Wind Farms) obtained an extension of the period of the same planning permission until the 31st March, 2005.
97/3652 This was an application by Saorgus for a wind farm of 23 wind turbines. It was also approved by Galway County Council on 12th March, 1998. The decision was again appealed to An Bord Pleanála which granted permission subject to conditions on 12th October, 1998. An extension of the period of the planning permission until 31st March, 2005, was applied for and was granted.
99/2377 This application by Saorgus was for amongst other things a 110 kv electricity transmission line. Application in regard to this matter was made on 11th June, 1999 and it was approved on 20th September, 1999 by Galway County Council. An extension was obtained by Gort Wind Farms in respect of this permission.
00/4581 Saorgus applied for a wind farm of 25 turbines in this application. Permission was refused by Galway County Council on the 1st December, 2000. On appeal An Bord Pleanála granted permission subject to conditions on 15th November, 2001.
02/3560 Saorgus applied to Galway County Council for a change in turbine type. This was approved by Galway County Council on 6th January, 2003.”
8. In January, 2003, Saorgus applied for a felling licence in respect of some 263 hectares of the lands at Derrybrien pursuant to the provisions of the Forestry Act, 1946.
9. A felling licence was granted by the Minister for Communications, Marine Natural Resources on the 20th May, 2003, to Coillte, subject to several conditions.
10. In June, 2003, the lands at Derrybrien were transferred by Coillte to Saorgus, and the wind farm obtained a 21 year lease of the wind farm site from Saorgus.
11. On the 2nd July, 2003, work, including the removal of the trees, commenced on the site.
12. The learned High Court judge described relevant events as follows:-
“On 16th October, 2003, a massive bog burst/land slide at the Derrybrien site occurred causing significant damage to surrounding areas. The initial slide stopped on 19th October, 2003, two and a half kilometres down stream approximately but on 28th October, 2003, following heavy rain the slide continued causing a significant environmental disaster. Construction on the site ceased at that stage. As a result of the landslide/bog burst, work on site stopped and a number of reports were commissioned into the cause of the landslide. I think it is fair to say at this stage that it is acknowledged by Gort Wind Farms that as a result of the report commissioned, it was concluded that there were several contributing factors towards the land slide but that the immediate cause was most probably the ongoing construction works. Tree felling recommenced at Derrybrien in July of 2004 and construction work resumed in November 2004.”
13. The learned High Court judge identified the question to be decided by her as being whether a separate planning permission was needed by the respondents in order to embark on de-forestation/removal of trees on the site. Further, that if planning permission was required, that it then followed that further Environmental Impact Assessments would be required in order to comply with the requirements of the relevant E.C. Directive.
14. The European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999 came into force on the 1st May, 1999. These regulations added the following as subject to an Environmental Impact Assessment:-
“1. Agriculture, silviculture and aquaculture.
(b)(iii) deforestation for the purpose of conversion to another type of land use, where the area to be de-forested would be greater than 10 HA of natural woodland or 70 HA of conifer forest.”
These regulations came into force on the 1st May, 1999. It is referred to as “the regulation”.
15. It was common case that if a project involved de-forestation of an area greater than 70 HA of conifer forest, then an Environmental Impact Assessment must be provided for such a project.
16. It was argued in the High Court that the regulation applied retrospectively, or within a time when a planning permission was extended. The High Court held that the effect of the regulation was not such as to require the submission of an Environmental Impact Assessment, referred to as “an EIA”, for the purpose of obtaining an extension of the time within which the permission could be relied upon.
17. It was argued that two permissions, 99/2377 and 02/3560, did not have the necessary EIA having been lodged after the date when the regulation came into force. The High Court did not accept that any EIA under the 1999 Regulation was required. Thus, the issue before the High Court related to the permissions 97/3470, 97/3652 and 00/4581.
18. In the High Court it was accepted in argument that 97/3470 and 00/4581 related to part of the lands in Derrybrien covered in forest.
19. As to 97/3652, that land area is covered by bog and not forested and so it was considered that the same principles do not apply to that planning permission.
20. The High Court stated that the requirement for an EIA in respect of de-forestation did not come into effect until 1st May, 1999. The learned High Court judge held:-
“Accordingly it is my view that an E.I.A. dealing with de-forestation was not required for the first application for planning permission. Insofar as the second application in 1997 is concerned I have already said that it related to lands on which there was no forestry and again, the issue of an E.I.A. dealing with de-forestation does not arise. The final planning permission which is of relevance is that in relation to 00/4581. An Environmental Assessment (so-called) was furnished with that application.”
21. The High Court considered the affidavit evidence before the Court. It had been pointed out by Mr. William Murray, in his affidavit, that while an EIS was not required with application 97/3470, it was best practice as recommended under the Department of Environment Wind Farm Development Guidelines issued to planning authorities. Further, he had stated in his affidavit that the point made on the forestry concerning the adequacy of the EIS constitutes a retrospective objection to planning permission.
22. The High Court held:-
“Having considered this particular point it seems to me that there is force in the argument made by Mr. Murray in his affidavit. If there was a deficiency either in the earlier Environmental Impact Assessment or the Environmental Statement prepared in respect of the later application for planning permission it would have been open to the [appellant’s] predecessor and indeed to any of the local residents to object to the planning permissions sought on that ground. If, notwithstanding any objection that could have been made, planning permission had been granted then it would have been open to the [appellant] or its predecessors or any of the residents to judicially review the decision by which planning permission was granted. This did not happen. I have come to the conclusion that in questioning the validity of the Environmental Impact Statement and Environmental Assessment as it is referred to in respect of the 00/4581 planning permission that the [appellant] herein is in effect attempting to retrospectively object to the planning permission or, perhaps more accurately, seeking to challenge the validity of the permissions granted. Clearly this cannot be done now. The time for making such a challenge to the validity of the permissions has long since passed.”
23. The second argument advanced in the High Court by the appellant was that the removal of trees was not covered by the grant of planning permissions in respect of the three relevant permissions. In essence, this issue was whether planning permission was required for the removal of the trees.
24. The High Court determined that the removal of the trees was de-forestation. Further, that the regulation did not impose retrospectively an obligation to furnish a further EIS to deal specifically with the impact of de-forestation by the development at Derrybrien save in the last three relevant permissions. As to the last permission, the High Court re-iterated that any challenge to that permission based on an alleged inadequacy of the EIS was not permissible, as to hold otherwise would amount to an attack on the permissions notwithstanding that the time to challenge these permissions by judicial review had passed.
25. The High Court identified the crux of the case as being whether or not the permissions made it clear, from an objective point of view, that the scope of the permissions included the removal of the trees and the change of use of the land from forestry to wind farm.
26. The High Court held that the permissions granted were granted “in accordance with the documents lodged”, and the documents lodged included the Environmental Impact Statements. Thus, they were considered by the High Court to see if they made it clear that the proposed development involved the removal of all the forestry at the Derrybrien site in respect of the relevant applications.
27. The learned High Court judge concluded:-
“Having considered the matter carefully and in particular in the light of the matters set out in the Environmental Impact Statements I have come to the conclusion that on a reading of the Environmental Impact Statements attached to the various permissions it was quite clear that the proposed development envisaged the removal of the forestry thereon and the change of use on the lands from forestry to use as a wind farm. I can come to no other conclusion.
In the circumstances I am not satisfied that the [appellants] have made out the case that the de-forestation of the lands at Derrybrien is an unauthorised development. I have no doubt that but for the catastrophic events of the 16th October 2003, these proceedings would not have commenced. The concerns of the [appellant] are understandable but it is to be expected that the steps taken by the Respondents will ensure that there will not be a recurrence. ˮ
Notice of Appeal
28. The appellant has appealed the said judgment to this Court. The Notice of Appeal is dated the 19th February, 2009. While the High Court judgment was delivered on the 3rd June, 2005, the High Court order was not perfected until the 16th February, 2009. The appellant seeks an order setting aside the judgment and order of the High Court:
(i) Refusing the reliefs sought restraining the respondents from commencing or continuing the unauthorised development, namely the de-forestation, on Derrybrien;
(ii) refusing final orders restraining the respondents from continuing the unauthorised development;
(iii) refusing a final order directing the restoration of the lands to their condition prior to the commencement of the unauthorised development, inclusive of re-planting trees and the restoration of pre-existing drainage channels; and appealing the costs order.
29. The grounds on which the appellant appealed were stated to be:-
(i) That the High Court erred in holding that an Environmental Impact Assessment dealing with de-forestation was not required insofar as it involved development consents and/or planning permissions obtained after the commencement of the regulation on the 1st May, 1999;
(ii) that the High Court erred in holding that proceedings brought pursuant to s. 160 in respect of a development on the basis that it amounted to an ongoing breach of the regulation could or should not be upheld on the basis that the said development had been open to challenge at an earlier stage by way of judicial review of the decision to grant planning permission;
(iii) that the High Court erred in law and in fact in holding that the de-forestation of the site was covered by the grants of planning permission in respect of the three relevant permissions;
(iv) that the High Court erred in failing to give due and proper consideration to the relevant EC environmental legislation, namely Council Directive 85/337/EEC of the 27th June, 1985, on the assessment of the effects of certain public and private projects on the environment either before or after its amendment by Council Directive 97/11/EC of the 3rd March, 1997, in respect of the development;
(v) that the High Court erred in law and in fact in that, notwithstanding acknowledgement of the relevance of the EC Environmental Directives, the decision was confined to consideration of the regulation;
(vi) the High Court erred in law and in fact in holding that no Environmental Impact Assessment was required for development consent/planning permission No. 97/3652 on the sole grounds that no issue of de-forestation arose and by ignoring other criteria such as safety, human health, soil and landscape;
(vii) that the High Court erred in law and in fact in making a decision which was not in accordance with Irish and Community law.
Submissions
30. Submissions were advanced to the Court on behalf of the appellant and the respondents.
Events since the High Court decision of 2005
European Court of Justice
31. Proceedings were brought by the European Commission which resulted in a judgment of the European Court of Justice in Commission v. Ireland Case C- 215/06 [2008] E.C.R. 1-4911, which held that the development of the wind farm had not been preceded by an environmental impact assessment as required by the EIA Directive.
It was stated:-
“104. The purpose of carrying out an environmental impact assessment in conformity with the requirements of Directive 85/337 is to identify, describe and assess in an appropriate manner the direct and indirect effects of a project on factors such as fauna and flora, soil and water and the interaction of those factors. In the present case, the environmental impact statements supplied by the developer had certain deficiencies and did not examine, in particular, the question of soil stability, although that is fundamental when excavation is intended.
105. Consequently, by failing to take all measures necessary to ensure that the grant of development consents relating to the first two phases of construction of the wind farm was preceded by an environmental impact assessment in conformity with Articles 5 to 10 of Directive 85/337 and by merely attaching to the applications for consent environmental impact statements which did not satisfy those requirements, Ireland has failed to fulfil its obligations under that directive.”
32. The European Court of Justice declared that, by failing to adopt all measures necessary to ensure that:-
“
– the projects which are within the scope of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment … either before or after amendment by Council Directive 97/11/EC of 3 March 1997 … are, before they are executed in whole or in part, first, considered with regard to the need for an environmental impact assessment and, secondly, where those projects are likely to have significant effects on the environment by virtue of their nature, size or location, that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337, and
– the development consents given for, and the execution of, wind farm developments and associated works at Derrybrien, County Galway, were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of Directive 85/337 either before or after amendment by Directive 97/11, Ireland has failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive;”
Ireland was ordered to pay the costs.
Additional Evidence
33. Additional evidence was before this Court. This additional evidence related to events after the delivery of the High Court judgment on the 3rd June, 2005, when the appellant’s motion was refused.
34. The wind farm has been built and has been fully operational since January, 2006.
35. The respondents acted bona fide in accordance with planning permission, at all times.
36. The wind farm has no responsibility for any defect that may exist in the planning permission.
37. While the judgment and decision of the High Court was given on the 3rd June, 2005, the appellant did not file a notice of appeal until four years later in February, 2009.
38. Other proceedings were brought by the appellants on or about the 29th June, 2005 (i.e. just weeks after the refusal of the injunction by the High Court in these proceedings).
39. In those other proceedings the appellant challenged by way of judicial review the decision of Galway County Council to grant extensions of the appropriate period for the planning permissions 05/316 and 05/317. Those proceedings were heard by Budd J. in July, 2007. A reserved judgment was delivered on the 14th March, 2008, in which Budd J. found for the appellants.
40. However, no final orders were made in those judicial review proceedings as they were settled by the parties. A settlement was reached and inter alia it was agreed that €265,000 be paid to the appellant by the windfarm. While the terms of the settlement were to be kept confidential, it appears to have been agreed that no orders would be sought on foot of the judgment of Budd J..
41. Also, it appears that a joint statement was issued to the media, which concluded:-
“We trust that the operation of the windfarm will serve not just the interests of the country’s renewable energy needs but the people of Derrybrien.”
42. No application was made to the Supreme Court in relation to an appeal in this matter in 2005, seeking a priority hearing or otherwise, nor was an application for priority made after the appeal was filed in 2009. This was a “backlog appeal” first listed in one of the Supreme Court backlog lists on the 27th November, 2013.
Law
43. This is an appeal from a motion refusing relief under s. 160(1)(a) of the Planning and Development Act, 2000.
44. Section 160 makes statutory provision for an injunction in relation to unauthorised development. It provides:-
“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
[… ]
(3) (a) An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.
[…]
(6) (a) An application to the High Court or Circuit Court for an order under this section shall not be made—
(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or
(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40 ) or, as the case may be, of the appropriate period as extended under section 42 .
(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.”
45. This section of statutory law has been the subject of case law.
46. In Leen v. Aer Rianta c.p.t [2003] 4 IR 394, McKechnie J. considered s. 160. He referred to Morris v. Garvey [1983] I.R. 319 and to p. 324, where Henchy J., speaking for the Supreme Court, considered the correct approach a court should take under the provisions of s. 27(2) of the Local Government Planning and Development Act, 1976, of which McKechnie J. noted: “Which provisions are for present purposes almost identical to the corresponding words in the opening part of s. 160.”
47. In Leen McKechnie J. held:-
“Though the contextual circumstances in which Henchy J. made the above mentioned remarks must be noted, nonetheless there is no doubt but that this quoted part of his judgment has been repeatedly followed in later cases both in this court and in the Supreme Court and, in many respects has been treated as constituting principles of general application. Even within such principles, however, it is quite clear that the Supreme Court was endorsing the existence of a discretion under s. 27, or as of now s. 160, as it illustrated certain examples which, if existing, would justify the court in refusing relief, even though it was satisfied that an unauthorised development or use was in being. Henchy J. included in these examples a situation where an order would cause gross and disproportionate hardship. In addition, where ‘suchlike extenuating or excusing factors’ existed, similar considerations would apply. It seems, therefore, quite clear that the learned Judge did not intend these illustrations to be exhaustive, as every court must decide each case on the individual facts and circumstances surrounding it.”
48. In Leen McKechnie J. referred to the judgment in Stafford v. Roadstone Ltd [1980] I.L.R.M. 1 at p. 19, where Barrington J. concluded that the word “may” in s. 27(1) of the Act of 1976, and which appears in s. 160(1) of the Act of 2000, is not used in a mandatory sense but rather in a sense which confers a discretion on the Court. Further, Barrington J. stated that the discretion was similar to that in a court of equity or an injunction application. Barrington J. pointed to the fact that an injunction might be sought by a private individual “whether or not that person has an interest in the land.” Barrington J. pointed out that where a person who is not a Planning Authority and has no interest in the lands can apply for such an injunction, it was important that a court should have a wide discretion as to whether or not to issue an injunction.
49. In Leen, McKechnie J. makes reference to other cases where the discretionary nature of s. 27 (and so s. 160 today) were either discussed or implemented by the Court. These cases, which are part of the legal analysis of McKechnie J., clearly lay a further foundation for the discretionary nature of s. 160, which were not circumvented by Mahon v. Butler [1997] 3 I.R. 369.
50. The Court agrees with McKechnie J.’s analysis and with the generality of the discretion, which he described as:-
“Finally, on the generality of the discretion point it seems to me that, subsequent to Morris v. Garvey [1983] I.R. 319, the courts have tended to individualise each case and decide it accordingly, rather than to inquire as to whether the resulting circumstances fell within any of the illustrations mentioned in that judgment. For example, in some cases where there was no question of bad faith or lack of candour, injunctions issued, whereas in others relief was refused, even though the facts did not comfortably sit with the exceptions identified by Henchy J. in Morris v. Garvey.”
51. In Leen, McKechnie J. identified certain matters to which particular attention should be paid. They were: (a) the conduct, position and personal circumstances of the applicant; (b) the question of delay and acquiescence; (c) the conduct, position and personal circumstances of the respondent; (d) the public interest.
52. In Leen, McKechnie J. applied the principles set out in his judgment as to the matters to which a court should have regard, noting that the court had a discretion to refuse even if there was an unauthorised development or use in being, and that the court must look at the individual facts and circumstances of each case, and he refused the relief sought.
53. The Court approaches the appeal in this case through the prism of Leen and considers the individual facts and circumstances of the case.
Decision
54. While issues as to the planning law, the law on forestry, the law of the European Union, and the relationship between European law and national administrative law, amongst others, were raised, this is an appeal from a motion where an injunction pursuant to s. 160 was sought and refused. Consequently, the underpinning of the entire appeal is the s. 160 motion and the circumstances and facts of the case.
55. The facts of the case commence with the fact that this is an appeal from a decision of the 3rd June, 2005, refusing an injunction. Quite apart from any issue as to delay or acquiescence, the fact of this time passing since the refusal of the High Court is a relevant factor.
56. In relation to the issue of an application to cease de-forestation, the fact that the appellant did not file an appeal until 2009 is a relevant factor.
57. Also relevant is the fact that that since 2006 the wind farm has been operating at Derrybrien.
58. The appellant made no application prior to 2009, or since, to the Supreme Court for the case to be heard as a priority.
59. On the 3rd July, 2008, the Court of Justice of the European Union delivered its decision in Commission v. Ireland Case C – 215/06, [2008] E.C.R. 1-4911 in which the Court found that Ireland had failed to fulfil its obligations under Council Directive 85/337/EEC.
60. On about the 29th June, 2005, the appellant sought judicial review of the decisions of Galway County Council to grant extensions of the planning permissions, 05/316 and 05/317, as set out in more detail earlier in this judgment. Included in the settlement was a payment of €265,000 to the appellant by the windfarm. While that judicial review is not a bar to this appeal, it illustrates that the appellants were in active litigation, from which they benefitted, from the 29th June, 2005, on related matters, while taking no steps on this appeal. This raises a query as to the bona fides of the appellant in this appeal.
61. There is no doubt of the respondents’ bona fides. They acted at all times in the belief that they were in accordance with planning permissions granted by Galway County Council.
62. The wind farm has no responsibility for any inadequacy in any planning permissions which might be held to exist if the issue were to be decided on this appeal.
63. The forest has been cleared, and the wind farm has been operating since 2006.
64. There is a public interest in the finality of planning permissions, and in a locality which, since 2006, has had the input of a wind farm.
65. This is the context within which to consider the motion in relation to deforestation and restoration, including re-planting.
66. There is an element of futility in seeking an order to restrain the deforestation, in the circumstances. The Court does not make futile orders.
67. In fact, while members of the Court pressed counsel for the appellant as to whether re-afforestation was sought, no clear response was received.
68. For clarity, it should be noted that the Court is prepared to approach this appeal on the assumption that the planning permissions did not cover or extend fully to the deforestation.
69. It also should be noted that, while the papers in this appeal are extensive, they do not provide a clear picture of the situation under appeal.
70. A decision is required on the appellant’s appeal, which has been brought by the appellant after the decision of the European Court of Justice in The Commission v. Ireland Case C- 215/06 E.C.R. 1-4911.
71. In the context of this appeal, in all the circumstances of the appeal, the Court is satisfied that it is appropriate to exercise its discretion under s. 160 and to refuse the remedy sought in the motion.
72. Consequently, for the reasons set out in this judgment, in all the circumstances, the Court exercises a discretion under s. 160 and would refuse the motion, and dismiss the appeal.
Wicklow County Council v Kinsella
[2015] IEHC 229,
JUDGMENT of Kearns P. delivered on the 17th day of April, 2015
In these proceedings the applicants seek an order under s.160(1) of the Planning and Development Act 2000 as amended, restraining the respondents and each of them from continuing with an unauthorised development of lands on folio 8726 in the County of Wicklow where a timber chalet has been erected for residential purposes without planning permission. The applicants also seek an order pursuant to s.160 (2) of the Planning and Development Act 2000 as amended, directing the respondents to remove the said chalet, its concrete base and associated site works.
THE PLANNING AND DEVELOPMENT ACT 2000
The Planning and Development Act 2000 represents a consolidation of the law relating to planning and development which repeals and re-enacts with amendments various provisions of the Local Government (Planning and Development) Acts 1963-1999. The stated purpose of the Act is:-
“To provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing …”
Part VIII of the Act deals with enforcement, the aspect of planning laws with which the Court is concerned in the present case.
Section 151 of the Act provides that a person who carries out unauthorised development is guilty of an offence – a provision which, having regard to the severity of the sentences which may be imposed by virtue of s.156, may be taken as reflecting the importance attached by the Oireachtas to the serious implications of unauthorised development and the need for effective enforcement measures.
Section 152 provides for the issue of a warning letter by a planning authority to a person carrying out an unauthorised development. It permits a planning authority to ignore a development which is of a trivial or minor nature, so that the fact that such a letter does issue is of itself a serious step and may be seen as such.
Section 152 (4) sets out the details of what must be contained in a warning letter in such a way as to fully advise the recipient of the matter which has come to the attention of the planning authority and in respect of which the recipient may make submissions or observations in writing to the planning authority.
Section 153 permits the planning authority to make an appropriate investigation to determine whether or not to issue an enforcement notice. Before issuing an enforcement notice the planning authority must consider any representations made to it under s.152 and any other material considerations.
The service of an enforcement notice is provided for by s.154 and the detailed requirements of such a notice are elaborated at section 154(5).
Section 156 of the Act provides that a person who is guilty of an offence under, inter alia, ss. 151 or 154 shall be liable on conviction on indictment to a fine not exceeding £10,000,000 or to imprisonment for a term not exceeding two years or to both and on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding six months or both.
Section 160 provides for the making of an application to court and in relevant part provides as follows:-
“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do as the case may be, anything that the court considers necessary and specifies in the order to ensure, as appropriate, the following:-
(a) that the unauthorised development is not carried out or continue;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject;
(2) In making an order under subs. (1), where appropriate the court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”
The respondents are brother and sister and are the registered owners of folios 8725 and 8726 County Wicklow. While the second named respondent is joint owner of the property the subject matter of this application she has had no part in the development the subject matter of these proceedings. There is on the property an existing uninhabited cottage which, at some time in the future, the second named respondent intends to refurbish and occupy. The first named respondent now resides in the newly erected wooden chalet with his partner and young son and occupies same as their family home.
In resisting the application the respondents argue that they are entitled to remain in situ pursuant to two decisions of the High Court delivered by Hogan J. in the same matter, namely, Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 and Fortune v. Wicklow County Council (No. 2) [2013] IEHC 255. Both were cases concerning the unauthorised construction of a dwelling in a scenic location near Lough Dan in Co. Wicklow and both formed different constituent elements of an appeal from the Circuit Court. There were two further Fortune rulings which were consequential upon orders and directions made in the earlier cases but do not require consideration in the present case.
That particular matter having been decided in the context of an appeal to the High Court – from which no further appeal was possible – the applicants in the present proceedings invite this Court to hold that the Fortune case was erroneously decided insofar as it purported to restrict to the extent it did the powers of a planning authority when dealing with an unauthorised development. There is, of course, a right of appeal from any decision of this Court to the Court of Appeal.
In the course of this judgment the Court will review the jurisprudence which outlines the circumstances and jurisprudence which underpin the deference one judge of the High Court should give to another when deciding a similar or identical point and the circumstances which would justify or even require the making of a different decision.
BACKGROUND FACTS
The respondents bought the holding comprised in folios 8725 and 8726 County Wicklow in 2003 with the assistance of a loan from EBS Building Society, the same being registered as a charge or burden on both folios. The date of registration of ownership of the properties and the charge is the 18th March, 2003. The property fronts on to the N81 national road which, as will appear later herein, is an extremely busy stretch of roadway with an average daily put through of 8,500 vehicles.
At the time of the purchase there was an old cottage on folio 8725 which remains in situ and is uninhabited. It is serviced with electricity and has its own water supply.
By planning application 07/285, the respondents, with the assistance of a firm of architects, sought planning permission for a dormer bungalow and other structures additional to the existing house on the land. On making this application, the Council requested further information which was not forthcoming from the respondents and the application was ultimately treated as having been withdrawn. The importance of this early application is to make clear that the respondents were well aware of the requirement to seek and obtain planning permission.
In late 2008, the applicant was advised that the respondents were creating an unauthorised entrance into the site from the N81 national road and issued a warning letter. On further investigation, it emerged that the “unauthorised entrance” was in fact damage caused to the boundary by a car accident. Nothing further turns on that particular incident in these proceedings.
On the 30th August, 2012 a planning official found that a timber chalet had been erected on a concrete plinth on the site some little distance from the existing cottage and was in the course of being fitted out. A warning letter under s.152 of the 2000 Act was sent to the respondents on the 14th September, 2012. By letter dated the 8th October, 2012 the first named respondent asserted that he had acted in the belief that he did not require planning permission as the development in question was the replacement of a previous structure on site. It appears that at some stage in the 1990s there was a mobile home or prefabricated structure on folio 8726, but this was gone at the time when the respondents bought the lands. The first named respondent indicated that he would, however, take the necessary steps to apply for retention.
On the 12th October, 2012 the first named respondent was told that he should lodge a valid application for retention within a period of six to eight weeks. He failed to do so.
A further inspection of the site on the 5th December, 2012 revealed that works had continued on the property which was by now nearing a state when it could be occupied. On the 19th December, 2012 an enforcement notice under s.154 of the Act of 2000 was served. This notice required that the respondent cease the use of the chalet and remove it. By the time of the next inspection which occurred on the 25th April, 2013, the chalet was occupied in the manner already indicated.
Accordingly, the applicants took a decision on the 17th May, 2013 to institute proceedings under s.160 of the 2000 Act seeking a court order for the removal of the unauthorised development. A letter dated the 4th June, 2013 communicated this decision to the respondents who took no steps or any other action by way of compliance and the present proceedings were accordingly commenced in October 2013.
The proceedings were made returnable to the High Court on the 11th November, 2013. An application for retention permission was made on the 8th November, 2013, but this application was refused for the reasons set out in a notification dated the 28th April, 2014. The first named respondent brought an appeal from this decision to An Bord Pleanála which confirmed the decision of the applicant for the reasons set out in a written direction dated the 18th September, 2014. The essential grounds of the decision are danger to public safety by reason of traffic hazard.
REVIEW OF THE AFFIDAVIT EVIDENCE
In this case there has been a substantial amount of affidavit evidence, much of it filed on behalf of the applicants, not least because of their stated apprehension of the damaging implications for the enforcement of planning laws arising from the Fortune decision.
The grounding affidavit of Paul Brophy, a technician in the Planning Enforcement Section of Wicklow County Council, sworn on the 16th October, 2013 states that he is familiar with the lands in question and inspected them initially in November 2008 and again in 2009 following a complaint about the opening of a new entrance therefrom onto the N81. However, this alteration to the property was the result of a car crash and is of no particular significance from a planning point of view. However, his inspections of the location in 2008 and 2009 enabled him to depose that there was at that time no structure or building in place where the chalet, the subject matter of these proceedings, is presently located. A local resident made a complaint about the erection of the wooden chalet in July 2012 and he made a further attendance on the 30th August 2012 in this regard. He found that a timber chalet had been constructed on a concrete floor slab on the lands encompassed within folio 8726, together with an open trench running between the side of the chalet and the site boundary to the north east which contained a waste water pipe which was connected to the chalet. The end of the pipe furthest away from the chalet was not connected to anything and lay open on the trench. On the ground to the south of the chalet was a new AJ box which had been covered with a section of plywood, although he saw no evidence that a new septic tank had been installed. Internal works were ongoing when he arrived, although there were no people or work vehicles on site.
Following this inspection, he recommended that a warning letter under s.152 be sent to the respondents and this was duly done on the 14th September, 2012. The first named respondent replied to this letter on the 8th October, 2012 stating that the cabin he had erected as his family home replaced a similar previously existing structure on the same site, a contention which Mr. Brophy firmly rejects. The first respondent indicated he would apply for a retention permission.
A further inspection on the 5th December, 2012 found that works had continued apace since service of the warning letter in September 2012. Furthermore, no application for retention had been lodged by the first named respondent contrary to what he had indicated in his letter of the 8th October, 2012. Following a further inspection on the 25th April, 2013, Mr. Brophy was satisfied that works had been carried out since service of the enforcement notice in December 2012 so that the enforcement notice had not been complied with in any respect. Following this inspection he recommended that s.160 proceedings be commenced. A further inspection on the 27th August, 2013 confirmed that the concrete base and the chalet remained in place and that the chalet was now furnished. It appeared that the chalet was being used for residential occupation and user. A hall light was observed to be on within the old stone cottage on the site also.
Rosemarie Dennison is an Administrative Officer employed in the Planning Enforcement Section of Wicklow County Council. In her lengthy affidavit sworn on the 15th October, 2013 she confirms that the respondents sought planning permission on the lands comprised within folio 8726 in 2007 (ref 07/285) for a 334 sq. metres dormer bungalow, a septic tank and waste water treatment system. She confirms that the County Council sought further information in relation to the application by letter dated the 10th April, 2007 but, even though the respondents had architects acting on their behalf at the time, there was no response to their requests for further information and accordingly the planning application was deemed to be withdrawn.
She says that, apart from the incident involving car damage to the external fence, there were no further developments regarding this site until July 2012. At that time a representation was made by a Blessington resident to the County Council to the effect that they had recently noticed the erection of a residential dwelling in the form of a timber structure. Having referred to the warning letter sent on the recommendation of Mr. Brophy the deponent confirms that in his letter of the 8th October, 2012 the first named respondent had indicated that he would take all necessary steps to apply for retention, but no such steps were implemented. Thereafter the enforcement notice was served. She confirms that the s.160 proceedings were authorised by the duly designated officer of Wicklow County Council on the 17th May, 2013, following which a further letter was sent to the respondents by the solicitors retained for the purpose of these proceedings by the County Council on the 4th June, 2013 advising that s.160 proceedings would be drafted and issued.
She deposes that while affidavits were being finalised with a view to issuing Circuit Court proceedings, the High Court issued its decision in the case of Wicklow County Council v. Fortune (No. 2) on the 6th June, 2013. Ms. Dennison states:-
“That particular decision appears to have far reaching consequences for the enforcement of the planning laws in this country by way of reference to the constitutional protection afforded a dwelling under Article 40.5 of the Constitution. In that case, Mr. Justice Hogan declined to order the demolition of a house which he had already found to be ‘entirely unlawful’.”
She describes the fear and apprehension arising as a result of this decision that a judge of the Circuit Court may now feel precluded from making an order for the demolition of the chalet structure on these lands, given that the first named respondent has already confirmed that the structure is his “family home” and is relying on the aforesaid decision of the High Court in the Fortune case. She says the present proceedings were brought in the High Court in the first instance for that reason.
She confirms that planning permission is required for the works which have taken place on the lands comprised within folio 8726. No planning permission has been obtained and accordingly a situation of unauthorised development prevails which the applicants fear will continue unless an order is made by the Court.
Insofar as the first named respondent has maintained that the timber chalet replaced a similar previously existing structure which had been present for a period of approximately ten years, she deposes that planning permission would have been required for such a previous structure and the demolition of same and no such planning permission was applied for or exists. No such structure was evident on the site when it was inspected in the years 2007-2009.
A further affidavit was sworn by Ms. Sorcha Walsh, Acting Senior Planner with the applicant on the 15th October, 2013 in which she states that she carried out an inspection of the site on the 5th April, 2007 for the purpose of the planning permission lodged in that year (ref 07/285). On that occasion the only structure she found on the lands within folio 8726 or the adjoining lands comprised within folio 8725 (which effectively all formed part of the one site), was an old (uninhabited) stone cottage. She did not see any timber chalet or other structure on the site. Had there been such a structure she would have made reference to same and in the County Council’s requests for further information on the planning application as it would have been a highly pertinent and relevant matter.
She further confirms the fears and apprehensions felt by the applicants in respect of the High Court decision in the Fortune case, that the same has “far reaching consequences and implications for the proper enforcement of the planning laws in this country and in these circumstances, it is appropriate that this Honourable Court hear this particular case as a court of first instance”.
She enumerates as relevant to the Court’s consideration a number of points as follows:-
(a) The respondent knew that planning permission was required for the construction of the new dwelling;
(b) No residential user of the timber chalet had commenced at the time the warning letter was sent in September 2012, nor at the time the enforcement notice was sent in December 2012. Instead, work continued in the full knowledge of the County Council’s warnings contained in correspondence and the enforcement notice.
(c) In reply to the warning letter of the 14th September, 2012, the first named respondent stated he would like to take all necessary steps to apply for retention. At that stage, the dwelling was not occupied, but no application for retention (as of the time of swearing the affidavit) had been made
(d) In respect of any retention application, it would be necessary to show compliance with the rural policies of the Council, to provide an effluent disposal system and site entrance that meet current standards.
(e) The site is located on the N81, a national secondary road, with limited sight lines at the centre-line of any entrance to the property.
(f) Two dwellings on the site would effectively double the number of traffic movements in and out of the existing entrance.
In the same affidavit Ms. Walsh went on to refer to other difficulties arising by virtue of the fact that the site is located within the Liffey basin river catchment area and overlies the Blessington aquifer. She deposed that the nature of the effluent disposal arrangement serving the new dwelling was not clear. Nor was it clear why there was any need for a new dwelling on the site having regard to the fact there was already a habitable dwelling present.
In concluding her affidavit, Ms. Walsh stated that, if no order for demolition is made, others may take the view that if they perceived planning difficulties of their own, they would simply go ahead and build in the hope that either no proceedings would be taken or if so, no order for demolition would be made. In other words, without legal clarification following the Fortune case, the applicants believe there is carte blanche for individuals to build family homes where and how they want with perceived immunity arising from the constitutional protection of the family home. The deponent expresses her serious concern that this would undermine the whole planning, legal and democratic process.
In his first replying affidavit, Gregory Kinsella confirms that he and his sister purchased the site in or around 2003 and that there was a stone cottage present on the site at the time of purchase. He believes there had been in years past a cabin which had been erected by the previous owner Danny Nolan. He states that in May 2012 he commenced the construction of a dwelling on folio 8726 in the same location as the previous cabin. He deposes he had no alternative at that time for housing his family. The mortgage on the property was in arrears and, after a failed attempt to sell the property in 2011, he was left with “no option” but to live on the land with his partner and child. He says he constructed the dwelling in May 2012 and spent subsequent week-ends and evenings after work between May and December installing drainage, electric cables and connecting to the existing septic tank to service same. He moved in to the cabin in December 2012 with his partner Laura and son Christian. He continues to reside there. He deposes that he has a strong family connection to the area and that his parent’s property, where he was brought up, is close by.
In relation to the other dwelling, the old stone cottage, he says it is unoccupied and that his understanding with his sister when they purchased the property was that she would reside in it at some future point and that understanding remains in place.
He does not believe that any traffic hazard exists at this location and offered in support a letter from Mr. Jong Kim, a Senior Town Planner. He confirms however that he had submitted an application for retention planning permission in December 2013.
He deposes further that he believes his case is on all fours with that of Wicklow County Council v. Fortune insofar as the property sought to be demolished is a dwelling house constructed by an individual who has a real need for housing which is not causing harm or difficulty, and the court should “in line with the precedent in Fortune and having regard to Article 40.5 of the Constitution of Ireland refuse to exercise its discretion to grant such an order”.
The affidavit of Tom O’Leary, Senior Executive Engineer from the Transportation and Roads Infrastructure Directorate of Wicklow County Council was sworn on the 23rd January, 2014. He disputes any assertion by the respondent that there are good sight lines at the entrance to the property. He states that the N81 at this point is heavily trafficked with free fast flowing traffic unimpeded by traffic flowing in the opposite direction. Speeds of 100km/h are easily achievable. This is a single carriageway rural section of the N81 that has either no hard shoulders, has narrow hard strips or has occasional hard shoulders. The capacity of this road is 8,600 vehicles per day annual average daily traffic as per Table 6/1 of the National Roads Authority’s Road Link Design document NRA TD 9/12 of February 2012. He says that the road is running at “pretty close to capacity”. The sight lines for vehicles emerging from the entrance create significant safety concern on this high-speed, busy free flowing road. The site entrance is located within a 1.5km section of N81 which is designated as being extremely hazardous by way of gateway signage that has been erected at both ends. The signage provides advanced warning signs of a series of sharp bends and regulation signs for no overtaking. The centre line road markings are generally marked with double white continuous lines with occasional breaks provided for site entrances. He believes any intensification of use of this existing access would create an increased risk to road users in that there is insufficient forward visibility for right turning traffic of vehicles approaching the site entrance from the south and similarly there is insufficient forward visibility for road users travelling north of right turning traffic into the site.
The second affidavit of Paul Brophy was sworn on the 23rd January, 2014. He takes issue with Mr. Kinsella’s assertion that there had previously been a cabin on the site in question. He points out that when the respondents applied for planning permission back in 2007, no mention of this previous structure was made in that application. Having made further enquiries, he believes that some form of mobile dwelling existed previously on the site, though more to the front of the site, but historic aerial photographs confirm that no structure was located on the footprint of the current cabin. It appears that this mobile home had been set up above the ground on blocks and had clearly been removed in the 1990s. No other structure had been in place prior to when the first named respondent commenced construction of the current cabin in May 2012, a period of at least twelve years.
In relation to Mr. Kinsella’s suggestion that, for all intents and purposes, the property was effectively complete by the time he received the warning letter in September 2012, Mr. Brophy states that this was certainly not the case. There were significant outstanding works as of September 2012 and, by his own admission, the first named respondent did not move into the premises until the 9th December, 2012, over three months after Mr. Brophy’s initial inspection and just under three months after receiving the initial warning letter.
He deposes that the site is too small to accommodate two dwellings and deals in some detail with the Council’s and the EPA’s requirements which are of a minimum nature, and which were known to the respondents since 2007. From his inspections, it has not been possible to ascertain what type of effluent treatment system is on the site and is servicing the dwelling.
He reiterates that the retention permission (ref 13/8842) lodged by Mr. Kinsella resulted in a request for further information sent to him on the 19th December, 2013. The respondent had six months from the date of such request to furnish such information.
In her second affidavit sworn on the 23rd January, 2014, Sorcha Walsh takes issue with the assertion by the respondent that he had “no other alternative for housing for his family” by reason of his financial circumstances. She deposes that many people throughout the country are in financial hardship but do not engage in illegal development. She deposes that the respondent is simply unable to comply with the various requirements of the County Council outlined in previous affidavits. The respondents had been aware of the position with regard to planning since 2007 and had only recently made an application for retention following the enforcement measures initiated by the County Council. She reiterates that the entrance poses a traffic hazard on a number of levels. To the extent that the respondent seeks to rely on the decision of the High Court in Wicklow County Council v. Fortune, she submits that this particular case is far from being “on all fours” with that decision, particularly by reference to the traffic hazard that the entrance to the site poses, together with the public health hazards that presently exist on the site. The detailed analysis conducted by Mr. Brophy had shown that the site is inadequate for two dwellings. These difficulties did not arise in the case of Wicklow County Council v. Fortune.
The affidavit continues to repeat the various considerations and reasons why, in the view of the deponent, the relief sought in the notice of motion should be granted. She makes the significant point that, by building this dwelling without applying for planning permission, third parties who might have had a wish to object, have been totally excluded from the process and their rights, both statutory and constitutional, have been rendered null and void.
The second replying affidavit of Gregory Kinsella, sworn on the 4th March, 2014, is somewhat argumentative in nature. He complains of being “avalanched” by the volume of technical material relied upon by the applicants. He repeats that it was his belief that, because there had previously been a chalet on the site for a period of ten years without any objection from the applicant council, that he would not need permission for the development he has carried out.
However, implicitly recognising that planning permission was and remains necessary, the respondent confirms that he did set in train the paper process to apply for retention permission when he was in receipt of the warning letter from the County Council. He does not see any objective consideration of any convincing public reason why the dwelling should be demolished, other than the Council’s belief that he should not be permitted to retain the dwelling without having applied for planning permission.
In her third affidavit sworn on the 16th May, 2014, Sorcha Walsh rejects any suggestion that the Council intended to consider the respondent’s application for retention other than in an objective way. She stresses that in this instance the authority is wearing its planning enforcement hat. Planning enforcement is a totally separate and distinct department from the remainder of the Council and, in particular, the planning department.
She points out that the first indication of any intention to apply for retention permission was outlined in the respondent’s letter of the 8th October, 2012. Thereafter, further correspondence issued to the respondents including enforcement notices and warning letters. The proceedings were issued in October 2013 with a return date of 11th November, 2013. The retention application was lodged three days before the return date on the 8th November, 2013. The deponent states her belief that it took the institution of these proceedings before the retention application was made. She repeats that Mr. Kinsella himself decided to move into the newly constructed dwelling in the full knowledge that the dwelling was unauthorised. She also states that the main reason for the refusal of retention by the Council is the serious traffic hazard posed by the development. She says that given that Mr. Kinsella accepts that the dwelling has been erected without planning permission, the only issue is whether the Court should order the demolition and removal of the dwelling. In the context of refusal of retention by the Council in April 2014, the deponent referred to reports from the planner Edel Bermingham dated the 17th December, 2013 and 25th April, 2014 in which she (Edel Bermingham) concluded that while certain difficulties could be overcome with regard to effluent treatment, the serious traffic hazard issue could not. Her affidavit goes on to again refer to the High Court decision in the Fortune case and to reiterate the concerns of the County Council with regard to the implications of same.
The second affidavit of Tom O’Leary was sworn on the 16th May, 2014. In it he confirms he recommended a refusal of the application for retention (ref 13/8842) brought by the respondent. He clarifies that when the application was made, a request for further information was issued by the Council with respect to the application. Arising therefrom, a report was submitted on behalf of the first named respondent by Trafficwise Traffic and Transport Solutions which he was asked to review. He prepared such a report on the 24th March, 2014 which, having had due regard to all points advanced, nonetheless concluded there was a serious traffic hazard at the entrance to the development such that he again recommended a refusal of the application for retention for the reasons set out at p.7 of that report. In this affidavit he points out that the National Roads Authority also opposed the development for policy reasons in their letter dated the 28th November, 2013 addressed to Wicklow County Council Planning Department. Gráinne Leamy of the National Roads Authority wrote as follows in relation to Mr. Kinsella’s application for retention:-
“The authority has examined the above application and considers that it is at variance with official policy in relation to control of development on/affecting national roads, as outlined in the DoECLG Spatial Planning and National Roads Guidelines for Planning Authorities (2012), as the proposed development by itself, or by the precedent which a grant of permission for it would set, would adversely affect the operation and safety of the national road network for the following reasons:-
‘Official policy in relation to development involving access to national roads and development along such roads is set out in the DoECLG Spatial Planning and National Roads Guidelines for Planning Authorities (January, 2012). Section 2.5 of the Guidelines states that the policy of the planning authority will be to avoid the creation of any additional access point from new development or the generation of increased traffic from existing accesses to national roads to which speed limits greater than 60 kph apply. The proposal, if approved, would result in the intensification of an existing direct access to a national road contrary to official policy in relation to control of frontage development on national roads.’
Please acknowledge receipt of this submission in accordance with the provisions of the Planning and Development Regulations, 2001-2012.”
A second affidavit of Rosemarie Dennison sworn on the 30th September, 2014 confirms that the refusal of retention permission was appealed by the first named respondent to An Bord Pleanála. She deposes that on the 19th September, 2014 An Bord Pleanála upheld the refusal of planning permission. The reasons stated by the Bord for its decision are elaborated as follows:-
“The development proposed for retention is served by an existing access onto the N81, a national secondary route, which is substandard in terms of site lines and forward visibility and where segregated pedestrian facilities are unavailable. The traffic turning movements associated with the retention of this development would conflict with and interfere with the safety and free flow of traffic on the national road network at a point where vehicles travel up to the maximum speed limit. The development proposed for retention would, therefore, endanger public safety by reason of traffic hazard and would be contrary to the proper planning and sustainable development of the area.”
In the context of the appeal to An Bord Pleanála there was a detailed report prepared by Ms. Jane Dennihy, Senior Planning Inspector, dated the 15th August, 2014. In that report she elaborated the traffic hazard in the following terms:-
“I wish to draw attention to the following with regard to the conditions on the N81 in the vicinity of the site: The section of N81 at the site location has heavy volumes of traffic which can achieve speeds well towards the maximum speed of 100 kph. It is part of a 1.5km section of hazardous route at each end of which there are warning signs. The centre line of the carriageway is marked with a continuous white line. A bus stop is opposite the site and it is one of a series of signs that was in the roadside edge along the section of the road. The presence of a bus stop would contribute to pedestrian movement on the road edge where public footpaths and lighting are unavailable and there is a notable amount of vehicular stopping/starting and turning movements associated with the bus service, entrances and intersections with local roads and lanes.
I conducted a walkover along the road in both directions up to 300 metres from the site entrance and have driven along the carriageway in both directions a number of times and turned into and exited the existing entrance during the course of my inspections. The route is extremely hazardous for pedestrians who have no designated route or space. The existing access is seriously deficient and any increase in use of an access onto and off the route. The associated waiting and turning movements would contribute to increased potential for interference with the free and safe flow of traffic and risk of endangerment of pedestrian and vehicular safety.
I have reviewed the Transportation Engineer’s detailed reports on the planning application and further information submissions. Notwithstanding the applicant’s willingness to carry out some works to the entrance serving the cottage he has confirmed that it is intended that the entrance serve two dwellings.
The Transportation Engineer and Planning Officer’s view that permission should be refused is supported in that the proposal should be refused, on grounds of intensification of use of the existing entrance.”
A short affidavit was sworn thereafter by Mr. Jong Kim, Town Planning Consultant retained by the respondent, on the 3rd November, 2014. He confirms he was retained by the respondent in relation to the application for retention permission. He states that, despite the very many objections given by the applicant in its affidavits, the sole reason upon which An Bord Pleanála ultimately refused the permission for retention was the generation of additional traffic. He deposes to his belief that the refusal is based on the fact of two dwelling units occupying the site. The effect of the decision is that traffic generated by a single house is acceptable but not that generated by two.
He says that at the date of these proceedings, the existing cottage is in no fit state for occupation and while the second respondent has reserved her position to carry out renovations and occupy that house, to date she has not done so. From that perspective, he believes that from a planning point of view there is no valid objection to the present development for so long as the other house on the site is not occupied.
In his third affidavit sworn on the 24th February, 2015 Mr. O’Leary strongly disagrees with this view. He deposes that it is clear there is an objection to the unauthorised chalet from a planning perspective. Both Wicklow County Council and An Bord Pleanála on appeal have concluded that the unauthorised development in the form of the chalet and associated works endangers public safety by reason of a traffic hazard and is contrary to proper planning and development. It is incorrect to say that traffic generated by one house on the site is acceptable but not two. He deposes that the entrance creates and presents a serious traffic hazard for both road users and pedestrians. This view is also held by An Bord Pleanála. This is so no matter how many vehicles might use the entrance.
He accepts that if the second named respondent does occupy the existing cottage at some stage in the future, she will be entitled to use the entrance to access the cottage, notwithstanding that it will comprise a serious traffic hazard. Entrances onto national roads that were in existence prior to the 1st October, 1964 are still being used and lawfully so. However, prior to that date, traffic flow was far less, vehicles were of a different construction, they travelled less frequently and at a lower speed. While the use of such entrances may be legitimate to access structures and developments that were in place prior to that time, that certainly does not mean they do not comprise a serious traffic hazard, as in this instance.
Finally, Mr. Kim in an affidavit sworn on the 18th March, 2015, states that he merely wished to point out that the refusal of the retention application by the Board was on the grounds that there was an existing vehicular entrance to the property serving an existing house. No reason had been advanced as to why the respondent’s use of the entrance would be any more hazardous than the use permissible for the existing house such that he should be required to demolish his home.
SUBMISSIONS OF THE PARTIES
On behalf of the applicant it is submitted that the buildings and other works referred to in para. (1) of the notice of motion are an unauthorised development within s.160 (1) of the Planning and Development Act 2000 and the use as a domestic dwelling is unauthorised. The Act imposes necessary restrictions on rights and freedoms claimed by property holders “in the interest of the common good, for proper planning and sustainable development”. The enforcement discretion of the court under s.160 must be exercised with due regard to the objective of the Oireachtas as set out in the 2000 Act within the context of an overall statutory objective of securing planning compliance. Thus the subject of an order “may” be required to take such steps “as the court considers necessary and specifies in the order to ensure, as appropriate the following:-
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.”
The role of the court is to assist effective enforcement and to ensure that only permitted developments are carried out in accordance with permissions granted. The effect and consequences of unauthorised use or illegal development are relevant considerations, as per Morris v. Garvey [1983] I.R. 319. The decision of the High Court in Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 held that a test of proportionality should be applied when determining whether relief under s.160 should be granted where the unauthorised structure is being used as a dwelling. Thus an order of the type sought here must identify a necessity “objectively justified…and convincingly established”. It was submitted that the court in the Fortune case disregarded the role of the respondent in the planning breach and substituted its own view of proper planning and sustainable development with regard to the reasons for the refusal of retention permission, including the contravention of the development plan. However, the Act of 2000 envisages that there must be good reasons why s.160 relief should not be granted in any case where there is substantial non-compliance with planning obligations. The conduct of the respondent is always a relevant factor, but it was submitted that it was treated as irrelevant in determining the exercise of discretion in the Fortune judgments.
In this case full enforcement under s.160 is appropriate and proportionate. The development was unauthorised and deliberate. Traffic hazard is identified as the reason for refusal of permission. There is no realistic prospect that this hazard will abate in the short term. The applicant therefore submits that the Court should not second guess the conclusions of the statutory bodies who concluded that permission of the development should be refused on the grounds of traffic hazard. While a court is entitled to look at the impact of the development in considering whether the remedy sought is proportionate, it ought to act to give practical effect to the enforcement of decisions based on conclusions which are within the exclusive remit of statutory planning bodies.
The applicants asked: Is it a “drastic interference with the inviolability of the dwelling” to prevent a person from using a dwelling which he had no right to establish in the first place? In the present case the dwelling was only established because the respondent “stole a march” on the enforcement process. He built and completed the dwelling and occupied it without any planning permission and in full knowledge that the applicant’s viewed the development as unauthorised and illegal. The manner in which the Constitution protects and vindicates rights depends on context. For instance, the Constitution does not give a right to retain possession of a house against the owner where a dwelling has been established in it as a result of trespass. Thus any protection given by Article 40.5 may be modified by law in a proportionate way and may sometimes yield to competing rights and also to duties owed by the citizen. The Act of 2000 modifies property rights and rights which might otherwise be enjoyed to establish dwellings, in the interests of proper planning control by removing the right to establish or alter dwellings except in accordance with planning permission. This planning control is an essential environmental necessity in a properly ordered society. Those who propose to engage in development have access to guidance in the form of Government policy directives and development plans, local authority guidance and guidance from the National Roads Authority. They can engage architects and planners who will advise them. Those who ride rough shod over and ignore these requirements take the risk that they will be unable to regularise their position and that they will have to undo what they have done. Indeed the legislature also deems their actions to be criminal offences under ss.151, 154 and 156 of the Act of 2000.
The courts are not given power to override development plans nor should the Constitution be seen to provide immunities to wrongdoers. Article 40.5 does not confer on any citizen a right to establish a dwelling of his choosing at the place of his choosing. In essence, this is the right which the respondents claim. The provisions of the Act of 2000, an Act which enjoys a presumption of constitutionality, have made the exercise of rights subject to a statutory requirement to obtain and comply with planning permission. The Oireachtas has enacted that decisions on the issue of permissions are made by statutory specialist bodies and that planning policy is not made by the courts.
It is significant that rules 4 and 12 of the rules applicable to assessment of compensation and compulsory purchase exclude value of land increased by unlawful use or buildings, or attributable to unauthorised structures or use. Also excluded is compensation arising from the refusal of a planning permission in many circumstances. This illustrates the point that proportionality is not a principle of universal application which gives a remedy wherever a person is not permitted to do as he pleases with his property. It is not therefore correct to treat the principle of proportionality as being solely concerned with the effect of a given decision on a person or his property.
The application of any proportionality approach should also give due weight to the reasons for the refusal of planning permission. Courts, in the exercise of their functions under s.160, should defer to decisions made by the specialist planning bodies within their sphere of competence.
The approach to the exercise of discretion had been properly outlined in the judgment of Finlay P. in Dublin Corporation v. Garland [1982] I.L.R.M. 104 where he stated as follows at p.106:-
“The court cannot … entertain, in my view, in regard to applications under s.27 any question challenging the validity or correctness of a decision of a planning authority in regard to the granting or refusing of permission, though it may be concerned within the broader limits of its discretion with the consequences of unauthorised use or illegal development.”
In other words, it is not for the courts to come to a different planning conclusion than that arrived at by the appropriate planning authority.
Finally, in exercising the discretion given under s.160, the Court must bear in mind the consideration that a decision to refuse to make an order under that section in favour of the planning authority may, in effect, reverse a decision to refuse planning permission. Effective planning control depends on public compliance and acceptance of the rules. It also depends on the system of requiring demonstration of planning compliance in land transfer and mortgage transactions and the willingness of the public to respect and comply with their obligations under the 2000 Act. It also depends on the presence of effective measures to secure planning compliance. Jurisdiction conferred by s.160 of the 2000 Act and its statutory predecessors is a special statutory original jurisdiction and not a subsidiary aspect of some equitable jurisdiction to enforce public law. The Court is not precluded in exercising its functions from taking into account a wide range of considerations. These may include hardship, the personal circumstances of the respondents, the impact of the development on others, the prospect of a retention permission being forthcoming, the length of time during which the unauthorised structure has been occupied, the unauthorised structure itself and the other matters listed in the analysis of the authorities set out in pp. 419-424 of Dodd’s The Planning Acts 2000-2007 Annotated and Consolidated (2008, Roundhall). The bottom line however under the 2000 Act is that s.160 is intended by the Oireachtas to provide an effective tool in planning enforcement. The result and effect of the Fortune decision has been to render it ineffective.
On behalf of the first respondent, who places full reliance on the standing and judgment of the High Court in the Fortune case, it was submitted that it is not sufficient for a planning authority to show that the development is unauthorised, it must go further and show that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. No such necessity for demolition had been demonstrated in the present case. Accordingly, the Court should not exercise its discretion to order the demolition sought.
While the applicants had invoked many considerations in seeking to demonstrate that there were important public policy objectives requiring the demolition of the respondent’s house, these grounds had to a large extent fallen away in the light of the decision of An Bord Pleanála which refused permission for retention on the single ground of traffic hazard.
Furthermore, the Court should be slow to depart from the decision of another judge of the High Court unless there are strong reasons for doing so. There are no such strong reasons in the instant case.
It was submitted that the enforcement of planning legislation is not for the purpose of discipline but for the achievement of the common good. Thus while certain criteria might be appropriate for consideration on the granting or withholding of permission, separate considerations should apply to the enforcement. It was submitted that the issue of traffic generation when considered objectively is not, at least for the time being, a matter of such concern as to warrant the destruction of the respondent’s home.
The decision handed down by the High Court in the Fortune case represented a further evolution of the law as formulated by the Supreme Court in the Damache case (Damache v. DPP [2012] 2 I.R. 266) which in turn was a ground-breaking decision in relation to the constitutionality of a section of the Offences Against the State Act, 1939 that had existed for many years. The fact that court decisions can, from time to time, have such effect should not deter the courts from allowing the law to evolve and therefore this Court, it was submitted, should not depart from the views expressed in the Fortune case.
STARE DECISIS
While this Court is not strictly bound to follow decisions of other High Court Judges, it is well established that there must be strong reasons to warrant contradiction or departure.
The jurisprudence of the High Court regarding the proper approach of a judge of that court when faced with the previous decision of another judge of that court is consistent. It was well expressed by Parke J. in Irish Trust Bank Ltd. v. Central Bank of Ireland [1976] I.L.R.M. 50 when he stated:-
“ … a court should not depart from a decision of another court of equal jurisdiction unless it is established that the decision was based on insufficient authority or incorrect submissions, or that the judgment had departed in some way from the proper standard to be adopted in judicial determination.”
Similar views were expressed in judgments delivered by the High Court in Re Worldport Ireland Ltd. [2005] 2 JIC 1604 and in Brady v. DPP [2010] IEHC 231 and in B.N.J.L. v. Minister for Justice Equality and Law Reform [2012] IEHC 74.
In Worldport Ireland, Clarke J. elaborated on the circumstances where it might be appropriate for a court to come to a different view in the following manner:-
“Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is clear error in the judgment, or where the judgment sought to be revisited was delivered [at a] sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all the relevant authorities and which was, as was noted by Kearns J. (in Re Industrial Services Co. (Section 218 application) [2001] 2 IR 118), based on forming a judgment between evenly balanced argument. If each time such a point were to arise again, a judge were free to form his or her own view, without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. In the absence of a definitive ruling from the Supreme Court on this matter I do not, therefore, consider that it is appropriate for me to consider again the issue so recently decided by Kearns J. and I intend, therefore, that I should follow the ratio in Industrial Services and decline to take the view as urged by counsel for the Bank that the case was wrongly decided.”
This view of the doctrine of stare decisis was confirmed in the Supreme Court decision in Kadri v. Governor of Wheatfield Prison [2012] IESC 27.
That said, there have been a number of instances where circumstances have arisen in which a court may come to a different conclusion, as occurred in Tanat v. The Medical Council [2013] IEHC 223, a case in which O’Neill J. found it necessary not to follow the reasoning of a colleague in that particular case. He stated as follows at para. 77:-
“I was persuaded to do so by the fact that it appeared to me that the facts in that case, relating to what was the unintended, indeed accidental, eventuality which ensued in the calling in of the guarantee in that case, differed so markedly from the elaborate, carefully arranged series of contractual transactions leading ultimately to a common agreed objective, which was the factual matrix that I had to deal with in this case.”
O’Neill J. also referred to a further consideration of relevance in that case, namely, the fact that two significant highly persuasive authorities had not been opened to his colleague who had come to a different conclusion.
On this aspect of the case, the respondents argue that the decision of Hogan J. in Fortune was, and was intended to be, a dramatic reformulation of principles previously thought applicable. That he considered the matter to be that radical may be ascertained from his opening remarks:-
“To those unversed to the sometimes haphazard manner by which legal doctrine and jurisprudence can evolve, it may seem remarkable that a Supreme Court decision concerning the power of gardaí to issue search warrants in respect of a private dwelling (Damache v. Director of Public Prosecutions [2012] 2 I.L.R.M. 153) should have potentially far-reaching consequences in areas of civil law far removed from the criminal sphere, such as planning law. Yet perhaps it required a decision of this magnitude to illustrate that which in itself ought to have been obvious over the last 75 years or so, namely that Article 40.5 of the Constitution ensures that the dwelling must be safeguarded in an extensive manner as befits a free and democratic society.”
The Court pauses at this point to note that Hogan J. is perhaps the outstanding constitutional legal expert of this generation and is thus well qualified to express a view of how Article 40.5 might be invoked in the planning process, dramatic and far reaching though the consequences of his decision have been, or are feared to have been, for the efficacy of planning enforcement in this jurisdiction.
This Court must therefore, before embarking upon an analysis of the Fortune case, express in the clearest terms its respect both for the scholarship of the learned trial judge in Fortune and the Court’s acknowledgment that there are limited circumstances in which a contradictory or dissonant view should be expressed.
THE FORTUNE CASE
The first point to note in relation to the case of Wicklow County Council v. Fortune is that it was a case initiated in the Circuit Court and determined by Hogan J. in the context of an appeal from the Circuit Court to the High Court. No appeal from that decision was possible. The Court will have some observations to make at the end of this judgment as to whether novel legal principles which have the effect of ushering in severe restrictions on the enforcement of Irish planning law should be determined in the context of a Circuit Court appeal where the High Court is effectively acting as the final stop in the process.
But I turn firstly to the facts of the Fortune case and gratefully accept for the purposes of this judgment the outline of facts recited by Hogan J. in The County Council of the County of Wicklow v. Katie Fortune [2012] IEHC 406.
The defendant, Ms. Fortune, had at some stage within the previous thirteen years or so (the actual date is not specified) constructed a small timber frame chalet of approximately 70 sq. metres in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. Wooden decking in the form of a patio was laid around two sides of the chalet. While the Court found that the chalet had been sensitively constructed and was not immediately visible from the adjoining road, the stark fact remained that this chalet was built without planning permission.
This matter first came to the attention of the planning section of Wicklow County Council sometime in December, 2006. Officials from the Council visited the site on a number of occasions, noting that other parts of the site and immediately adjacent sites were used by other family members for such purposes as the storage of mobile homes and motor vehicles. A warning letter was duly sent pursuant to s.152 of the Act of 2000 on the 18th April, 2007.
The Council decided to postpone making an application to the Circuit Court for a statutory injunction under s.160 pending an application by Ms. Fortune for a retention planning permission. Two separate applications for retention were made on Ms. Fortune’s behalf. The process culminated in the decision of An Bord Pleanála to refuse to grant permission by decision of the 18th November, 2008. The reasons given by the Board for the refusal were as follows:-
“(1) The site of the proposed development is at an elevated location designated in the Wicklow County Development Plan 2004-2010 as an ‘area of outstanding beauty’. According to policy ss.9 of the Settlement Strategy it is the policy of the planning authority not to allow development of dwellings within areas so designated, unless it can be satisfactorily demonstrated that the applicant has a permanent note of residence of the immediate vicinity or has resided at the location for a minimum of 10 years. This policy is considered reasonable. It is considered on the basis of the submissions made in accordance with the application of the appeal that it has not been demonstrated that the applicant comes under the scope of the criteria set out under this policy. The proposed development would, therefore, contravene this policy and would be contrary to the proper planning and sustainable development of the area.
(2) The site of the proposed development is located off a lane that is substandard in horizontal and vertical alignment and in poor condition. The Board is not satisfied on the basis of the information provided in connection with the application of the appeal that the lane can be upgraded and maintained to a satisfactory standard to serve the development. The proposed development would, therefore, endanger public safety by reason of traffic hazard and obstruction of road users.”
Ms. Fortune’s account of events was to the effect that in 1999 she was separated from her husband and had two small children. Not having anywhere else to live, her mother (who apparently owned the site) allowed her to place a mobile home thereon. With the assistance of her family, she was then able to fund the erection of the chalet on the lands. However, as noted by Hogan J. the stark reality of the case was that the chalet was built without planning permission and various applications for retention were refused.
By decision dated the 8th February, 2011, her Honour Judge Flanagan found for the applicant Council and directed that the site be cleared. In particular, the learned Circuit Court Judge directed that the occupation of the chalet should cease as a prelude to its demolition and removal. Thereafter Ms. Fortune brought the appeal the subject matter of the hearing before Hogan J.
In that case, unlike the present case, the respondent contended that the application was time-barred. Having rejected that contention, the learned trial judge proceeded to consider the scope of his discretionary function in the matter of granting an injunction under section 160.
Having reviewed the authorities in relation to the exercise of discretion, Hogan J. concluded as follows (at para. 34):-
“ … it must be concluded that, objectively speaking, the development was not bona fide. After all, Ms. Fortune elected to build a dwelling in an area of high amenity in circumstances where she must have known that planning permission was required. Were it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Meath County Council v. Murray [2010] IEHC 254, i.e., grant the injunction, albeit subject to a two year stay.”
The learned trial judge then turned to examine the constitutional argument, having noted (at para. 32) that it appeared to be “the first time in which such an argument has been advanced by way of defence in a s.160 application.” Noting that the constitutional argument may have been prompted by the fresh emphasis given to Article 40.5 by recent decisions such as Damache v. Director of Public Prosecutions [2011] IESC 11 and The People (Director of Public Prosecutions) v. Cunningham [2011] IECCA 64, the learned trial judge (at para. 35) indicated his view that there was “no basis at all” for the suggestion that Article 40.5 should be confined in its application to the sphere of criminal law and criminal procedure, noting that the guarantee of “inviolability” of the dwelling in Article 40.5 is a free standing self executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike.
It is important to stress that the learned trial judge acknowledged that the Constitution was not intended to bring about a situation where someone could profit from their own deliberate and conscious wrongful actions by asserting an immunity from legal action and appropriate enforcement by invoking Article 40.5. At para. 41 he stated:-
“In the planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s.160 jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom [1996] 22 EHRR 123, the case for such a drastic step is convincingly established.”
Hogan J. thus felt able to conclude (at para. 42):-
“In this regard, it is not simply enough for the applicant Council to show – as, indeed, it already has – that the structure if unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.”
Acknowledging the “novelty” of the point and in particular the fact that the Article 40.5 issue was highlighted only in the wake of the Supreme Court’s decision in Damache, he adjourned for further consideration the question of whether the particular dwelling should be demolished, stating, however, that the test to be met on such an application would be “whether the necessity for a demolition order pursuant to s.160 (1) has, in fact, been convincingly established.”
Hogan J.’s judgment in Fortune (No. 2) was delivered on the 6th June, 2013.
In the course of this judgment, the learned trial judge recited the three arguments advanced by Wicklow County Council for the demolition order sought as follows:-
“First, it is said that failure to make such an order would undermine the effective protection of the environment provided for under the 2000 Act and, in essence, simultaneously reward Ms. Fortune for having unlawfully constructed this dwelling house. Second, it is said that the very fact that Ms. Fortune could continue to live in this unauthorised dwelling would itself serve as a precedent in terms of future applications for planning permission in the general vicinity, thus undermining the strict planning regime which obtains in this area of great scenic beauty. Third, it is contended that a failure to grant such a relief would compromise the status of the Wicklow Mountains candidate special area of conservation which is immediately adjoining to Ms. Fortune’s site. We can now proceed to examine these individual arguments in order whether to examine whether, individually or collectively, they satisfy the standard which I venture to articulate in Fortune (No. 1).”
In dealing with the first of these arguments, Hogan J., in a short eight line passage, rejected this contention on the basis that, for as long as it remained unauthorised, the property in question was unsaleable and could not be used as security for any lending purposes. “This in itself”, he concluded, “should operate as a deterrent to those who would otherwise wish to break the law”.
In relation to the second ground the learned trial judge felt he was concerned solely with the case of Ms. Fortune alone and that he had to consider this case on its own individual merits. He accepted that different considerations might well apply to other developments, depending on their individual circumstances. This portion of the judgment appears to relate to the consideration that the fact that planning permission has been granted in a particular development is a potentially relevant consideration in so far as future planning decisions are concerned. It is however difficult to find anything in this portion of the judgment which addresses the wider concerns of the applicant Council that the decision proposed by Hogan J. would have extremely damaging consequences on a wider basis for the enforcement of planning laws. That is the precedential consideration which is of particular concern to the applicants in the context of the present case.
Having devoted some consideration to the effluent treatment system which was external to the dwelling itself, the learned trial judge held that the Council were entitled to an order requiring Ms. Fortune to operate the effluent system in a manner compatible with existing EPA Guidelines.
The learned trial judge then concluded his judgment by once again posing the question:- “has the case for an order requiring the demolition of the chalet been convincingly established?” He concluded that the “test” he had posed at the conclusion of his judgment in Fortune (No. 1) had not been met by the applicants, stating as follows at paras 31 – 32:-
“31.…the Council’s argument based on moral hazard and rewarding those who take the law into their own hands is diluted by the fact that that I have already declared the structure to be unauthorised. This, in itself, should act as a deterrent to those who might otherwise take the law into their own hands. Nor is the argument based on precedent compelling, since as I have pointed out, the planning authorities could not be obliged to take account of unauthorised structures in assessing whether or not to grant planning permission to third parties seeking to develop in the locality. Nor has any compelling evidence been advanced that the site would compromise the protection of the Natura 2000 site.
32. None of this is to suggest that the arguments advanced by the Council are not important and weighty. In other cases, arguments of this kind might well prevail. But in the end I cannot ignore the solemn words of Article 40.5 which this Court is committed to uphold. The making of a s. 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and with Ms. Fortune’s property rights. If I may re-echo that which I have already said in Fortune (No.1), such an order could only be justified if compelling evidence requiring such a step had been advanced by the Council. As, for the reasons I have ventured to set out, I am not satisfied that such compelling evidence has been advanced, I will refuse to make an order requiring the demolition of the chalet. I will, however, make an order requiring Ms. Fortune to operate the effluent system which is external to the dwelling in a manner compatible with existing EPA guidelines”
DISCUSSION
I believe in this case one must commence by considering why we have planning laws and why they must be enforced. In one sense the reason is obvious: without effective planning laws and adequate enforcement procedures to ensure compliance with them, anarchy would rule the roost with regard to all sorts of developments. Dangerous, unsuitable and haphazard developments would be likely, some of which might be constructed or established in locations where a single citizen could inconvenience neighbours, destroy areas of natural beauty, disrupt traffic and even undermine the capacity of the community to engage in normal social function and activities. In short, there would be nothing to stop a ‘free for all’ development culture from running riot. Take an extreme example: might an individual create a structure overnight outside the GPO, bring in sleeping and cooking facilities, and claim thereafter that he is immune from removal as his “dwelling” is “inviolable” under Article 40.5 of the Constitution? I offer this example merely to highlight the levels of absurdity that may arise when the property rights of the individual, even when acting unlawfully, are seen in every instance to trump those of a democratic society which can only function when its constituent members are equally bound by rules which regulate matters such as planning and development.
The Planning Acts 1963-2000 provide the law which bind all citizens in this regard. It might be more accurate to say the legislation binds developments, as planning conditions enure for the benefit of the land and society generally, rather than the individual. It is the responsibility of the individual developer to conform, to obtain planning permission when required to do so and to comply with conditions attaching to any permission. In Kenny v. Dublin City Council [2009] IESC 19 the essential character of a planning permission was adverted to by Fennelly J. when at para 24 of his judgment he stated:-
“The planning permission is a formal and public document. The applicant, the planning authority and the public have participated in a formal statutory procedure, leading to its grant. The permission enures to the benefit of the land on which the permitted development is to be carried out.”
At para 25 of his judgment, Fennelly J. adopted with approval a passage to that effect from Simons on Planning and Development Law (2nd Ed., 2007, paragraphs 5.06 – 5.07).
The Act of 2000 enjoys a presumption of constitutionality and no constitutional challenge to any part of Part VIII of the Act has been made in these, or the Fortune, proceedings. That legislation specifically provides enforcement measures for developments which require planning permission and creates serious offences in respect of developments which ignore those requirements. That legislation specifically envisages that, in an appropriate case, a planning authority may apply to court to seek a demolition order under s. 160 as has occurred in this (and the Fortune) case.
This Court has no difficulty in acknowledging that any statutory discretionary power bestowed on the courts under s. 160 must be exercised constitutionally (See East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317), which in turn means that the court must act proportionately with regard to the particular transgression in respect of which sanction is being sought. (See Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R.70). Thus a building constructed with a minor departure from a condition contained in a planning permission would not normally attract a demolition order, particularly when the breach is one capable of being easily remedied. In Dodd’s Planning Acts 2000 – 2007 (Annotated and Consolidated) (at pp. 419 – 424), under the heading “Discretionary Refusal of Relief”, a long list of matters and cases relevant to the exercise of discretion are set out. Significantly the author commences his treatment of the topic by referring to the judgment delivered by Henchy J. in Morris v. Garvey [1983] I.R. 319 (to which reference was made in submissions) where, in stressing the community’s interest in preserving communal environmental rights he stated:-
“It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is ‘necessary to ensure that the development is carried out in conformity with the permission.’”
Summarising the key relevant factors elaborated by Dodd (which are comprehensively referenced to decided cases), they include:-
(a) The reasonableness of the conduct of both parties;
(b) The bona fides of the respondent in dealing with the planning authority;
(c) Public convenience or interest – i.e., the extent to which the public may be adversely affected;
(d) Delay (if any) in bringing the application;
(e) Error merely technical or minor;
(f) Undue hardship on the respondent (though in Westport UDC v. Golden [2002] 1 I.L.R.M. 439 Morris P. took into account the extent to which the respondent contributed to the situation);
(g) Opinion of the planning authority.
However, and having due regard to all of the foregoing, where the breach is a gross one – as in this case – the discretion of the Court is necessarily limited, particularly where a developer has not acted bona fide. Thus in Wicklow County Council v. Forest Fencing [2007] IEHC 242, Charleton J. stated:-
“This is a major developmnent for which there is no planning permission. It is a material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraints. I am obliged to decide in favour of the injunctive relief sought.”
In Meath Co. Co. v. Murray [2010] IEHC 254 Edwards J. directed the demolition of a house which was double the size of the dwelling for which planning permission had been refused, stating:-
“This is not a case of a minor infraction, or of accidental non-compliance with some technicality. The unauthorised development carried out by the respondent was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and they cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute an enormous hardship to the respondents to have to demolish their dwelling house…nevertheless the law must be upheld.”
These cases – and others – were referred to by Hogan J. in the course of his judgment in Fortune (No. 1), and in fairness to the learned trial judge, he did observe , quite correctly in the view of this Court, that:-
“… courts are generally unsympathetic to the hardship which was eminently forseeeable and which results from the culpable behaviour of the developer and landowner in question.”
In Fortune, the learned trial judge also found – as does this Court in respect of the case before it – that, objectively speaking, the development was not bona fide. Likewise, the planning history in the case of Mr. Kinsella, with regard to this development, is not open, on the full recitation and analysis of the affidavit evidence, to any other interpretation. But how – in such circumstances – some free standing application of Article 40.5, in the case of an unlawful development, could be applied to vindicate or reward the respondents in this or the Fortune case is beyond this Court’s comprehension, particularly having regard to the huge public and community interest in protecting the environment and the integrity and efficacy of planning law enforcement.
Even the European Court of Human Rights has pulled up short of any such extreme preference for personal rights over those of the community in this context. The Court was referred to the decision of the ECHR in Chapman v. United Kingdom (2001) 33 EHRR 18, 399, a case in which a gypsy who lived in a caravan on her own land was refused planning permission following which an enforcement notice was issued. Relying on Articles 6, 8 and 14 of the Convention, she complained, inter alia, that the refusal of planning permission and the enforcement measures violated her right to respect for private life, family life and home. The Court held that none of the Convention articles invoked had been breached, stating as follows in an important passage at para 102:-
“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibition of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community”
The adverse consequences for a person who develops land without planning permission knowing full well that planning permission is required could hardly be more clearly stated than in Chapman, and this by a court liberally disposed to upholding individual rights at every turn.
Likewise in Beard v. United Kingdom (2001) 33 EHRR 19, 412 at 466, the Court noted (at para 93) that a decision to refuse a retention permission for a caravan used as a dwelling took into account traffic hazard and expressed the view that this was a legitimate aim of “… protecting the rights of others through preservation of the environment and protection of public health through highway safety”.
Nonetheless, in refusing relief in the Fortune case, Hogan J. relied on Article 40.5 to formulate a new “necessity” test, imposing on an applicant council the obligation to demonstrate that “the necessity for this step (i.e., demolition) is objectively justified” and “convincingly established”. It should be noted that in requiring a “necessity test” as a precondition for a demolition order, Hogan J. did not have in mind as the relevant “necessity” the requirement of ensuring compliance with planning laws (in the sense intended by Henchy J. when he utilised the word in Morris v. Garvey), but rather the “far-reaching implications for the property rights of the owner of the property” assessed by reference to the policy objectives of legislative compliance and environmental protection (see Fortune (No. 2) para 5). The particular provisions of s.160 are, by obvious implication, to be subsumed into this novel legal matrix.
In reaching this view, Hogan J. attached great weight and significance to the decision of the Supreme Court in Damache v. Director of Public Prosecutions [2011] IESC and a brief consideration of that case is thus appropriate at this point
THE DAMACHE CASE
It must be said at the outset that the Damache case had absolutely nothing to do with planning laws or the enforcement of same.
It was a case in which the applicant sought a declaration that section 29(1) of the Offences Against the State Act, 1939 (as inserted by section 5 of the Criminal Law Act, 1976) was repugnant to the Constitution.
That section provided that where a member of the Garda Síochána, not below the rank of superintendent, was satisfied that there was reasonable ground for believing that evidence of or relating to the commission or intended commission of an offence under the Act of 1939 or the Criminal Law Act, 1976, or an offence which is for the time being a scheduled offence for the purposes of Part V of the Act, or evidence relating to the commission or intended commission of treason, is to be found in any building or part of a building, or in any vehicle, vessel, aircraft or hovercraft or in any other place whatsoever, he (i.e. the member of the Garda Síochána) may issue to a member of the Garda Síochána not below the rank of sergeant a search warrant under this section in relation to such place.
The kernel of that case was the finding of the Supreme Court that there should be independent and impartial supervision of the issuing of a warrant.
The place for which the search warrant was issued in the Damache case was the home of the appellant. No planning issues of any sort arose, nor was there any question but that Mr Damache was entitled to the occupation and enjoyment of his dwelling under his lawful tenure of same. To the extent that the case is at all relevant to the present case, the following passages from the Chief Justice contain some general references to the status of the dwelling under our Constitution:-
“39. … The dwelling is regarded as a place of importance which is protected under the Constitution. Thus, at the core of this case is to be found the principle of the constitutional protection of the home.
40. Article 40.5 of the Constitution of Ireland states:-
‘The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.’
Thus, the Constitution protects the inviolability of the dwelling.
41. There has been a long history of protection of the home under common law. In 1604, Sir Edward Coke in Semayne’s Case 77 ER 194, stated:-
‘That the house of everyone is to him as his (a castle and fortress, as well for his defence against injury and violence, as for his repose.’
The principle was referred to by Sir William Blackstone in his Commentaries on the Laws of England (1768), where he stated:-
‘For every man’s house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence.’
42. In Ireland the dwelling house is protected under the Constitution. The Constitution vindicates and protects fundamental rights. In The People (Attorney General) v. O’Brien [1965] I.R. 142, Walsh J. pointed out that:-
‘The vindication and the protection of constitutional rights is a fundamental matter for all courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen.’
43. In The People (Attorney General) v. Michael Hogan (1972) 1 Frewen 360 at 362, Kenny J. stated:-
‘Article 40.5 of the Constitution which is in that part of it which has the heading ‘Fundamental Rights’ and the sub-heading ‘Personal Rights’ reads: The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law. The guarantee is not against forcible entry only. The meaning of the Article is that the dwelling of every citizen is inviolable except to the extent that entry is permitted by law which may permit forcible entry.’
44. In The Director of Public Prosecutions v. Dunne [1994] 2 I.R. 537 at p. 540 Carney J. stated:
‘The constitutional protection given in Article 40, s. 5 of the Constitution in relation to the inviolability of the dwelling house is one of the most important, clear and unqualified protections given by the Constitution to the citizen’.
The Court would apply these statements, recognising the importance of the inviolability of the dwelling.”
The remainder of the judgment goes on to emphasise that, for the process in obtaining a search warrant to be meaningful, it is necessary for the person authorising the search to be able to assess the conflicting interests of the State and the individual in an impartial manner. The Court thus concluded that such person should be independent of the issue and act judicially.
The Court did, of course, recognise that the status of inviolability conferred by Article 40.5 on a dwelling is qualified in the sense that a dwelling may not be forcibly entered save in accordance with law which (as was stated at para. 55) means “without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution. Entry into a home is at the core of potential State interference with the inviolability of the dwelling”.
The processes elaborated in Part VIII of the Act are as far removed from any notion of “forcible entry” as could be imagined. Part VIII specifically provides the law under which and in accordance with which planning authorities must act. Nor is a planning authority “stooping to methods which ignore the fundamental norms of the legal order” when seeking proper enforcement of planning laws. On the contrary, it is its duty and responsibility to ensure that those laws are complied with. Numerous opportunities are provided by the mechanisms contained in Part VIII whereby a person who lacks planning permission can regularise his situation. Even in circumstances where a development has taken place without permission, it is open to an applicant to apply for a retention permission, and if that is refused to bring an appeal from such decision to An Bord Pleanála.
The Damache decision did not purport to address enforcement issues arising under provisions of Part VIII of the Act of 2000. Nor did it purport to address the extent of property rights a developer may have in a house or dwelling built without planning permission or, as in this case, in flagrant breach of the planning laws. I see no basis at all for adapting or transposing observations made in the context of Damache into the completely different legal and factual matrix of unauthorised planning developments. Still less do I see any basis for introducing a new test, based on some ‘free-standing’ obligation under Article 40.5, to effectively set aside the considerable body of jurisprudence which already exists in relation to the discretionary application by the courts of enforcement procedures under Part VIII of the Act.
The manner in which the Constitution protects and vindicates rights depends on context. For instance, the Constitution does not give a right to retain possession of a house against the owner where a dwelling has been established in it as a result of trespass. Nor can the Constitution be construed as providing immunities to wrongdoers, a category to which the respondent in this case most certainly belongs.
Nor does Article 40.5 confer on any citizen a right to establish a dwelling of his choosing at the place of his choosing. In essence, this is the right which the respondents claim. To the extent that the respondents enjoy rights to private property under Articles 40 and 43 of the Constitution, the provisions of the Act of 2000 have made the exercise of such rights subject to a statutory requirement to obtain and comply with planning permission. The Oireachtas has enacted that decisions on the issue of permissions are made by statutory specialist bodies and that planning policy is not made by the courts.
There is thus, in the view of this Court, absolutely no justification for the kind of crossover approach into a planning context of principles enunciated in the quite different context of the issuance and execution of a search warrant into a dwelling lawfully held and lawfully occupied.
To the extent that the judgment of Hogan J. in Fortune (No. 1) may be seen as holding or implying that the conduct of the respondent is a matter of little importance in determining the exercise of discretion, this Court would demur from any such view because it flies in the face of all the historic jurisprudence which holds that the conduct of a respondent is one of the most compelling factors in the list of discretionary factors. The judge’s own statement that the lack of planning permission might, down the road, cause a difficulty for the developer in terms of a resale can only be seen as relegating unlawful conduct to the outer periphery of relevant considerations.
Further, the requirement that there be ‘objective justification’ for the planning authority’s decision to bring enforcement procedures, which demands that a case be ‘convincingly established’ to the extent that it meets a ‘necessity test’ effectively rewrites and amends Part VIII of the Act in a manner impermissible under our Constitutional framework of separation of powers. Nor can the Court take over the role of the planning authority in this arena. The portions of Fortune (No. 2) cited above demonstrate that portion of the decision of Hogan J may be seen as performing the function of the planning authority, something out ruled by Finlay P. in Dublin Corporation v. Garland [1982] I.L.R.M. 104 where (at p 106) in a passage already cited he stated:-
“There can, in my view, be no function in the court on the making of an application under this section in any way to review, alter or set aside a decision of the Planning Authority with regard to the granting or withholding of permission. The entire scheme of the Planning Acts is that, subject to the limited exceptions for the determination by the High Court of questions of law specifically referred to it, decisions as to the proper planning and development of any area are peculiarly the function of the Planning Authority in the first instance and of An Bord Pleanala on appeal from them.”
DECISION
In this case the Court is satisfied that full enforcement under s.160 is both appropriate and proportionate. The development consisting of the construction of this chalet was unauthorised and undertaken with full knowledge that planning permission was required. Even after the service of warning letters and enforcement notices, development continued in what can only be described as flagrant disregard for planning laws. That a serious traffic hazard has thereby been created has been identified as the ultimate reason for refusal of retention permission. There is no realistic prospect that this hazard will abate in the foreseeable future.
The Court is satisfied that it should not second-guess the conclusions of statutory bodies who have concluded that permission of the development should be refused on the grounds of traffic hazard. While the Court is entitled to look at the impact of the development in considering whether the remedy sought is proportionate, the Court is satisfied that it ought to act to give practical effect to enforcement of decisions based on conclusions which are within the exclusive remit of the relevant planning authorities in this case.
The respondents in this case elected not to utilise an existing established residence on the premises. They moved with speed to build another house. The prospect of refusal of permission on the grounds of traffic hazard ought to have been anticipated by them. Ensuring that development does not impinge on road safety is a very important planning objective.
This Court has a further difficulty with the decision arrived in the Fortune case, because it appears to adopt an approach which is at odds with previous authority in that it involves a review of the planning assessment forming the reasoning for the decision of the statutory planning authority acting within its sphere of competence which, as was stated by Finlay P. in Dublin Corporation v. Garland cited above, is not within the court’s remit.
Thus while the assessment of the degree of environmental damage caused by a planning infringement is relevant to the exercise of discretion under s.160 in general, this assessment should be confined to issues not related to planning policy or judgment. The Court must have due regard and pay due deference to the expertise of a planning authority which has qualifications which the courts, of necessity, lack in this regard. Thus the Court must give due weight to any planning reasons embodied in the reasons for a decision to refuse planning permission. It is not the function of the Court to reverse the decisions of a planning authority nor does the legislation envisage a role for the courts in setting planning policy.
The jurisdiction conferred by s.160 of the Act of 2000 (and its statutory predecessors) is a special statutory original jurisdiction and not a subsidiary aspect of some equitable jurisdiction to enforce public law. The jurisdiction is thus firmly based on what the Court is required by statute to address in the event that it makes an order. The jurisdiction under s.160 is conferred on both the High Court and the Circuit Court. It says nothing about declarations. The Circuit Court does not enjoy any free-standing jurisdiction to grant declaratory relief in public law matters and the jurisdiction of the High Court on appeal from the Circuit Court is confined to jurisdiction which the Circuit Court may itself exercise.
This does not, of course, mean that the Court is precluded from taking into account a wide range of considerations, including hardship, the personal circumstances of the respondents, the impact of the development on others, the prospect of a retention permission being forthcoming, the length of time during which the unauthorised structure has been occupied, the unauthorised structure itself and the other matters to which reference has already been made in the summary of considerations elaborated in Dodds Planning Acts.
This Court is satisfied that the relatively small significance accorded by Hogan J. to the damaging precedential effects of his suggested approach is misplaced. The fact that, in the absence of permission, difficulties in making good title in the event of a sale of property many years later may not have anything like the deterrent effect which he postulated. On the contrary, the “message” which may emanate from the Fortune decision, perhaps unfairly from the Court’s point of view, was that a whole new level of uncertainty has been introduced into the efficacy of enforcement measures under Part VIII of the Act of 2000. This Court apprehends that many developers, including those who have no short term need to sell property on which the unlawful development is located, may, as a result of the Fortune decision, regard flouting the planning laws as a risk worth taking. That would be incredibly destructive of planning law and planning law enforcement in this jurisdiction were it to occur.
CONCLUSION
For all the reasons elaborated above, I am satisfied the applicants are entitled to the relief sought in this case, including an order for the demolition of the chalet, built on the site without either planning permission or retention permission and in full knowledge that neither permission existed. I appreciate that the removal of this chalet, modest enough as it is, will cause a degree of hardship to the respondent and the Court will thus hear some brief further submissions with regard to a timescale for the necessary works of demolition.
Finally, I would hope, without in any way wishing to cause offence to the learned Hogan J., to assert my own belief that a Circuit Court appeal, because it admits of no further appeal, is not an appropriate forum in which to introduce or lay down novel legal principles which may have far reaching effects and consequences such as occurred in the Fortune case.
Wicklow County Council v O’Reilly
2015] IEHC 667
JUDGMENT of Ms. Justice Iseult O’Malley delivered the 29th day of October 2015.
Introduction
1. The first named respondent (hereafter referred to as “the respondent”, as the companies named in the title have no relevant role in the proceedings), was in 2006 granted a waste facility permit in respect of a site near Rathnew in Co. Wicklow. This permit was replaced in 2009 by a waste facility permit issued under the relevant regulations.
2. On the 28th July, 2014, the appellant (“the Council”) was granted an order in the Circuit Court pursuant to the terms of s. 160(1) of the Planning and Development Act 2000, as amended, (“the Planning Act”) restraining the respondent from carrying on the operation of a waste recovery business on the site.
3. In deciding the case as he did, the learned Circuit Court judge held that the Council’s application was made within the relevant statutory period and that there had been an unauthorised, material change of use at the site. However, he refused to make an order under s. 160 (2) of the Planning Act directing the respondent to remove all waste, and all equipment associated with the business, from the site. This was on the basis that the Council had revoked the respondent’s waste permit during the currency of the court proceedings, and had thereby, in the view of the court, deprived it of the power to direct an orderly winding down of the business. The Council now appeals against that aspect of the decision. By leave of the court, the respondent has been permitted to appeal against the order made under s. 160(1). Both parties have appealed the subsequent decision of the Circuit Court to award to the Council 50% of its costs against the respondents.
4. The issues in the case are:-
• Whether, having regard to the history of the site, there was an unauthorised, material change of use.
• Whether the use of the site is an industrial process and therefore exempt.
• Whether the enforcement proceedings were instituted within the relevant time limit, having regard to the evidence of the respondent’s operations at the site. As an alternative argument the respondent argues that the appellant Council is disentitled to relief by reason of delay.
• Whether the revocation by the Council of the respondent’s waste permit during the currency of the Circuit Court proceedings was an impermissible and unconstitutional interference with that court’s process.
• Whether, if the foregoing issues are determined in favour of the Council, an order ought to be made under s.160(2) of the Planning Act.
5. To a large extent, the issues involve consideration of the interaction between the planning code and the waste management code.
Summary of the background facts
6. On the 17th July, 2006, the Council granted a permit, under the Waste Management Acts, 1996 to 2005, (“the Waste Management Act”) to the respondent to operate a waste management facility on the land.
7. Later on that month a complaint was made to the Council alleging unauthorised development on the site. An investigation began and there was some correspondence between the parties during 2006 and 2007. No further steps were taken at that time.
8. In 2009, the respondent applied for a declaration, under the procedure provided by s.5 of the Planning Act, that what was termed the “recycling activity” was an exempted development within the meaning of the Act. The Council, in its capacity as planning authority, determined that the activity constituted a material change of use from the previous established activity on the site and was therefore not an exempted development. This decision was not appealed or challenged by the respondent.
9. After a review in 2009, a further waste facility permit was granted to the respondent for the same site. However, no planning application (whether for retention or otherwise) has ever been made by the respondent for the business carried on by him from the site.
10. The planning investigation was resumed by the Council in 2011. A warning letter was sent to the respondent in March, 2011 in relation to what was regarded by the Council as unauthorised development of the site under the terms of s.152 of the Planning Act.
11. On the 16th June, 2011, an enforcement notice was served. No further steps were taken by the Council on foot of that notice.
12. In June, 2013 the County Council issued proceedings in the Circuit Court pursuant to s.160 of the Planning Act, seeking injunctive relief against the respondents.
13. On the 7th March, 2014, the Council revoked the waste facility permit for the site and required all activity related to the business to cease. The respondent was granted leave to seek judicial review in relation to this decision on the 17th April, 2014.
14. The s.160 proceedings were fully contested and came on for hearing on the 19th and 20th June, and the 21st July, 2014. The decision of the Circuit Court was given on the 28th July, 2014.
15. The judicial review proceedings, considered further below, were heard on the 29th October, 2014, and were ultimately determined in favour of the Council in a judgment delivered on the 14th November, 2014.
The “change of use” issue
Relevant statutory definitions
16. Section 3(1) of the Planning and Development Act, 2000 provides as follows:
“In this Act, “development” means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land.”
17. Section 3(2) provides inter alia that where land becomes used for the purpose of the “deposit” of old metal, builders’ waste, rubbish or debris the use of the land shall be taken as having materially changed.
18. By virtue of s. 2 of the Act, “use”, in relation to land, does not include the use of the land by the carrying out of any works thereon. The word “works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.
19. By virtue of regulations made under s.4 of the Act (the Planning and Development Regulations 2001) an “industrial process” means any process which is carried on in the course of trade or business, other than agriculture, and which is
(a) for or incidental to the making of any article or part of an article, or
(b) for or incidental to the altering, repairing, ornamenting, finishing, cleaning, adapting for sale, breaking up or demolition of any article, including the getting, dressing or treatment of minerals.
20. For the purposes of this provision
“article” includes-
(i) a vehicle, aircraft, ship or vessel, or
(ii) a sound recording, film, broadcast, cable programme, publication and computer program or other original database;
21. An “industrial undertaker” means a person by whom an industrial process is carried on and “industrial undertaking” is to be construed accordingly.
22. Under the regulations, a development on land occupied by an industrial undertaker for the purpose of an industrial process is exempt where it consists of the installation or erection by way of addition or replacement of plant and machinery, or structures of the nature of plant or machinery. The same exemption applies to works for the provision within the curtilage of an industrial building of a hard surface to be used in relation to the industrial process carried on within the building. In both cases, the development is not to materially alter the external appearance of the premises. The height of any plant or machinery, or any structure of that nature, must not exceed 15 metres above ground level or the height of the items being replaced, whichever is the greater.
23. The regulations also provide an exemption for the storage within the curtilage of an industrial building, in connection with the industrial process carried on therein, of
“raw materials, products, packing materials or fuel, or the deposit of waste arising from the industrial process”
provided such materials are not visible from any public road contiguous or adjacent to the curtilage.
Evidence relating to previous use of the site
24. According to Ms. Rosemarie Dennison, an administrative officer in the Council, the land is owned by members of a family called Stafford, who purchased it from Wicklow Corn Company Limited. Seven planning permissions have been granted in respect of the site since 1978. These have variously covered the storage and distribution of oil and petrol, the storage of agricultural grain (to be transported and processed elsewhere) and the storage, bagging and distribution of coal. The oil and grain businesses were operated on the site at the same time, by different companies. (The dual occupation of the lands has continued. In this judgment references to “the site” or “the premises” mean the portion of the lands occupied by the respondent).
25. Ms. Dennison avers that, at the time that her affidavit was sworn, there was an oil and solid fuel business being run from the lands by a company called Campus Oil/Stafford Fuels. It is averred that this business has no planning permission and that it is the subject of separate enforcement proceedings.
26. The respondent deposes that he grew up in Wicklow Town and was aware of the activities on the site from an early age. He recalls that a large facility was operated there, involving the bringing in and out of “huge amounts of grain, coal, briquettes, oil, logs and packaging”. This material would be broken up into smaller units on the site and then sold on. Products were also sold directly to members of the public at the site. He says that he also recalls that for a number of years, in the late 1970s or early1980s, a skip hire business operated there. His memory is of “extremely heavy traffic” in and out of the facility, with considerable movement of heavy goods vehicles.
27. An affidavit has been sworn on behalf of the respondent by Ms. Ann Mulcrone, a chartered town planner with considerable experience in planning matters. From a review of the Council’s records she says that the industrial use of the site “was and is” more extensive than as summarised by Ms. Dennison.
28. She refers to the respondent’s business as having been developed “on the footprint of a similar operation carried out by Glanbia, which was an established use and existed for many decades at this location”.
29. This view is disputed by the Council, which says that Glanbia operated “a conventional hardware-agricultural retail outlet”.
30. Ms. Mulcrone says that the Wicklow Corn Company had a planning permission for substantial grain silos, indicating a significant scale of operation, with ancillary grain drying equipment. She infers from this that there was processing of grain on the site.
31. When dried, the grain would have been bagged for distribution to large users of grain. This could have given rise to dust and other air pollution, and the spillage of grain would have been inevitable. It would also have given rise to significant traffic movements on and off the site.
32. The corn company also had permission for vehicle servicing, indicating that a large fleet of vehicles were associated with this use.
33. The handling and bagging of coal was an activity that could give rise to dust and air pollution, and potential contamination of the surface water system.
34. Ms. Mulcrone is of the view that there was an established industrial use, and that the overall industrial use was not subject to planning control or conditions.
35. On behalf of the Council, Mr. Tim Walsh agrees that a number of different businesses were carried out on the lands in the past. However, he says that the Council is unaware of any skip hire business being operated there, and says further that if there had been such a business it could not have involved the bringing of waste in skips onto the site in question. Activity of that nature would, he says, have been investigated by the Council.
36. Mr. Walsh avers that any waste generated by the corn and oil businesses could only be described as minor compared to the volume being dealt with by the respondent. He also says that, whatever the manner in which those companies dealt with their waste, they were not engaged in waste processing.
Evidence relating to the respondent’s use of the site
37. The respondent says that he has been engaged in the recycling business, trading as C&D Recycling, from 2004 onwards. This business operated from a smaller site in a different part of the county. When Glanbia moved out of the site in question, he saw an opportunity to move to larger, more suitable premises. He entered into an oral agreement with the owners for a tenancy. This was not formalised by way of a lease until July, 2006 but he says that by that time “the business was already up and running”. He avers that he had, with the agreement of the landlord, moved onto the site in May of that year to commence preparatory works.
38. The preparatory works are said to have involved levelling and re-surfacing areas, conducting general excavation work and laying concrete bases for machinery. This is described as having entailed “considerable work” on the part of the respondent and his employees.
39. The respondent says that he and the owners of the land were satisfied that the previous uses of the site, involving as they did the bringing in of materials, the breaking down of those materials and their redistribution for sale to third parties was so similar to his own operations that there would be no question of needing planning permission. He did however apply for a waste permit, having held one for his previous operations.
40. Notwithstanding the fact that he obtained a waste facility permit, the respondent stresses that in his view the site was not in fact used by him as a “waste facility”, on the basis that everything brought there had a value and could be sold. In his first affidavit (sworn in November, 2013) he says:
“I say and believe and have always maintained that this is not a waste facility but is a facility where materials brought onto the site are processed and sold on for value and no items now are landfilled or disposed of to a landfill or to an incinerator and therefore [it] could not in those circumstances amount to a waste facility for the purposes of the Planning Acts.”
41. He says that this is the type of activity that was previously carried on at the site by the oil and corn businesses, in that they brought materials onto the site, broke them down and redistributed them for sale. He only applied for a waste permit because the Council insisted that he should and he had no difficulty in complying with its wishes. No issue was raised about the planning status of the business in the application process.
42. It is also contended by the respondent that the definition of the term “waste” has relevance only in the context of the waste management legislation, and that it is not appropriate to a planning case where the only issue is the question of material change of use. His point here is that all he is doing is bringing materials onto the site with a view to processing, packaging and selling on for a profit.
43. Ms. Mulcrone supports the respondent’s case on this issue, averring that it is her understanding that material which has a value cannot be characterised as waste.
44. The respondent contends that all the material brought onto the site is inert without any attraction for vermin and no capacity to give rise to odours. There is no long-term storage of materials since the entire operation is predicated on them being on the site for as short a time as possible.
45. The respondent’s use of the site is described by Ms. Mulcrone as follows:
“I say that I understand the nature of the use of the site by C&D Recycling comprises an industrial process whereby C&D Recycling collects a range of materials including paper, timber, metals and plastics. The material is segregated into its constituent elements, plastic, paper, blocks, soil, timber, metals and each appropriately treated. The material is then either baled as in the case of cardboard, shred in the case of timber and crushed in the case of concrete.
I say that all material is recycled in authorised facilities, the timber is sent to palette [sic] companies to make new palettes, and farmers use the shredded wood as bedding for cattle; it is also used as cover for landfill and is used in the manufacture of woodchip board and MDF. The blocks and concrete are crushed, recycled and used for road fill, the baled cardboard is sent to Smurfit and the metal is sent to Hammond Lane for recycling. The final end product after the sorting, segregating, shredding and crushing comprises refuse derived fuel which is sold to waste [sic] to energy plants and is sent to Germany.”
46. Ms. Mulcrone takes issue with the assertion by Mr. Walsh that the site is being used for the “deposit” of waste within the meaning of the Act, since all of the material is broken up, washed, cleaned or otherwise processed and sold to third parties.
47. Ms. Mulcrone asserts that the plant and machinery used in the business are industrial in nature. Since their height does not exceed 15 metres and they are mainly housed indoors, the industrial process in question is exempt. They are not dissimilar to the conveyors and machinery that would have been used for the bagging of coal and grain.
48. Mr. Andrew Lawless, senior executive engineer with the Council, has described the respondent’s operations in the following terms:
“[The business] involves the taking in of waste in the form of skips. Sometimes, a waste collector will specify what waste can and cannot go into a skip, but I am not aware of any restrictions placed by Mr. O’Reilly on the waste which he is prepared to take in. This gives rise to the possibility (and in fact reality in the present case) that some of the waste which he accepts will indeed be suitable for recycling or soil recovery, but some will only be suitable for disposal or recovery via incineration.
At the site, the following items of waste are normally taken out for recycling or soil recovery, namely:
i. cardboard
ii. large pieces of plastic (hard and soft);
iii. metals;
iv. soil, stones and concrete;
v. textiles; and
vi. timber.
Because the quality can be quite variable, soft plastic wrapping and textiles are very often not suitable for recycling and are sent instead for recovery via incineration.
Other items taken out would typically include large batteries, tyres and glass packaging. Large batteries would be hazardous and should be sent to the appropriate facility for treatment. Tyres are typically sent to specialist facilities that crush the tyres into a crumb. I am aware that glass packaging was often removed and brought to one of the County Council’s bottle banks.
Waste electrical items should have been removed and sent for appropriate treatment separating out the various components but there is little information regarding what has happened with respect to this type of waste.
The remaining waste is stored around the site before being shredded and placed in a stockpile in the yard. Such waste could include:
i. municipal waste, including household waste and street sweepings;
ii. mattresses;
iii. paper too small to pick out;
iv. pieces of plastic too small to pick out; and
v. other waste, such as garden waste, paint cans, small batteries.
The first named respondent has advised the County Council in the past that the ultimate location for this stock pile is various waste transfer stations in the Dublin area including Thornton’s Recycling Limited, where it will be screened again for metals before it will be exported for Refuse Derived Fuel…”
49. By reference to the documentation required to be submitted by the respondent to the Council, Mr. Lawless states that a significant amount of the waste taken in by the respondent at the site was ultimately taken for recovery or disposal by other commercial operations such as Thornton’s or Panda, at a cost rather than profit to the respondent. However, he says that
“[An] alternative to paying for the disposal of waste elsewhere is to simply stockpile it on the site, and the size of the stock pile greatly increased in 2013 and 2014.”
50. At an inspection on the 6th September, 2013, Mr. Lawless estimated that the quantity of waste on the site that was destined for landfill or for recovery as refuse derived fuel was around 2,000 tonnes. Putting matters in a different way, he estimated that between May and November, 2013 the external stock pile in the yard increased from 1,587 to 2,476 metres squared.
51. Mr. Lawless avers that the increase in the stockpile led to increased problems of odours and dust.
52. The respondent has in part blamed the Council for the issues raised by Mr. Lawless, and in part declined to deal with them in his affidavits on the basis of the then pending criminal prosecutions.
53. Mr. Walsh has exhibited a number of decisions of An Bord Pleanála tending to demonstrate the view of that body that the use of industrial lands for the operation of waste recovery/recycling facilities does not come within the definition of “industrial process”. It constitutes a material change of use and is therefore non-exempted development.
The waste permit
Relevant statutory provisions
54. The Waste Management Act defines waste in s.4(1)(a) as being
“any substance or object belonging to a category of waste specified in the First Schedule or for the time being included in the European Waste Catalogue which the holder discards or intends to or is required to discard, and anything which is discarded or otherwise dealt with as if it were waste shall be presumed to be waste until the contrary is proved”.
55. The relevant item in the First Schedule appears to be No. 14 – “Products for which the holder has no further use”. It should be noted that at No. 16 there is a “catchall” provision – “Any materials, substances or products which are not otherwise specified in this Schedule”.
56. Waste recovery is defined as:
“any activity carried on for the purpose of reclaiming, recycling or re-using, in whole or in part, the waste and any activities related to such reclamation, recycling or reuse”
including any activities specified in the Fourth Schedule.
57. The activities specified in the Fourth Schedule include the recycling or reclamation of metals and metal compounds, or of other inorganic materials. Recycling is the subjection of waste to any process or treatment to make it re-usable in whole or in part.
58. The Act imposes various duties on local authorities in relation to waste management. There is also provision for the involvement of the private sector.
59. The initial waste facility permit was applied for in June, 2006. In making his application, the respondent informed the Council that it was his intention to commence activities “as soon as approved”. The permit was issued on the 17th July, 2006.
60. The waste permit in force at the material time was granted in 2009. This permit was issued pursuant to the provisions of the Waste Management Acts 1996 to 2008 and the Waste Management (Facility Permit and Registration) (Amendment) Regulations (S.I. 86/2008). By reference to the third and fourth schedules of the regulations, the activities covered by the permit were:
• The reception, storage and recovery of scrap metal.
• The recovery of inert waste arising from construction and demolition activity including concrete, bricks, tiles, and other similar material subject to specified limits.
• The recovery of waste, other than hazardous waste, subject to specified limits.
• The recycling or reclamation of organic substances which are not used as solvents.
• The recycling or reclamation of metal compounds.
• The recycling or reclamation of other inorganic materials.
• The storage of waste intended for submission to any activity already referred to.
61. A long list of conditions was attached to the permit under various headings. The first condition reads as follows:
“This facility permit is for the purpose of waste activity authorisation under the Waste Management (Facility Permit and Registration) Regulations S.I. No 821 of 2007as amended by the Waste Management (Facility Permit and Registration) (Amendment) Regulations S.I. No. 86 of 2008 only, and nothing in this permit shall be construed as negating the permit holders statutory obligations, or requirements under any other enactments or regulations.” (Emphasis in the original.)
62. Condition 2.6 provides as follows:
“The permit holder shall be legally responsible for all aspects of the operation and maintenance of the site. Nothing in the granting of this permit reduces the legal liabilities of the permit holder, nor relieves the permit holder of his statutory obligations under any enactment whatsoever.”
63. Clause 9.6 provides that following the termination of permit related activities the holder shall, to the satisfaction of the Council, render safe and remove any waste materials and any temporary buildings and equipment from the site.
64. On the 18th June, 2013, the respondent was served with a notice under s.55 of the Waste Management Act, requiring him to take specified steps to reduce the volume of waste on the premises.
65. On the 2nd January, 2014, the Council served notice that it intended to review the permit on the basis that, according to the notice, there was reason to believe that there had been “a material change in the nature, focus and extent of the waste related activity” to an extent that rendered the conditions attached to the existing permit inappropriate. The respondent was required to furnish specified information and documentation for the purpose of the review. He was also required to make a submission in writing, and warned that if no submission was made the permit would be revoked.
66. On the 28th January, 2014, two summonses were issued by the District Court, by virtue of which the respondent was charged with two offences of failing to comply with the notice served in June, 2013. Further summonses issued on the 16th April, 2014, charging him with failing to comply with a requirement of s.14 of the Waste Management Act, dealing with waste in a manner likely to cause pollution, dealing with waste at a facility which was not in accordance with a licence, collecting waste which was not in accordance with a permit and abandoning or engaging in unauthorised management of waste. The court has been told that the respondent ultimately pleaded guilty to these charges.
67. On the 7th March, 2014, the permit was revoked. I do not propose to enter into the substance of the intervening correspondence, since it was dealt with in the respondent’s application for judicial review. It is apparent that those proceedings were focussed on the procedural matters relating to the revocation decision.
68. The Circuit Court planning proceedings are mentioned in the papers before the President but there is no suggestion in the affidavits or statement of grounds that the existence of those proceedings was a ground for quashing the decision to revoke.
69. The learned President dismissed the claim in its entirety. According to court records, following delivery of his judgment, the proceedings were struck out on consent. However, this court has been told that the respondent intends to appeal.
Enforcement action under the Planning Act
70. According to the Council, a complaint in relation to the land was received in July, 2006. The complaint concerned an alleged change in use commencing in the week of the 16th July. An inspection was carried out by Mr. Paul Brophy, a technician in the Planning Enforcement Section of the Council, on the 1st August, 2006. Mr. Brophy says that the respondent showed him around the premises and he observed that metal, plastics, wood, paints, rubber etc were being sorted, bagged and distributed to customers. The respondent informed him that he was using the same machines as previous occupants of the site had utilised for the bagging of bulk material (i.e. coal). Mr. Brophy told the respondent that his personal view was that the operations appeared similar to those of the previous user, but that he would have to check whether there had in fact been a change of use requiring planning permission. He says that having checked the regulations, he formed a view that there had indeed been a change of use, which was not exempted development, and recommended that a warning letter be sent.
71. A letter was sent on the 14th August, 2006, stating that it had been represented to the planning authority that unauthorised development had been carried out and inviting the respondent to make submissions. On the 12th September, 2006, the respondent’s architect replied in the following terms:
“The activities being carried out by C & D Recycling are carried out under licence issued by Wicklow County Council. These activities comprise of the collection, sorting, processing and recycling of construction and demolition materials. In the opinion of our client the activities carried out by his company are Industrial as defined in the Planning Acts and Regulations. The site is shared with other companies, principally Clarke Oils, Wicklow Hire and Wicklow Corn Company. These companies have been involved on this site for some time in Industrial activities which are similarly defined in the Planning Acts and Regulations.”
72. This letter was acknowledged by the Council, without further comment.
73. In September, 2006 the respondent’s architect lodged an application for planning permission in respect of a recycling operation at a site in Newtownmountkennedy. This application was withdrawn a few weeks later.
74. Mr. Brophy visited the site again on the 8th March, 2007. He avers that he noticed a significant increase in the quantity of waste, including C & D waste, on the site. In this regard he was referring to construction and demolition waste. Mr. Brophy took photographs of the site on this occasion. He returned on the 13th March and was shown around the site by a man named Trevor.
“A large shed was used for baling plastics and cardboard and to the rear was a machine for shredding and mulching wooden pallets. In the space behind the roadside boundary was a conveyor belt with people sorting out the recyclables. There was much less C and D waste on the site on this occasion…He showed me a new machine for crushing rubble for use in roads inside the compound.”
75. On Mr. Brophy’s recommendation a further warning letter was sent on the 29th March, 2007. Referring to the points made in the architect’s letter, it was stated that there was no provision in the planning legislation for exempted development consisting of a change of use within an industrial building, and that the current usage of the premises was unauthorised and required action to be taken to bring it into compliance with the planning code.
76. It was noted that this letter was being issued because the previous warning letter had expired, and that an enforcement notice could be issued within twelve weeks.
77. The respondent’s architect replied on the 11th May, 2007, to the effect that the activities at the site, being the collection, sorting and recycling of construction and demolition materials, came within the definition of “industrial process” contained in the regulations dealing with exempted development. It was further contended that
“The change of use from storage, sale and processing of solid and liquid fuels to the activities of our client has taken place in a ‘light industrial building’ and as such is consistent with Class 4 listed in Schedule 2, Part 4 of the Regulations. The change of use is therefore Exempted Development.”
78. However, the letter also stated that the architect had been instructed to prepare an application for retention, should the planning authority so require.
79. This correspondence was acknowledged in due course. On the 2nd July, 2007, the Planning Enforcement section wrote to say that the Council still considered the development to be unauthorised and that a more detailed response would be issued, in accordance with s.153 of the Act, within three weeks.
80. No such response was in fact issued, and nothing further happened in respect of the enforcement process until the middle of 2010. This is ascribed by the Council to lack of resources and personnel. In the meantime, two applications for planning permission in respect of the Newtownmountkennedy site were granted by the Council, but rejected by An Bord Pleanála on appeal by third parties.
81. On the 3rd March, 2009, a firm of consulting engineers wrote on behalf of the applicant with the expressed purpose of clarifying the planning status of the facility so that the waste permit could be renewed. The business was described in the following terms:
“C & D Recycling currently operate as a waste collection facility which collects the materials for recycling via the use of skips. The materials collected are then separated at the facility and stored prior to transportation to various waste disposal facilities depending on the type of material. These materials generally consist [of] timber, rubble/concrete, rubber, metals and plastics. The main purpose of the facility is to basically collect the materials for recycling, separate them and package them for distribution. We do note however that no domestic waste is collected by C & D Recycling.”
82. The letter goes on to say that the site was being used in the same manner as it was when it was a coal depot, and requests the planning authority to confirm that the usage of the site fell within its permitted use and that there were no planning issues with it. Although it does not in terms refer to s.5 of the Planning Act an appropriate fee for an exemption certificate application appears to have been paid.
83. The application was assessed by an executive planner who noted that there was no record of permission in relation to coal storage and distribution on the site, although a coal depot had been operational there up to 2006. (The affidavit of Ms. Dennison does suggest that the coal business had planning permission).There was a reference to the fact that the existing permission on the site, granted in 1996, was for a grain store, plants and silos. The conclusion drawn from this was that a recycling facility would be a material change of use, with issues such as any run-off from the materials, odour nuisance and traffic movements to be considered.
84. This conclusion was adopted by the Director of Services in determining that the proposed change of use was considered to be a material change of use and was not therefore considered exempt development. The decision was given on the 5th June, 2009.
85. The respondent did not appeal this decision. However he contends, in the current proceedings, that the decision was “fundamentally incorrect” in that the materials being brought onto the site could not properly be described as “waste”. He says that it demonstrates the fact that the Council has been confusing the law under the Waste Management Act with the law under the Planning Act. Further, he says that the assessment does not deal with the question of exempted development.
86. On the 13th August, 2010, the respondent was advised that the Council had decided to recommence investigations into “the alleged unauthorised use of the site”.
“Such unauthorised use is considered to be by the material change of use of this site to accommodate the operation of a depot by C&D Recycling which includes the sorting of organic waste thereon.”
87. The letter also notified the respondent that an inspection would be carried out later that month or during September.
88. The inspection was not in fact carried out until the 3rd January, 2011, when Mr. Tim Walsh, Senior Executive Planner, attended at the site. Mr. Walsh says that before that date he had familiarised himself with the case and had been aware of the respondent’s attempts to get planning permission for the alternative site at Newtownmountkennedy.
89. Having inspected the site, Mr. Walsh recommended that a warning letter be sent. This was done by Ms. Dennison on the 11th March, 2011. The letter (which appears to be the first to deal with the matter in detail), sets out the view of the Council that:
• The establishment of the commercial waste recovery facility had resulted in the establishment of a new planning unit, physically separate from, and different in terms of character to, the solid fuel business carried out on the other part of the site.
• Having regard to the definitions of “waste”, “waste recovery” and “deposit” in the Waste Management Act, the current waste recovery use did not constitute an industrial process as defined in the regulations. The existing permissions on the site pertained to industrial processes and the storage of grain, oil/petrol and associated uses and structures. The scope of those permissions did not cover the existing waste recovery activities.
• The waste recovery process involved the reception, storage and recovery of a wide range of organic and inorganic waste materials, which, in terms of character and external impacts, differed materially from the previous industrial usage relating to the storage of grain, the storage and bagging of coal and the storage and distribution of petrol. These impacts gave rise to considerations material to the proper planning and sustainable development of the area.
These considerations were, in summary, specified as relating to:
i. “Significant visual impacts”, in that the stockpiles of waste were highly visible from the roadway;
ii. the deposits of unsorted waste material in the open yard, with a capacity to attract vermin, unlike the storage of coal;
iii. the generation of odour nuisance and surface water run-off to a greater degree than would have been the case with coal and grain;
iv. the intensification of use of the site, resulting from the establishment of a new planning unit and giving rise to an increase in the usage of the yard; and
v. the bringing on site of new machinery (a track digger, mobile crane and mobile stone crusher) and new structures (a trammel and a portocabin), demonstrating how the method of operations on the site had materially changed.
90. It was pointed out that the fact that the operation had the benefit of authorisation under the waste management legislation did not negate the requirements of the planning legislation, as stipulated in Condition 1.1 of the waste permit.
91. The respondent was reminded that the Council had already determined, under the s.5 procedure, that the development was not an exempted development.
92. In summary, it was said, the permitted users of the site had been replaced by a substantially new and different type of non-industrial development that amounted to a material change of use.
93. The respondent sent an acknowledgement on the 11th April, 2011, followed by a letter on the 13th April. This did not take issue with Ms. Dennison’s letter, but simply said that he was in the process of finalising an alternative site for the business, which he envisaged would take three to four months. He ended by saying:
“Your patience in this matter is much appreciated.”
94. Mr. Walsh carried out a further inspection on the 10th June, 2011. He avers that he met with the respondent and had a cordial conversation with him. The respondent told him that he did not wish to stay at the Rathnew site. He was hopeful that a fresh application for Newtownmountkennedy would be successful and said that he simply needed time to get the permission and relocate his business. Mr. Walsh says that the respondent asked him to explain “the 7 year enforcement time rule” and offered to enter into a legal agreement to vacate the site before that time expired. It is averred that the respondent acknowledged that he had commenced his recycling operation in the summer of 2006.
95. The respondent has not contradicted Mr. Walsh’s account of this conversation.
96. Mr. Walsh also avers that he considered the site to be unsafe. The business was operating at a high degree of intensity but in a haphazard fashion. There was no on-site traffic management. The operations taking place were described as the storage of processed and unprocessed waste, the movement of trucks and a loading machine and the operation of the trammel, all within a limited space. He has exhibited a number of photographs taken on this occasion. A long-armed digger was scooping up waste into a mound.
97. The trammel is described as being initially loaded by a front loader into an intermediary crusher type machine, before it is fed via a conveyor belt into the trammel.
98. By letter dated the 16th June, 2011, an enforcement notice pursuant to s.152 of the Planning Act was served on the respondent. In the covering letter Ms. Dennison referred to the unsuccessful planning applications in respect of the Newtownmountkennedy lands. She continued:
“The planning authority accepts that you have made attempts to address the unauthorised status of the said current waste recycling operation, by means of the submission of the said planning applications. However in light of the fact that it is now nearly five years since the initial Warning Letter under this file was issued to C&D Recycling, the planning authority considers that it has provided you with ample time to deal with the on-going unauthorised use of the subject site.”
99. The letter concluded by informing the respondent that it was open to him to seek a meeting to discuss matters if he considered that it was warranted.
100. The attached enforcement notice required the respondent, within twelve weeks, to cease in full the use of the lands as a waste recovery operation facility by taking the following steps:
“i) the removal of all plant machinery skips, porto-cabins and the waste sorting facility (the trammel) from the site.
ii) the removal of all waste material, both recovered and un-recovered, from the site.
iii) the cessation of all administrative operations on this site and the removal of all associated office equipment from the subject administration unit.”
101. A meeting did take place in June, 2011. The respondent asked for more time, and there appears to have been a discussion about whether or not an application for planning could be given priority. It is however clear from the notes of the meeting that no commitment was given on behalf of the Council.
102. On the 26th September, 2011, (which was more than 12 weeks after the service of the enforcement notice), a firm of consulting engineers wrote to the Council on behalf of the respondent. It was stated that the respondent had reviewed the issue of relocation and had decided to seek planning permission in respect of the site in question. Ms. Dennison responded that while this proposal was welcomed, the Council intended to continue with enforcement action. She encouraged the respondent to ensure that a “comprehensive valid planning application” was submitted in the near future.
103. Mr. Walsh visited the site again on the 19th October, 2011. He considered that the enforcement notice had not been complied with, in that the business was “very much in operation”. He noted a large lorry being loaded with a material that resembled wood pulp, creating plumes of black dust visible from the road. (This is visible in a photograph.) There were three front loaders in operation as well as a long-armed digger and a medium sized digger. The trammel was in full operation. There were two mobile crushing machines present, loaded with assorted materials such as wooden planks. Mr. Walsh again felt that the business was being operated in a disorganised and unsafe manner. He noted that while there was another commercial operation on the site, the waste recovery business was the most intensive with a number of its vehicles spread throughout the site. About thirty skips were parked in the front yard.
104. It should be noted that the respondent denies that the business is run in an unsafe fashion and says that health and safety consultants are employed.
105. On the 27th October, 2011. the Director of Services, Planning and Development ordered that proceedings be taken on behalf of the Council for non-compliance with the enforcement notice. Shortly thereafter the Council’s solicitors wrote to the respondent to inform him that they had instructions to issue proceedings. This was responded to by a fax dated the 14th November (but apparently not sent until the 22nd) from the respondent’s engineers in the following terms:
“We firstly apologise on behalf of our client for the slow response to resolve the alleged unauthorised development at Rathnew, however we are currently in the process of preparing a retention application for the facility as advised to the council on the 26th September last. The delay in submission of the retention application has occurred due to our client’s negotiations with his landlord where our client is in the process of preparing a new lease for a smaller yard which will greatly down scale the recycling facility. As part of any valid planning application our client will require permission from the property owner Staffords to submit this application. We hope to have all this resolved shortly which will enable us to submit a valid application in which we have the documents ready.
We would ask that under these circumstances that you may perhaps withhold from seeking counsel to prepare papers for proceedings…
We thank you in advance for your time and we confirm on behalf of our client that we will endeavour to resolve this issue immediately.”
106. In reply, the Council’s solicitors referred to the provisions of s.162(3) – an enforcement action is not to be stayed or withdrawn by reason of an application for, or grant of, retention permission.
107. On the 28th November, 2011, the Council’s solicitors confirmed that they had instructions to proceed.
108. However, nothing appears to have happened until 2013. Because of the lapse of time, Mr. Walsh carried out a further inspection on the 12th April, 2013. He observed that the business was still in operation. A wall had been erected around the yard, with dimensions of about 45 metres in length and 1.5 metres in height. Mr. Walsh considers this to be a non-exempt development in that it exceeds 1.2 metres in height.
109. Proceedings were issued by way of notice of motion dated the 7th June, 2013.
110. Mr. Walsh avers that in his opinion the activity on the site constituted unauthorised development. In particular he refers to s. 3(2)(b)(iii) of the Planning Act, which provides that the use of land shall be taken to have materially changed if it is used for the deposit of old metal, mining or industrial waste.
111. Mr. Walsh says however that even in the absence of this provision he would be of the view that there had been a material change of use, on the basis that the business now being carried on gives rise to fresh considerations that are material in the context of proper planning and sustainable development. In this regard he refers to the letter of the 11th March, 2011.
112. He says that the waste recovery user does not constitute an industrial process, since it does not involve the turning of raw materials into a new object or article. Further, he says that there is a significant difference between bringing materials such as coal or grain onto a site and bagging it, and bringing unsorted miscellaneous waste items (and organic waste such as soil) onto a site for the purpose of sifting and sorting it prior to sale or further transfer.
113. Mr. Walsh exhibits a number of decisions made by An Bord Pleanála in which it was determined that a proposed use of industrial land for the purpose of waste recycling/recovery facilities constitutes a material change of use.
114. Ms. Mulcrone has addressed each of the “fresh considerations” set out by Mr. Walsh and concluded as follows:
i. There is a long established mixed industrial use established on the subject site wherein two companies have operated separate commercial entities.
ii. Any increase in visual impact is due to the Council having removed boundary hedgerows and trees.
iii. Grain would be an attraction for vermin and the storage of recycled materials, which do not comprise organic materials, is less likely to attract vermin.
iv. There are no obnoxious odours associated with the recycling use, while during wet weather grain, coal turf and diesel would all have distinct odours. In that context any stale odours associated with recycled material in wet weather is not materially different from the previous use.
v. The handling and bagging of coal is an activity that could give rise to dust and air pollution. Such dust could provide contaminate the surface water system. The handling of the grain would give rise to dust and other air pollution. Spillages could form ponding or enter the surface water drainage system.
vi. The plant and machinery ancillary to the recycling operation comprises industrial plant and machinery associated with the industrial use on land occupied and so used. The plant and machinery are not dissimilar to conveyors and bagging machinery for coal and grain and therefore do not materially alter the industrial appearance of the premises;
115. Ms. Mulcrone therefore holds the view that there is no significant difference between the established use and the use the subject of these proceedings. She says that the site is being used for an industrial process.
Whether the proceedings are statute barred or should be dismissed by reason of delay
(i) The date of commencement
116. As described above, the first named respondent says that he commenced preparatory works on the site in May, 2006 before entering into the lease on the 10th July and obtaining the waste permit on the 17th July. Insofar as the Council argues that such preparatory works could not be considered to be “use” within the meaning of the Planning Act, the respondent says that this is “an entirely inappropriate distinction” and “something that has now long since been overtaken” in terms of planning practice. He says that “any works relating to or connected with” the allegedly unauthorised development must be seen as amounting to the commencement of such development. Since a complaint was received by the Council about his activities in July 2006, the Council cannot maintain that preparatory works had not been carried out prior to that.
117. The Council points to the fact, noted above, that the respondent stated in his application that he would commence activities once approval was given, with the implication that he would not start before then. It does indeed argue that the Act distinguishes between “works” and “use”, and provides in s. 2 that “use” does not include the carrying out of works. Further, it argues that the date of commencement of those works is a matter peculiarly within the knowledge of the respondent, and says that he has failed to provide any evidence from, for example, the owners of the site or from any persons who carried out the work.
(ii) The statutory time limit
118. The respondent argues that the proceedings are statute barred on the basis that the user in question commenced at the beginning of May, 2006 while the proceedings were not issued until the 12th June, 2013. The Council maintains its position that the relevant user did not commence until July of 2006, but in any event says that the particular provisions of the statute enable it to maintain the proceedings.
119. Section 160(6) of the Planning and Development Act 2000, as amended, provides in full as follows:
(a) An application to the High Court or Circuit Court for an order under this section shall not be made –
(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or
(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40) or, as the case may be, of the appropriate period as extended under section 42.
(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.
120. Since there was no grant of planning permission in respect of the respondent’s use of the site, the relevant subsection is s.160(6)(i).
121. Section 251 of the Act deals with the calculations of time periods and originally provided as follows:
“(1) Where calculating any appropriate time period or other time limit referred to in this Act or in any regulations made under this Act, the period between the 24th day of December and the first day of January, both days inclusive, shall be disregarded.
(2) Subsection (1) shall not apply to any time period specified in Part II of this Act.”
122. The section was amended in 2010 by the deletion of the exception in relation to Part II.
123. The appellant submits that on the basis of this provision, the period of seven years must be extended by the addition of 63 days. If that is correct then, even if it is accepted that the user commenced in May, 2006, the proceedings were issued in time. Reliance is placed on the decision of Hedigan J. in Browne v. Kerry County Council [2009] IEHC 552.
124. The respondent contends that this argument is unstateable. He says that the decision in Browne must be considered as applicable only to the time limits in respect of planning functions and cannot apply to court proceedings.
125. In Browne the applicant sought a declaration that the respondent County Council had determined a particular application outside of the two-year period set by the relevant provision of the Act.
126. Having held that the time limit in question was mandatory rather than directory, Hedigan J. said that the question for the court was
“…whether section 251 of the 2000 Act may be applied in such a fashion as to effectively extend the two year time period by 9 days in respect of each year, giving rise to a total extension of 18 days. The provisions of section 251 are plain and unambiguous. It is expressly provided that the period between the 24th of December and the 1st of January each year, both days inclusive, shall be disregarded in the calculation of time limits. The applicant has contended that to apply this provision to time limits of more than one year would result in patent absurdity; for example, a time limit which was nominally 12 years on the face of the statute would in fact be calculated at the considerably lengthier period of 12 years and 108 days. He thus argues that the provision can only logically be applied to time limits of less than one year. However, I am unable to agree with this submission. There is no basis within the wording of the 2000 Act or otherwise for the imposition of such a specific limitation on the effect of section 251 by this Court. The provision is undoubtedly capable of effecting a quite serious extension of more lengthy time limits, and such extension will no doubt be of significance in many cases such as the present one. This effect could be described as curious, and its merit might well be open to debate, but it cannot in my view be construed as “absurd” within the meaning of the 2005 Act.”
127. This latter reference was to s. 5 of the Interpretation Act 2005, which provides as follows:
“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction): –
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of: –
(i) in the case of an Act to which paragraph (a) of the definition of Act in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
(iii) Delay and acquiescence
128. The respondent submits that the proceedings should be dismissed because of inordinate, inexcusable and “inexplicable” delay in bringing them. The lengthy periods of time when nothing was happening are highlighted and it is argued that no adequate excuse has been presented. The court has a discretion, established in such cases as Morris v Garvey [1983] I.R. 319 and Leen v Aer Rianta [2003] 4 IR 394, to refuse injunctive relief under s.160 in appropriate cases.
129. The Council relies upon the following passage from the judgment of Henchy J. in Morris v Garvey at p. 327:
“When sub-s. 2 of s. 27 is invoked, the High Court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations. In carrying out that function, the court must balance the duty and benefit of the developer under the permission, as granted, against the environmental and ecological rights and amenities of the public, present and future, particularly those closely or immediately affected by the contravention of the permission. It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is “necessary to ensure that the development is carried out in conformity with the permission.” An order which merely restrains the developer from proceeding with the unpermitted work would not alone fail to achieve that aim but would often make matters worse by producing a partially completed structure which would be offensive to the eye as well as having the effect of devaluing neighbouring property.”
130. The Council says that no exceptional circumstances, such as those identified in this passage, have been established by the respondent.
131. The following comments by McKechnie J., in Leen v Aer Rianta at p. 410, may also be noted:
“Finally, on the generality of the discretion point it seems to me that, subsequent to Morris v Garvey [1983] I.R. 319, the courts have tended to individualise each case and decide it accordingly, rather than to inquire as to whether the resulting circumstances fell within any of the illustrations mentioned in that judgment. For example, in some cases where there was no question of bad faith or lack of candour, injunctions issued, whereas in others relief was refused, even though the facts did not comfortably sit with the exceptions identified by Henchy J. in Morris v. Garvey .”
Whether there was an unconstitutional invasion of the judicial domain
132. The argument made here relates to the fact that there was an existing set of proceedings before the Circuit Court when the Council decided on the 7th March, 2014, to revoke the respondent’s waste permit. The respondent argues that the decision amounted to a unilateral determination by the applicant of the very issues that the proceedings under s.160 of the Planning Act sought to have determined. This, he says, was an impermissible intervention in the judicial process by one of the parties to that process. It was done without any reference to the court or to him, in circumstances where he had a bona fide defence to the s.160 proceedings and had filed affidavits setting out that defence. The revocation rendered the first relief sought by the Council (the order to cease an unauthorised development) moot, and the second (the order to remove material and equipment) unworkable.
133. The respondent further submits that the second relief sought by the Council, namely the removal of waste and equipment from the site, was, by virtue of the action taken, rendered incapable of being complied with.
134. It is contended that these actions represent an impermissible and unconstitutional intervention in the judicial domain, in breach of Article 34.1 of the Constitution. The respondent relies in this regard on the decision of the Supreme Court in Buckley v Attorney General [1950] I.R. 67 (the “Sinn Féin Funds Case”).
135. In Buckley, the trustees of the funds of the Sinn Fein Organisation had lodged the funds in the High Court and had instituted proceedings seeking orders as to their proper disposal. While the action was pending the Oireachtas passed the Sinn Fein Funds Act, 1947. This provided that all further proceedings in the matter were stayed, and that the High Court should, upon an ex parte application being made by the Attorney General, dismiss the action and direct the disposal of the funds in a manner specified in the Act. The High Court judge to whom the Attorney General’s application was made refused to make the order sought. His decision was upheld by the Supreme Court, which found the Act to be repugnant to the Constitution primarily on the basis of the interference with property rights. At p.84 of the report the Court continued as follows:
“There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Art. 6. The effect of that article and of Arts. 34 to 37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs’ claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain.”
136. In The State (Divito) v Arklow Urban District Council and Byrne [1986] I.L.R.M. 123 the applicant had obtained a certificate from the District Court under the Gaming and Lotteries Act 1956, for the purpose of converting part of his premises into an amusement hall. Such a certificate could be given only if, inter alia, the relevant local authority had passed a resolution adopting Part III of that Act. In this case such a resolution was in force. However, the local authority successfully appealed the grant of the certificate on grounds related to the applicant’s premises. The applicant then altered his premises with a view to making a fresh application to the District Court and published a statutory notice of his intentions. The local authority then decided to re-adopt Part III in a more limited manner so as to exclude the part of the town where the applicant’s premises were located.
137. The applicant sought an order of certiorari based in part on what he claimed was an unconstitutional interference with his right to make the application to the District Court. Rejecting this argument Henchy J. said at p126:
“I readily accept that a non-judicial intervention in the adjudicative process of a lis before any of the courts established under the Constitution constitutes an unconstitutional invasion of what is an exclusively judicial domain: see Buckley & Ors v. Attorney General & Ors [1950] I.R. 67; The State (McEldowney) v Kelliher [1985] ILRM 10; Costello v Director of Public Prosecutions [1984] ILRM 413. But in this case there was no lis before the District Court when the council intervened. There was no pending proceeding of which the District Court was seised. All that happened was that the applicant had served and published a statutory notice of intention to make an application for a certificate in the District Court on a specified date. The District Court had not acquired jurisdiction to make any order in the matter. It could not acquire jurisdiction to make such an order until the applicant moved his application. And before that happened, the council’s resolution removed the reach of the Act to the premises. I am satisfied that the passing of that resolution did not constitute an unconstitutional invasion of the judicial process.”
138. The Council points to the fact that it was found by the President of the High Court to be entitled to revoke the waste permit, under the Waste Management regime, which is a different regime to the planning regime. The planning status of the site was not at issue in the revocation of the waste permit, nor was it at issue in the judicial review proceedings, and such revocation was not intended by the Council either to determine the s. 160 proceedings unilaterally or to limit or fetter the Court’s ability to deal with such proceedings. Nor did it have the effect of so doing.
139. It is submitted that the Circuit Court judge was still in a position to make a finding that there had been an unauthorised development by way of a material change of use. Similarly, the question of an order under s. 160(2) was properly before him and he made a determination on it.
Whether there was an unauthorised development
140. Counsel for the respondent says that his primary argument is that the respondent was engaged in an industrial use, which was exempt. He also argues that it was not materially different to that of previous occupants. The industrial process involved bringing material onto the land as source material. It was not “waste” for planning purposes and it was not “deposited” within the meaning of the Act, but was processed and removed again. However, it is submitted that for the purposes of this argument it does not matter whether it was waste or not.
141. It is also submitted that the site was not “used” for the “deposit” of waste within the meaning of the Planning Act. The activity concerned was recycling.
142. Counsel refers to the applicable test as set out by Lynch J. in Galway County Council v Lackagh Rock Ltd [1985] 1 I.R. 120 at p 127:
“To test whether or not the uses are materially different, it seems to me, that what should be looked at are the matters which the planning authority would take into account in the event of a planning application being made either for the use on the appointed day or for the present use. If these matters are materially different, then the nature of the use must equally be materially different. Since no evidence has been adduced to indicate that the applicant would have taken any different matters into consideration in determining an application for planning permission made now rather than on the appointed day, I accept the respondent’s contention that there has been no material change of use.”
143. Reliance is placed upon Ms. Mulcrone’s analysis of the considerations identified in the letter of the 11th March (summarised at paragraph 114 above) as demonstrating that, given the history of the site, these are not new issues. In planning terms there was no material difference in the nature of the activity. That being so, the respondent was entitled to intensify the activity up to a point where it would become materially different.
144. It is submitted, by reference to Fingal County Council v Keelings [2005] IESC 55 that no estoppel arises from the fact that the respondent applied for a waste permit in circumstances where he believed that he did not require one.
145. Counsel contends that the s. 5 declaration is not binding on the court, because, it is said, proceedings under s.160 involve a fresh investigation by the court.
Whether an order should be made under s.160(2)
146. The respondent submits that no order should be made under this provision, on the basis, firstly, that it would be unworkable or unenforceable and, secondly, that it would be more appropriate for the Council to seek a remedy under the Waste Management regime.
147. It is argued that operations effectively ceased on 7th March, 2014, when the Council revoked the waste facility permit for the site. Since this date C&D Recycling has no longer been operating and it is claimed that it no longer has the resources in terms of man power or machinery to deal with the removal of any material. If sufficient warning had been given there could have been an opportunity to wind down the business and deal with the material, but the Council’s intervention prevented such an opportunity.
148. The respondent says that he had only had a leasehold interest in the site, which was owned by the Stafford family. The tenancy agreement has come to an end. The respondent has no legal right to enter on the property and therefore will be unable to comply with any order requiring him to do that. As the Stafford family were never joined to the proceedings any order requiring the respondent to clear the site would be physically impossible and unenforceable since he would have to trespass on the land.
149. In these circumstances the respondent invokes the discretion of the court to refuse relief.
150. The argument as to the appropriate statutory remedy is made on the basis that the Waste Management Act provides, in ss. 55 and 58, a “tailor-made” procedure whereby a court may order the removal of waste. It is not a planning issue and cannot be dealt with under the planning regime.
151. The Council submits that an order should be made under s.160(2) of the Act. The waste business operated at the site in question was an unauthorised development, and accordingly all waste material brought on to the site at any point in time should never have been there in the first place.
152. It is contended that the respondent must have known that he was engaging in unauthorised development, given his failure to appeal the determination made in 2009, his attempts to secure an alternative site and the correspondence set out above.
153. The Council refers to Wicklow County Council v Forest Fencing Limited t/a Abwood Homes [2007] IEHC 242 , where Charleton J. said, in relation to the exercise of his discretion:
“45. It is urged on me that I should not grant injunctive relief against this developer by reason of factors which include the longstanding nature of the business conducted on the site, the effect that it will have on the livelihood of the respondents/appellants, the destruction of the employment of the several employees engaged by them, and the overall circumstances within which the development came about. I have looked at every argument in relation to this development, out of deference to the work of counsel but, more particularly, because I have to now exercise a discretionary power.
[…]
49. The balance of authority is in favour of the Court exercising its discretion to make a declaration that planning permission has been granted where the Court has found as a fact that there is a default permission in favour of a developer. The Court is there to uphold the law. Its discretion should not be used to change the law or to its operation. A similar principle, to that outlined in the separate judgments of O’Leary J. and Clarke J., should apply in the opposite circumstances, such as here, where the Court has found that there is no default permission: where the developer has, on the contrary, developed the site entirely in accordance with his own wishes and with little or no reference even to the plans in respect of which he once sought permission. The discretion of the Court, in this context, is very limited. The balancing of that discretion must start with the duty of the court to uphold the principle of proper planning for developments under clear statutory rules. Then, the Court should ask what might allow the consideration of the exercise of its discretion in favour of not granting injunctive relief.
50. To fail to grant injunctive relief in these circumstances, on these facts, would be to cause a situation to occur where the Court is effectively taking the place of the planning authority. The Court should not do that. This is a major development, for which there is no planning permission. It is in material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraint. I am obliged to decide in favour of the injunctive relief sought.”
154. The Council submits that the effect of the decision in the Circuit Court is to allow the respondent to “walk away” from the site, leaving the waste he deposited thereon, notwithstanding the adverse findings made against him in relation to unauthorised user (in the Circuit Court) and the lawful revocation of his waste permit (in the High Court). Otherwise the site will have to be cleaned up at the public expense, since what is effectively a waste dump cannot be left there. It is also in the public interest that the planning laws be adhered to.
155. It is not accepted that the respondent cannot now lawfully collect the waste and take it to a properly designated site on foot of a court order, having regard to s.163 of the Planning Act. That provides that no planning permission is necessary to engage in development required by an order made under s.160.
156. It is also noted that the respondent has yet to surrender his permit.
Discussion and conclusions
157. Dealing with the issues in order, the first question is whether the proceedings were out of time or should be dismissed by reason of the Council’s delay in instituting them.
158. The issue of the correct interpretation of s. 251 of the Planning and Development Act, 2000 was dealt with comprehensively by Hedigan J. in Browne. That being so, I am precluded by the principles established in Irish Trust Bank v Central Bank of Ireland [1976-7] I.L.R.M. 50, Kadri v Governor of Wheatfield Prison [2012] IESC 27 and In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, from adopting a different view unless one of the exceptional considerations identified in those cases applies. I cannot see that there is any identifiable error in Hedigan J’s analysis. It is true that his conclusion, as he acknowledged himself, leads to a curious result in that the planning year is nine days longer than the norm. It seems to me that what the draughtsman may have intended was to ensure that a relevant period did not expire during a holiday period. However, that is not the effect of the language used.
159. There are two further considerations. One is that the section was amended after the judgement in Browne but not in a way that had any impact on that judgment. The other is that in the instant case the court is dealing with a Circuit appeal, which cannot be appealed further by either party. It would be highly undesirable that there should be two conflicting High Court judgments on an issue of significant importance in the planning code. That would not, of course, be a determining factor if I felt that the decision in Browne was wrong by reference to the established criteria. I do not.
160. In these circumstances the proceedings were brought within the statutory time if the respondent’s use commenced at a time not more than seven (calendar) years and 63 days before the 7th June, 2013. Even on the respondent’s version, therefore, they were in time.
161. The question then rises as to whether relief should be refused because of delay on the part of the Council.
162. It is certainly the case that there was significant delay between the initial investigation and the proceedings. However there is nothing else in the case that might sway a court to exercise its discretion in the respondent’s favour. There is nothing that could be construed as acquiescence on the part of the Council, or as causing any form of hardship to the respondent, arising from the delay. Having regard to the correspondence, and in particular to the efforts made by the respondent to obtain planning permission for a different site and his stated intention to apply in respect of this site, it seems to me clear that the delay was at least to some extent attributable to a wish to accommodate him. This is not a proper matter of complaint.
163. I consider the argument made in relation to the alleged invasion of the judicial domain to be unsustainable. In the first place, I am not at all sure that the respondent is entitled to raise any issue as to the legality of the waste permit revocation in these proceedings in circumstances where that issue was not raised in the judicial review proceedings. In effect, the respondent is seeking to bring about a situation where one High Court judge has held, on the arguments put before him, that the revocation was lawful while another holds it to be unlawful based on fresh arguments. Apart from anything else this appears to be a breach of the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313.
164. In any event I am satisfied that there is no substance to the point. The Council did not, as in Buckley, adopt a measure that sought as a matter of law to compel a judge hearing the case to a particular conclusion. Nor did it remove the subject matter of the dispute between the parties from the jurisdiction of the court. The Circuit Court remained seised, as it was from the start, of a dispute raising issues under the planning code. The respondent contested the proceedings and made submissions on the issues. The Circuit Judge dealt with that dispute and made orders according to his findings. This court, on appeal, is in the same position.
165. The next question – whether there was an unauthorised development – raises an issue as to the jurisdiction of the Court.
166. Section 5 of the Planning Act provides in full as follows:
“5.—(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2) (a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.
(b) A planning authority may require any person who made a request under subsection (1) to submit further information with regard to the request in order to enable the authority to issue the declaration on the question and, where further information is received under this paragraph, the planning authority shall issue the declaration within 3 weeks of the date of the receipt of the further information.
(c) A planning authority may also request persons in addition to those referred to in paragraph (b) to submit information in order to enable the authority to issue the declaration on the question.
(3) (a) Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to the Board of such fee as may be prescribed, refer a declaration for review by the Board within 4 weeks of the date of the issuing of the declaration.
(b) Without prejudice to subsection (2), in the event that no declaration is issued by the planning authority, any person who made a request under subsection (1) may, on payment to the Board of such fee as may be prescribed, refer the question for decision to the Board within 4 weeks of the date that a declaration was due to be issued under subsection (2).
(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.
(5) The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.
(6) (a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.
(b) The Board may charge a specified fee, not exceeding the cost of making the copy, for the purchase of a copy of the record referred to in paragraph (a).
(c) The Board shall, from time to time and at least once a year, forward to each planning authority a copy of the record referred to in paragraph (a).
(d) A copy of the said record shall, at the request of a member of a planning authority, be given to that member by the manager of the planning authority concerned.
(7) A planning authority, before making a declaration under this section, shall consider the record forwarded to it in accordance with subsection (6)(c).”
167. The Act does not spell out the effect and status of a s.5 declaration, although it is obviously intended that the decision be a matter of public record.
168. Section 5 was considered by the Supreme Court in Grianan An Aileach Interpretative Centre v Donegal County Council (No.2) [2004] 2 IR 625. In that case the applicant sought and obtained a declaration in the High Court that certain proposed activities came within the range of activities covered by the planning permission held by it. The local authority appealed, arguing that the High Court had no jurisdiction to grant such a declaration. The Supreme Court held that, having regard to the availability of the s. 5 procedure, the High Court should not have adjudicated upon the proper construction of the planning permission.
169. Giving the judgement of the Court, Keane C.J. said at paragraph 26:
“In the present case, the issue that has arisen between the plaintiff and the defendant is as to whether the proposed uses are authorised by the planning permission. I am satisfied, however, that, although the issue has arisen in that particular form, it necessarily requires the tribunal which determines it to come to a conclusion as to whether what is being proposed would constitute a material change in the use of the premises. If it would not, then the question as to whether the particular uses were authorised by the permission simply would not arise. In the present case, the defendant at all times has been contending, in effect, that the proposed uses would constitute a material change in use which is not authorised by the present planning permission. Equally, for its part, the plaintiff has been contending that the uses are authorised by the existing planning permission but has not contended that, if that were not the case, it would in any event be entitled to carry them out as not constituting a material change of use. It would seem to follow that the question as to whether planning permission is required in this case necessarily involves the determination of the question as to whether the proposed uses would constitute a “development”, i.e., a question which the planning authority and An Bord Pleanála are empowered to determine under s. 5 of the Act of 2000.”
170. At paragraph 32 he went on:
“Thus, in the present case, if the jurisdiction of the planning authority or An Bord Pleanála under s. 5 were invoked and they were invited to determine whether the uses in controversy were within the uses contemplated by the planning permission or constituted a material change of use for which a new planning permission would be required, either of those bodies might find itself in a position where it could not exercise its statutory jurisdiction without finding itself in conflict with a determination by the High Court. No doubt a person carrying out a development which he claims is not a material change of use is not obliged to refer the question to the planning authority or An Bord Pleanála and may resist enforcement proceedings subsequently brought against him by the planning authority on the ground that permission was not required. In that event, if the enforcement proceedings are brought in the High Court, that court may undoubtedly find itself having to determine whether there has been a material change of use or whether a development is sanctioned by an existing planning permission, as happened in O’Connor v. Kerry County Council [1988] I.L.R.M. 660. But for the High Court to determine an issue of that nature, as though it were the planning authority or An Bord Pleanála, in proceedings such as the present would seem to me to create the danger of overlapping and unworkable jurisdictions referred to by Henchy J.”
171. On the facts of the case, the Court considered that the question whether the proposed uses were authorised by the planning permission necessarily required the tribunal determining the answer to decide whether or not the proposal amounted to a material change, and thus a “development”. The jurisdiction to determine that issue had been conferred by the legislature on the planning authority and An Bord Pleanála. The High Court could not act as a form of planning tribunal.
172. The judgment does not suggest that the High Court cannot, in any circumstances, enter upon the question of whether a particular activity constitutes a development requiring permission or is exempted. It expressly envisages that this issue might have to be determined in enforcement proceedings.
173. The case was, as is apparent from the brief summary of facts, one where no application had been made under s. 5. There was, accordingly, no discussion of what might happen where a s.5 declaration was refused.
174. In Wicklow County Council v. Fortune [2013] IEHC 397, Hogan J. dealt with the issue whether the High Court had, in s.160 enforcement proceedings, jurisdiction to determine whether a particular development was exempted development in circumstances where a s. 5 declaration had been applied for and refused. After close consideration of Grianan An Aileach he held that the Supreme Court’s decision must be taken impliedly to preclude the High Court from making such a determination where a s.5 application for a certificate of exemption had been refused and the refusal had not been quashed in judicial review proceedings. Since the s. 5 decision is part of the formal planning history of a site and is entered on a public register, a declaration to contrary effect by the High Court would mean that there could be in existence two contradictory official determinations of the same question, leading to confusion and uncertainty. Hogan J. therefore concluded that it was not open to him to find that the development was exempt.
175. The instant case raises precisely the same issue. The respondent did not appeal the refusal of the declaration and did not take any step to quash it. In the circumstances I agree with the reasoning of Hogan J. and can therefore not accede to the argument that no planning permission was required for the respondent’s business. It follows that, in my view, the learned Circuit Court judge was correct to find that there had been an unauthorised development.
176. Finally, there is the question of remedy.
177. I do not accept the argument made by the respondent that it is now out of his power to remove the material and equipment from the site. I accept that he is not the owner, but there is no evidence to support the proposition that he would not be able to enter upon the lands except as a trespasser. The views of the owners have not been put before the court, but I find it hard to imagine that they would prefer to keep it in its current condition rather than cooperate with remediation. The suggestion that the respondent cannot afford to carry out the removal is unsupported by evidence as to his means and current occupation.
178. I therefore propose to make an order under s.160(2). However, given the lapse of time since the proceedings began, I propose to invite the parties to present to the Court a realistic timetable for the necessary works with a view to incorporating such a timetable into the order.
Dublin County Council v David Hill
1992 No. 34
Supreme Court
12 March 1992
[1992] I.L.R.M. 397
(Ex tempore) (McCarthy, O’Flaherty and Egan JJ)
McCARTHY J
(O’Flaherty and Egan JJ concurring) delivered his judgment on 12 March 1992 saying: In a case stated, which was received in the Circuit Court office on 5 February 1992, Circuit Judge O’Hanrahan has stated for the opinion of the court certain facts in respect of the occupation or use of a site at Chianti Park, Mount Seskin, County Dublin where the defendant, David Hill, is the owner of 16 mobile homes and 6 chalets. When originally, as the case stated sets out, the mobile homes were placed on the lands and the chalets constructed planning permission had not been obtained, but on 17 August 1972, the parliamentary secretary to the Minister for Local Government granted planning permission for the retention of the homes subject to two conditions (1) that the mobile homes should be removed from the site not later than the expiration of the period of one year from the date of the order, that is 17 August 1972 and (2) that further mobiles or other similar structures should not be erected or located on the site and as provided for in the grant of planning permission which is attached to the case stated. The grant of planning permission thus expired on 17 August 1973. A notice was served by Dublin County Council pursuant to s. 35 of the Local Government (Planning and Development) Act 1963 (as amended) to take effect on 11 April 1988, 15 years later, and to expire one month later on 11 May 1988. The defendant did not remove the mobile homes. Proceedings were issued on 22 September 1988 returnable at the District Court in Dun Laoghaire on 11 November 1988 at which hearing the district justice convicted the defendant of a failure to comply with the notice and imposed a fine of £400 with £65 costs.
The defendant appealed and the matter came on for hearing before Judge O’Hanrahan on 2 May 1991, that is two and a half years after the hearing in the District Court. Counsel for the defendant contended that the notice served under s. 35 was inappropriate and the appropriate procedure was under s. 31 of the Act of 1963. As Judge O’Hanrahan said in the case stated he indicated he was inclined to find favour with the application made on behalf of the defendant and the complainant, that is the county council, requested that he state a case for the determination of the following question: Was the complainant entitled to serve the notice under s. 35 of the Local Government (Planning and Development) Act 1963 as amended? The court is satisfied that the answer to that question is — no. It requires an examination of the two sections, that is ss. 31 and 35 of the Act of 1963 as amended. It is clear from an examination of s. 31 that its wording is plainly intended to catch a case where development of land is made subject to a condition and that the word ‘condition’ is in fact used in s. 31(1)(a). The difficulty is that the planning authority must within five years of the development being carried out, or in the case of non-compliance with the condition *400 within five years after the appropriate date, serve the enforcement notice on the owner. The date for that would have expired in 1978, that is five years after the year within which the condition was to apply. Mr O’Brolchain has valiantly argued that s. 35 is a catch-all section and that s. 31 is not appropriate to the case because in fact what is called a condition was a form of permission. It was called a condition by the complainant. The word ‘condition’ appears in the section. Having regard to the ordinary principle that penal legislation must be construed strictly it would be difficult if not impossible to construe the circumstances of this case as falling outside s. 31, where there is a benefit of a five year limitation, and bring it within s. 35 where there is no such benefit. In these circumstances, the court is well satisfied that the argument which appealed to the Circuit judge was the correct argument and that his conclusion that he tentatively indicated was correct and that accordingly the complainant was not entitled to serve the notice under s. 35. The question will be answered accordingly.
The defendant is to have the costs of the case stated. The court views with some dismay that in a proceeding where a condition was attached that was to end after one year, the Dublin County Council, the authority charged with the enforcement of planning law within its area of application, should do nothing for 15 years and in that sense both allow the defendant to assume that it was all right to continue and not to enforce the planning condition which it itself had granted and thereby interfered with the amenity, if it be the fact, of those in the immediate vicinity. This is not really germane to the decision of the legal question posed but it is proper that the court should make that observation.
Dundalk Town Council v Lawlor
[2005] 2 I.L.R.M. 106Judgment O’Neill J. delivered the 18th day of March 2005.
This is a case stated by District Judge Flann Brennan a judge of the District Court assigned to District Court area of Dundalk, District No. 6, in which he poses two questions as follows for the opinion of the High Court:
(a) whether I was correct in law in determining that the period of time set forth on the said Enforcement Notice satisfied the requirement of s. 154 of the Planning and Development Act of 2000 and
(b) whether I was correct in law in determining that the requirement in the said Enforcement Notice to “return site to its previous condition” satisfied the requirement of s. 154 of the Planning and Development Act 2000.
BACKGROUND
By notice entitled “Enforcement Notice pursuant to s. 154 of the Planning and Development Act 2000” and dated 21st October, 2003, the complainant/respondent Dundalk Town Council (hereafter “the Council”) required of the defendant/appellant (hereafter “Mr. Lawlor”) that certain things be done at a property known as Soldiers Point, Lower Point Road, Dundalk.
The notice was in the following terms:
“Dundalk Town Council (hereinafter called the Planning Authority) is the planning authority for the town district of Dundalk in which is situated at the land described in the First Schedule hereto.
The planning authority has decided pursuant to s. 155 of the Planning and Development Act, 2000 to issue this Enforcement Notice in respect of the development described in the second schedule hereto.
As no permission has been granted for the said development, you are hereby required to cease the said development.
You are herby required within a period of immediately commencing on the date of the service of this notice on you to take the steps specified in the third schedule hereto.
You are hereby warned that if within the period specified under paragraph 4 above or within such extended period (not being more than six months) as the planning authority may allow, the steps specified in the third schedule hereto to be taken or not taken, the planning authority may enter upon the land and take such steps including the removal, demolition or alteration of any structure, and may recover any expenses reasonably occurred by them in that behalf.
You are hereby required to refund the planning authority the costs and expenses set out in the Fourth Schedule hereto, being the costs and expenses reasonably incurred by the planning authority in relation to the investigation, detection and issue of this Enforcement Notice including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisors and the planning authority may recover these costs and expenses incurred by it in that behalf.
You are hereby warned that you may be guilty of an offence if you do not take the steps specified in the third schedule of this notice within the period specified by paragraph 4 of this notice or within such extended period (not being more than six months) as the planning authority may allow.
FIRST SCHEDULE – DESCRIPTION OF LAND
Soldiers Point, Lower Point Road, Dundalk.
SECOND SCHEDULE – DESCRIPTION OF DEVELOPMENT
Unauthorised site development works.
THIRD SCHEDULE – PARTICULARS OF STEPS TO BE TAKEN
Cease all excavation site clearance works and return site to its previous condition.
FOURTH SCHEDULE – DETAILS OF COSTS INCURRED BY PLANNING AUTHORITY
85 EURO
Dated this 21st day of October, 2003.”
The notice was served on Mr. Lawlor and by a letter dated 26th October, 2003, addressed to the Planning Officer of the Council, he said the following:
“Re: Notice received under Planning and Developmental Act 2000.
As secretary of the above group, I refer to your letter to me dated 26th October, 2003, enclosing an Enforcement Notice, and I would respectively request clarification of its contents.
For our part, we are not aware of having carried out any work whatsoever in breach of any of the provisions of the Planning and Development Act 2000.
Yours faithfully.”
There does not appear to be any response to this letter.
Instead the council caused a summons to be issued against Mr. Lawlor, in which the complaint is as follows:
“WHEREAS a complaint has been made to me that you the said defendant on the 10th November, 2003 at premises, Soldiers Point, Lower Point Road, Dundalk within the County of Louth, within the court area and district aforesaid did knowingly fail to comply with the requirement of a Enforcement Notice dated 21st October, 2003, and served upon you on 21st October, 2003, pursuant to s. 154 of the Planning and Development Act, 2000 and in contravention of s. 154 of the Planning and Development Act, 2000.”
This complaint came on for hearing before the learned district judge at a sitting of the District Court in Dundalk on 10th March, 2004.
The agreed note on the evidence heard is as follows:
“Evidence was given by Mr. Fergus Smyth on behalf of the Complainant as to his inspection of the site the subject matter of the Enforcement Notice on 24th October, 2003 and 10th November, 2003. Mr. Smyth testified that he was familiar with the site which is known as Soldier’s Point, Lower Point Road, Dundalk, Co. Louth and that it was an old shipyard, which was since overgrown and was a habitat for birds.
Mr. Smyth testified further that the works referred to in the Enforcement Notice, consisted of the excavation and stripping of top soil and storing of it on site as well as the removal of some debris, which was stacked in different parts of the site concerned. Mr. Smyth agreed that the photographs attached to this note accurately show some of the works concerned. Mr. Smyth agreed that no works had been carried out after the date of the service of the Enforcement Notice. Mr. Smyth confirmed that the work had ceased on this site as all the sod had been stripped and that the work had been carried out over a weekend and the notice was served on 21st October, 2003.
Evidence was given as to the due service of the Enforcement Notice and Mr. Smyth was cross-examined on aspects of the Enforcement Notice and a letter sent to the complainant dated 26th October, 2003.”
Thereafter counsel for Mr. Lawlor applied to the learned district judge to dismiss the summons submitting that the Enforcement Notice the subject matter of the complaint was invalid and of no effect on the grounds:
(a) the time stated in the notice “within a period of immediately commencing on the date of service” did not satisfy the requirement of s. 154 of the 2000 Act which required that the notice should state a “specified period” within which to take the steps specified in the Enforcement Notice and
(b) secondly that the requirement stated in the notice to “return site to its previous condition” did not satisfy the statutory requirement under s. 154 of the 2000 Act whereby it was required that the Enforcement Notice “request such steps as may be specified in the Notice to be taken within a specified period, including where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, insofar as is practicable, the restoration of the land to its condition prior to the commencement of the development…”.
Having adjourned to 5th May, 2004, to hear further submissions and thereafter to 7th July, 2004, the learned district judge refused to dismiss the summons against Mr. Lawlor and accepted the submissions that had been made on behalf of the council.
Arising from the foregoing, this case was stated.
I propose to consider the time issue first and then the issue as to whether the notice adequately specified the steps to be taken in compliance with s. 154.
Before dealing with these it is well to set out the relevant portions of s. 154. There are as follows:
“154-(5)An enforcement notice shall refer to the land concerned and shall-
(a) (i) in respect of a development where no permission has been
granted, require that development to cease or not to commence, as appropriate, or
(ii) in respect of a development for which permission has been granted under Part III, require that the development will proceed in conformity with the permission, or with any condition to which the permission is subject,
(b) require such steps as may be specified in the notice to be taken within a specified period, including, where appropriate, the removal, demolition or alteration of any structure and the discontinuance of any use and, in so far as is practicable, the restoration of the land to its condition prior to the commencement of the development,…
(8) Any person on whom an enforcement notice is served under subsection (1) who fails to comply with the requirements of the notice (other than a notice which has been withdrawn under subsection (11)(a) or which has ceased to have effect) within the specified period or within such extended period as the planning authority may allow, not exceeding 6 months, shall be guilty of an offence.
S.156-1 A person who is guilty of an offence under sections 58(4), 63, 151, 154, 205, 230(3), 239 and 247 shall be liable-on conviction on indictment, to a fine not exceeding £10,000,000, or to imprisonment for a term not exceeding 2 years, or to both, or
(b) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 6 months, or to both.”
The questions posed in the case stated here relate to s. 154 (5)(b) as quoted in italics above.
The question which arises in relation to the time specified is whether “within a period of immediately commencing on the date of service of this notice” is capable of being construed as a “specified period” as stated in s. 154 (5)(b).
The first thing that has to be borne in mind here is that a failure to comply with an Enforcement Notice is a criminal offence. It is well settled that criminal offences must be defined with clarity and precision so that a person can know whether his conduct is or is not a commission of an offence. (see King v. Attorney General [1981] I.R. 233.
What that means is that in construing s. 154 (5)(b) and also in construing any notice issued pursuant to s. 154, a strict construction is required i.e. the subsection in question and any Enforcement Notice must be construed in accordance with the natural and ordinary meaning of the words used and there is no scope for any kind of purposive of or teleological approach.
Subsection (5)(b) requires that steps “be taken within a specified period”.
Any period in time necessarily requires for its definition or ascertainment a beginning and an end. A fortiori a “specified” period must be capable of having its beginning and end clearly ascertained.
In my view the use of the word “immediately” provides a beginning to a period but does not indicate when the period ends. In other words it does not in fact create a period, it simply defines a point at which or from which something must be done but it entirely fails to describe or limit a time within which the step is to be accomplished.
I have therefore come to the conclusion that the enforcement notice fails to comply with the terms of sub-s. 5 (b) which requires that there be a “specified period.” Even if this were not required by the subsection, the notice is lacking in sufficient precision, as to the time permitted for the required steps to be taken, to be the proper subject matter of criminal offence. A person served with a notice with this time provision in it, could not know even though the steps had been taken, that there had been compliance with the notice in terms of time, and hence whether he or she was free of the notice.
I am satisfied therefore that the notice was for the above reasons, invalid and I would answer the first question posed in the negative.
The next question is whether or not the particulars set out in the third schedule of the notice and in particular the part which reads “return site to its previous condition.” is as an adequate compliance with the requirements of s. 154 (5) (b).
As said earlier, because the failure to comply with an enforcement notice is an offence, an enforcement notice issued pursuant to (5)(b) must with clarity and precision set out the steps that are required to be taken in the specified period. The steps can include the matters as set out, such as the removal demolition or alteration of any structure or the restoration of land to its condition prior to the commencement of the development. It is not sufficient, however, for the purposes of the notice merely to recite the phrases used in sub-s. (5)(b), such as demolition or alteration of any structure or as in this case, “return site to its previous condition” where the use of that kind of phraseology borrowed from the subsection, fails to clearly and precisely indicate to the person served with the notice what exactly has to be done in order to comply with the notice.
Counsel for the council draws attention to the phrase “as far as is practicable” in sub-s. (5)(b) and submits that the requirement as set out in any Enforcement Notice is not an absolute requirement, but merely obliges the person served to go as far is practicable in restoring the site to its pre-development condition.
I would accept that an Enforcement Notice has to be read in conjunction with sub-s (5)(b) and hence the limitation implied in the phrase “as far as practicable” would be imported into every notice even though not expressly stated.
The inclusion of the concept envisaged by the phrase “insofar as is practicable”, in my view make it all the more imperative that the precise steps required by the council be set out with precision and clarity because in the absence of that being done it becomes difficult to the point of impossible for a person served with the notice to know how far they must go in order to ensure compliance with an Enforcement Notice and hence the avoidance of criminal liability. If the steps required are not set out with precision and clarity a person served with a notice may find themselves having to guess or speculate as to what they must do to achieve compliance.
That would appear to be precisely the position in this case.
Prior to the carrying out of development there was a considerable amount of debris strewn about this site. Does the notice require that that debris be brought back on site and placed where it was before the development or is this not required? The notice does not provide any answer to that obvious question. Also the unauthorized development complained of was the removal of top soil and the stripping off of sod. Does the notice require that top soil be restored, and that the sod be restored or merely that the top soil be reseeded? Again the notice does not specify which of these alternate steps is required for there to be compliance with the notice.
I am satisfied that this notice does not set out with sufficient clarity or precision the steps that are required, having regard to the fact that failure to comply with the notice is a criminal offence; and the mere recitation of the phraseology used to describe steps in sub-s. (5)(b) of s. 154 is insufficient, in a notice such as this, which purports to ground a criminal liability.
Accordingly I have come to the view that on this ground also the Enforcement Notice was invalid.
In conclusion therefore I would answer No to the two questions raised in the case stated.
Dublin City Council v Benqueues Ltd
[2016] IEHC 427
JUDGMENT of Mr. Justice Twomey delivered on the 25th day of July, 2016.
Introduction
1. This is a Case Stated from the District Court regarding whether a direction to acquit should be given in a prosecution for a criminal offence, namely a breach of a planning condition.
2. This Court concludes that Dublin City Council issued an Enforcement Notice which accused the respondent of a breach of a planning condition (namely, the use of a premises principally as a restaurant, rather than as a bar) in terms which were different from the planning condition (since the Enforcement Notice stated that the respondent failed to serve alcohol only with food) and which alleged breach did not in fact amount to a breach of the planning condition. The Enforcement Notice also obliged the respondent to take steps (namely to serve alcohol only with food) which were not necessary to remedy the alleged breach of the planning condition. The Summons was issued on the basis that the respondent had failed to take these steps, even though these steps were not necessary to remedy the alleged breach of planning. On this basis, the Court finds that the Enforcement Notice and the Summons were flawed and that the prosecution based on them should not proceed and so a direction to acquit should be given.
Factual background
3. The following is an extract from the Case Stated signed by Judge John O’Neill on the 1st February, 2015:-
“Facts
1. The Respondent is the owner of a Café and Restaurant premises known as The Bad Ass Café and situate in Temple Bar, Dublin.
2. On the 16th day of December, 2013, the Respondent’s Planning Permission Planning Register Reference Number 2199/13 granted permission for the proposed development (Retention Permission is sought for the retention of interior works carried out, comprising the installation of a new bar, counter, space dividers, wall cabinets, stall risers, column and wall cladding, floor, ceiling and wall finishes to ground floor and new bar, counter and wall mounted cabinets to first floor) in accordance with the said plans and particulars based on the reasons and consideration under and subject to the conditions. The Planning Permission was conditional and in particular Planning Condition Number 2 required compliance with the following:
2. (a) This permission solely authorises the retention of the internal works to the proposed development described in the documentation submitted with the planning application (register reference number 2199/13) and appeal. No permission is granted for a change of use of this Protected Structure from its primary use as a restaurant to that of a public house.
(b) Any use of the bar areas for the sale and consumption of alcohol shall be strictly ancillary to the principal use of the premises as a restaurant.
(c) No permission is granted for the erection of any external signage advertising the restaurant premises or any alcoholic beverage. Reason: In the interest of clarity having regard to the nature of the development for retention permitted
3. On the 24th day of July 2014, an Enforcement Notice was served by the Complainant alleging breach of Planning Condition Number 2 and it stated in particular the following:
Take notice that Dublin City Council being the Planning Authority for the area comprising of the City of Dublin having considered in exercise of the power conferred on it by section 154 of the Planning and Development Acts 2000-2013 and of every other power in that behalf it enabling,
HEREBY REQUIRES
Full compliance with Condition 2 of planning permission granted by An Bord Pleanala (Reference PL. 29s.242458) under Planning Register reference No. 2199/33 by;
I. The cessation of the sale of alcohol other than in conjunction with or ancillary to a meal being consumed on the premises.
II. The removal of the three illuminated projecting signs (two advertising ‘Guinness’ and one advertising ‘Heineken’) from the Crown Alley façade of the building.
4. The prosecution came for hearing before Judge John O’Neill on the 1st day of July 2015 and Mr. Paddy Keogh, Enforcement Officer, on behalf of the Complainant gave evidence before the Court. Mr. Keogh accepted in evidence that his qualification was that of an Architectural Technician, not a planner or a fully qualified architect. Mr. Keogh indicated that at the time of his inspection about twenty patrons were disbursed throughout the premises and that about half of them were eating and half were drinking and some were sitting at the bar. He stated that subsequent inspections were made without him consuming anything but that he saw people having alcohol without food. Mr. Keogh gave evidence that he inspected the subject premises on the 25th April 2014 at it was the basis of this inspection that he recommended that an Enforcement Notice be served. His evidence was that he was asked if he wanted to order food but that he refused and requested a glass of Guinness. He indicated that he was served with a glass of Guinness. In his evidence Mr. Keogh indicated that his basis for recommending that an Enforcement Notice be served was because he was served a drink without ordering food.”
Analysis
4. There are eight questions listed in the Case Stated for the consideration of this Court. Counsel for Dublin City Council advised the Court that questions 1 to 7 in the Case Stated, which seek this Court’s instruction on whether a direction to acquit should be issued, were moot, since the District Court Judge had in fact refused to issue a direction in the case. This claim on behalf of Dublin City Council that the District Judge did in fact refuse to issue the direction in this case, was not disputed by the respondent.
5. Counsel for Dublin City Council also stated that there was common case between the parties regarding the only other question, question 8, since both parties were of the view that the respondent was not disentitled to a direction on grounds that it should have judicially reviewed the Enforcement Notice. On this basis, nothing more need be said in relation to this question.
6. In these circumstances and in light of the right of this Court to reformulate questions posed by a District Court Judge, as is clear from the case of National Authority for Occupational Safety & Health v. O’K Tools Hire & Sales Ltd [1997] 1 IR 534, this Court takes the view that in the interests of the most efficient use of court resources and to deal, as efficiently as possible, with the cloud of a criminal trial hanging over the respondent, the best way to address this matter is by answering one key question:
Should a direction to acquit be granted in this case on the basis of the evidence as set out in the Case Stated?
7. The essence of this case is that the criminal offence of which the respondent is accused is a breach of Condition 2 of the planning permission granted on the 16th December, 2013, which states that:-
“(a) This permission solely authorises the retention of the internal works to the proposed development described in the documentation submitted with the planning application (register reference number 2199/13) and appeal. No permission is granted for a change of use of this Protected Structure from its primary use as a restaurant to that of a public house.
(b) Any use of the bar areas for the sale and consumption of alcohol shall be strictly ancillary to the principal use of the premises as a restaurant.
(c) No permission is granted for the erection of any external signage advertising the restaurant premises or any alcohol beverage. Reason: In the interest of clarity having regard to the nature of the development for retention permitted.”
The Enforcement Notice dated 24th July, 2014, issued to the respondent under its trading name, provides that there has been a breach of Condition 2(b) and gives the reasons for that breach in the following manner:-
“The sale of alcohol for consumption, other than in conjunction with or ancillary to a meal consumed on the premises is in breach of Condition 2(b) of the planning permission…”
The Enforcement Notice requires the respondent to take certain steps, namely:-
“The cessation of the sale of alcohol other than in conjunction with or ancillary to a meal being consumed on the premises.”
8. The subsequent Summons dated 16th December, 2014 to the respondent seeks to prosecute the respondent for its failure to take the steps required under the Enforcement Notice, which steps are described as:-
“The cessation of the sale of alcohol other than in conjunction with or ancillary to a meal being consumed on the premises.”
9. This Court will now consider whether in these circumstances and in light of the facts set out in the Case Stated, the District Judge should issue a direction to acquit in this case.
Decision
10. This case can be summarised by stating that Dublin City Council alleges that the respondent has committed a breach of the planning laws, by using the bar areas of its premises in a way which is not ancillary to the principal use of the premises as a restaurant, since this is what Condition 2(b) states.
11. It seems to this Court, however, that if Dublin City Council were of the view that Condition 2(b) had been breached, the correct way to proceed in this case was for there to be an Enforcement Notice regarding a breach of Condition 2(b) on the express grounds that the bar area was not being used as ancillary to the principal use of the premises as a restaurant – since this is what the condition requires.
12. This was not done. The Enforcement Notice instead stated that there was a breach of planning because alcohol was sold, other than with a meal. The nub of this case is that selling alcohol without a meal is not a breach of Condition 2(b), since it is possible for a bar area of a restaurant to sell alcohol without a meal and for that bar area still to be ancillary to the principal use of the premises as a restaurant.
13. This should be self-evident but an example will illustrate. If a person joins a group of diners at a restaurant, having eaten already, he may decide to order a glass of wine and no food. In this Court’s view, the fact that this person has been served alcohol without a meal cannot per se mean that the bar area of that restaurant is not being used as ancillary to the principal use of the premises as a restaurant. It follows that it is incorrect to claim that a bar area must only sell alcohol with food to every customer in order to comply with a planning condition such as Condition 2(b) in this case.
14. Just as it has been noted that the Enforcement Notice should have been differently worded regarding the breach, so too the Enforcement Notice should have been differently worded regarding the steps to be taken to remedy that breach, e.g. it might have required the respondent to increase the number of tables or whatever other steps would be regarded as usual to remedy the fact that the premises were allegedly being used principally as a bar, rather than as a restaurant. Instead, the steps under the Enforcement Notice required the respondent to cease selling alcohol other than with a meal, even though, as has been illustrated, this is not necessary for the respondent to comply with Condition 2(b).
15. When it came to the Summons, the error was repeated, since it provided that the respondent was being prosecuted for its failure to take steps (namely the selling of alcohol without a meal) which were required by the Enforcement Notice (even though those steps were not required to remedy the alleged breach of planning).
16. In light of the foregoing, it seems clear to this Court that the respondent is being prosecuted for failing to comply with the requirement of Dublin City Council to only sell alcohol with a meal, on the mistaken belief that satisfying this requirement is necessary to comply with its planning condition.
17. Since it is not, in fact, necessary for the respondent to abide by this requirement for the respondent to comply with Condition 2(b) of its planning permission, it follows that the Enforcement Notice is flawed and any prosecution and any Summons for the failure of the respondent to comply with that Enforcement Notice is also flawed.
Conclusion
18. The core of this case is that someone cannot be prosecuted for failing to take certain specified steps, if those steps are not necessary to remedy the alleged breach of planning. In this case, the taking of the steps of only selling alcohol with food is likely to lead to a remedy of the alleged breach, but crucially those steps are not necessary to remedy that alleged breach, since selling alcohol without food to some customers does not per se mean that the bar area has ceased to be used as ancillary to a restaurant.
19. A more clear-cut example will illustrate the principle at issue for members of the public who are alleged to have breached planning. If an individual’s building fails to comply with planning because he has velux windows at the front of his house, rather than the back, but the Enforcement Notice requires him to move his gate back from the public road, which he fails to do, because he knows that his failure to do so is not a breach of planning and he knows that it is not necessary to remedy his alleged breach of planning, he cannot and should not be prosecuted for his failure to move his gate, since it is not a step which it is necessary for him to remedy the alleged breach, nor indeed is it evidence of the alleged breach. So it is, in the respondent’s case, although the distinction between the steps and the breach is not as clear-cut as the velux windows and gate example. However, just as it is not necessary in that example to remedy the alleged breach of planning by moving the gate, so too it is not necessary in the respondent’s case to remedy the alleged breach of planning by refusing to sell alcohol without a meal.
20. Finally, while this Court has concentrated on the flawed nature of the Enforcement Notice and the Summons, it is also true to say that the evidence which is being relied upon by Dublin City Council, namely the failure of the respondent to only sell alcohol with a meal (as well as some very cursory evidence regarding observing some people drinking, rather than eating), is not sufficient evidence of a breach of Condition 2(b), and so for this reason also, there is no basis for the case proceeding and a decision to acquit must be given.