Planning 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.
Injunctions in relation to unauthorised development.
160.—(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;
F673[(c) that any development is carried out in conformity with—
(i) in the case of a permission granted under this Act, the permission pertaining to that development or any condition to which the permission is subject, or
(ii) in the case of a certificate 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, the planning scheme made under those Acts to which the certificate relates and any conditions to which the certificate is subject.]
(2) In making an order under subsection (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.
(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.
(b) Subject to section 161, the order by which an application under this section is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.
(4) (a) Rules of court may provide for an order under this section to be made against a person whose identity is unknown.
(b) Any relevant rules of Court made in respect of section 27 (inserted by section 19 of the Act of 1992) of the Act of 1976 shall apply to this section and shall be construed to that effect.
(5) (a) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the land which is the subject of the application is situated.
(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section where the F674[market value] of the land which is the subject of the application does not exceed F674[€3,000,000].
(c) The Circuit Court may, for the purposes of paragraph (b), in relation to land that has not been given a F674[market value] or is the subject with other land of a F674[market value], determine that its F674[market value] would exceed, or would not exceed, F674[€3,000,000].
(d) Where the F674[market value] of any land which is the subject of an application under this section exceeds F674[€3,000,000], the Circuit Court shall, if an application is made to it in that behalf by any person having an interest in the proceedings, transfer the proceedings to the High Court, but any order made or act done in the course of such proceedings before the transfer shall be valid unless discharged or varied by the High Court by order.
F675[(e) In this subsection “market value” means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.]
F676[(5A) (a) An application under this section to the Circuit Court shall, in respect of development situated wholly or partly in the nearshore area of a coastal planning authority, be made to the judge of the Circuit Court for the circuit in which the functional area (other than the nearshore area) of that coastal planning authority is situated.
(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section in relation to a development referred to in paragraph (a) where the aggregate amount of the levy or levies payable under Chapter 7 of Part 4 of the Maritime Area Planning Act 2021 in respect of the maritime area consent granted to the person who carried out the development does not exceed €500,000.
(5B) (a) An application under this section, in respect of development situated wholly or partly in the nearshore area of a coastal planning authority, shall be made to the High Court if that development was carried out by or on behalf of a person who at the time of the carrying out of the development was not the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development.
(b) An application under this section, in respect of development situated wholly in the outer maritime area, shall be made to the High Court.]
(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, F677[…]
(ii) in respect of a development for which permission has been granted under Part III F676[or section 293], 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 F678[section 42, or]
F679[(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 the expiration of a period of 7 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.]
F680[(aa) Notwithstanding paragraph (a) an application to the High Court or Circuit Court for an order under this section may be made 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), an application to the High Court or Circuit Court may be made at any time for an order under this section to cease unauthorised quarry development or unauthorised peat extraction development.]
(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.
(7) Where an order has been sought under this section, any other enforcement action under this Part may be commenced or continued.
Annotations
Amendments:
F673
Substituted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 33(a), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F674
Substituted (11.01.2017) by Civil Liability and Courts Act 2004 (31/2004), s. 53(2)(a), S.I. No. 2 of 2017.
F675
Inserted (11.01.2017) by Civil Liability and Courts Act 2004 (31/2004), s. 53(2)(b), S.I. No. 2 of 2017.
F676
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 24, S.I. No. 488 of 2022.
F677
Repealed (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s.33(b)(i), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F678
Substituted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 33(b)(ii), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F679
Inserted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 33(b)(iii), commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F680
Inserted (15.11.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 29, S.I. No. 583 of 2011.
Editorial Notes:
E298
Previous affecting provision: subs. (6) amended by Planning and Development (Amendment) Act 2010 (30/2010), s. 48, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
Costs of prosecutions and applications for injunctions.
161.—(1) The court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay—
(a) where a person is convicted of an offence under this Part, to the planning authority, or
(b) where the person is the subject of an order under section 160, to the planning authority or to any other person as appropriate,
the costs and expenses of the action, measured by the court.
(2) Where costs or expenses are to be paid to the authority, they shall include any such costs or expenses reasonably incurred by the authority in relation to the investigation, detection and prosecution of the offence or order, as appropriate, including costs incurred in respect of the remuneration and other expenses of employees, consultants and advisers.
Evidence of permission.
F681[162.—(1) In any proceedings for an offence under this Act, the onus of proving the existence of—
(a) any permission granted under Part III F682[or section 293],
(b) any certificate issued by the Custom House Docks Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, or
(c) any certificate issued by the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997,
shall be on the defendant.]
(2) Notwithstanding subsection (1) of this section, it shall not be a defence to a prosecution under this Part if the defendant proves that he or she has applied for or has been granted permission under F683[section 34(12C)]—
(a) since the initiation of proceedings under this Part,
(b) since the date of the sending of a warning letter under section 152, or
(c) since the date of service of an enforcement notice in a case of urgency in accordance with section 155.
(3) No enforcement action under this Part (including an application under section 160) shall be stayed or withdrawn by reason of an F684[application for permission for retention of unauthorised development] under F685[section 34(12C)] or the grant of that permission.
Annotations
Amendments:
F681
Substituted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 34, commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
F682
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 25, S.I. No. 488 of 2022.
F683
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 31, S.I. No. 436 of 2018.
F684
Substituted (9.10.2001) by Local Government Act 2001 (37/2001), s. 247(f), S.I. No. 458 of 2001.
F685
Substituted (23.03.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 49, S.I. No. 132 of 2011.
Permission not required for any works required under this Part.
163.—Notwithstanding Part III F686[or section 293], permission shall not be required in respect of development required by a notice under section 154 or an order under section 160 F687[(disregarding development for which there is in fact permission under Part III F686[or section 293] or 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)].
Annotations
Amendments:
F686
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 26, S.I. No. 488 of 2022.
F687
Substituted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 35, commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
Transitional arrangements for offences.
164.—Notwithstanding any repeal of any enactment (“repealed enactment”) by this Act, where proceedings have been initiated in respect of any offence under the repealed enactment, or an enforcement notice or a warning notice (within the meaning of the relevant provisions) has issued under any provision of the repealed enactment, or an application to a Court has been made under section 27 of the Act of 1976, the relevant provision which applied before the repeal shall continue to so apply until the proceedings have been finalised, the notices complied with or withdrawn or the application determined, as the case may be.
F688[
Development in Dublin Docklands Area
164A.— For the avoidance of doubt, Dublin City Council is the planning authority in respect of a development in respect of which a certificate has been issued by—
(a) the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997, or
(b) the Custom House Docks Development Authority under section 12(6)(b) of the Urban Renewal Act 1986.]
Annotations
Amendments:
F688
Inserted (1.03.2016, dissolution day) by Dublin Docklands Development Authority (Dissolution) Act 2015 (55/2015), s. 36, commenced on enactment subject to dissolution order S.I. No. 114 of 2016.
Cases
Sligo County Council v Martin
[2007] I.E.H.C. 178
JUDGMENT of O’Neill J. delivered the 24th day of May, 2007
In these proceedings by its Notice of Motion of the 22nd January, 2007 the applicants seek orders pursuant to s. 160 of the Planning and Development Act, 2000 (hereinafter referred to as the Act), to restrain the respondent from carrying out or continuing to carry out any development or further development at a site owned by the respondent at Kilkillogue, Mullaghmore in the County of Sligo, and directing the respondent to remove forthwith all unauthorised development carried out by him on this site.
The unauthorised development complained of by the applicants in this case is a mobile home placed on this site by the respondent.
This case is unusual in that the applicants sought similar reliefs against the respondent in respect of another mobile home on this site pursuant to a Notice of Motion dated the 21st February, 2003. On foot of that Notice of Motion his Honour Judge Kennedy in the Circuit Court restrained any further unauthorised development and ordered the dismantling and removal of the unauthorised development from the site. The applicant appealed this order and that appeal was heard by Gilligan J. in the High Court on the 8th March, 2005, who dismissed the appeal and ordered the respondent to remove from the site the entire base of the mobile home together with the existing mobile home and all pipe work associated with it and to render safe all electrical current attached thereto. Subsequent to the order of the High Court as aforesaid the respondent did remove the mobile home and the concrete base and the pipe work attached but replaced it with a smaller mobile home on a gravel base. It is this smaller mobile home with its gravel base that the applicants seek to have removed from the site on the basis that it is an unauthorised development.
The background to this matter is as follows.
The respondent’s father acquired the site in question in or about 1972 and from 1974 onwards kept a mobile home on the site. This mobile home was used by him and his family as a holiday home. It is apparent from the photographs exhibited both in the previous application and in this application that the site upon which this mobile home was located is one of considerable scenic beauty overlooking as it does the bay at Mullaghmore and being quite close to the sea front.
Over the years the mobile home placed there in 1974 fell progressively into disrepair. In the meantime the respondent had taken over the mobile home and in the year 2000 he removed the old mobile home and replaced it with a new one. The old mobile home had measured approximately 28 feet by 10 feet (8.5344 metres by 3.048 metres). The new mobile home placed there in March, 2000 was somewhat larger measuring 37 feet by 12 feet.
In an affidavit sworn in the earlier application on the 26th day of May, 2003 at paragraph 3 thereof the respondent said the following:
“Thomas Martin purchased the lands in the year 1972 or 1973 from one Maurice McChesney. Thomas Martin placed a mobile home on the lands in 1974. From 1974 the lands were occupied by Thomas Martin and his family and the mobile home on it was sited on a concrete base with electricity and water connected…”
In his affidavit sworn on the 1st March, 2007 in these proceedings, at paragraph 4 the respondent says the following:
“In or around 1974, my father placed a mobile home on the lands in question which measured 28 feet by 10 feet (8.5344 metres by 3.048 metres). The said mobile home was placed on a gravel base. The said mobile home was further supported by concrete over the following years. I say that the mobile home remained in situ from 1974 and throughout the years my father, mother, myself and my seven siblings enjoyed many holidays at the said mobile home…”
Further on in this affidavit at paragraph 7 the respondent says:
“This new mobile home was larger than the original mobile home, 37 feet by 12 feet, approximately one third of a size larger than the original mobile home. Additionally I placed a wooden fence to enhance the old barbed fences which had deteriorated and built a stone wall to bound the county road. In order to accommodate the larger structure, it was necessary for me at the time to concrete over the gravel base…”
At paragraph 10 of this affidavit the respondent says:
“In compliance with the order Mr. Justice Gilligan of the 8th March, 2005, and as set out in correspondence between the respondent’s solicitors and the applicants solicitors, the respondent removed on the 26th August, 2005 the new mobile home from the site and removed the concrete base and replaced the original mobile home with an identical mobile home in size and dimension and left the original gravel surface in place…”.
At paragraph 12 he says:
“The land has now been reinstated to the situation which pertained prior to the placing of the new larger mobile home in 2000. There has been no material change in use in respect of the land since 1974.
13. The County Council is effectively seeking to alter the use of the land having taken no action for decades. The land as now used complies with the status quo as existed prior to the 15th March, 2000 and all bone fide concerns of the Council and any other complainant that arose from a larger caravan being on the site have been addressed…”
At paragraphs 15 and 16 the following is said:
“15. I am advised and believe that it is not the practice to obtain planning permission for a particular mobile home/caravan as opposed to permission for the use of lands for that particular purpose and I am advised and believe that where lands are used as a site for a mobile home/caravan it is the invariable practice that a particular mobile home/caravan is replaced from time to time without any requirement that planning permission be obtained. The issue in the previous proceedings turned essentially on the Council’s contention that we were not replacing like with like and that the placing of a larger unit constituted development.
16. At no stage have we abandoned the use of the site of land as a site for a mobile home. However the High Court held that we were in error in placing a large unit on the site that error on our part did not constitute an abandonment of long established and continuing user of the site…”
The issue which arises for determination on this application is whether as is contended for by the respondent, the replacement on the site in August of 2005 of a mobile home of exactly similar dimensions to the one removed in 2000 was a continuation of the same user of the site as had existed prior to 2000 and secondly, having regard to the fact that no action was taken by the applicants or anybody else for an injunction to restrain unauthorised user pursuant to s. 160 of the Act or its predecessor s. 27 of the Planning and Development Act, 1976, are the applicants now prevented from seeking the relief sought in this application by virtue of s. 160(6)(a)(i) of the Act of 2000 because more than 7 years has elapsed from the date of commencement of the use of the site for this mobile home.
It is common case that no planning permission has ever existed in respect of the erection of a mobile home on this site or the use of the site for a mobile home, and that no action was ever taken by the applicants or by anybody else to restrain the use of this site as a site for this mobile home or to have the mobile home dismantled and removed therefrom, except for the application, ultimately determined by Gilligan J.
It is not contended by the respondent that the erection of a mobile home on this site or the use of the site for a mobile home is an exempt development.
For the applicant it was submitted that the removal of the mobile home in August 2005 pursuant to the order of Gilligan J. and the replacement of it by the mobile home now on site was a new or fresh “development” within the meaning of s. 3(1) of the Act of 2000, and the bringing on to the site in August of 2005 of the mobile home now sought to be removed could not in any circumstances be considered to be the temporary removal for repair and maintenance of the original mobile home. In this regard reliance was placed upon judgment of Morris P. in the case of Dublin Corporation v. Arnold Lowe and Signway Holdings Ltd (Unreported, 4th February, 2000). It was further submitted by the applicants again placing reliance upon the judgment of Morris P. in the above case, that the removal of the original mobile home without the intention of replacing it, was to be regarded as an abandonment of any rights which the respondent may have had in relation to the original mobile home.
For the respondent it was submitted that a critical issue was what constitutes development in the context of placing a mobile home on a site, and that the dominant consideration was the user of the site, pursuant to s. 3(2)(b) of the Act of 2000. Thus what has to be considered is whether or not there was continuous user of this site since 1974 to the present as a site for a mobile home. It was submitted that the planning permission would not be required every time a mobile home was changed and that a planning permission would not be for any particular type of mobile home. If planning permission was sought it would be for permission to use the site for a mobile home. It was submitted that mobile home such as the one at issue in this case is a chattel and does not form part of the reality. In this regard reliance was placed upon the case of Leitestone Limited v. Morris [1997] 1 WLR 687. It was submitted that it was never intended this mobile home would become part of the real estate in the site and could have been removed therefrom without destruction of it. Thus it was submitted that the replacement on the site in August 2005 of a mobile home of similar dimensions to the original one was a continuation of the exact user which had existed uninterrupted from 1974 onwards and which was immune from restraint under s. 160 of the Act of 2000.
It was submitted that the objectionable feature of the mobile home replaced in 2000 was its excessive size in comparison to the original. It was submitted that the placing of a mobile home on the site did not constitute “works” and within the meaning of s. 3(1) of the Act of 2000. It was submitted that the fact that the mobile home was that i.e. mobile in nature which could be removed without damage or destruction distinguished this case from that of Dublin County Council v. Tallaght Block Company Limited and the case of Fingal County Council v. Crean [2001] IEHC 148 (19th October, 2001), in which O’Caoimh J. held that an advertising structure had been placed by new structure and hence was unauthorised. It was further submitted that there had been no abandonment at any stage of the user of this site as a site for a mobile home.
It was further submitted that with regard to the evidence to the effect that this site had been used as a site for a mobile home by the respondent and his family since 1974; that there was no question of profit arising; that the objectionable feature, namely the increased size of the mobile home replaced in 2000 had been addressed pursuant to the order of Gilligan J., and that there was no public interest at stake, that the granting of the injunction sought would be excessively punitive in nature and that this court should exercise its discretion against the granting of the injunctions sought in this application.
The relevant provisions of the Act of 2002 are as follows:
S. 3
“3. Development
(1) 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 or any material change in the use of any structures on other land.
(2) For the purposes of sub-s 1 and without prejudice to the generality of that sub-s – …
(b) Where land becomes used for any of the following purposes –
(i) The placing or keeping of any vans, tents, or other objects, whether or not moveable and whether or not collapsible for the purposes of caravanning or camping or habitation or the sale of goods…”
S. 160(6)
“(6)(a) An application to the High Court or Circuit Court for an order until 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 seven years from the date of the commencement on the development, or …”
In this case it is clear that since 1974 there has continuously been a mobile home on this site, placed on a concrete base from early in that period until August of 2005, with electricity and water connected.
In my view the construction of a concrete base, the placing thereon of a mobile home and the connection to electricity and water supply manifestly amount to the carrying out of “works” within the meaning of s. 3(1) of the Act of 2000 and also its predecessor s. 3(1) of the Local Government (Planning and Development) Act, 1963.
Similarly in my view the construction in August of 2005, as the photographs exhibited, clearly demonstrate, of a new gravel base and the placing thereon of a new mobile home regardless of what size it is, constitutes in my opinion “works” within the meaning of s. 3(1) of the Act of 2000, and cannot be regarded as care or maintenance of the original mobile home which was permanently removed from the site in 2000 with the intent that it would be replaced. In this regard I agree with the passage from the judgment of Morris P. in the case of Dublin Corporation v. Arnold Lowe and Signway Holdings Limited (Unreported, High Court 4th February, 2000) where the learned President says the following at page 9:
“I believe that there must, in planning terms, be a significant difference between a temporary removal for repair and maintenance with the intention of the original or repaired structure being reinstated after such repair and the removal of such a structure with no intention of its reinstatement by its owner but the replacement of a different albeit (or be it similar) structure by a third party. I am of the view that it is irrelevant that the new structure corresponded in all respects with the original structure. The removal of the original hoarding by David Allen Holdings Limited without the intention of replacing it must be regarded as an abandonment of any rights which might have been acquired up to that time. (See Dublin County Council v. Tallaght Block Company Limited [1985] I.L.R.M. 512)”
I am satisfied therefore that apart from user of this site as a site for a mobile home the process of establishing the mobile home on the site as described in the evidence necessarily involved the carrying out of works and as such it was a development which required planning permission . I am fortified in this conclusion by the fact that at all times since 1974 the placing of a mobile home on this site by the respondent or his father was intended to be and indeed undoubtedly became the placing of permanent object on this site. There does not appear to have been any question of moving this home and it is plainly obvious it was there as a permanent holiday facility for the respondent and his family. In this context in my view, and having regard to the nature of the work carried out to establish this object on this site, this mobile home is properly to be regarded as a “structure” as defined in s. 2 of the Act of 2000.
I am satisfied that when the original mobile home was removed in 2000, this was a permanent change and intended to be so, and hence any rights, or more particularly, immunity from action under s. 160 of the Act of 2000 which had accrued in relation to that structure were abandoned by the respondent.
I cannot agree with the submission for the respondents to the effect that from a development point of view the placing of this mobile home is to be looked at purely in terms of the user of the land and as governed solely by s. 3(2)(b) of the Act of 2000. This sub-s has of course application but it is in addition to the application of s. 3(1) as discussed above. It could not be said that these two subsections were mutually exclusive in their application.
This brings me finally to the submission by the respondent that the court should exercise its discretion not to grant injunctive relief.
If the court were to not grant relief that would have the effect of granting planning permission for this structure in circumstances where the various procedures set out in the Act of 2000 for the purposes of protecting the public in regard to development would be ignored with the inevitable defeat of a variety of public interests. Firstly there is the interest of the public in general to participate in the planning process by making objection or observation in relation to any particular proposed development. Secondly the expert supervisory role of the local authority as planning authority would be set at nought as it would be entirely excluded.
It was at all times open to the respondent prior to taking the precipitous action of replacing this mobile home in August of 2005 to seek, in the ordinary way, planning permission for this development. He choose not to do so and in my view he cannot now call in aid the discretion of this court, when it is clear that what he has done is a breach of the statutory obligation to obtain planning permission prior to the carrying out of a development.
I have come to the conclusion that the replacement by the respondent of this mobile home in August 2005 was an unauthorised development and I am quite satisfied that I should exercise my discretion in favour of granting the relief sought in this application.
Hayes & ors v O Donoghue
[2020] IEHC 15 (21 December 2019)
JUDGMENT of Mr. Justice QUINN delivered on the 21st day of January, 20201. The first and second named applicants reside at Cladach, the Demesne, Monkstown, Co.Cork.2. The third and fourth named applicants reside at Glencairn, the Demesne, Monkstown, Co.Cork.3. The respondent is the owner of a site, circa 0.44 acres, located between Cladach andGlencairn which he purchased in 2008. Cladach is to the south west of the site andGlencairn is to its north east. The site is boarded at the north west by remaining lands inthe Demesne estate, and at the south east by a cul-de-sac known as Alta Terrace.4. The site was originally owned by Anglo Eire Property Company, (“Anglo Eire”), thedeveloper of the Demesne. Although the site now has an entrance directly on to AltaTerrace – about which there is controversy in this case – houses in the Demesne do nothave entrances on Alta Terrace, and are accessed by an estate road to the north of thesite.5. The respondent’s family home is Thorncliffe, on Alta Terrace, and is located directlyacross Alta Terrace from the site.6. The gradient of the site is from the north west towards the south east. Therefore, AltaTerrace, Thorncliffe and other houses on Alta Terrace are all at a lower level of the hillsidefacing south east towards the sea.June 20177. Between 26 and 29 June 2017, Mr Aengus Canty, a contractor retained by the respondentundertook certain works on the site.8. On 27 June 2017, the applicants’ solicitors, Messrs Hickey Dorney wrote to therespondent and complained that the respondent was engaging in “unauthorised works”.The essence of the complaint made in that letter was that “natural forestry and a wellhave been removed from the site and that diggers are currently on the site carrying outexcavation works altering the site levels up to 6 metres … that drainage works were beingcarried out diverting the natural stream on the site which we are advised will affectdrainage on our clients’ properties and could result in flooding of same.”Page 2 ⇓9. The applicant’s solicitors warned the respondent that the works were being brought to theattention of the “Planning Authority Enforcement Section” and that unless they receivedan undertaking to cease the works they would apply to the Circuit Court for an injunctionpreventing the works continuing.10. The respondent telephoned Hickey Dorney and stated that he was not doing works on thesite and that he was “simply clearing the site”.11. There was some controversy as to what else was said in this conversation. The applicants’solicitor, Carol Hickey, swore an affidavit to the effect that the respondent informed herthat he had three offers from people interested in buying the site. That averment has notbeen contradicted.12. The first named applicant, Mr. Hayes, also spoke to workmen on the site, and in particularMr. Canty. Mr. Hayes says that Mr. Canty informed him that he had been instructed bythe respondent to continue his work.13. On 28 June 2017, these proceedings were commenced and the applicants made an exparte application to the judge in the Circuit Court at Cork on that day. The Court grantedleave to issue and serve a notice of motion seeking orders under s. 160 of the Planningand Development Act, 2000, as amended, (“the Act”), returnable for Friday 30 June 2017.14. When the matter came before the Circuit Court on Friday 30 June, it was adjourned toenable the parties exchange further affidavits, including engineering evidence, and therespondent gave an undertaking to desist from any further works on the site pending thedetermination of the proceedings.15. After further adjournments and exchanges of affidavits, the matter was ultimately heardbefore the Circuit Court on 10 October 2018 when the court dismissed the claim. Theapplicants appealed to this Court.16. The matter was heard on the basis of affidavits sworn by two of the applicants, theRespondent, their respective engineers and others. The Respondent and the engineers foreach side were cross-examined.Planning and other history of the site17. During the hearing there was extensive debate as to the exact relevance of the planninghistory of the site. The respondent submitted that the only matter with which this Courtshould be concerned is a determination of whether the works performed by him in June2017 constituted “works” within the meaning of that term in s.2 of the Act which in theabsence of a planning permission or exemption could be the subject of any orders unders. 160.18. I have concluded that the planning history of the site is relevant at the very least tounderstand the character and features of the site and to put a proper context on thecomplaints now made in these proceedings.Page 3 ⇓19. The Demesne is an estate which now comprises of 25 houses constructed on individualsites within the estate pursuant to planning permission originally applied for by Anglo Eirein 1989. That planning permission is referred to in this judgment as “S/589/1710”.20. A number of the conditions attached to the Cork County Council Notification of theDecision (“NOD”) to grant S/589/1710 are relevant to an understanding of the site and itsplanning status. They include the following: -(i) A condition (3) that open space/woodland areas and access roads within the estatebe retained in private ownership, and requiring the establishment of a managementcompany to maintain these areas.(ii) That the recommendations contained in a tree surgeons’ report submitted to theplanning authority be carried out in full and that certain fencing be erected aroundidentified trees so that they could be retained and protected (Condition 5).(iii) That woodland areas in the estate be retained as public amenity areas (Condition15).21. The NOD dated 21/5/1990 required that the development be carried out in accordancewith certain plans and particulars which were lodged with the planning authority on 8June, 1989 “as amended on 13/7/89 and 22/3/90”. The drawings originally submitted on8 June, 1989, are referred to as Drawing Numbers 1589/201, 202, 203 and 204. OnDrawing 1589/201, the area comprising the site the subject matter of these proceedingsis designated “open space”. There was some debate as to whether this descriptionextended to the entire of the site but in the absence of separate delineation, it is clearfrom the drawing presented to the court that this designation applies to the entire of thesite the subject of these proceedings.22. A later version of the drawings submitted in response to a request for further informationby Cork County Council does not show the words “open space” on this part of thedrawing. However, there is no record of any deviation from or waiver of Condition No. 3requiring the retention of open space or woodland within the estate, or that the first set ofdrawings could be disregarded or treated as withdrawn.The 2002 Refusal23. In 2002 an application was made by the then owner of the site for outline permission forconstruction of a dwelling house. The application was refused and the following reasonswere given by the planning authority, Cork County Council: -1) “The development would contravene materially a development objective indicatedin the development plan for the use of the area as low density individual sites inwoodland setting, by eroding the woodland setting for the individual housing sitesalready permitted under S/89/1710.2) The proposed development would be contrary to the proper planning anddevelopment of the area because it would contravene materially existing planningPage 4 ⇓permission register number S/89/1710 which regulates the development of theoverall lands of which the site forms part, and which provides for the continued useof the site of this application as wooded public open space.3) The site is a wet, wooded one containing extensive rushy areas and a number ofsmall streams, and is not suitable for development. The planning authority is notsatisfied that these conditions could be rectified so as to make the site capable ofdevelopment, without increasing the risk of flooding on this site and adjoiningproperties in wet weather. The proposed development is already in an area which isat a risk of flooding, and the proposed development would increase this risk.4) The planning authority is not satisfied that the site can command the public sewer,or (having regard to the unsuitability of the site for on – site disposal) that thesewerage arising from the development can otherwise be satisfactorily disposed of”.24. A full reference to the content of the report of the then senior planner Mr. Mansergh, on13 June 2002, is instructive: -“Site visited 12 June 2002. Site is a wet wood, heavily overgrown, with numeroussmall streams in addition to the main one on the SW boundary, and much of itsarea growing luxuriant rushes. The trees on site are sparse and in various states ofhealth. The wood may have become wetter as a result of development to the west,as conditions now seem wet relative to the species present – mostly sycamore andhorse chestnut – while wet adopted species like alder are absent.Ground conditions are totally unsuitable for development of any sort at present,and for development to take place, large scale clearance, and drainage works andfilling would be necessary. Drainage would raise the question of where the surpluswater would go. The application refers to soak ways on site, in relation to the runoffgeneration by his own development. Phelim O’Neill notes that some of the site actsas a flood plain at present in wet weather. A resident of the existing Victorian houseon the opposite (lower) side of the road has written in, complaining that thedevelopment and tree felling which has already taken place in Monkstown Demesnehas increased runoff and caused flooding, that the council has laid drainage pipesunder the road without his permission to alleviate the flooding, and that hasresulted in flooding in his garden as well. Two new looking 14 – inch plastic pipesare in place, carrying the stream under the road.It seems clear that permitting this development would increase runoff and diminishwater storage on site and that the application does not include proposals for dealingwith the consequences. (emphasis added)The Area Engineer, the Housing Estates Engineer and the objector (who is also anengineer) all question whether the proposed house would in fact command thesewer as the northern end of the road, as proposed in the application. The sitewould not be suitable for a septic tank.Page 5 ⇓This application forms part of a site (the Monkstown Castle Demesne Lands) onwhich permission for 25 houses was granted under S/89/1710. It (sic) shown inthat application as wooded public open space. Condition 15 of that permissionrequires that the woodland area be retained as public open space, and condition 3provides that open space/woodland areas shall be retained in private ownershipand that a management company should be set up to maintain these areas. Thereis no evidence of management activity on the site to which this application applies.This application therefore breaches the overall permission for these lands. Thequality of the woodland is fairly poor at present, and incapable of use as openspace, but this is partly due to a failure to manage the woodland in accordance withthe permission granted. Retention of the area in its wild state is neverthelessimportant. The Monkstown Demesne development is clearly intended to work onthe basis of houses set in woodland, and it is zoned as such in the 1996 plan.Narrowing the woodland belt between Alta Terrace and the main access road intothe demesne development would seriously erode the sense of that developmentbeing set in woodland.Having regard also to the major practical problems in developing this site, refusal ofpermission is recommended”.25. The objector referred to in the report of the planner was the respondent’s late father,then owner of Thorncliffe.26. The Respondent claimed that when purchasing the property in 2008, he had noknowledge of the detail of the planning history either in terms of the conditions attachedto the S/89/1710 or the reasons for the refusal in 2002. Whether the respondent hadactual knowledge of the detailed conditions of the permission S/89/1710 or of the reasonsfor the 2002 refusal is not determinative of the case. However, as emerges from eventsreferred to below, it is difficult for the court to accept that before 2017 he was notactually aware of those matters or ought to have been aware of them, through acombination of planning and other inquiries made in the conveyancing process at the timeof purchase of the site, and having regard to certain pre-planning consultations which heundertook with Cork County Council on a series of dates in or around 2009.2009 Clearance Works27. The respondent gave evidence that after purchasing the site he set about cleaning it upand making it safe. He says that during 2009 in the course of cleaning the site heremoved seven truckloads of rubbish, opened drains, removed dead trees, plantedadditional hedgerows and trees, and cleaned the existing stream of fallen trees andvegetation. He says also that he fenced off the site from its entrance at the Demesne andgated the entrance from the Alta Terrace side.28. He also says that the stone wall which marked the boundary of the site against AltaTerrace had fallen over a period of many years and was rebuilt by him at that time.Page 6 ⇓29. In 2009 when this work was undertaken a number of residents of the Demesne madecomplaints to Cork County Council in respect of the clearing of the site. This led to theissue of a warning letter by Cork County Council in March 2009. Ultimately, followingsubmissions made by the respondent to the Council, the Council determined that noaction should be taken in respect of the clearing of the site at that time.30. The Council also acknowledged at that time that the subject site is in private ownership,and although initially the applicants in these proceedings suggested that the site ought toremain, consistent with the original planning permission, a “public open space” it hasbeen accepted that the site was validly transferred to the respondent in 2008 and that itis no longer publicly accessible.31. It appears that a number of “pre planning” meetings also took place during 2009 betweenthe respondent and Cork County Council.32. On 3 October 2009, the respondent wrote to Cork County Council submitting “someideas” which he had in order to further investigate with the County Council “as to thepossibility of securing planning permission for a dwelling on the site across the road fromThorncliffe – my family home”.33. At this stage the respondent indicated that he and previously his late father had beenconcerned over a long period of time as to the flooding effects of the site on Thorncliffe.He said that for many years prior to his acquisition of the site, the site had not beenproperly maintained and had been used by many locals as an infill site and had beensubjected to regular dumping. He said that the cumulative effect of these issues was tocause flooding at Thorncliffe and re-routing of a stream on the site. He indicated that theprincipal purpose of the clearing works which he had undertaken in 2009 was to resolvethe flooding issue at Thorncliffe.34. With the letter of 3 October 2009, the respondent submitted drawings and illustrationsand a proposed site layout and certain house designs. No application for planningpermission was made at this time.201335. The respondent gave evidence that for a limited period during 2013 he had facilitated theCork County Council by enabling the site to be used as a form of “staging post” inconnection with works which the County Council were undertaking on the lowerMonkstown Road, closer to the seashore. He said that as part of this work some hardcoresurfacing had been laid inside the gate to the site at Alta Terrace to facilitate themovement of trucks and diggers. This is relevant to one of the complaints in theseproceedings.June 201736. In the grounding affidavit for the purpose of the ex parte application, the first applicantreferred to the following activities: -Page 7 ⇓1. He said that the respondent had caused excavators to go on to his site with diggersand workmen and that he had engaged in considerable unauthorised work on thesite without any planning permission.2. That the level of the respondent’s site had been changed by “up to approximatelysix metres”.3. That the respondent had caused a considerable amount of trees to be removed.4. That the respondent had interfered with a stream running through the site.5. That the general removal of the site works and drainage works were a cause ofconcern for flooding in the Demesne and that this violated the planning restrictionsderiving from the original planning permission S/89/1710.37. This initial description of the works was very general, made as it was in the context of anex parte application for injunctive relief. The description of the works was later expandedby the applicants’ engineer, Mr. O’Kennedy.38. In the replying affidavits the scale and extent of the works is contested and it has beensubmitted by the respondent that none of the works constituted development such aswould require a planning permission. It is also submitted by the respondent as followsthat: -1. The felling of any trees amounted to no more than the removal of two dead treesand that there was no further felling of trees or significant removal of vegetation.2. That any alteration in site levels was limited to a decrease in the level rather thanan increase and did not exceed one metre. He also said that his instructions to thecontractor carrying out any works was always that the site levels at the end of theactivity should be restored to the same level as at the outset of the work. Hetherefore submits that such activity does not constitute unauthorised works orchange of use and in any event would not justify the making of an order pursuantto s. 160.3. The respondent contends that the Alta Terrace entrance is the same as it was in2013 except that the metal gate had been moved into the site temporarily from itsoriginal position and that it was his intention that the gate be restored to its originalposition closer to the road.4. A number of complaints arise in relation to the treatment of streams and drains, towhich I shall refer later.39. In relation to the allegation that the conditions of S/89/1710 stipulate the site to be a“public open space” the respondent asserts that nothing in the works undertaken by himwould constitute a breach of that condition. He also submits that these proceedings canonly concern works undertaken between 26 and 29 June 2017. There was extensivePage 8 ⇓disagreement between the deponents, particularly the engineers, as to how much of theworks complained of by the applicants were undertaken in the period 26 to 29 June 2017or were the result of earlier activities at the site.40. The respondent in his replying affidavit stated that in June 2017 he engaged thecontractor Aengus Canty to “clean up the site” and carry out the following: -1. Stream – cleaning of silt from stream and banks at either side.2. Dead tree stumps – removal of three dead tree stumps and to bury them on site.3. Drains – clean drains which had been opened in 2009 of vegetation ensuring falls tostream were correct and close back drains using correct materials which included a600mm land drainage pipe, 2 – inch graded stone and cover with topsoil and gradesurface to match existing. No soil was removed from the site.4. Concrete posts – replace wooden posts at each corner of the site with concreteposts. The respondent says that this work was not completed due to theundertaking given to the court on 30 June 2017.5. Grading raking of soil and seeding site. The respondent says that he instructed thecontractor that on completion of the works referred to above the site should bereturned to its original levels and reseeded with grass. Again, he says that this wasnot completed as a result of the undertaken given on 30 June 2017.6. Tree planting – the respondent said that he had approximately 200 potted treesand shrubs on the site that were waiting to be transplanted to the site. Thisapparently has not been completed due to the undertaken given on 30 June 2017.41. The respondent’s evidence was that further to these instructions, the contractor enteredthe site on 26 June 2017 and cleaned the silt from the stream, removed the dead treestumps and cleaned and “closed back the drains”. He says that the contractor ceased allactivities on the site on the 29 June, 2017, and that no further activities have taken placethere since the undertaking was given to the court on 30 June, 2017.42. I shall return later to the detail of the evidence in relation to each of the headings ofcomplaint.Section 160 of the Planning and Development Act 200043. Section 160 of the 200 Act provides as follows: -“(1) Where an unauthorised development has been, is being or is likely to be carried outor continued, the High Court or the Circuit Court may, on the application of aplanning authority or any other person, whether or not the person has an interestin the land, by order require any person to do or not to do, or to cease to do, as thecase may be, anything that the Court considers necessary and specifies in the orderto ensure, as appropriate, the following:Page 9 ⇓(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 tothe commencement of any unauthorised development;(c) that any development is carried out in conformity with [any] permissionpertaining to that development or any condition to which the permission issubject.(2) In making an order under subsection (1), where appropriate, the Court may orderthe carrying out of any works, including the restoration, reconstruction, removal,demolition or alteration of any structure or other feature”.Unauthorised works44. Section 2(1) of the 2000 Act defines “unauthorised works” as follows: -“. . . any works on, in, over or under land commenced on or after 1 October 1964,being development other than—(a) exempted development (within the meaning of section 4 of the Act of 1963 orsection 4 of this Act), or(b) development which is the subject of a permission granted …”Works45. The term “works” is defined by s. 2(1) as follows: -“Works includes any act or operation of construction, excavation, demolition,extension, alteration, repair or renewal …”. (emphasis added)Discretion46. The extent of the court’s discretion in a matter of this nature was considered in detail bythe Supreme Court in Meath County Council v. Murray [2017] IESC 25. In that case therehad been some debate as to the extent to which equitable principles influence theoperation of the discretion to make an order pursuant to s. 160 of the Act.47. The starting point is that the use of the word “may” in the Section forms the basis for thediscretionary nature of the jurisdiction. McKechnie J. said as follows: -“It is not difficult to understand why this is so, nor is it difficult to identify thefeatures inherent in equitable injunctive relief which are notably absent on thestatutory side. To name but a few: neither interest nor harm is a requirement; thesequential approach governing interlocutory injunctions on the equity side, namely,whether there is a fair question to be tried, whether damages will be an adequateremedy, and where the convenience lies, does not feature; no undertaking as todamages is required; the ultimate relief is always an injunction in permanent form;there is a limitation period expressly provided; and, of course, the section serves apublic law function. The court therefore cannot approach an application in the samePage 10 ⇓manner as it would were equitable principles in a private law context at issue.Consequently, at the level of principle, whilst the court has power to make bothinterim and interlocutory orders, that power is not intended to absorb within thesection general equitable principles.(”)Later, McKechnie J. continued as follows: -“…the jurisdiction to grant injunctive relief, or to withhold it either conditionally orunconditionally, is to be found within the section, whose construction is to beinformed by the 2000 Act as a whole. Whilst undoubtedly a discretion exists, theparameters within which that must be exercised must likewise be statutorily based.Accordingly, equitable principles cannot be used to expand the discretionary aspectof the section unless such are found within it. This view is primarily intended toidentify the jurisdictional basis of the courts’ power to issue a section 160 order. Itis not stated for the purpose of disapplying any of the established jurisprudencewhich is statutorily based, nor is it intended to trim back the exercise of the courts’discretion, provided that the basis for same is properly understood”.48. McKechnie J. also cited the following relevant passage from the judgment of Henchy J. inMorris v. Garvey [1983] IR 319: -“This Court has judicial notice, from what it knows to have happened in othercases, that (for motives which may be put down to expediency, avarice,thoughtlessness or disregard of the rights or amenities of neighbours or of thepublic generally) developers who have contravened the conditions of a developmentpermission have knowingly proceeded with unauthorised development at such aspeed and to such an extent as would (they hoped) enable them to submitsuccessfully that the court’s discretion should not be exercised against them undersub-s. 2 of s. 27 because the undoing of the work already done would cause themundue expense or trouble. For my part, I would wish to make it clear that suchconduct is not a good reason for not making an order requiring work carried out insuch circumstances to be pulled down”.49. Finally, McKechnie J. identified a number of considerations which he considered wouldinform the court in the exercise of its discretion as follows: -“(i) The nature of the breach: ranging from minor, technical, and inconsequential up tomaterial, significant and gross;(ii) The conduct of the infringer: his attitude to planning control and his engagement orlack thereof with that process:•Acting in good faith, whilst important, will not necessarily excuse himfrom a s. 160 order,•Acting mala fides may presumptively subject him to such an order;Page 11 ⇓(iii) The reason for the infringement: this may range from general mistake, through toindifference, and up to culpable disregard;(iv) The attitude of planning authority: whilst important, this factor will not necessarilybe decisive;(v) The public interest in upholding the integrity of the planning and developmentsystem;(vi) The public interest, such as:•Employment for those beyond the individual transgressors, or•The importance of the underlying structure/activity, for example,infrastructural facilities or services.(vii) The conduct and, if appropriate, personal circumstances of the applicant;(viii) The issue of delay, even within the statutory period, and of acquiescence;(ix) The personal circumstances of the respondent; and(x) The consequences of any such order, including the hardship and financial impact onthe respondent and third parties”.50. McKechnie J. concluded by stating that the weight to be attributed to each of thesefactors would be determined by the circumstances of a given case and that the list is notintended to be exhaustive.51. I shall return later to the factors which inform the court in this case in the exercise of itsdiscretion under Section 160 of the 2000 Act. Before doing so, and because the evidencewas characterised by a lack of clarity on both sides regarding much of the detail and anumber of the issues were intermingled, it is necessary to separate the factual issues intothe following six: -1) The north west drain.2) The south west drain.3) The stream through centre of site.4) The gate to Alta Terrace.5) Tree felling.6) Site levels.North west drainPage 12 ⇓52. Prior to 26 June, 2017, on the north west boundary of the site there was an open streamor drain flowing from the north point of the site in a south westerly direction.53. The respondent says that this drain only became open in 2009 when he initially clearedthe site.54. Photographs were exhibited which show that the works to this drain comprised excavationof the drain of sufficient scale to enable the installation of an engineered “French” drain,surrounded by what was described as geo textile membrane, and then supported bycrushed stones surrounding the drain. At the time of the photographs the piping had beenlaid but the drain was not covered. The exhibited photographs show a person, who thecourt understands to be the first named applicant, standing in the excavated area suchthat his head and shoulders were below the bank of earth created by the excavation withonly his raised hand reaching higher than the earth bank.55. Mr. O’Kennedy says that this photograph illustrates excavation at one location of at least2.5 metres from the original ground level to the top of the stone covering the newly laidpipe. What had previously been an open water course was now an engineered Frenchdrain, to be covered over with crushed stones and later with topsoil.56. The respondent’s engineer, Mr. Waterman, himself described the work as the laying of apipe and the drain being backfilled using geotextile membrane surrounded by 2 inches ofcrushed stone, which would then be covered in topsoil. He says that no soil was removedfrom the site during the course of this exercise.57. It has not been denied by the respondent that this stream was an open drain before theseworks and that earth was extracted for the purpose of laying a pipe or a French drain tobe protected with the geotextile membrane and then the 2 inch crushed stone. Nor couldit be denied that the photograph of a man standing in the excavated drain illustratedexcavation of at least 2.5 metres.58. Mr. Waterman acknowledged in his evidence under cross – examination that thephotograph of Mr. Hayes taken on 26 June 2017 shows the excavation of a trench whichcould only have been affected by the use of the mechanical digger as shown in thephotographs. He acknowledged also that this must constitute “works” within the meaningof the Act. Mr. Waterman sought to suggest in his evidence that the term “excavation”used in the Act could only refer to permanent excavation and that as it was therespondent’s stated intention to cover the newly laid piped drain by restoring the topsoil,that this entire exercise would not require authorisation under the Act.59. The respondent acknowledged that the effect of inserting the engineered French drainwould be to channel water across the north west boundary so that it would continue intothe drain running on the south west boundary and onwards towards Alta Terrace. Thishad the effect that whereas previously water would seep or soak through to the centre ofthe site, it would now be channelled across to the boundary of the site and flow onwardstowards Alta Terrace without seeping through the centre of the site.Page 13 ⇓60. Both the respondent and his engineer acknowledged under cross-examination that theeffect of these works is to reduce or even eliminate the general leakage of water from thenorth west boundary into the centre of the site. Clearly this would have the most radicaleffect of reducing the water saturation of the site as a whole.61. Even if one of the effects of this was to reduce flooding from the site to Thorncliffe, thereseems to be no doubt that the first effect of this excavation and laying of a newengineered French drain was to prevent water from seeping from the original open drainthrough to the centre of the site, thereby radically altering the character of the site as awet woodland. Even if, as the respondent contends, the use of the phrase “wet woodland”in S/89/1710 were not to have binding effect on an owner of the site today, it isinescapable that these excavation works effect an alteration of the lands, within thedefinition of “works” in s.2 of the 2000 Act.62. To a casual observer, it might be said that this is an objectively sensible improvement ofthe lands which will reduce the flooding effect not only on Thorncliffe but also on theroute of Alta Terrace itself. Whilst that may be correct, the excavation work and thelaying of new piping and protection surrounds are clearly works within the meaning of s. 2of the Act for which the respondent had not obtained any prior planning permission orauthorisation.South west drain63. The open drain running along the south west boundary of the site, which adjoins theproperty occupied by the first and second named applicants appears to be a continuationof the “north west” drain. There was put into evidence photographs showing that avolume of stones had been laid where this drain meets Alta Terrace. The applicants saythat these have the potential effect of blocking the flow of water from this drain into thepipes which run under Alta Terrace. And therefore, that a likely result is flooding of AltaTerrace itself.64. As regards the allegation that loose stones have been laid which conceal the entrance tothe piping which runs under Alta Terrace and that this has the potential to cause floodingat that location, I cannot find that this constitutes “works” within the meaning of s.2 andtherefore can make no order under s.160 of the Act. If this aspect were to actually causea nuisance or otherwise give rise to a separate cause of action, this finding by me doesnot preclude an aggrieved party from a remedy, but it would not be appropriate for thiscourt to speculate on potential effects of the loose stones in the absence of evidence ofsuch effects.65. It appears that water has been flowing from the first and second applicants’ site into theopen drain on the respondent’s site along this boundary, and the photographs exhibitedillustrate piping to control that flow running into the stream on this boundary. Theevidence was that piping to manage the control of this flow was installed by therespondent himself to protect from any flooding which might otherwise arise from thisflow.Page 14 ⇓66. The applicant claims that there has been a redirection of this drain.67. There is a lack of clarity in the evidence on both sides as to whether there was anydiversion of this stream. In the affidavit of Mr. O’Kennedy, sworn on 22 December 2017he states as follows: -“I do not accept that there was no diversion of a stream. I further do not acceptthat this was addressed adequately by any submissions submitted by or on behalfof the respondent [to the Council] I say that the exhibits to the respondent’saffidavits are [sic] the submissions made by or on behalf of the respondent do notshow any detailed information on where the stream on site was, or where thestream on site is now. It does not provide any detailed information as to where thestreams were worked on. I say that the photographs exhibited to your deponentsearlier affidavit show that significant areas and streams were worked on and insome cases piped and closed over. These details are not shown on the submissionfrom the respondent to the local authority”.68. The allegation of diversion of this drain has been made in the most general of terms andthe applicant has not exhibited photographs or maps to evidence diversion caused byunauthorised works undertaken in June 2017. Even the applicants’ engineeracknowledges the vagueness of this complaint. Accordingly, there is no form of orderwhich I can make regarding diversion of this drain.Stream through centre of site69. It is alleged by the applicants that photographs predating June 2017 show a meanderingstream running diagonally across the centre of the site and that this has been completelycovered up or diverted away from the centre. Some of the earlier Ordnance Survey mapsproduced to the court appeared to show the existence of a stream running diagonallyacross the centre of the site, and the applicants have put before the court a photographfrom April 2011 which shows the meandering stream running through the centre of thesite. Later or more recent photographs show the centre without this stream. However, theevidence does not include any form of proof that the works undertaken by the respondentin June 2017 were the occasion for the covering over of this stream. The court is thenfaced with speculating as to whether the covering of this stream formed part of the workin 2017 or occurred earlier.70. Certain photographs exhibited display the state of the site in 2015. They appear to showthe central area of the site laid out as a maintained lawn without the appearance of anystream meandering through the centre.71. In his evidence, the respondent swore that he had closed up the central stream in orabout 2011/2012. He acknowledged that the effect of this would be to assist in any futureapplication which might be made for permission for the construction of a house on thesite. This admission is relevant to an issue to which I shall return, but in the absence ofany evidence that diversion or closure of this stream occurred as part of the works in June2017, this court cannot now make an order under s.160 of the Act.Page 15 ⇓Entrance gateway72. The applicants exhibit photographs which show a gated access to the public roadway atAlta Terrace. They say that S/89/1710 shows a stone wall running the full length of theboundary along Alta Terrace and that the opening of an entrance and construction of agateway clearly is in breach of that permission and has not been the subject of anypermission or authorisation.73. The respondent admits that a gateway has been erected and an opening made from AltaTerrace into the site. The photographs also show that an area inside the boundary nowcomprises a hard core. The respondent says that this arose when he permitted the site tobe used as a staging area in 2013 by the Council. He says that stone and materials weredrawn from the site to be used in the rebuilding of the retaining wall at Lower Monkstown,below Thorncliffe. He says that the site had to be prepared for trucks going onto the siteso hardcore was laid inside the perimeter of the fence, thereby facilitating trucks anddiggers entering and leaving the site.74. The evidence of Mr. O’Kennedy which has not been disputed on this point, is that prior toJune 2017, the gate had been “flush with the fencing and at the edge of the road” andthat it is now set back some three metres, which has the effect of widening the entranceto Alta Terrace.75. The photographic evidence illustrates conclusively that in addition to the establishment ofa new hardcore base within the perimeter, some of which is attributable to the events of2013, the gate now stands relocated several meters inside the perimeter, supported byhard core – albeit that the hard core was necessitated by the 2013 works in collaborationwith Cork County Council – thereby creating or at least facilitating a larger entrance tothe site.76. Two observations can be made in relation to this aspect of the matter: -1) No planning permission of any kind exists for the opening of an entrance of thisscale onto Alta Terrace.2) There is evidence that in the course of facilitating certain works in 2013 by theCouncil this entrance was used and therefore there is doubt as to whether thecurrent state of the entrance was due to the activities of June 2017. However, itwas acknowledged by the respondent that in the course of the June 2017 works,the gate was moved inwards into the site. The effect of this is to widen theentrance in a manner which was not authorised. I shall direct that the gate itself berestored to the perimeter and that the boundary wall be reconstructed up to meetthe gate at each side.Removal of trees77. The applicants claim that the respondent undertook a “wholesale removal of trees”. Theheight of the applicants’ evidence is to exhibit a number of photographs which show thesite on various dates preceding 2017 as a wooded site. These include a photograph takenas of 2009 which shows the site to be heavily wooded, and then what is referred to as aPage 16 ⇓“recent” aerial photograph showing the site still to be heavily wooded. Also exhibited area number of photographs alleged to have been taken in June 2017 showing the site to bemuch more sparsely populated as regards trees.78. Apart from the very general statements by the first applicant and his engineer, there is adearth of evidence of particular trees having been felled by the respondent during theworks of June 2017.79. It is alleged by the applicants also that the S/89/1710 identified thirteen particular trees,and that on an inspection of the site now it is evident that those trees have beenremoved.80. The respondents’ evidence is that he removed certain dead trees from the site andarranged for other tree stumps to be buried. It is also submitted that the mere felling oftrees would fall within the exemption provisions of Section 4 of the Act. This element ofthe application is resolved by the absence of direct evidence of the removal of trees inJune 2017. Accordingly, there is no form of order which can be made by this Court inrelation to trees.Site levels81. In the applicant’s grounding affidavit sworn 28 June 2017 he alleged that the level of therespondent’s site had been changed by up to approximately six metres. In the affidavit ofMr. O’Kennedy sworn on 19 July 2017 it was alleged that various materials had been“imported into the site”, including both stone and soil and that this material had beenplaced around the site. It is also alleged that “the soil has been graded off to provide alevel central area to the site”. Photographs were exhibited showing a generally levelcentral aspect to the site after the works complained of.82. The affidavits exchanged on this subject and the cross-examination included references todiffering surveys purporting to identify alterations in site levels at various parts of thesite. The affidavits, and the evidence under cross-examination, reflects fundamentaldisagreement between the parties as to the accuracy of each other’s respective surveysincluding disputes as to such matters as what base levels were taken for comparison withearlier ground levels. More importantly, it is also clear that the respective engineersconcentrated their surveys on different parts of the site. For example, it is alleged by theapplicant that the respondent’s engineer concentrated his measurements in the lowerareas of the site where, on any account, less site levelling occurred than in the morenortherly parts of the site.83. Even under cross-examination of the respective engineers, which was largelyargumentative in nature as opposed to probative, this lack of clarity prevailed. However,an inspection was undertaken by a firm called Precise Control on behalf of the applicantsin April 2018 and which is referred to in Exhibits A and B to the affidavit of Mr. O’Kennedysworn on 21 May 2018. The clearest of all of these illustrations is the survey exhibited byMr. O’Kennedy which is dated 1 May 2018 and which identifies contours in April 2018 anddifferences in level at these points in the site from 2009. For the most part, thesePage 17 ⇓differences appear to concentrate on the north and north easterly parts of the site andshow a range of differences from between 200mm and 1000mm.84. Having considered the evidence of the engineers and the surveys produced to the court, Ihave concluded that the only survey which is sufficiently clear is the survey at Exhibit B tothe affidavit of Mr. O’Kennedy sworn 21 May 2018. This shows in red a series ofdeviations from 2009 levels, principally at the north and north eastern points of the site. Iam satisfied that these alterations of levels constitute alterations to the property whichwere not the subject of any permission and accordingly should be reversed.The discretionary matters85. In this case, I have had regard to the following aspects of the evidence;1. The general conduct of the respondent and his stated intentions,2. The engagement of the respondent with the planning authority3. The scale of the works, which range from minor to very substantial, and,4. The conduct of the applicants.86. The respondent insisted originally that everything which he had done at the site both in2009 and 2017 has been firstly for the purposes of cleaning up the site following dumpingof rubbish by other parties and secondly to prevent the flooding of his family home,Thorncliffe.87. The applicant says that the respondent intends to develop the site and ultimately to erecta dwelling house or at least to bring the site to a condition that it will be suitable for sucha development, either by him or by a purchaser from him. In this regard, the applicantssay that the works are demonstrably directed to addressing the reasons which were givenby the planning authority for the refusal for the outline of planning permission for theconstruction of a house in 2002.88. The respondent says that if ever another application is made for permission to erect adwelling house, the applicants and others will all have their right to make observationsand to object. In response to this the applicants say the respondent’s actions were aimedat gradually rendering the site suitable for development and construction of a house,principally by improving the drainage of the site, levelling the site and general clearanceof trees, thereby depriving it of the wet woodland character it enjoyed when S/89/1710was originally granted for the Demesne as a whole and, more directly, to overcome thereasons given for the 2002 refusal.89. The applicants’ solicitor has given evidence to the effect that when she served thewarning letter, the respondent stated in a conversation to her that he had had threeoffers for the site. This evidence has not been contradicted.90. The respondent also sought initially to claim that he had not been aware of the planninghistory of the site. This appeared to be a suggestion that he was not aware of either thePage 18 ⇓conditions of S/89/1710 or of the reasons for the 2002 refusal. He went so far at onepoint as to suggest that he had only very recently, possibly even in the context of theseproceedings, become aware of those matters. He also said that when he was engaged incommunications with the planning authority in 2009 they never drew to his attention theexistence of the conditions attached to S/89/1710.91. Under cross-examination the respondent acknowledged that he knew generally that thissite had a certain planning history. He said that the planning files searched on his behalfdid not reveal the detail now known to him, but agreed that he had retained solicitors toact in the purchase of the site and that both the solicitor and he would have known howto undertake planning searches.92. It is noteworthy that the respondent’s late father was one of the objectors to theapplication which had been refused in 2002. The respondent confirmed that from time totime he had discussed the site with late father but not at a sufficient level of detailregarding its planning history.93. The respondent also agreed under cross – examination that he accepted that the site waswithin the lands referred to in S/89/1710 although it is accepted by all parties that therespondent acquired good title to the site when he purchased it in 2008.94. The respondent also acknowledged that in the course of his consultations with CorkCounty Council in 2009 he said to the planning authority that if he could put a house onthe site he would do so. It would be a suitable house compatible with the generalcharacter of the locale.95. The respondent agreed that condition of the site prior to any works which he hadundertaken was such that it would be an “uphill battle” to secure permission to build ahouse having regard to the reasons given for the 2002 refusal. He acknowledged also thatthe altered state of the site in terms of drainage, clearance and levelling generally wouldimprove the prospects in that regard.96. The respondents’ engineer, Mr. Waterman, sought to insist that no part of any of theworks the subject of the activity in 2017 were such as would require any form ofpermission. He said that apart from preparing the site for a house there could be otherreasons for the works being done by the respondent, most notably, the protection ofThorncliffe from flooding. However, Mr. Waterman agreed that the works which were donein 2017 would render the site more suitable for development.97. I have concluded from the affidavit evidence and from the cross-examination of thewitnesses that the principal object and effect of the works undertaken by the respondentin June 2017 was to render the site more suitable for the construction of a house and inparticular to ameliorate the characteristics of the site which gave rise to the 2002 refusal,as part of a plan to improve the prospect of a successful planning permission application,either by himself or purchaser of the site.Page 19 ⇓Conduct of the applicants98. The respondent submitted that the first applicant has from time to time undertakencertain works at its own site, including raising of levels and the diversion of a stream, theeffect of which was to cause a flow of water into the respondents’ site. In so far as thereis evidence of this activity it is matched by evidence is that the respondent took his ownmeasures to ameliorate the effect of this outflow by installing pipes which would controlthe effect of that flow. Therefore, the respondent took his own protection measures onthe boundary with Cladach, albeit that I have not found sufficient evidence to make anorder under s.160 in relation to that aspect. Reference was also made to certain treefelling and level alterations at Glencairn by the third and fourth named respondents.99. Each of these aspects has been the subject of separate correspondence and from time totime complaints to Cork County Council and at one stage certain proceedings werethreatened or issued. It is not for this Court on the hearing of these proceedings todetermine conclusively the merits of those complaints. On balance I have come to theconclusion that in light of the disregard by the respondent of the requirement to obtainplanning permission for certain of the works which he has undertaken on the site, thealleged infringements referred to by the respondent do not form the basis of an answer tothis application under s. 160.Communications with Cork County Council100. When the respondent undertook certain works in 2009 complaints were made by anumber of residents to Cork County Council. The respondent engaged with Cork CountyCouncil both in correspondence and in meetings and ultimately Cork County Councildetermined that there was no requirement for any enforcement proceedings and closedits file.101. Complaints were made also to Cork County Council in relation to the activities of therespondent on the site in June 2017 and Cork County Council issued a warning letter tothe respondent. The evidence is that the respondent addressed the matters raised in theletter from Cork County Council and that they ultimately took no enforcementproceedings. The respondent engaged with the planning authority and produced to themcertain reports by his engineer at the time, Gabor Molnar. No evidence has been given byMr. Molnar in these proceedings. It appears from that correspondence that furtherinformation was requested by the authority and provided by Gabor Molnar. Thesubmission of the respondent is that the authority was satisfied and therefore concludedthat it should take no enforcement proceedings. In fact a closer view of thecorrespondence reveals only that the queries raised by the authority were responded to.There is no evidence that the authority expressed itself to be definitively satisfied withthese responses. No enforcement proceedings were taken by Cork County Council at thetime but this does not amount to conclusive evidence that there were no grounds for suchenforcement proceedings. It was a mischaracterisation of that correspondence to rely onit as evidence that the authority had determined that no breach of planning laws orregulations had occurred.Scale of worksPage 20 ⇓102. The respondent submitted that if there were any unauthorised development it was minorand de minimis. The most blatant of the activities of the respondent in June 2017 was theexcavation of the drain on the north west boundary by the use of a Komatsu excavatorand the installation of an engineered French drain the effect of which was to confine theflow of water along the boundary of the site, diverting it to another channel to AltaTerrace, thereby preventing the general leakage of water from that channel into thecentre of the site. To describe such an excavation and alteration as de minimis is notcredible. Further, by adapting this position the respondent compromised the credibility ofsubmissions made regarding certain of the less clear aspects of the case. It is onlybecause of the doubt regarding the evidence concerning the trees, the south west drainand the central stream that the respondent escapes having orders made in relation tothose aspects.Conclusion103. I find that the following works constituted unauthorised development and shall makeorders that the respondent restore the relevant portions of the site to their condition priorto 26 June 2017, namely:-1. The excavation of the drain on the north west boundary and the laying of theengineered French drain and associated stonework and related materials(paragraphs 52 – 62),2. The moving of the gate opening to Alta Terrace (paragraphs 72 – 76),3. The alteration of ground levels as illustrated in red on the survey at Exhibit B to theaffidavit of Mr. O’Kennedy sworn on 21 May 2018. (paragraphs 81 – 83)104. I shall hear counsel as to the precise form of the order to be made in relation to each ofthe matters referred to above.
Result: Appeal of Circuit Court order allowed.
Wicklow County Council v Beattie
[2019] IEHC 18 (15 January 2019)
High Court
Judgment by:
Noonan J.
Status:
Approved
[2019] IEHC 18
THE HIGH COURT
CIRCUIT APPEAL
[2017/233 C.A.]
BETWEEN
WICKLOW COUNTY COUNCIL
APPLICANT
AND
ROY BEATTIE
RESPONDENT
JUDGMENT of Mr. Justice Noonan delivered on the 15th day of January, 2019
1. In this application, the applicant (“the Council”) seeks an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, compelling the respondent (“Mr. Beattie”) to comply with certain conditions attached to planning permission 07/1080 which relates to the lands comprised in Folio 5759F County Wicklow.
2. The lands in question are part of the Beattie farm situated at Tinode, Kilbride, Blessington, County Wicklow. The farm has been in the possession of the Beattie family since approximately 1912. The farm in total contains 73.9 hectares of which 20.8 are the subject matter of the relevant planning application. Access to the farm is gained via an entrance off the N81 which is the main Tallaght to Blessington Road. This entrance has been in existence for many decades and certainly prior to 1st October, 1964.
3. In 2006, Mr. Beattie applied to the Council for planning permission for a new dwelling house on the land. There was then, and still is, no dwelling house on the land. On 26th April, 2007, planning permission reference no. 06/5174 was granted to Mr. Beattie for the development of a two storey house with a new entrance to the site and a new wastewater treatment plant. A number of the conditions attached to this planning permission related to the new entrance. Condition 5 required 120 metre sight lines, condition 6 related to the surface material of the new entrance and condition 8 provided that surface water runoff from, inter alia , the entrance, should be collected on site and not permitted to flow onto the public roadway.
4. Planning permission 06/5174 was subject to the normal five-year lifespan so that it would, if not implemented, expire on 26th April, 2012. Although it was Mr. Beattie’s intention to construct the house, events overtook that plan in the shape of the economic collapse and thereafter he was no longer financially in a position to commence the construction. The entrance provided for by the 06/5174 permission was onto the R759 rural road which also bounded the Beattie farm but importantly carries a lower volume of traffic than the N81. The Council previously refused to grant Mr. Beattie permission for a development that utilised the existing N81 entrance on traffic hazard grounds.
5. The architect that represented Mr. Beattie in his various planning applications was John M. Taylor of Freyer and Taylor Architects, 39 North Avenue, Mount Merrion, County Dublin. Mr. Taylor made a further planning application on Mr. Beattie’s behalf in 2007 for retention of certain farm buildings and construction of new ones. This application, bearing reference 07/1080, was granted by the Council on 28th March, 2008, for retention of:-
“453 sq.m agricultural embryo storage facility with associated stores, office and farm workshop 675 sq.m wintering cattle facility, a new 357 sq.m feed store, new Envirocare wastewater treatment plant with percolation area, all with access from the R759 road at the Beattie farm, Tinode, Kilbride.”
6. As can be seen from the foregoing, the terms of the permission appear to provide for retention of two structures being the embryo storage facility and the wintering cattle facility allied to the erection of a new feed store and wastewater treatment plant. The granting of permission was subject to eighteen conditions but it is with conditions 1, 2, 3, 13, 14, 15, 16 and 17 that this application is concerned. In summary, these conditions provided:-
1. Permission refers to the development as described in the lodged documents;
2. Mr. Beattie should lodge the sum of €2,500 as security for compliance;
3. Mr. Beattie should lodge the sum of €2,000 as security for tree planting;
13. As this is the central issue in the case, I will quote it in full:-
“Before the new entrance is brought into use, the existing entrance (off the N81) shall be permanently and effectively closed off by the erection of a boundary matching the existing boundary in height, design, construction and finish, unless otherwise agreed in writing with the planning authority”;
14. 120m sight lines should be provided as per the layout plan;
15. Proposals for landscaping and tree planting should be submitted within three months;
16. Tree planting should be carried out during the first planting season;
17. The wastewater treatment plant should comply with certain standards and evidence of that should be submitted to the Council on completion.
7. The planning application was submitted with a covering letter from Mr. Taylor dated 17th May, 2007. In it, he referred to the fact that the application related to 20.8 hectares of the total farm area of 73.9 hectares and that the relevant portion contained the embryo unit to be retained as well as a then proposed winter feeding facility and a new house for Mr. Beattie. In the first page of the letter, Mr. Taylor referred to the fact that permission for this house had been granted on foot of 06/5174 but not yet constructed. On p. 2 of the letter, Mr. Taylor said the following:-
“It is proposed that there will be a shared entrance/exit for the house and the proposed wintering facility from the R759. See enclosed plans. It should be noted that permission has already been granted for an entrance at this location to serve the proposed new house.
An application was previously made for this development but was refused on the grounds of access. It was proposed at that time to access the facility from the N81. This new application proposed an alternative means of access to the proposed facility.”
8. Although in the course of the hearing of the appeal before me, counsel on behalf of the Council indicated that enforcement of all the above conditions was being sought, it is clear that the primary concern of the Council is with the existing entrance onto the N81, which has not been closed, and the corresponding fact that the entrance onto the R759 has not been constructed.
9. In 2011, with the expiry of the planning permission 06/5174 for the dwelling house fast approaching, Mr. Beattie applied for an extension to that permission. This was refused by the Council for one reason, namely that there was a significant change in the development objectives in the development plan since the date of the original permission such that the development would no longer be consistent with the proper planning and sustainable development of the area. Accordingly, the Council was precluded from extending the permission by virtue of s. 42(1)(a)(ii)(II) of the Planning and Development Act 2000, as amended.
10. What this reason in fact refers to is the intention of the roads authority to construct a new link road over part of the Beattie farm which would in effect destroy at least part of the development that would otherwise have been authorised under permission 06/5174.
11. One of the central issues in this case is whether the entrance onto the R759 was authorised under permission 06/5174 or alternatively, 07/1080. The Council argues that permission 07/1080 clearly on its face provides for access for the retained and new developments from the R759 and the failure to construct the new entrance means that Mr. Beattie is in breach of condition 13.
12. Mr. Beattie, on the other hand, contends that the new entrance to the R759 was neither applied for nor granted by permission 07/1080, but was in fact both applied for and granted by permission 06/5174 which has now expired and cannot therefore be implemented, the Council having refused an extension. Mr. Beattie says that condition 13 could only ever apply if and when the new entrance was constructed and as that cannot now happen, condition 13 can never be complied with and is accordingly unenforceable.
13. The Council counter this with the argument that the plans submitted by Mr. Taylor in respect of application 07/1080 clearly showed the new entrance and the development must be carried out in accordance with those plans and particulars. In response, Mr. Beattie says that it was of course appropriate and necessary to show what had already been granted on foot of permission 06/5174 when applying for the new permission. He argues that the plans submitted in support of application 07/1080 not only showed the new entrance but also the new house but it could not seriously be suggested that permission for the house was re-granted by 07/1080.
14. The touchstone in interpreting grants of planning permission is to be found in the unanimous judgment of the Supreme Court delivered by McCarthy J. in X.J.S. Investments Limited [1986] I.R.750 where he said (at 756):-
“Certain principles may be stated in respect of the true construction of planning documents:—
(a ) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material.
(b ) They are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning…”
15. What the court therefore is concerned with in determining the true meaning of planning documents is what an ordinary member of the public would understand them to mean. Such meaning cannot be derived by reference to facts known only to the parties to the application but to such facts as are readily discernible from all of the planning documents that are available to the public when read as a whole. Those documents include of course not only the design drawings and plans but any correspondence on the planning file that is available for the public to peruse.
16. In the present case, such correspondence clearly includes Mr. Taylor’s letter of 17th May, 2007. That letter includes a reference to the previous permission 06/5174 in respect of the dwelling house. Such a reference is also to be found in the terms of the pro forma planning application itself. Importantly however, it would be clear to any member of the public reading the passage in Mr. Taylor’s letter which I have quoted above that permission had already been granted under the earlier permission for the new entrance and there was thus no requirement for a new application to be made for this entrance.
17. What was applied for under 07/1080 was “access” off the R759 and that is what was granted – not a new entrance onto the R759 because there was no requirement for such permission, same having already been granted a year earlier. I am fortified further in that view by the fact that permission 06/5174 contained explicit conditions, to which I have referred above, referable to the construction of the entrance whereas such or similar conditions are entirely absent from 07/1080. Further support for this conclusion is to be found in the contents of the respective public site notices posted by Mr. Beattie on the lands. The 2006 notice refers to a “new entrance to site” whereas the 2007 notice refers to “all with access from the R759 road”.
18. The mere fact that the plans accompanying application 07/1080 showed the new entrance on the R759 cannot without more be taken as indicating that such permission was being applied for because as noted above, the plans also showed the dwelling house for which permission had similarly been granted on foot of 06/5174.
19. Even if it were not clearly the case that 06/5174 grants permission for the new entrance, the best that can be said from the Council’s point of view is that there may be an element of ambiguity as between the meaning and intent of 06/5174 and 07/1080 vis-a-vis the new entrance. In an application for a s. 160 injunction, as in any other injunction application, the onus rests upon the moving party to establish, on the balance of probabilities, that unauthorised development has taken, or is taking, place. As that proposition, in the context of condition 13 at any rate, hangs on establishing that the new entrance is permitted under 07/1080 and not 06/5174, the Council must, in my opinion, be viewed as having failed to discharge that onus.
20. It must equally follow that the Council have failed to establish that there has been a breach of condition 13 because there is no requirement to comply with it unless and until the entrance onto the N81 is closed and the new entrance is brought into use, an event which cannot occur by virtue of permission 06/5174 being now spent. I think the Council’s argument that the 07/1080 permission granted permission for the new entrance must also be viewed in the light of the fact that if it did, it was not applied for and this would prima facie render it ultra vires the Council. Since the permission must be assumed to have been granted intra vires , this is a further reason for concluding that the later permission did not grant the new entrance.
21. I turn now to the remaining conditions, apart from condition 13, of which complaint is made by the Council. Determining to what, if any, extent these should now be given effect , I must have regard to the well settled principles to be applied in s. 160 proceedings, usefully summarised by Barrett J. in St. Margaret’s Concerned Residents Group & ors v. Dublin Airport Authority PLC [2017] IEHC 694 (at para. 86):-
“It is a well-established principle of Irish planning law that the courts will disregard immaterial deviations from a planning permission, or trivial or technical breaches of same. ( Sweetman, (SC) ) [ Sweetman v. Shell E & P Ireland Limited [2016] IESC 2]). The question of the nature of any breach of planning permission is relevant on two levels. First, from a general perspective a breach may be sufficiently immaterial or trivial as not to amount to unauthorised development. Second, in the specific context of the discretionary nature of s.160 proceedings, even if there has been unauthorised development, the trivial or immaterial nature of any breach may be such that it is not appropriate to grant relief. In the court’s view, the facts at issue in the within proceedings come into this second category.”
22. As already discussed, although the Council did not abandon alleged breaches of conditions other than condition 13, the latter was very much the focus of this case. There was no realistic suggestion of a failure to otherwise carry out the development in accordance with the permission and in particular, in the context of the tree planting requirements, it appears to be conceded by the Council that Mr. Beattie has planted trees very extensively and far in excess of what was required of him under the terms of the permission. To that extent, insofar as conditions 2 and 3 are concerned, which require security deposits, I am satisfied no ongoing necessity for the lodging of such deposits has been established by the Council and any failure in that regard has now to be viewed as trivial or merely technical. The same considerations apply to conditions 15, 16 and 17. Condition 14 relates to sight lines for the new entrance but in view of the conclusions I have arrived at, this is no longer material.
23. For these reasons therefore, I propose to allow Mr. Beattie’s appeal herein and dismiss the Council’s application.
Coll v Donegal County Council (No. 2)
[2007] I.E.H.C. 110
JUDGMENT of Ms. Justice Dunne delivered on the 23rd day of March, 2007.
By a notice of motion dated 14th November, 2006, the respondent herein sought the following relief:-
A. An order varying the grant of leave so as to provide that the grant and/or continuance of leave to apply for judicial review herein shall not operate as a stay on any further actions of the respondent pursuant to the decision at issue in these proceedings or otherwise howsoever.
B. An order pursuant to the Rules of the Superior Courts, O. 84,
r. 20(6) that the applicant provide an undertaking as to damages in respect of the grant and/or continuance of leave in the within proceedings.
C. An order pursuant to the Rules of the Superior Courts, O. 84,
r. 20(6) requiring the applicant to furnish security for costs to the respondent herein.
The application was grounded upon the affidavit of Patrick McMullan sworn on 14th November, 2006 and a number of other affidavits were subsequently referred to in the course of the hearing before me.
I do not propose to set out the entire history of the matter, but it is necessary to sketch in some background to the application. The notice party herein obtained planning permission to develop a filling station and supermarket at the junction of Strand Road and Bunbeg Road, Co. Donegal. It was a condition of the permission that there should be a road re-alignment as a result of the development which involved the extinguishment of a public right of way.
A motion was passed on 29th May, 2006, by the elected members of the respondent for the extinguishment of the public right of way at Strand Road, as required by the condition in the planning permission. It is that decision which is the subject of the present challenge.
The order granting leave provided, inter alia,
“That any further actions pursuant to the challenged decision to extinguish the public right of way over the said portion of the Strand Road, Bunbeg, be stayed until the determination of the judicial review or until further order ….”
The current proceedings are not the first challenge brought by the applicant in respect of the extinguishment of the public right of way. The applicant previously sought to challenge an earlier decision of the respondent to extinguish the public right of way pursuant to the provisions of s. 73 of the Roads Act, 1993. Those proceedings came on for hearing in the High Court before Peart J. and in his judgment delivered therein on 7th July, 2005, he refused the reliefs sought in that application. Costs of the proceedings were awarded against the applicant.
The previous proceedings have some relevance to the applications currently before the court. As indicated, one of the reliefs sought herein is security for costs against the applicant. Reference has been made in the affidavit of Patrick McMullan to the fact that the order for costs made against the applicant in the previous proceedings cannot be paid by her as she is in her solicitor’s words “a man of straw”. It is on that basis that security for costs is now sought. It was pointed out that the notice party herein will suffer significant financial consequences as a result of further delays in the development, assuming that the applicant is ultimately unsuccessful in these proceedings.
Reference was made by counsel for the respondent to a number of authorities in relation to the issue of security for costs, but none of those authorities dealt with an application in respect of judicial review proceedings involving an individual as opposed to a company or a person residing outside the jurisdiction. A number of the authorities referred to application for security for costs in respect of appeals to the Supreme Court.
A passage in Delaney and McGrath, Civil Procedure in the Superior Courts (2nd Ed.) at para. 27.55 is of some assistance. The author’s comment:-
“Conversely, it is interesting that the insulating effect which limited liability status confers on individuals who for example wish to challenge a planning decision also raises the spectre of an order for security for costs. So, in cases where an order could not be made against an individual or group of individuals, it may be made against a limited liability company pursuant to the provisions of s. 390 of the Companies Act, 1963.”
It is worth considering one passage from the judgement of Morris J. in the case of Lancefort Ltd. V An Bord Pleanala 1998 2 I R 511 where he stated at p. 514:
“The second point on this issue arises in the following way. Counsel for the Applicant submits that in recent cases, and in particular, Maher v Phelan, 1996 1 I. R. 95, Carroll J. held that an order should not be made when the application is based on Order 29, Rule 1. Counsel cites the following passage from her judgement at page 89 in support of that submission:-
“…as the law stands it is not possible to get an order for security for costs against an individual litigant resident in the jurisdiction regardless of circumstances. Different considerations apply to companies which are not relevant to consider here…”
Since an individual litigant being a plaintiff resident in Ireland cannot be ordered to pay security for costs therefore a plaintiff resident outside Ireland within the E. U. should not be so ordered.”
It was suggested on behalf of the respondent that an order for security for costs could be made in this case pursuant to the inherent jurisdiction of the court to prevent an abuse of process in circumstances where the applicant is a “man of straw” and not in a position to meet an order for costs and demonstrated by the position in relation to the previous judicial review proceedings. In the absence of any authority to support the respondent’s contentions in this regard and having regard to the passage referred to above from the Judgement in the Lancefort case and fortified by the passage referred to above from Delaney and McGrath, I cannot see any basis at this stage to make an order for security for costs.
As indicated above, the second relief sought related to the issue of an undertaking as to damages pursuant to the provisions of O. 84, r. 20(6) of the Rules of the Superior Courts. Order 84, r. 20(6) provides:-
“If the Court grants leave, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages.”
Reference was made in the course of argument to the decision of the High Court in the case of Broadnet Ireland Limited v. Office of the Director of Telecommunications Regulation [2000] 3 IR 281. In that case a company which obtained leave to apply for judicial review was required to provide an undertaking as to damages. She noted that that case was the first occasion on which the High Court had been asked to require an undertaking as to damages from an applicant for judicial review who had not sought a stay or an interim or an interlocutory injunction. She went on to say at p. 295 of the judgment:-
“I am satisfied as a matter of construction of sub-rule 6 in the overall context of O. 84, that the courts jurisdiction to require an undertaking as to damages provided for in that sub-rule is not limited to situations in which a stay is granted under sub-rule 7(a) or an interim injunction is granted under sub-rule 7(b). Sub-rule (6) by implication recognises that granting leave to impugn the decision of a public body may have the potential to cause damage and having regard to the provisions of
r. 22(2), which requires service of an application for judicial review ‘on all persons directly affected’, recognises that it has the potential not only to cause damage to the public body in question but also to third parties affected by the decision of the public body. In any such situation the court has a discretion to condition the leave by imposing a term or terms including a requirement that the person seeking the leave give an undertaking as to damages. In my view, sub-rule (6) is open to the construction that the court may, at leave stage, on its own motion so condition the grant of leave. While it is not disputed in the instant case that, after leave is granted, the court can entertain an application from a respondent or a notice party that an undertaking as to damages should be required, I have no doubt that this course is open under sub-rule 6, because the application for leave being an ex parte application, a respondent or a notice party has no opportunity to seek an undertaking until after leave is granted. I would suggest, however, that an application by a respondent or a notice party should seek, as some of the parties in the instant case have sought, that it be a term of the continuance of leave and the proceedings that an undertaking as to damages be given by the applicant. As a matter of substance, that is what all of the parties seeking an undertaking as to damages in the instant case seek.”
In coming to that conclusion Laffoy J. then went on to consider the basis upon which the court should exercise the discretion given by sub-rule 6 and in that regard she identified as being most helpful the decision in the case of the House of Lords in American Cyanamid Company v. Ethicon Limited [1975] A.C. 397. She then went on to say at p. 300:-
“In considering whether to exercise the discretion under sub-rule 6 to require an undertaking as to damages as a condition to the grant or continuance of leave to apply for judicial review, the essential test is whether such requirement is necessary in the interests of justice or, put another way, whether it is necessary to mitigate in justice to parties directly affected by the existence of the pending application. If, in substance, the existence of the application has an effect similar to the effect of an interlocutory injunction in private litigation – that activity which would otherwise be engaged in is put ‘on hold’ pending final determination of the controversy, with resulting loss and damage – in my view, it is appropriate for the court to adopt the approach traditionally adopted in private law litigation in determining whether an interlocutory injunction should be granted and to require that the applicant should give an undertaking to make good that loss and damage if it is ultimately found that the applicant’s case is unsustainable, provided there is no countervailing factor arising from the public law nature of the jurisdiction it exercises under O. 84 which precludes it from adopting that approach.”
Having regard to the circumstances of the applicant in the instant case, counsel on behalf of the respondent urged that as the applicant is a “man of straw”, this was a case in which a fortified undertaking should be obtained. In the decision in Broadnet, Laffoy J. dealt with the question of a fortified undertaking. Having referred to a passage from Bean on Injunctions, 7th Ed. at p. 29 which stated:-
“But where there are doubts about the plaintiff’s resources, the court has a discretion to require either security or the payment of money into court to ‘fortify’ the undertaking, or (as an alternative) an undertaking, from a more financially secure person or body. This might apply if the applicant is legally aided; or a minor or patient…; or resident outside the jurisdiction (Harman Pictures N.V. v. Osborne [1967] 1 W.L.R. 723); or an unquoted company. In cases where the plaintiff is a subsidiary of a large company and apparently lacking funds it is common for the parent company to be invited to guarantee the undertaking in damages in writing.”
Laffoy J. then went on to note as follows:-
“It is undoubtedly the case that an undertaking from Broadnet would be worthless unless secured. Using the terminology used by the Director, it seems to me that Broadnet ‘backers’ should guarantee each undertaking required in the instant case. …”
I do not think that there is any doubt that this is a case in which it could be said that an undertaking as to damages from the applicant would be worthless unless secured. Having regard to her own solicitor’s comment in the correspondence referred to above to the effect that she is “a man of straw” it could not be said that an undertaking, unless secured, would be of any value. Counsel on behalf of the applicant referred to the decision of the High Court in the case of O’Connell v. Environmental Protection Agency, (Unreported, Herbert J., 5th July, 2001) in which, having referred to the Broadnet Ireland Limited case, Herbert J. at p. 18 stated:-
“Counsel for Colette O’Connell in my judgment correctly pointed to the very real difference between a limited liability company with no assets or capital and Colette O’Connell for whom as a person resident in the State of full age and not under any legal or other disability or incapacity and with some interest in immovable property in the State, an undertaking to pay damages was a very serious matter indeed. The fact that the potential loss to Dungarvan Energy Limited might exceed her ability to make good that loss is no basis for regarding her undertaking as worthless and an abuse of the process of the court. I therefore refuse the application that the undertaking to pay damages which the court requires to be given by Colette O’Connell should be supported in any way whatever by the giving of security or the payment of money into court or otherwise. Counsel informed the court that he had carefully advised Colette O’Connell as to the possible consequences of this undertaking and that he was satisfied that she fully understood them and was prepared to give the undertaking it sought by the court.”
While counsel for the applicant relied on that case in relation to the discussion therein as to the issue of protection of private property rights as against the public law rights at issue in that case, the passage quoted above is of some assistance in weighing the considerations to be borne in mind when exercising the discretion under O. 84, r. 20(6).
I note that in the O’Connell case, Herbert J. was of the view that the fact that private law interests of the applicant in that case were involved together with public law issues, that it was appropriate to look for an undertaking as to damages. As he put it at p.18 of his judgement:-
“…I have concluded that the real substance of this Application is the preservation and protection of private property rights which are normally protected by private law remedies and the apparent public law aspects of this challenge are in fact subsidiary though important issues.”
A similar approach can be seen in the decision in Seery v An Bord Pleanala and Ors., The High Court, unreported, 25 January, 2001, a decision of Finnegan J. At p. 3 of his judgement, he said:-
“The whole tenor of the Applicants’ objection to the proposed development before the planning authority and An Bord Pleanala and on the application for leave before me related to a small portion of the proposed development which would overlook the applicants’ dwelling house. In these circumstances it seems to me that this application does not have the necessary public nature to constitute a countervailing factor such as to justify my exercising my discretion in favour of the applicants and not seek an undertaking as to damages.”
This is a case in which it cannot be said that any private law right of the applicant is engaged. The issue before the court arises only in respect of a public law matter. Therefore, this is a factor to be considered in exercising the discretion of the court under Order 84, Rule 20 (6). That the public law nature of an applicant is a significant countervailing factor to the requirement to furnish an undertaking as to damages was noted by Laffoy J in Broadnet, (p. 300) referred to above, Finnegan J. in Seery (p. 153) and Herbert J. in O’Connell (p. 3). In the circumstances of this case, it seems to me that the public law nature of the claim is such that I do not think I should exercise my discretion to require an undertaking as to damages. I think the position might be different were this one of a series of unsuccessful challenges brought by the applicant to stop a particular development. I am conscious of the fact that this is the second application by the applicant herein which has an impact on the notice party’s development. Nonetheless, I do not think that the fact that the applicant has previously made one unsuccessful application for Judicial Review, albeit on different grounds, is such as to warrant the requirement of an undertaking as to damages where no private law right of the applicant is engaged. Nonetheless, if the court were satisfied that the use of a particular applicant who is a “man of straw” was a deliberate tactic to frustrate the possibility of an undertaking being obtained, fortified or otherwise, that could amount to an abuse of process such as to merit the requirement of an undertaking as to damages even where the matters at issue are of a public law nature. I am not satisfied that there is such an abuse of process in the present case.
Another issue that has to be considered is whether or not the stay should be continued. Reliance has been placed by counsel on behalf of the respondent on the decision in the case of McDonnell v. Brady [2001] 3 IR 588. In the course of the judgment of the Supreme Court in that case, Keane C.J. commented:
“While the learned High Court judge took the view that the onus was on the respondents to satisfy the court, in the light of the criteria laid down in American Cyanamid v. Ethicon Limited [1975] AC 396, including the balance of convenience, that the stay granted should be discharged, it could be plausibly contended that, on the contrary, the onus rests on the applicant to satisfy the court, where it is challenged, that it should be kept in place. There is nothing in the wording of
O. 87, r. 20(7)(a), to suggest that, where an applicant for leave seeks an order of prohibition or certiorari, he is further entitled ex debito justitiae, to a direction that the proceedings should be stayed. There seems no reason in logic why the applicant, where the grant of the stay is subsequently challenged should not be under an onus to satisfy the court that it is an appropriate case in which to grant such a stay.”
Accordingly, it was held in that case that the principles applicable to the granting or discharge of a stay were the same as those governing the granting of interlocutory injunctions. It was noted by Finnegan J. in the case of Seery v. An Bord Pleanála [2001] 2 ILRM 151 at p. 152:-
“On an application for interlocutory injunctive relief a court would not attempt to resolve conflicts of fact or questions of law or otherwise evaluate the strength or weakness of the respective position of the parties and it should not do so here.”
I therefore do not propose to consider or evaluate the respective cases of the parties herein. Suffice to say that the applicant succeeded in being granted leave to seek judicial review and that being so has clearly demonstrated that there are arguable grounds for doing so.
The works affected by the stay relate and can only relate to implementing the decision to extinguish the public right of way. I note from the submissions on behalf of the applicant that there would be no objection to “technical and/or administrative matters which the respondent could usefully carry out” prior to the hearing of the application for judicial review, however, there is an objection to works being carried out on the existing road prior to the conclusion of this matter.
I accept that in the present case the notice party has been delayed in his development for a very considerable time with the consequence as set out in the affidavit of Mr. Gillespie, the notice party sworn herein on the 14th April, 2005, to the effect that he has been occasioned further expense and losses as a result of the delays herein. I also note the decision in the case of McDonnell v. Brady to the effect that the granting of a stay should be considered in the same light as the granting of an interlocutory injunction. That decision was followed by the case of Norbrook Laboratories v Irish Medicines Board, unrep., High Court, Kelly J. 21 December 2001. Having regard to the principles referred to in McDonnell v. Brady, I do not think this is an appropriate case in which to lift the stay in its entirety. Counsel for the notice party made very helpful submissions on the issue as to the strength of the applicant’s case but in essence what should be considered is where the balance of convenience lies as pointed out by Kelly J. in Norbrook at p. 6 of the judgement in that case. Bearing in mind that the works presently stayed involve the re-alignment of the public road it is my view that the balance of convenience favours the applicant. However, as was noted earlier, there is no objection to some preliminary works being carried out and I will hear the parties as to the extent to which this can be done.
Approved: Dunne J.
Meath County Council v Murray
[2017] IESC 25
Introduction:
1. This is an appeal from a decision of Edwards J., dated the 29th June, 2010, given on an application for a statutory injunction under section 160 of the Planning and Development Act 2000, as amended (“the 2000 Act”), whereby he granted the reliefs prayed for by Meath County Council as the Planning Authority for the area in question. The resulting order, which reflected his judgment, has the effect of prohibiting the respondents (the appellants on this appeal) from carrying out any unauthorised development on the subject lands, and of requiring them to remove the dwelling house as constructed thereon and to restore the lands to their pre-development condition, which was one fit for agricultural use only. A stay of 24 months was placed on the execution of the order. The order so made can readily be positioned by a further word as to the circumstances.
2. In 2006, the appellants purchased a land holding at Faughan Hill, Bohermeen, Navan, on which they proposed to build a family home for themselves and their three children. A planning application for such a construction was refused in June of that year. Within the following six months, the Murrays constructed a dwelling house of double the size of that for which permission had been refused. They moved into the house in December, 2006. Having become aware of this development, the respondent to this appeal (“the Council” or “the Planning Authority”) threatened enforcement proceedings unless demolition took place. An application for retention was refused by both the Planning Authority and An Bord Pleanála in 2007. A further application for a slimmed down version of the construction was also refused by both bodies: the Planning Authority in October, 2008, and the Board in June, 2009. Even allowing for the appellants’ “frustration” with the actions of Meath County Council, and notwithstanding their personal circumstances, the trial judge, having described the breach as “flagrant” and stating that the appellants had “sought to drive a coach and four through the planning laws”, felt that the only appropriate order was that as above described. For the reasons which follow, the appellants have submitted that as a matter of law he was wrong to so do.
Background:
Land Ownership:
3. The subject site is part of a larger holding of about 25 acres comprised in Folio 14049, Register of Freeholders, Co. Meath, whose registered owners, at the date of the institution of these proceedings in June, 2007 were Michael Murtagh, John Murtagh and one Nora Drain. It would appear that either Mrs. Murray, or both she and her husband, acquired these lands sometime in 2006; this uncertainty flows from the fact that both situations are averred to in the affidavits. In any event, nothing turns of the formality of ownership. It is accepted by all that the Murrays have a sufficient interest in the lands to justify any and all planning applications as made by them.
Planning History – Murtaghs:
4. On the 7th July, 2005, notification of a grant of planning permission, under reference KA/40653, issued to one Orla Murtagh and one Karl Brady for the construction of a house on part of the original holding. A similar permission was granted on the 18th August, 2005, under reference KA/40669, to one Aoife Murtagh and one David Reilly, evidently on a different parcel of land but also from that holding.
5. Both permissions contained a common Condition, numbered 3 in each, which read as follows:-
“Prior to commencement of the development the owner of the land holding of which the site forms part as shown outlined in blue on the location map submitted on [(in the case of KA/40653, the 22nd December, 2004, and in the case of KA/40669, the 23rd December, 2005)] shall have entered into a legal agreement with the planning authority under the provisions of Section 47 of the Local Government (Planning and Development) Act 2000, providing for the sterilisation from any housing or non-agricultural development on the entire remainder of this land holding.”
The location map by reference to which the sterilised lands were identified was identical for both permissions.
6. By letter dated the 20th April, 2005, Mr. John Murtagh, presumably on behalf of the then registered owners, wrote to the planning authority as follows:-
“Re: File Reference No: KA/40653 – (Orla Murtagh and Karl Brady)
To whom it may concern,
I refer to the above planning application and hereby state that I am willing to enter into an agreement to sterilise the remainder of the land holding (excluding the site which relates to a current planning application by Aoife Murtagh and David Reilly – Reference No: KA/40669).”
A letter of the same date and in identical terms, save the necessary variation to reflect the different applicants, site and reference number, was sent by Mr. Murtagh in respect of Reference No. KA/40669. Evidently both letters were sent in the knowledge that such would be required should the permissions otherwise be granted.
7. For some reason, which has not been explained, formal agreements under section 47 of the 2000 Act were never entered into in respect of either planning permission. However, it would appear that the Planning Authority was satisfied with such letters, particularly having received Commencement Notices in respect of both developments, and in the knowledge that each has been completed.
Planning History – Murrays:
8. Prior to having carried out any development on the subject lands, the appellants, at least one of whom had a historical connection with the locality (see paras. 12 and 134, infra) applied to Meath County Council, as the planning authority, seeking permission to construct a dormer type dwelling house measuring in total 283 sq. metres (3,045 sq. ft) and to carry out associated works on an overall site of 0.7811 hectares. That application (Reference No. KA/60180) was refused by decision dated the 29th June, 2006, from which no appeal was taken.
9. Within a very narrow timeframe, the Murrays, having been notified of the above refusal, commenced and thereafter completely finished the construction of a dwelling house, with associated works, of about 588 sq. metres (6,329 sq. ft.) on a subject site of 1.675 hectares (4.139 acres). This structure, which Mr. and Mrs. Murray first occupied in December, 2006, was first discovered by the planning authority in February, 2007, as a result of a complaint by a member of the public. Following an inspection by its officials, Mr. Jimmy Young, a senior staff officer, wrote to the appellants on the 2nd March, 2007, referring to what he described as an unauthorised development and requesting its removal. Proposals to that end were sought within seven days; otherwise, enforcement proceedings were threatened. That prompted the making of an application to retain the unauthorised development on the 12th March, 2007, which was refused by the planning authority on the 3rd May of that year. These proceedings were then commenced by motion dated the 29th June, 2007. Before detailing such proceedings however, it is important to note the following steps taken by Mr. and Mrs. Murray in terms of their interaction with the Planning Authority.
10. The appellants appealed to An Bord Pleanála from the decision to refuse the application to retain, as built, the structure above described. The Board, by decision dated the 12th December, 2007, rejected that appeal. A third application was then made on the 8th September, 2008, under Reference No. KA/802674, seeking permission to demolish the two wings of the dwelling house, but to retain the rest of the structure. That application was refused by the planning authority on the 30th October, 2008, and by An Bord Pleanála on the 5th June, 2009.
11. Although there was no further movement on the planning side, it is important at this juncture to set out the reasons, virtually common to all decisions, for the initial refusal of permission by the Planning Authority, for that Authority’s refusal of both retention applications, and subsequently for the rejection of all appeals by the Board. Such can be done by reference to the Board’s decision of the 5th June, 2009, upholding the refusal of permission/retention permission. This reads as follows:-
“Reasons and Considerations
(1) Taken in conjunction with existing development in the vicinity, which is an area under strong urban influence, the development proposed to be retained would give rise to an excessive density of development in a rural area lacking certain public services and community facilities, would contravene the policy of the planning authority as expressed in the current Meath County Development Plan to direct residential development to serviced areas, which policy is considered to be reasonable, and would establish an undesirable precedent for further development of this type. The development would, therefore, be contrary to the proper planning and sustainable development of the area.
(2) It is considered that, taken in conjunction with the existing development in the vicinity, the development proposed to be retained would result in an excessive waste water concentration of development serviced by wastewater treatment systems in the area. The development would, therefore, be prejudicial to public health.
(3) It is considered that the two-storey dwelling which is proposed to be retained is out of character, by reason of scale, height and design, with existing dwellings in the area notwithstanding the proposed alterations. It represents an unduly prominent and incongruous feature in the local landscape, is seriously injurious to visual amenity and would establish an undeserved precedent for future development of this kind. The development is, therefore, contrary to the proper planning and sustainable development of the area.
(4) The development contravenes materially conditions attached to existing permissions for development, namely, condition number 3 attached to the permission granted by Meath County Council under planning register reference number KA/40669 and condition number 3, attached to the permission granted by Meath County Council under planning register reference number KA/40653.”
In substance, these were precisely the same reasons advanced by the Board for its rejection of the first appeal.
High Court Judgment:
12. The learned judge, in delivering judgment on the 29th June, 2010 ([2010] IEHC 254), recounted the Murrays’ affidavit evidence in considerable detail, indicating that Michael Murray was a native of the parish and had been born and reared in the family home, which remains immediately adjacent to where the Murrays now live. Both he and his wife had always wanted to return to the area and to raise their own family in the locality. The learned judge also referred to the Murrays’ frustrations with the refusal of various planning applications on different lands, including the fact that in their view the reasons for such refusals made no sense in the context of the development proposed. Worse was to follow, they said, in that a two-storey house was subsequently built on one site for which they had earlier been refused planning permission.
13. Edwards J. also quoted extensively from the affidavit of Ms. Rose Murray of the 25th November, 2009. Therein she outlined the reasons for the building of the house and detailed the very serious consequences and hardship which would inure if the family home was to be demolished. In this respect she stressed the trauma which her children would suffer if the Court acceded to the application, pointing in particular to the fact that they would need to leave the local area and change school and football team. Ms. Murray indicated that if the Court were to grant the Order sought, it may be necessary for the family to leave the country in order to try to obtain work in the United Kingdom. She also said that the family’s desire was to be allowed to remain in occupation of the site at any level. She stated that she and her husband were willing to alter or modify the house but that a demolition order would be disproportionate in light of the devastating consequences it would have for the family.
14. Edwards J. noted that although the Murrays had complained about the grounds on which they were refused planning permission, such issues were not justiciable in the context of the proceedings before the Court (section 50(2) of the 2000 Act). He described as “manifestly unfounded” the suggestion that the dwelling house in question did not require planning permission on the basis that it is an “agricultural building” and is therefore an exempt development. Having viewed photographs of the development in question, the learned judge stated that it was “frankly preposterous to suggest that this is an agriculture structure.”
15. As regards the substance of the Murrays’ case, Edwards J first addressed the argument that the resort by the planning authority to section 160 of the 2000 Act was inappropriate in the circumstances of the case as that provision is a “fire brigade section” intended to deal with urgent situations only. The learned judge found that while this may have been true of section 27 of the Local Government (Planning and Development) Act 1976 (“the 1976 Act”) (see Dublin Corporation v McGowan [1993] 1 I.R. 405 at p. 411), section 160 of the 2000 Act is much wider in its scope than section 27 of the 1976 Act and accordingly may be invoked in circumstances other than those of great urgency. He also rejected the contention that the County Council should be denied relief on the grounds of delay or laches. Whilst there is some reference to the issue of delay in the appellants’ Notice of Appeal, very little – if anything – is said about it in their written submissions. In any event, as the timeline of the case shows, it would be impossible to sustain any such argument.
16. The learned judge quoted at length from the judgments of Smyth J in Sweetman v. Shell E & P Ireland Limited & Ors [2007] 3 IR 13 and Henchy J in Morris v. Garvey [1983] I.R. 319. He accepted “without hesitation” the contention that the relief sought by the County Council is of a discretionary nature, that the discretion is very wide and that it must be exercised judicially. He stated that he had had regard to all matters urged upon the Court on behalf of the Murrays, particularly the contention that an order for demolition would be disproportionate and unduly harsh in the circumstances. As against this the judge considered the local authority’s submission that the breach of the planning laws in this case was “particularly flagrant and completely unjustified on any basis.” In reaching his decision, the learned judge held as follows:
“44. With very great regret this Court finds itself in agreement with the applicants in this case. 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.
45. 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 of 24 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.”
Appeal:
17. The grounds of appeal, set out in a Notice to that effect dated the 24th March, 2011, are eight in number but can be narrowed somewhat as follows:-
(i) that the use of the summary process under section 160 of the Planning & Development Act 2000, as amended (“the 2000 Act”), was inappropriate, as no element of urgency existed and as the structure was and is the dwelling house of the family;
(ii) that the making of the prohibitory order was not permitted as, firstly, there was no prospective development planned or carried out on the subject land and, secondly, the house was fully constructed before the institution of the within proceedings;
(iii) that the orders ‘to remove and restore’ were incompatible with:
(a) Article 40.3, Article, 40.5, Article 41, Article 42 and Article 43 of the Constitution, and
(b) Article 8(1) of the European Convention of Human Rights and Article 1 of the First Protocol of that Convention; this failure and omission was in breach of section 2 of the European Convention on Human Rights Act 2003;
(iv) that such orders were internally inconsistent and self-contradictory in that the structure could, without infringing the provisions of the planning Acts, be used for agricultural purposes; and
(v) that the trial judge erred in the exercise of discretion in failing to give adequate weight to the disproportionate harm that will be caused to the appellants by the demolition order and in failing to consider what other reliefs short of demolition might be applied to produce a less harsh result.
In essence, the points made under the Constitution and the Convention rested on a proportionality argument which, with due respect to the able submissions of counsel, was heavily dependent on Wicklow County Council v. Fortune (No.1) & (No.2) (see paras. 93-102, infra). On the basis of what was said by Hogan J. in both cases, it is submitted that the order of the learned High Court judge cannot be allowed to stand and should be discharged.
18. It will be noted that neither the Convention nor the constitutional arguments are addressed in the High Court judgment, this for the simple reason that such arguments were not asserted before the learned judge. In addition, a number of further matters have been raised for the first time in the appellants’ written submissions; these matters are discussed below (para. 31 et seq).
Appellants’ Submissions to this Court:
19. The appellants submit that the institution of section 160 proceedings does not automatically follow as a consequence of an opinion expressed by an official that a development may be unauthorised; a further statutory and discretionary decision is required to be formally taken by the Council prior to making such an application. The appellants suggest that the proper procedure was not followed in the instant case.
20. Central to the appellants’ submissions is that the High Court judge erred in not considering the constitutional rights of the appellants and their children, such as the assurance of the dignity of the individual (per the Preamble to the Constitution), the protection of the person (Article 40.3), the inviolability of the dwelling (Article 40.5), the protection of family life (Article 41), the education and protection of children (Article 42) and the protection of private property (Article 43). The appellants refer in particular to the constitutional protection of the dwelling (DPP v. Damache [2012] 2 I.R. 266).
21. It is submitted that Edwards J erred in failing to recalibrate the tests previously set down in the case law on section 160 applications in light of these constitutional provisions and similar considerations under the European Convention on Human Rights. Primarily, the appellants submit that the trial judge failed to apply the correct proportionality test in exercising his discretion under section 160 of the 2000 Act. This involves proportionality not just in a narrow sense, but also in the broader sense of whether the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with the aforementioned constitutional rights (Heaney v. Ireland [1994] 3 I.R. 593; Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701). In this regard it is submitted that the trial judge did not consider (or adequately consider) whether the continued occupation and existence of the dwelling would be so manifestly at odds with public policy objectives that demolition was the only fair, realistic and proportionate response.
22. The appellants furthermore make a number of submissions regarding the refusal of their planning applications by Meath County Council and the Council’s bringing of the section 160 application; in the latter context, it is submitted that the Council did not consider the consequences which an order for demolition would have on the appellants and their family. It is also submitted that the respondent had predetermined the entire matter and thereby fettered the exercise of its statutory powers. The appellants contend that none of the reasons for the refusal of the planning application given by either the Council or An Bord Pleanála warrant the demolition of the family home. It is submitted that the upholding of the law does not require the demolition of the appellants’ dwelling house. The appellants emphasise the disproportionate nature of the High Court order and the disruptive and devastating consequences which it will have for them and their children.
23. In a separate submission, the appellants take issue with the use by the respondent of a summary application in the within proceedings; they submit that a plenary summons would have been more appropriate. It is submitted that the case involves complex questions concerning the family home that were not appropriately resolved by the issuing of summary proceedings. The appellants further maintain that the dwelling as built is capable of agricultural use.
24. The appellants refer to a number of cases in which the potential hardship involved in ordering relief under section 160 or its statutory predecessors was considered as a relevant factor in the exercise of the Court’s discretion. For example. in Avenue Properties Ltd v. Farrell Homes Ltd [1982] I.L.R.M. 21, Barrington J declined to grant an order where it would have been “unduly harsh and burdensome to grant an injunction notwithstanding the fact that the respondents are formally in the wrong.” The appellants also cite the decision of this Court in Sweetman v. Shell E & P Ireland Ltd [2016] IESC 2 (“Sweetman v. Shell”) in support of the discretionary nature of orders under section 160. It is submitted that the judgment of the High Court judge in the instant case is not consistent with Sweetman v. Shell: for example, that case confirmed that section 27 of the 1976 Act is a “fire brigade” section for use in urgent circumstances only, which is at odds with the trial judge’s interpretation of section 160 of the 2000 Act in the instant case.
25. Finally, the appellants rely on Article 8 of the ECHR and on the European Convention on Human Rights Act 2003. They refer, inter alia, to the application of Article 8 of the ECHR to a person’s home by this Court in Donegan v. Dublin City Council [2012] 2 I.L.R.M. 233. Moreover it is submitted that, per South Buckinghamshire DC v. Porter (No. 1) [2003] 2 AC 558, it was incumbent on the Council to consider the appellants’ personal circumstances, including their rights under Article 8 of the ECHR, in determining the section 160 application in the instant case. The appellants submit that this was not done.
Respondent’s Submissions to this Court:
26. The respondent takes issue with the introduction of new grounds of appeal which were not introduced before the trial court and ought to be excluded from consideration on appeal. It is submitted that there are no exceptional circumstances such as would permit the appellants to rely before this Court on arguments which were not argued in the court of first instance. The respondent accordingly objects to the appellants’ reliance on arguments founded on the Irish Constitution and/or the European Convention on Human Rights.
27. The respondent submits that the Council at all times complied with the enforcement procedure provided for under Part VIII of the 2000 Act and that it was fully entitled to pursue the within proceedings in response to the appellants’ unauthorised development. It is submitted that the appellants cannot rely on their application for retention permission as a defence to their actions or as a prohibition on the Council from pursuing enforcement under the Act.
28. As noted above, the respondent objects to the raising at this stage of arguments based on the Constitution. Nonetheless, the respondent submits that the test in Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 (“Fortune”) whereby the planning authority must ‘objectively justify’ its decision to seek demolition irrespective of the conduct of the developer was subsequently rejected by Kearns P in Kinsella v. Wicklow County Council [2015] IEHC 229 (“Kinsella”). The respondent submits that citizens who flout planning legislation cannot claim immunity under Article 40.5 of the Constitution as acceding to such conduct would lead to the erection of haphazard and dangerous developments, undermine the scheme of the 2000 Act and give rise to a free-for-all development culture. It is submitted that the approach in Kinsella is to be favoured over that adopted by Hogan J in Fortune. It is submitted that one cannot assert a right to maintain one’s dwelling as inviolable when that dwelling exists unlawfully.
29. The respondent submits that while the appellants criticise the trial judge for failing to consider Articles 40.3, 40.5, 41, 42 and 43 of the Constitution, they themselves did not rely on those provisions during the course of the hearing. Moreover it is submitted that it is clear that Edwards J did have regard to the submissions made by counsel for the appellants. As regards the argument based on proportionality, the respondents submit that the 2000 Act envisages that there must be good reasons why section 160 relief should not be granted in any case where there is substantial non-compliance with planning obligations (Wicklow County Council v. Forest Fencing Limited [2007] IEHC 242). It is submitted that the trial judge, in exercising his discretion, correctly analysed an array of breaches and their level of seriousness in considering the proportionality of the decision, and that he properly took account of the appellants’ behaviour.
30. In relation to the appellants’ argument that the use of a summary application was an inappropriate procedure to determine complex issues of fact and law, the respondent submits that this argument was not relied upon before the High Court but that in any event the within proceedings are quite straightforward within the context of section 160 applications. It is further submitted that any parallel that can be drawn between the decision in Sweetman v. Shell and the instant case is a tenuous one, which can be distinguished on a number of bases.
Discussion/Decision:
Additional Appeal Points:
31. Although the major issue on this appeal is the Fortune/Kinsella Article 40.5 debate (see paras. 92 to 133, infra), the appellants have raised a number of further matters which neither featured in the Court below, nor were they raised in the Notice of Appeal. Although by virtue of O. 58, r. 6 of the Rules of the Superior Courts a Notice of Appeal may be amended at any time, no such application was made in this case. As a result, the well-settled jurisprudence of this Court states that such grounds will be entertained only where the appellant shows exceptional circumstances (Movie News Ltd v. Galway County Council (Unreported, Supreme Court, 15th July, 1977); Blenheim v. Murphy [2000] 2 IR 231). No attempt has been made to do so here, nor is it apparent to this Court how any such circumstances might be said to exist. It is thus extremely difficult to see how the appellants should be allowed to rely on such matters. However, I have considered the points that were urged (para. 32-64, infra), albeit with reluctance, lest a failure to do so might lend credence to their validity. Having done so, I am satisfied, for the reasons which follow, that there is no substance to any of the points so advanced.
Section 160: Summary Nature of Process:
32. It is asserted on behalf of the appellants that the High Court should have declined to entertain the application, as intrinsic to the section 160 process is its summary nature; it remains unclear whether alternatively it is being asserted that the matter should have been remitted for plenary hearing. The objection is so made because of the complex issues of fact and law which it is said arise in the presenting circumstances. Dublin County Council v. Kirby [1985] I.L.R.M. 325 (“Kirby”) and Waterford County Council v. John A. Woods Ltd [1999] 1 IR 556 (“John A. Woods Ltd”) were amongst a number of cases cited to support this proposition.
33. It is undoubtedly correct to say that both the High Court and the Supreme Court have in the past indicated that the injunctive provision was intended as a type of “fire brigade” section to deal with urgent situations requiring immediate action, so as to stop or prevent an unauthorised development; however, virtually all such expressions were made in relation to the form of the section which predated section 160, which in its terms is much more expansive than either version of its precursor. In addition, it has also been said that, by reason of its summary nature, the procedure may not be suitable where a more thorough exploration, particularly of the facts but also of intricate issues of law, may be necessary in order to determine the outcome (Dublin Corporation v. McGowan [1993] 1 I.R. 405, Mahon v. Butler [1997] 3 I.R. 369 at 378-379, Kirby and John A. Woods Ltd). Whilst I accept that in some cases of major conflict, recourse to some of the more elaborate steps readily available via the plenary process may be necessary, I am also satisfied that where such is required, the same can be availed of. However, given the multitude of applications moved in this form, the vast majority of which have created no difficulty, it seems clear that it will be only in very rare circumstances indeed that the stipulated statutory procedure should not be utilised.
34. It should be recalled that one of the major objectives behind this legislative process is the desire that issues of planning control should be dealt with effectively and efficiently and in the most expeditious way possible. If every alleged infringement, or even a majority thereof, could not be litigated in this way, that objective would be stood down. That should not happen, nor is there any necessity for it.
35. I can see no reason in principle why the factual scaffolding of most cases cannot be adequately accommodated within the contours of the affidavit framework. Therefrom it should be readily apparent to all what area(s) of conflict, dispute or disagreement exist between the parties. Indeed, if uncertainty should be left standing at the close of the evidence or at any antecedent point in the proceedings, that situation should become self-evident. If any such controversy touches upon issues of importance as to outcome, then the same can be explored by way of a viva voce examination. Indeed, if necessary, as the court has a constitutional obligation to ensure fairness and fair procedures, and as the superior courts have an inherent right to regulate their own procedures, they can be asked at any point to put in place a regime by which those objectives can best be served (see O. 103, r. 6(a) of the Rules of the Superior Courts, and O. 56, r. 3(7)(a) of the Circuit Court Rules). Subject to that, however, I do not see any overriding impediment or reason as to why section 160 cannot be moved in all, or virtually all, cases where the infringement is alleged to be non-planning compliant.
36. It might be thought that the court is inhibited by what steps it can take in this context, as normally it is only the Attorney General who is entitled to seek a civil injunction in aid of a breach of a criminal law (The Attorney-General (at the relation of O’Duffy) v. Mr. Appleton, Surgeon-Dentist, Limited, and ors [1907] 1 I.R. 252; Attorney General v. Paperlink [1984] ILRM 373; Mahon v. Butler at p. 378). As a result it is suggested that persons, including a planning authority, are prevented from having recourse to plenary proceedings when seeking statutory relief under the section. I do not accept that this is the situation, as in the first instance section 160 itself is an exception to that rule; even more so, however, the section in substantive terms expressly overrides its application when planning compliance is the issue. In addition, I do not read John A. Woods Ltd or Mahon v. Butler in this way. In fact, in Kirby, Gannon J. expressly identified the plenary route as being available. The Supreme Court in John A. Woods Ltd, when making the observation relied upon, was referring to the background complexity of the case and in any event was dealing with a case stated from the Circuit Court, whilst the comments by Denham J. in Mahon v. Butler were made in the context of dealing with a submission that the statutory injunction is a jurisdiction distinct from that vested in the High Court by the former Courts of Equity. In addition, judicial review proceedings were also in existence at the relevant time, within which all issues of planning could be addressed.
37. Furthermore, it would seem an extraordinary situation, at the level of principle, if in those rare cases where the summary procedure was not suitable, there was no method on the civil side by which injunctive relief could be either sought or obtained. It would be as if a form of immunity could be obtained by reason of some procedural paralysis, and even more readily so as the scale of conflict escalated. That cannot be so.
38. Where serious complexity arises, it seems to me that whether section 160 is triggered by the issue of a motion and the procedure then suitably adapted so that the full ventilation of all issues can take place, or if a plenary summons should issue in the first instance, is purely a technical matter of procedural significance only. Accordingly, I believe that there is jurisdiction in all courts vested with authority to deal with section 160 applications to regulate their own procedures – in the case of the Circuit Court within the relevant statutory provisions and the rules of court – so as to render that procedure compliant with constitutional norms.
39. In addition, it is difficult to see, in such circumstances, how any issue of law, no matter how complex, far reaching or significant it might be, cannot be adequately dealt with by way of submissions, written and oral, and determined by the judge. Whether the commencement process is summary in nature or plenary in nature should have no bearing on how issues of law are presented, argued, addressed and adjudicated upon.
40. In any event, this type of issue does not even arise in this case. Apart from the suggestion by the Murrays of their frustration with Meath County Council, there is no issue whatever on the facts. These are not in controversy. Whilst there are rival submissions as to whether the traditional approach to section 160 should be applied, or whether in its place there should now stand the “Fortune test”, both are entirely capable of being fully articulated within the statutory regime, a point I do not see in any way contested in the submissions.
41. As a result, I cannot identify in this case a single strand of the process which could be said to have rendered the section 160 procedure inappropriate. As stated, the facts, insofar as relevant, are entirely agreed. As is evident, all issues of law, whether described as complex or otherwise, were raised and ventilated before the learned judge, and determined by him. This Court at appellate level has not been hindered in its consideration of the legal issues involved. It cannot thus be alleged that any infirmity has resulted from the use of section 160: the legal process has not in any way been diminished by the adoption of this procedure. Accordingly, I do not accept the argument under this heading of complaint.
Ancillary Point:
42. Although out of context in the sense that the following point appears in the Notice of Appeal, it is convenient at this juncture (in light of the argument addressed at paras. 32 and 33, supra) to say, first, that the injunctive provision, in its section 160 form (para. 70, infra), expressly covers an unauthorised development which has been completed and, second, that its utility is in no way dependent on there being ongoing activity at the relevant time.
County Manager’s Order:
43. It is not altogether clear whether the point I am about to discuss is one based on an alleged pre-determination, or is one suggesting that the authorisation for the commencement of these proceedings is defective. Whichever it may be, in my view neither has any validity to it.
44. Having received a complaint from a member of the public regarding this development, the planning authority immediately reacted, first by a site visit on the 6th February, 2007, which was followed by an inspection from Ms. Wendy Moffett, a senior planner, on the 1st March, 2007. Based on the resulting reports, Mr. Young, a senior staff officer in planning, wrote to the appellants in the following terms a day later:-
“Re: Unauthorised Development at Faughan Hill, Bohermeen, Navan
Dear Sir,
I refer to the decision of this Planning Authority to refuse you planning permission for the construction of a 283 sq. mt. dormer bungalow on lands at … A recent site inspection has established that you have constructed a large dwelling house on the land holding without the benefit of planning permission.
Meath County Council hereby puts you on notice that we require the immediate demolition of the structure and that you return the site to its original condition prior to the commencement of the development.
Failing receipt of a commitment from you within seven days, outlining your proposals to remove the structure, Meath County Council will initiate legal proceedings seeking an order for the removal/demolition of the structure.
Your proposal should be submitted to the undersigned on or before 5.00pm on Monday, 12th March, 2007.
Yours faithfully
….”
45. It is claimed that by virtue of its contents, the sending of this letter is evidence of a decision having been taken by the planning authority to issue enforcement proceedings at a time which pre-dated the Manager’s Order to that effect. Accordingly, it is said that the issue of the Motion lacked the critical authorisation of such an Order and is therefore without legal effect.
46. The evidence shows that there were three Executive Orders made which may be relevant. These are:-
(1) Manager’s Order, dated the 13th day of March, 2007, and signed by Mr. Kevin Stewart, County Manager, authorising the institution of the proceedings,
(2) Manager’s Order, dated the 3rd day of July, 2006, appointing Kevin Stewart Deputy Manager for the period 1st July, 2006 to 31st June, 2007, pursuant to section 148 of the Local Government Act 2001, and
(3) Manager’s Order appointing Kevin Stewart Deputy Manager “from 10th March, 2007 to 20th March, 2007, during the manager’s absence on Annual Leave.” (Emphasis added)
47. It is not suggested that if the decision to institute these proceedings was one taken during the ten day period last mentioned, that the manager’s order of the 13th March, 2007, was not a valid authority in that regard. Rather what seems to be the point is that Mr. Young’s letter is said to have been the effective decision to that end, rather than the order in question. This is a submission which cannot be entertained.
48. A Manager’s Order is required for certain executive functions. These are set out in various sections of the Local Government Code (see, for example, Chapters 2 and 3 of Part 14 of the Local Government Act 2001, as well as Schedule 15 to that Act). Included amongst the requirements is a reference to the institution of proceedings. What the appellant is attempting to do is to equate the sending of a letter threatening enforcement proceedings with the actual decision to institute such proceedings. I know of no authority for such a proposition, which, if valid, would paralyse the administrative systems of every local authority in this country, and indeed also many other state and public institutions. There are a great number of daily administrative responsibilities which can be carried out within either the express or implied authority of an individual employee without any necessity to seek specific authorisation in each case. Such could only be justified if mandated, which it is not in the present case: thus such authorisation is not legally required.
Usurping Court’s Function:
49. A submission associated with, if not flowing from, the Manager’s Order point, and certainly one overlapping with it, is that it is not for Meath County Council to determine whether any particular development is an unauthorised one: rather such is the sole function of the courts. A number of cases were cited to support this proposition. The criticism made in this regard stems from a claim that either Mr. Young made such a determination, as evidenced by his letter of 2nd March, 2010 (paras. 9 and 44, supra), or else the Council itself did so, as evidenced by the institution of these proceedings; or, indeed, perhaps even both did. Quite where this point leads is somewhat unclear, but nonetheless, in the manner in which I understand it, it should be addressed.
50. This submission in my view is ill-founded, as neither the issue of a warning letter nor the institution of section 160 proceedings can in any way be regarded as the making of a determination, with direct legal consequences, that a development is one which requires but has not obtained permission, and as a result is unauthorised. As the issue of a letter which simply threatened enforcement proceedings could never be so considered, it might be thought that the more serious aspect of this submission relates to the institution of the section 160 proceedings themselves. It therefore becomes necessary to consider what this step entails and what the local authority is doing by so acting.
51. The moving of an injunctive application can only be contemplated if, by reference to the works, structure, use etc. which are under scrutiny, a view is formed that the circumstances in question come within the scope of the intended process by which enforcement of the planning laws is sought. If such an opinion is not formed, recourse should not be had to the taking of any step under legal authority, because such, if undertaken, would not be legitimate and almost certainly would be abusive, as it equally would be unless there was some credible or plausible evidential basis to it. However, once a bona fide intention is arrived at in that regard, recourse may be had to that particular enforcement mechanism if the underlying statutory provision so allows. How does this therefore feed into section 160 of the 2000 Act?
52. As its provisions make clear, the core focus of the section is an “unauthorised development”. The section has no application unless such “has been, is being, or is likely to be carried out or continued”. It is therefore essential that before invoking this provision, the moving party forms a view that the development with which he is concerned falls foul of what is prescribed. Without that the entire foundation of such a step would be gravely undermined.
53. However, the formation of such opinion is simply that; even if made by a planning authority, and made in such demonstrably self-establishing circumstances as those in this case, where, no matter how novel or ingenious the submission may be, it would be next to impossible to challenge the unauthorised status of the development in question, the opinion remains but an opinion.
54. Where proceedings are taken, the moving party, in this case the Council, undertakes the onus of establishing its stated position to the necessary evidential and legal threshold required to obtain an order under section 160 of the 2000 Act. It is only in this regard that its antecedent view has any relevance. When so acting, it is like any other public body seeking to enforce one of the functions assigned to it by the underlying legislation. The ultimate decision of ‘authorised’ or ‘unauthorised’ in the enforcement context is that of the court. No presumption whatsoever arises in any way. No additional credence or value is added to the authority’s case simply by having made a decision to issue proceedings.
55. By engaging the enforcement mechanism of, say, section 160, there is no question of the Council making any planning determination that the structure is unauthorised: even that power is not conferred on either a planning authority or An Bord Pleanála by section 5 of the 2000 Act (Roadstone Provinces Ltd v. An Bord Pleanála [2008] IEHC 210), nor is the situation in any way analogous to that arising in Grianán An Aileach Interpretive Centre Company Ltd v. Donegal County Council (No.2) [2004] 2 IR 625. Likewise, it seems to bear no real relationship to the other cases quoted, including Heatons Ltd v. Offaly County Council [2013] IEHC 261 and The State (Fitzgerald) v. An Bord Pleanála [1985] I.L.R.M. 117.
56. A further word about section 5 of the 2000 Act: the power given to both planning bodies under that section relates to what is a ‘development’ or what is an ‘exempted development’. Even though a decision on either issue may have significant consequential effect, it is not an end in itself. Without more, and simply on that basis, a section 160 order could not be made: one must go further and establish the ‘unauthorised’ nature of the underlying development. Thankfully, the difficult question of the courts’ review power where a declaration one way or the other has been made on a section 5 reference does not arise on this appeal (see the judgment of the Court of Appeal (per Hogan J) in Bailey v. Kilvinane Wind Farm Ltd [2016] IECA 92, which judgment is under appeal to this Court).
57. Consequently, if there is a point lurking somewhere behind this submission, it is not well-founded at the level of principle and neither is it supported by authority.
Secondary Decision Required at that Point:
58. When one comes to the issue of how the court’s discretion under section 160 of the 2000 Act should be exercised, the appellants have submitted that proportionality is a significant element in any decision so reached. That is a point later addressed in this judgment. In addition, however, the submission has also been made that in deciding whether or not to institute section 160 proceedings, the Council at that point is likewise obliged to engage in and to conduct a similar or at least an analogous exercise before arriving at that decision.
59. It is claimed that even if the planning authority should have a view that a particular development is unauthorised, it is not axiomatic that section 160 proceedings follow. There is no legislative prescription to that end. Thus, even when a prima facie infringement appears, a decision must still be made whether to institute or not. As part thereof it is asserted that the various factors which feed into the proportionality test which must be conducted by the High Court should also form an integral part of that consideration. Because there is no evidence that this occurred in this case, it is suggested that the issue of the grounding Notice of Motion is unlawful, although on what precise basis remains unclear.
60. The planning authority has a unique role in the planning process. Part of that role unquestionably lies in the enforcement of the code. Whilst any individual, with or without an interest in the “development” and whether damnified or not, can invoke section 160, the overarching supervisory guardian of planning control at executive level must be the statutory body established to that end and vested with the powers to that effect.
61. In my view, this submission is to over characterise what the institution of these proceedings actually means, what the step entails and what relationship that has with the principles of constitutional justice. Save for the obvious consequences of putting in train a course of action which might possibly lead to a court hearing, such a move, of itself, does not impact on any of the rights of the individuals concerned. Such rights remain entirely intact and no decision with any legal consequences has been taken in that regard. It is but the commencement of a process which itself might never go much further. In this case the application was left standing, as it happened, until the Council and An Bord Pleanála between them had made a number of decisions to refuse permission, none of which were legally challenged. Even then the order which has consequences for the Murrays was not one made by the local authority, but rather by the court itself.
62. Further, to impose a requirement such as that agitated for would create major problems if one was to analyse the practical difficulties which would inevitably arise. Would a moving party be obliged to search and seek out the intended respondent and afford him or her an opportunity to make what would in effect be submissions? Would there be a right to make an oral presentation, even to give evidence? Would there have to be some form of appeal mechanism? These are but some of the obvious difficulties which it might be said could debilitate the system, at least in its current structure. I therefore reject this submission.
63. It follows from what I have said that I cannot accept that the institution of these proceedings in and of itself is an example of “…proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas” as that phrase is used in East Donegal Co-op v. Attorney General [1970] I.R. 317 at 341. Consequently, apart from the major practical issues which such a submission would give rise to, I cannot accept that there is any obligation on the Planning Authority to engage in this elaborate process with intended respondents to a section 160 application.
64. The present case, by reason of these facts alone, is illustrative of why this submission is ill-founded. It is not disputed:-
(i) that there exists on the subject site a very significant dwelling house of over 6,000 sq. ft;
(ii) that the construction of such a building constitutes a development within the meaning of that term as defined in section 3 of the 2000 Act;
(iii) that unless some lawful exception exists in respect of such a property, planning permission for its existence and use is required;
(iv) that it did not appear there was any possibility of the development being exempt under the Regulations;
(v) that planning permission for a structure approximately half the size of what is built was refused by the Council, and that no appeal was taken from that decision;
(vi) that an application for its retention as built and for a modified version of what is there have been refused at both levels of the decision making process; and
(vii) that, as a result, no permission exists either for its construction or use.
Therefore, even without referring to the planning history which unfolded after June 2007, the situation on its face gave rise to a justifiable concern on the part of the Council. In such circumstances it was an entirely legitimate exercise of its powers to move a section 160 application.
The Legislative Regime:
65. Even though some measure of legislative interest over the development of land and its use is evident from statutes as far back as the Town and Regional Planning Acts 1934 and 1939, and indeed even from certain provisions of the Public Health (Ireland) Act 1878, the same by and large were ineffectual either in their terms or their application; probably in both. There were of course multiple strands of influence in this regard: some very understandable, some quite evident, others less so, and some more amenable to softening than others. 1963 may seem like the distant past in light of the highly regulated regime we have today, but the first serious attempt to impose some guidance, parameters and directional focus in this area took courage and fortitude, and should be acknowledged.
66. The influences of which I speak include Articles 40.3.1°, 40.3.2° and 43 of the Constitution, then much less explored or explained than now; the parochial mindset of vested interests; and the dominance of local level in the political landscape. In fairness, it must also be pointed out that the 1950s did not give rise to a hive of industrial, commercial or residential activity, or the creation or expansion of major infrastructural facilities, and thus the necessity for an overview, at national level, was not imminently pressing. Moreover, a period of observation to monitor how a new code might grow its legs was obviously sensible. It is therefore no surprise to note that injunctive remedies were not included in the Local Government (Planning and Development) Act 1963, which only contained somewhat cumbersome and rather circuitous models on the enforcement side (sections 31, 32, 33, 35, 36 and 37). Such remedies first appeared in the 1976 Act. Since then the section has been amended by substitution on one occasion, and then replaced by section 160 of the 2000 Act; it is of interest to note the changes which have been made to the original provision.
67. Section 27 of the Local Government (Planning & Development) Act 1976 made a distinction between, on the one hand, the making of an ‘unauthorised use’ of land or ‘a development’ which ‘is being’ carried out without permission, and, on the other, situations where a permission exists but its terms have or are not being complied with. Subsection (1), dealing with the former, authorised the making of prohibitory orders only, whereas subs (2), dealing with the latter, was broader in scope and included the making by the High Court of any order “to do or not to do, or to cease to do” anything considered necessary so as to ensure that the development, when finalised, conformed with the permission (emphasis added). That wording was considered sufficient by the Supreme Court to ground a demolition order in Morris v. Garvey.
68. The first substitution of the original provision was effected by s. 19(4)(g) of the Local Government (Planning and Development) Act 1992 (“the 1992 Act”). There were only two changes of note. The first was to the effect that the emphasised wording above quoted was also applied to a situation where no permission existed and to an unauthorised use situation. The second change of interest was the express power to make a restoration order, where practicable, in respect of the affected lands.
69. In Mahon v. Butler [1997] 3 I.R. 369, this Court held that the then provision could not be invoked so as to prohibit a future development: rather, its terms were confined to what was current at the time of the application or what was historical. It had no anticipatory effect. Moreover, as the wording shows, the section, though broader than the 1976 version, was still less explicit, by enumeration, as to how the court could deal with miscreant developers. Both of these matters were subsequently addressed in section 160 of the 2000 Act.
70. That section (as of November, 2016), reads 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 continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
…
(2) In making an order under subsection (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.”
71. Accordingly, where successfully invoked, that provision now empowers inter alia the High Court, and obviously this Court, to make any order which it deems is necessary so that what “has been, is being or is likely” to be done is not only planning compliant, but also that the affected land is restored to the condition it was in prior to the unauthorised development being commenced, insofar as that can feasibly be done. Furthermore, for the avoidance of doubt, the section makes it clear that “restoration, reconstruction, removal, demolition, or alteration of any structure or other feature” is within the competence of the Court to so order. It is thus evident that even as between the 1992 substitution of the original section 27 and the current section 160 provision, the latter is much more extensive, far-reaching and wide-ranging as to the powers vested in the High Court to ensure planning compliance in a full sense, which include the re-establishment of the status quo ante where practicable.
72. Although the section does not, as such, adumbrate the factors which fall to be considered by the court when called upon to make an order thereunder, that does not mean that the provision is empty of either guidance or direction, in particular relative to the discretionary aspect of its application. Apart altogether from the case law, it is instructive to consider the objectives behind the enforcement regime put in place by the Act, the importance of which is underpinned by the criminalisation of carrying out an unauthorised development and by the extensive range of powers conferred on the High Court to protect, enforce and influence the attainment of these objectives.
73. From the Act as a whole, which includes the enforcement provisions from sections 151 to 163, inclusive, it seems clear that the policy aspiration is one of legislative compliance so that orderly development takes place in a regulated and coherent manner, consistent with an adopted Development Plan, either at area or local level, or both, and having regard to any coordinated policies with neighbours, all under the general direction of national policies. In effect, the armoury as given is to ensure that the environmental and ecological rights/amenities of the public are preserved and enhanced and that the integrity and efficacy of planning control is maintained. In addition, at the individual level, as Morris v. Garvey shows, no person should have to suffer a diminution of his rights, including the enjoyment of his property rights, unless such interference can lawfully be justified.
Section 160 of the 2000 Act:
Statutory Based/Equitably Controlled:
74. At the outset there is one specific matter which should be addressed, namely, how and in what way, if any, equitable principles influence the operation of the discretion contained within section 160. In the first case of note, Stafford v. Roadstone [1980] I.L.R.M. 1, Barrington J. was faced with a submission that once a breach occurred, the High Court had no option but to issue an enforcement order. In other words, subject to that pre-condition the section was mandatory. Quite correctly, in my view, the learned judge rejected that submission, as indeed all other judges have done virtually from the start (White v. McInerney Construction [1995] 1 I.L.R.M. 374 at pp. 380-381). The learned judge pointed out that such an application could be moved by any individual, even by a person who had no interest in and who otherwise was unaffected in any personal sense by the activity in question. Therefore, as neither interest nor impact was required for locus standi, it was essential for the court to establish and develop a discretion, particularly as a breach might be highly technical, notoriously trivial, or obviously inconsequential. Therefore, by reference to the use of the word “may” in the section, and also by regarding the orders as in effect being the equivalent of injunctions, the basis for such a discretionary jurisdiction was founded.
75. Shortly after Stafford, the same learned judge in Avenue Properties Limited v. Farrell Homes Limited [1982] I.L.R.M. 21, went on to say that:-
“It seems to me therefore that the High Court in exercising its discretion under s. 27 should be influenced, in some measure, by the factors which would influence a Court of Equity in deciding to grant or withhold an injunction.”
That proposition, if correctly understood, is unobjectionable and, in large measure, is true. That statement, however, so often quoted in isolation, does not support the proposition that equitable principles control, dominate, or have supremacy within or over the statutory provision. Factors such as delay, acquiescence, conduct, motive etc. are common features in the exercise of equitable jurisdiction. They also feed into section 160, and rightly so.
76. However, in several cases that base view, as expressed in Stafford and subsequently much built upon, became regarded in some judgments as in effect equating section 160 with the exercise of an equitable jurisdiction. I do not believe that such is a correct description of how the current section, or for that matter its precursors, is intended to operate. In fact, if one reads further the judgment in Avenue Properties, one will see that even though the building was standing at five stories in height at the time of application, the judge refused an injunction but only pro temp, warning very definitively that if the intended retention application was unsuccessful the situation would be quite different. Such representational concern would not have been expressed if the essential focus had not been on planning compliance. In addition, it should be pointed out that as early as Stafford, Barrington J. emphasised the importance of the public interest in this regard, which evidently distinguishes the operational nature of the section from general equitable principles. I therefore believe that whilst some of these principles have a role to play, the separate and distinctive nature of the section must be maintained. Costello J., in Patterson v. Murphy [1978] I.L.R.M. 85, said of the then new section 27 of the 1976 Act that its provisions conferred a completely new jurisdiction on the High Court, a statement endorsed in Stafford and repeated on multiple occasions since.
77. This very point, namely that the statutory injunction had a basis distinct from the general equitable jurisdiction of the High Court, was made and accepted in Mahon v. Butler [1997] 3 I.R. 369. Denham J., in giving judgment for this Court, held that the learned trial judge fell into error in construing the section so as to empower the court “to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts”. She went on to acknowledge the existence of a discretion, but pointed out that such could only be found within the parameters of the section itself. In other words, external considerations, based on a general equitable jurisdiction, could not be used to extend, alter or modify what the section, correctly construed, gave rise to. I respectfully agree with that decision.
78. It is not difficult to understand why this is so, nor is it difficult to identify the features inherent in equitable injunctive relief which are notably absent on the statutory side. To name but a few: neither interest nor harm is a requirement; the sequential approach governing interlocutory injunctions on the equity side, namely, whether there is a fair question to be tried, whether damages will be an adequate remedy, and where the convenience lies, does not feature; no undertaking as to damages is required; the ultimate relief is always an injunction in permanent form; there is a limitation period expressly provided; and, of course, the section serves a public law function. The court therefore cannot approach an application in the same manner as it would were equitable principles in a private law context at issue. Consequently, at the level of principle, whilst the court has power to make both interim and interlocutory orders, that power is not intended to absorb within the section general equitable principles.
79. There are two decisions, both given in Sweetman v. Shell, which might be thought to be inconsistent with this. In fact, neither is, as any reference to equitable principles was based on Avenue Properties and was made in the context of delay which had serious consequences for the respondent, a factor always recognised by the traditional jurisprudence on section 160.
80. In the High Court ([2007] 3 IR 13), Smyth J., at paras. 53-61 of his judgment, dealt with the case law as relevant to the issue under discussion. Having highlighted the availability of section 27 to an indeterminate class and having looked at a number of authorities, including Leen v. Aer Rianta c.p.t. [2003] 4 IR 394, the learned judge at para. 55 identified the factors (para. 90, infra) which persuaded him that no order should be made in that case. Of those, one directly pertinent and of recurring concern was the repeated delay on the part of the applicant at several key junctures of the process, which significantly added to the developer’s cost base. The resulting dismissal of the application was in the first instance on the basis that there had been no breach, as such, of the 2004 permission, but the learned judge went on to note that even if there had been, the same result would also have followed on discretionary grounds.
81. On appeal, Dunne J., who gave this Court’s judgment ([2016] IESC 2), said that:-
“It must be remembered that injunctive relief is discretionary. The granting of an injunction does not inevitably follow the finding by a court that there has been a legal wrong. Injunctive relief is dependent on an analysis of where equity lies in the case.”
This, however, was said in the overall context of delay, which as noted featured prominently in the case. The observations so made should therefore be seen in this context.
82. In conclusion on this point, the jurisdiction to grant injunctive relief, or to withhold it either conditionally or unconditionally, is to be found within the section, whose construction is to be informed by the Act as a whole. Whilst undoubtedly a discretion exists, the parameters within which that must be exercised must likewise be statutorily based. Accordingly, equitable principles cannot be used to expand the discretionary aspect of the section unless such are found within it. This view is primarily intended to identify the jurisdictional basis of the courts’ power to issue a section 160 order. It is not stated for the purpose of disapplying any of the established jurisprudence which is statutorily based, nor is it intended to trim back the exercise of the courts’ discretion, provided that the basis for same is properly understood.
The Conventional Approach: (In General):
83. It is to state the obvious that the formal requirements of section 160 must be satisfied in the first instance: unless the moving party has discharged the onus of proof in this regard, the application must fail (Dublin Corporation v. Sullivan (Unreported, High Court, Finlay P, 21st December, 1984). Those requirements can of course give rise to difficult issues, such as the quia timet point in Mahon v. Butler, and others might touch on whether the activity in question is unauthorised or is exempt or the like. However, it is only once a case is made out that the issue of what order should be made arises, which of course in turn immediately brings into play the discretionary element of the section. It is how that discretion should be exercised which is the focus of this judgment.
84. In addition to what one can deduce from section 160 of the 2000 Act itself, there has been a considerable body of jurisprudence built up over several decades, both in relation to that provision and its statutory predecessors, regarding what type of factors may influence the ultimate court order once a breach has been established. Whilst several cases have attempted to further add to or to more particularise the ‘exceptional circumstances’ set out in Morris v. Garvey [1983] I.R. 319, it is still instructive to quote the relevant passage from that case, as the same remains highly influential in this area.
85. Although that case concerned circumstances where planning permission had been granted but the conditions thereof had been exceeded, the following observations of Henchy J. apply with equal force in respect of developments or uses which are entirely unauthorised; the learned judge stated at pp. 323-324:-
“This Court has judicial notice, from what it knows to have happened in other cases, that (for motives which may be put down to expediency, avarice, thoughtlessness or disregard of the rights or amenities of neighbours or of the public generally) developers who have contravened the conditions of a development permission have knowingly proceeded with unauthorised development at such a speed and to such an extent as would (they hoped) enable them to submit successfully that the court’s discretion should not be exercised against them under sub-s. 2 of s. 27 because the undoing of the work already done would cause them undue expense or trouble. For my part, I would wish to make it clear that such conduct is not a good reason for not making an order requiring work carried out in such circumstances to be pulled down.
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.’” (emphasis added)
86. A more recent judicial expression of the public interest point, which I am about to address in a moment, can be found in Wicklow County Council v. Forest Fencing Ltd [2007] IEHC 242 (“Forest Fencing”), where Charleton J., having referred to the discretionary aspect of the section stated:-
“49. … A similar principle [that a declaration should be made if a default permission arises] … 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.” (Emphasis added)
87. The point adverted to is this: where does the public interest fit in this analysis? In this respect the public interest may have different strands to it, as, for example, where an order would impact on employment beyond the individual transgressors, or on important services, infrastructure or facilities which the public avail of. These and many other like matters, if present, will be accounted for in the decision as taken. It is, however, a different aspect of public concern which I speak of, namely, the interest in planning enforcement and where that should be positioned in the exercise facing the court.
88. In the first instance, the principal starting point on planning control is that no development can lawfully be commenced without the cover of an appropriate permission; this subject to certain specific exemptions which are not to the fore of this discussion. Failure to apply, even where an application might be favourably looked upon, is in itself a serious breach where works are carried out or uses made of the subject lands. The legislative view is to criminalise such unauthorised conduct, with both terms of imprisonment and fines on indictment up to over €12m. This is a significant expression of the high level of public concern there is in regulating orderly and sustainable development. The fact that one can apply for retention permission impacts very little, if at all, on this point: such an application would not of itself prevent the bringing of a criminal prosecution, nor should any enforcement proceedings, including a section 160 order, normally be stayed simply because of such a step (section 162(3)). Consequently, this demonstration of intent must always be given its justifiable position in the court’s evaluation of the section 160 exercise.
89. In addition, it must be borne in mind that a breach of planning law will previously have been established and that the defaulter is seeking the indulgence of the court as to what resulting consequences he should face. As such, it must be that the interests of the public will be ever present on the enforcing side. Whilst the importance of that interest and the weight which it must be given, having regard to what is previously stated, will vary on a vertical scale by reference to a number of influencing factors, nonetheless it will always exist and most likely will stand first in the queue for consideration. Such was expressly acknowledged in the passage above quoted from Morris v. Garvey, as is evidenced by the lead-in requirement that any excusing factors must be found within “exceptional circumstances”. Equally so with Forest Fencing Ltd. Such is and has been recognised as an important factor.
Factors to be Considered:
90. What, then, are the factors which play into the exercise of the Court’s discretion? From a consideration of the case law, one can readily identify, inter alia, the following considerations:
(i) The nature of the breach: ranging from minor, technical, and inconsequential up to material, significant and gross;
(ii) The conduct of the infringer: his attitude to planning control and his engagement or lack thereof with that process:
• Acting in good faith, whilst important, will not necessarily excuse him from a s. 160 order,
• Acting mala fides may presumptively subject him to such an order;
(iii) The reason for the infringement: this may range from general mistake, through to indifference, and up to culpable disregard;
(iv) The attitude of planning authority: whilst important, this factor will not necessarily be decisive;
(v) The public interest in upholding the integrity of the planning and development system;
(vi) The public interest, such as:
• Employment for those beyond the individual transgressors, or
• The importance of the underlying structure/activity, for example, infrastructural facilities or services.
(vii) The conduct and, if appropriate, personal circumstances of the applicant;
(viii) The issue of delay, even within the statutory period, and of acquiescence;
(ix) The personal circumstances of the respondent; and
(x) The consequences of any such order, including the hardship and financial impact on the respondent and third parties,
91. The weight to be attributed to each factor will be determined by the circumstances of a given case. Some, because of their importance, may influence whether an order is or is not in fact made: others, the scope, nature or effect of that order. This list is not in any way intended to be exhaustive, and it may well be that other matters might require consideration in an appropriate case. For example, in Pierson v. Keegan Quarries Ltd. [2010] IEHC 404, Irvine J took account of the hardship which demolition might cause to third parties, and referred also to the possible effect of the developer having relied in good faith on professional advisers. The jobs of non-related members of the public, mentioned at para. 90(iv), above, featured in Stafford v. Roadstone Ltd and Dublin County Council v. Sellwood Quarries Ltd [1981] I.L.R.M. 23. There are many other examples. However, the above list is generally representative of the type of factors which the judge will normally be called upon to consider. It is thus an appropriate framework within which to analyse the High Court’s exercise of discretion in this case, conducted, as it only could be, by reference to the traditional or customary approach (see paras. 134-139, infra).
The Constitutional Argument:
92. Particular attention must now be paid to two High Court cases, one of which comprises a number of judgments, which have been decided since the decision of the High Court in the instant case. In the former, the string of judgments delivered in Wicklow County Council v. Fortune, the High Court, per Hogan J, appeared to reformulate the test to be applied in section 160 applications where the unauthorised development in question is a dwelling. However, in Wicklow County Council v. Kinsella [2015] IEHC 229, Kearns P was critical of this new departure, finding instead that such cases, like all others, should be decided on the basis of the existing jurisprudence. Both viewpoints therefore require careful consideration and, as such, must be addressed at some level of detail.
The Fortune Series of Cases:
93. A point of curiosity to start with: while the Fortune cases have been cited by the appellants, they feature peripherally, appearing only in the footnotes of the written submission, and are not as central to their case as one might expect. However, the essence of those judgments, namely, the protection afforded to dwelling places under Article 40.5 of the Constitution and the weight to be ascribed to that consideration when assessing whether to make a demolition order in respect of a family home, is a central theme running through the major feature of their appeal.
94. There were four judgments in all in Fortune, though only the first two need detain us here. Briefly stated, the facts in those cases were as follows. In December, 2006, it came to the attention of Wicklow County Council that Ms. Fortune had constructed a small timber framed chalet in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. She resided there with her two children. This chalet was built without planning permission. The Council sent a formal warning letter, but deferred proceedings pending an application for retention. In fact, two such applications were made, with the ultimate rejection being that of An Bord Pleanála in November, 2008. As a result the Council applied to the Circuit Court seeking, inter alia, the demolition and removal of the chalet. By decision dated the 8th February, 2011, Her Honour Judge Flanagan found for the applicant. Ms. Fortune appealed to the High Court.
95. In Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 (“Fortune (No. 1)”), Hogan J first considered a submission that the County Council’s application was statute barred; the learned judge was satisfied that section 160(6)(a)(i) of the 2000 Act is not a jurisdictional provision, but rather is a matter of defence, and on the evidence held that the respondent had failed to meet the onus of establishing when the development commenced. As a result, one could not know from what date the seven year period as specified in the section began to run. Next he addressed the exercise of discretion under section 160. He referred to much the same case law as is cited above, and also to the finding of the High Court in the instant case, noting at paragraph 32 of his judgment that:
“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.”
96. Hogan J went on to state that “[w]ere 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” (para. 34). In his view, however, the “constitutional argument” was a potential outcome changer. Drawing on the then very recently delivered decisions in Damache v. DPP [2012] 2 I.R. 266 (“Damache”) and The People (DPP) v Cunningham [2013] 2 I.R. 631, Hogan J stated that Article 40.5 of the Constitution should not be confined to the sphere of criminal law and criminal procedure. Rather he characterised the guarantee of inviolability of the dwelling as “a free standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike” (para. 35).
97. The learned judge noted that the protection of the dwelling under the Constitution goes further than the near equivalent provisions of Article 8 of the ECHR. Whilst acknowledging that the Constitution was not intended to allow someone to profit from their own deliberate and conscious wrongful actions by invoking Article 40.5 to assert immunity from legal action and enforcement, nevertheless he went on to state that:
“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.” (Emphasis added)
98. The judgment continued by concluding as follows 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.” (Emphasis added)
In light of these matters, Hogan J adjourned the decision and invited 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.”
99. The determination of this point is to be found in Fortune (No. 2) [2013] IEHC 255. There Hogan J., having said that the test in Morris v. Garvey required to be recalibrated in light of Damache, described at para. 5, his understanding of the proportionality test which henceforth should be applied by the Court prior to making a demolition order in respect of one’s dwelling:
“Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J. in Morris v. Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.”
100. In applying this test, Hogan J. addressed in turn each of the three arguments made by the County Council as to why it would be inappropriate not to grant the order sought. These arguments related to the undermining of the effective protection of the environment, the precedential status of the unauthorised dwelling (in respect of which see paras. 131-132, infra), and the special conservation status of the area in which the chalet was built. He was not convinced that any of these matters warranted the demolition of the chalet, and summarised his responses thereto at para. 31 of his judgment:
“31. As, moreover, I have already indicated, 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 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 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.”
As a result, the development in question did not satisfy the test posed at paras. 41 and 42 of Fortune (No. 1).
101. In summary, therefore, the test proposed by Hogan J was that the moving party, in light of the inviolability of the dwelling, must by evidence convincingly establish that a demolition order is objectively justified on the basis of policy objectives, such as planning control/compliance and environmental welfare, and is the only proportionate response to the violation complained of. Unless the onus can be discharged to this threshold, the order should not be made.
102. The learned judge concluded as follows:
“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 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 the order requiring the demolition of the chalet.”
Wicklow County Council v. Kinsella [2015] IEHC 229 (“Kinsella”):
103. The test to be applied in applications under section 160 of the 2000 Act was again central in Kinsella. The applicants sought, inter alia, an order under section 160(2) directing the respondents to remove a timber chalet and associated works which had been erected for residential purposes without planning permission. An application for retention was refused at both first instance and on appeal. The respondents argued that, in light of the decisions in Fortune (No.1) and (No.2), their dwelling should be afforded sufficient constitutional protection such that the order sought should not be granted. In light of the arguments as advanced, the Court (Kearns P.) was required to revisit the test set down in these cases.
104. It is fair to say that the learned President took issue with much of what Hogan J. espoused in those cases. Although observing that the High Court will not lightly contradict or depart from its previous case law (Irish Trust Bank Ltd v. Central Bank of Ireland [1976-7] I.L.R.M. 50), Kearns P was satisfied that the circumstances were such that a dissonant view should be expressed. He set out at length the relevant sections of the Fortune judgments, and addressed also much of the other case law referred to earlier in this judgment. Noting that the respondents in both Fortune and Kinsella had not acted bona fide, he went on to state that:
“[H]ow – 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.”
105. Kearns P was unconvinced by the reliance which Fortune placed on Damache, observing that the case “had absolutely nothing to do with planning laws or the enforcement of same.” As to the new test suggested by Hogan J, the learned President held that:
“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.”
106. The President was further critical of other elements of the Fortune decisions:
“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. …
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 portions 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 …”
107. Finally, the judge made three further observations: that the making of a Declaration may not be available under the section and certainly is not within the competence of the Circuit Court and, as would follow, the High Court on any appeal therefrom; that a circuit appeal is not an appropriate forum in which to set down “novel legal principles”; and that section 160 is a special statutory original jurisdiction and is not a subsidiary aspect of some equitable jurisdiction to enforce public law (see paras. 74-82, supra)
108. The Court accordingly held that full enforcement under section 160 was appropriate and proportionate. Kearns P was satisfied that the Court ought to give practical effect to the enforcement of decisions based on conclusions which are within the exclusive remit of the relevant planning authorities.
The Correct Approach:
109. Although I do not share the views of Hogan J. in the Fortune cases above discussed, I wish to acknowledge at the outset the legal and constitutional ingenuity that led him to the conclusion which he reached. Whilst I do not accept that in a case such as this Article 40.5 can have the preeminent influence, if not dominance, which the learned judge accorded to its provisions, nonetheless those judgments may well refocus attention on and reinvigorate the journey which Article 40.5 has still to undertake. I would therefore very much resile from the rather strident language used in some parts of the Kinsella judgment.
110. Article 40.5 of the Constitution reads:-
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” (Emphasis added)
Article 8 of the Convention states:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The building as constructed by the Murrays can undoubtedly be regarded as both a dwelling and a home within the provisions as outlined. The question is what effect such provisions should have on the legal and factual situation as presented in this case. As Hogan J pointed out, it is probable that the Convention does not add to what Article 40.5 of the Constitution ordains and therefore, apart from a limited reference to it, an in-depth analysis of the Convention is not required.
111. It is, I think, correct to say that the key driver behind the Fortune test was Hogan J.’s view of this Court’s decision in Damache, which he described as having:-
“… 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.” (para. 1 of Fortune (No.2))
The subsequent references to The People (DPP) v. Cunningham [2013] 2 I.R. 631, and The People v. O’Brien [2012] IECCA 68 were more in the nature of supporting decisions rather than as having an added significance independent of Damache. With the utmost respect, I do not believe that Damache can or should be read in this way.
112. Whilst undoubtedly a dwelling house was involved in the Damache case, and whilst important in its own right, that fact however was not at the heart of the pivotal issue which faced the Court. Indeed, the Court’s reference to the home and to the protection afforded to a dwelling under both the common law and the Constitution was, if I may say, unremarkable, in that it recited and relied only upon well-established and well understood case law such as The People (Attorney General) v. O’Brien [1965] I.R. 142, The People (Attorney General) v. Michael Hogan [1972] 1 Frewen 360, and The DPP v. Dunne [1994] 2 I.R. 537. This was all totally understandable, as it was quite unnecessary for the Court to go any further than simply establish and identify the location of the search as being of the applicant’s dwelling.
113. The key argument made in Damache was that the issuing of a search warrant must be undertaken by an independent and impartial person who has no material interest in the decision to be made. Whilst normally that supervisory role is exercised by a District Judge, or by a Peace Commissioner, the real concern was how that requirement could be said to be satisfied when warrants under section 29(1) of the Offences Against the State Act 1939 were issued by a member of An Garda Síochána who headed the investigation in question, or who otherwise was central to the garda inquiries.
114. The rationale of the Court’s decision can be seen from para. 47 of the judgment, where Denham C.J. said:-
“The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example where there is an urgent matter.”
As the circumstances of that case failed to demonstrate any factor which might justify by-passing this process, the section in question was incompatible with the fundamental norms guaranteed by the Constitution, and thus violated its provisions.
115. Mr. Cunningham, at the time of the Damache decision, was incarcerated as a convicted person whose appeal was awaiting determination by the Court of Criminal Appeal. He sought to amend his grounds of appeal so as to rely on Damache and submitted that evidence procured as a result of the use of a section 29 warrant should have been excluded at his trial. Inherent to his argument was the fact that the premises searched was his dwelling house. The same issue, albeit in different circumstances, was raised in The People (DPP) v. O’Brien. Once more, the crucial link to Damache was that the search of the dwelling was carried out pursuant to a section 29 warrant.
116. The judgments of the Court, which were delivered in both cases by Hardiman J., could not be said to have added in any material, significant or novel way to the long established jurisprudence regarding Article 40.5 of the Constitution. Again, for much the same reasons as in Damache, it was unnecessary to do so. Whilst it is undoubtedly the case that in O’Brien the learned judge made the observations as are quoted by Hogan J. in para. 2 of Fortune (No.2), it is very difficult to see how such observations and those in Damache could have formed the springboard for the type of expansive utility assigned to the constitutional provision in question by Hogan J. in the Fortune cases. Quite apart altogether from the section 29 cases being in the criminal sphere, I do not read the judgments as forming a legitimate basis for absorbing the constitutional provision into planning law in the manner in which the learned judge saw fit to do.
117. I am not aware of the extent to which the entire terms of Article 40.5 fed into the Fortune decisions, as there seems little reference to what follows after the word “inviolable” in the provision. It is of course well-established that this section of the Article is not confined to preventing forcible entry only; any entry other than such as is in accordance with law is prohibited (Walsh J. in O’Brien [1965] I.R. 142 at 169; The People (Attorney General) v. Hogan [1972] 1 Frewen 360). However, the reference to forcible entry must have some significance, indicating perhaps that the focus of the guarantee is primarily on the “entry and search” power of investigating authorities. In saying this, I am not suggesting that the ambit of the Article is so confined. Rather, I mention the point as explaining why I am reluctant to specifically endorse the generalised description of it by Hogan J. as being “a freestanding, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike”. Such a statement, in non-qualified and unconditional language, is of immense reach, with potential capacity to travel to destinations quite unknown. I would be concerned as to the consequences of such a step. It is not the fear of far reach that concerns me; rather it is, first, the creation of that potential from a base which I do not think justifies it, and, secondly, from the factual context of the instant appeal, where the provision cannot possibly prevail over the countervailing factors which are present. As a result, I think the preferable course would be that any widespread expansion from the Article’s traditional sphere of influence should be case driven and individually worked out.
118. Despite this caveat, I am readily prepared to accept that Article 40.5 of the Constitution is not confined to criminal law or its procedural surrounds. It must, at the level of principle, have an application in civil law. Accordingly, my following observations on both Fortune (No.1) and (No.2) are based on an acceptance that the Article undoubtedly confers protection at a constitutional level on one’s dwelling house, whether that be where Ms. Fortune resides with her family or Mr. and Ms. Murray with theirs.
119. On my reading of the judgments in Fortune (No. 1) and Fortune (No. 2), Hogan J elevated the constitutional protections afforded by Article 40.5 to too high a position of prominence in the context of section 160 applications. The learned judge required that demolition should not be ordered unless the necessity for such step is objectively justified and convincingly established. Thus he held that before ordering demolition, it was not sufficient that the house be unauthorised, no matter how egregious that step might be, but rather that the authority would have 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.” Hogan J also understood ‘proportionality’ in this context in a broad sense, meaning whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection could be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.
120. In so doing, not only did the learned judge stand down what I have described as the traditional approach, but in addition he seems to have:-
(i) discounted the possibility that the integrity of the planning system could of itself be justification for a demolition order;
(ii) refocused the emphasis on the moving party having to establish reasons, specific to the particular development, as to why such a demolition order would be justified; and
(iii) assumed the responsibility to interrogate those reasons, as it happens to a conclusion which disagreed with and in effect set aside the reasons advanced by both the Planning Authority and An Bord Pleanála for refusing the retention application made by Ms. Fortune.
For the reasons following, I do not believe that this approach was the appropriate one.
121. Earlier in this judgment, I have examined the public interest imperative in upholding and maintaining planning control, planning regulation, orderly and sustainable development and the rule of law. As adapted to suit that branch of public concern, the courts have frequently accepted that the integrity of the asylum system, of itself, may be a sufficient justification for refusing entry, the making of a deportation order, or the Minister’s refusal to allow individuals to remain on humanitarian grounds. I cannot see why, at the level of principle, if the circumstances are so compelling, a similar approach should not be available for consideration in a planning context.
122. With the utmost respect to the learned trial judge, in shaping the decision in the manner in which he did, he placed undue influence on why a demolition order should be made. Given the public interest elements which I have previously identified, I very much doubt that this approach is correct. In addition, in the particular circumstances of the case, having regard to the development plan, the decision of the planning authority and ultimately that of An Bord Pleanála, and the reasons given therefor, the focus of the inquiry should have been on what basis and why such an order should not follow from the established evidence. That error inevitably led to many of the significant factors in favour of such an order not being given the due weight which they should have.
123. It will be recalled that in Fortune the retention application was rejected by the Board, inter alia, because:-
(i) the site in question was part of an “area of outstanding natural beauty” as designated in the County Development Plan; whilst some residential development was permitted, the applicant did not meet the necessary criteria. Accordingly, to grant retention would have contravened the stated policy of the plan and would have been contrary to the proper planning and sustainable development of the area; and
(ii) the access road was substandard in both horizontal and vertical alignment and in poor condition. Its use in the context of the development would therefore endanger public safety by reason of “traffic hazard and obstruction of road users.”
The question arises as to how far a judge, on a section 160 application, can review the merits of a retention refusal given by either the Planning Authority or An Bord Pleanála.
124. It is not an easy task to try and articulate a visible boundary line beyond which a judge should not go when applying the proportionality test. Some engagement with the facts is obviously required. However, he is not permitted to reach his own independent view on the planning merits of a case. That is the function of the planning process. The courts must not act as a surrogate for the nominated bodies. They have no role in performing such function through some process of reviewing the merits of a decision reached by either of them within their remit. Still less, do they have the expertise to carry out such a function.
125. In Dublin Corporation v. Garland [1982] I.L.R.M. 104 at 106, Finlay P. made this very point:
“There can, in my view, be no function in the court on the making of an application under [section 27] 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 Pleanála on appeal from them.”
Very much the same was said by Kearns P. in Kinsella.
126. I am not suggesting that this passage from Garland is necessarily the last word on the point, as the concept of proportionality has evolved very considerably in the past 30 years. However, even considering that development, I am satisfied that the Court should not embark on what might in effect be a further review of matters the determination of which is committed by legislative policy and statutory provision to stipulated bodies. Although in a somewhat different context, Denham J., as she then was, in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, emphasised that the courts should be reluctant to interfere with the decisions of expert bodies, such as An Bord Pleanála. See also South Buckinghamshire DC v. Porter [2003] 2 AC 558.
127. As part of his examination of the reasons which prompted the Board to refuse Ms. Fortune’s retention application, the learned judge concluded that the unauthorised development did not as such “jeopardise or threaten the rights or amenities of other parties”, and came to a like conclusion regarding the substandard condition of the access laneway: in his view it did not present a “real and imminent traffic hazard”. Such an examination and conclusion seems perilously close to conducting a further review of the merits of that rejection.
128. With the greatest of respect to Hogan J., in holding as he did, he effectively discounted the wilful and deliberate decision by Ms. Fortune to erect her chalet and the nature and extent of the planning violation at issue. These important considerations have virtually always been given great weight in the case law: I see little reason to change that. Such authorities also show that where the planning breach in question is a gross and intentional one, a removal or demolition order is certainly within the range of available remedies; the exercise of discretion in this manner in Kinsella, on the traditional approach, could not be seriously challenged.
129. While Fortune was justifiably entitled to highlight the constitutional importance of the dwelling in the context of section 160 applications, I do not believe that it was appropriate to go further and effectively reformulate the test in a way some distance removed from all the previous jurisprudence in this area. That the structure is a home remains but one of the factors which a Court will consider in exercising its discretion under that section but it should not be given undue weight vis-à-vis the other considerations above described. Perhaps most pertinently, the fact of the unauthorised development being a family home will not of itself, in my view, be sufficient to persuade a Court to exercise its discretion against demolition: important to that decision will be where the building has been constructed in such a deliberate and flagrant breach of the planning laws, as in both Fortune and here. This is the situation even in the absence of such factors as those mentioned at para. 42 of Fortune (No. 1). I believe that Article 40.5 of the Constitution does not compel me to reach any different result, and that the conclusion so reached is consistent with the ECHR and with the jurisprudence of the European Court of Human Rights (para. 139, infra). I accordingly find that the test under section 160 of the 2000 Act does not require to be recalibrated and that it was correctly applied by the trial judge in this case.
130. It may well be that Damache has led to a renewed appreciation of the potency of Article 40.5 of the Constitution. That decision did not, however, add layers of constitutional protection to the dwelling that were not already there, albeit arguably under-utilised. Moreover it is difficult to believe that like considerations were not taken into account by Courts when addressing section 27 or section 160 applications in any event, as the hardship argument would almost inevitably be seriously undermined if the property at issue was not a dwelling house. At the front of many submissions where a demolition order is sought will be that argument, however so framed. Such will self-evidently carry greater weight where the development in question is a dwelling and where the consequences of its demolition might be to render the inhabitant homeless. Such an argument, however forceful it might be, does not preclude a demolition order, nor can some ‘free-standing’ application of Article 40.5 tip the balance so wholly against that relief. It is not necessary to dwell on that argument, as it is simply to point out the obvious to state that Article 40.5 does not entitle a person to erect a dwelling on someone else’s property, then rely on that provision as a shield to prevent its demolition. Hogan J. did not intend that nor is it a logical corollary of his Fortune judgments. He did, however, attempt to recalibrate the test in such a way as to give undue weight to the fact of the development being a dwelling. For the reasons above stated, I do not think that this was the correct approach.
131. There are two further matters arising out of Fortune (No.2) which require comment. Hogan J held, at para. 13, that the Declaration of the chalet as an unauthorised structure was sufficient to deter others from flouting planning laws and erecting unauthorised structures. The basis for this was that such a property is “effectively unsaleable” and cannot be used as security for lending purposes. Such reasoning overlooks, however, the fact that many people may have no desire to sell their property or to use it as security. As the facts of the instant case show, the developer will often want no more than a place to call their home, particularly if they have ties to the area. The inability to sell-on or mortgage such a property will be of no deterrent value in such circumstances, and little in others.
132. Secondly, Hogan J. held that permitting Ms. Fortune to remain in the chalet would not have any value from a precedential perspective because only lawful developments can be considered in subsequent planning applications. However, in so doing he overlooked the real essence of the argument based on precedent. The point rather is that if the fact of the unauthorised development being a dwelling is so powerful a consideration that it threatens to overbear all countervailing factors, the taking of the law into one’s own hands becomes an altogether more attractive proposition. Whilst one would not wish to overstate the position, it could indeed quickly become a grave state of affairs if there was a reasonable chance of using Article 40.5 to successfully defeat an application for a demolition order of an unauthorised development; such would be entirely contrary to our planning laws and all of the important policy objectives that they aim to achieve.
133. Finally, as to the appropriateness of deciding a novel point of law in a Circuit Appeal, I would say only this: it is both the legal and constitutional duty of each judge to determine all relevant issues raised before him, in whatever form they appear, once he has jurisdiction to do so. Hogan J. was therefore not only entitled but was obliged to deal with the points articulated on behalf of Ms. Fortune, however novel, complex or difficult they may have been.
The Conventional Approach: (This Case):
134. I do not accept the appellants’ submission that the learned judge failed to consider, or did not accord proper weight to, the personal consequences and individual hardship to the appellants of the demolition order so made. In recounting the evidence offered, Edwards J. set out the basis for the appellants’ desire to live in the parish in question, and the reasons why they proceeded to build the home notwithstanding the refusal of planning permission. The learned judge then set out at considerable length almost the entirety of the affidavit of Rose Murray of the 25th November, 2009, describing it as an “articulate and impassioned plea ad miseriacordiam.” I would not demur from that description. Edwards J. stated that “the Court has had regard to all of the matters urged upon it by Counsel for the [appellants], as well as the matters deposed to by both [appellants] in their respective affidavits” and noted that he had “particularly considered the contention that it would be disproportionate and unduly harsh on the [appellants]” to make the orders sought. In reaching his decision, the learned judge stated that it was “[w]ith very great regret [that] this Court finds itself in agreement with the [planning authority]”. Once again, he recognised that the order made would “undoubtedly constitute an enormous hardship to the [appellants].” Therefore, on several occasions the learned judge expressly acknowledged the hardship which will be caused by demolition of the family home. Accordingly, the submission that he failed to appreciate the consequences of his preferred order cannot be entertained. I accordingly reject any submission that he did not consider the consequences of the order as made.
135. Neither do I accept that the learned judge erred in the weight which he attributed to each and all of the factors, including the personal hardship and family inconvenience that were advanced on behalf of the Murrays. These were very much at the forefront of his mind and evidently weighed heavily on the exercise by him of the court’s discretion under section 160. His conclusion speaks for itself:-
“With very great regret this Court finds itself in agreement with the applicants in this case. This is not a case of minor infraction, or of accidental non-compliance, or of non-compliance with some technicality. The unauthorised development carried out by the [appellants] 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 enormous hardship to the [appellants] to have to demolish their dwelling house, particularly in circumstances where the first named [appellant] is now a victim of the general down turn in the construction industry and there is 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.”
Disposal of the Appeal:
136. Save perhaps for the allegation that the course of engagement with Meath County Council was a source of frustration for the Murrays, there is otherwise virtually no dispute about the entirety of the background circumstances and factual situation pertaining. That the development had no planning permission is admitted; that the appellants were fully aware of the necessity to obtain planning permission is self-evident, but if verification is required it is obviously provided by the applications/appeals made by professional advisers on their behalf to both the Planning Authority and An Bord Pleanála, in respect of whose decisions no challenge has been mounted, and indeed by the suggestion that they could avail of the agricultural exemption under the Regulations, correctly described by Edwards J. as “frankly preposterous”. Their actions in building nonetheless were cited by the learned judge as being “particularly flagrant and completely unjustified on any basis”, a description one could hardly quarrel with. To have constructed the size and scale of the structure which they did is, in such circumstances, difficult to comprehend. A more reckless disregard for the rule of law is difficult to discern.
137. That both the prohibitory and mandatory orders made by the High Court will cause considerable hardship for the appellants, including financial loss, has been acknowledged, but the same was eminently foreseeable and directly proximate to their culpable behaviour. Their background connection with the area, their own individual family circumstances and those of their wider families, their integration into the local community, and of course the fact that they have three school going children, have all been recognised. Each and any other factor of relevance and materiality was fed into the equation. Having considered all of those personal factors as against the nature of the breach, Edwards J. felt that a restraining order on its own would be an inadequate response and that the same should be supported by a ‘removal and restoral’ order. To permit them to make the necessary arrangements in this regard, a stay of two years was placed on the execution of the order.
138. By the application of conventional principles, which is the correct approach, the decision of the learned judge could not be set aside on any of the grounds argued before this Court.
139. This conclusion is entirely compatible with the Strasbourg jurisprudence, as Chapman v. United Kingdom (Application no. 27238/95, judgment of the 18th January, 2001; (2001) 33 EHRR 18) shows. In that case the Court addressed a situation in which a Gypsy who lived in a caravan on her own land was refused planning permission, after which an enforcement notice was issued. She alleged that the refusal of planning permission and the enforcement measures amounted to breaches of Articles 6, 8 and 14 of the ECHR. In holding that the Convention had not been violated, the Court stated as follows at paragraph 102 of the judgment:
“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 the 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 prohibitions 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.”
Conclusion
140. For all of the reasons above mentioned, the order of the High Court will be upheld. The Court is mindful of the hardship this will cause for the appellants and the difficulties they may have in complying with the order. However, it cannot lose sight of the fact that the appellants have been living in the unauthorised development, which was deliberately constructed in flagrant breach of the planning laws, for over a decade. In all the circumstances, a stay on the order for a further period of 12 months from the date of this judgment is appropriate. However, it must be understood that the intention of this stay is so that the order of the High Court order can be complied with in full on or before that date.
Daly v Kilronan Windfarm Ltd
[2017] IEHC 308
JUDGMENT of Ms. Justice Baker delivered on the 11th day of May, 2017.
1. By notice of motion dated 24th November, 2016 the applicant has sought an order pursuant to s. 160 of the Planning and Development Act 2000 (“the PDA”) prohibiting the respondents from carrying out works consisting of the construction of a trench and the laying of underground 38 kV cables to provide a grid connection between a wind farm at Derrysallagh, Co. Sligo to the 110 kV substation at Garvagh Glebe, Co. Leitrim. As will appear later in this judgment the application that cables already laid be removed has been withdrawn.
2. The applicant is a farmer and the registered owner of the lands in Folio SL 18888 Co. Sligo which comprises land on both sides of the public road. The question of the title is the subject matter of plenary proceedings between the parties and will not be dealt with in this judgment.
3. The first respondent, Kilronan Windfarm Limited (“Kilronan”) holds the lands the subject of the wind farm development under an agreement for lease made on 27th July, 2015, and the leasehold interest was assigned to the second respondent Derrysallagh Windfarm Limited (“Derrysallagh”) on 29th October, 2015. Derrysallagh is now the occupier of the lands.
4. The respondents are the developers of the wind farm in respect of which the first respondent received a grant of planning permission on 26th April, 2013 from Sligo County Council (PL 12/133), for the construction of twelve wind turbines.
5. The primary planning permission was subsequently amended under planning reference PL 13/357 on 22nd March, 2014 by alteration of the permitted noise limits.
6. Condition 3 in the permission contained the following proviso:
“The permission shall not be construed as any form of consent or agreement to a connection to the national grid or to the routing or nature of any such connection”.
7. The planning application was accompanied by an Environmental Impact Statement (“EIS”) and Sligo Co. Council completed an Appropriate Assessment (“AA”) and an Environmental Impact Assessment (“EIA”) in regard to the wind turbine development, but not with regard to the grid connection.
8. No planning permission exists for the construction of the grid connection and the underground cable, which is to pass through three counties, Roscommon, Leitrim and Sligo. In the application for the primary planning permission, the developer anticipated that the grid connection would be by overhead connection to a different substation at Arigna and advised the planning authority of an offer from ESB Networks of a connection to that substation. However, in the events, a grid connection offer was received from ESB Networks for connection to the Garvagh Glebe substation on 29th April, 2015, almost two years from the date on which the planning permission issued. On 2nd December, 2015, after the ESB offer issued, planning permission was received from Leitrim County Council to construct an extension to the existing Garvagh Glebe 110kV substation and other associated works.
9. The applicant had lodged a submission regarding the proposed development on 29th May, 2012 in which he expressed concerns regarding the loss of amenity value, impact on his grazing rights and concerns regarding noise and visual impact.
Section 160 of the PDA
10. The originating motion seeks declaratory and injunctive relief including an order that the respondents should remove that part of the works already constructed at or near the lands of the applicant.
11. S. 160 of the PDA, as amended, provides as follows:
“160.—(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.
Exempt development?
12. Section 3(1) of the PDA defines development as:
“… 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”.
13. The laying underground of cable is the carrying out of work under and on land and involves a material change of use and is, therefore, development.
14. The respondents argue that the laying of conduit pipes is exempt from the requirement of planning permission as falling within Class 26 of Part 1 of the second schedule to the Planning and Development Regulations 2001, as amended by the Regulations of 2011, (“the Regulations”) which provides as follows:
“the carrying out by any undertaker authorised to provide an electricity service of development consisting of the laying underground of mains, pipes, cables or other apparatus for the purpose of the undertaking.”
15. Derrysallagh has the benefit of an Electricity Generation Licence dated 10th February, 2016 for the generation of electricity from Derrysallagh Windfarm, and an Authorisation to construct a generating station issued by the Commission for Energy Regulation on the same date. Derrysallagh therefore is for present purposes a statutory undertaker and an electricity undertaker within the meaning of the Regulations as it is authorised inter alia to transmit and distribute electricity in the State.
16. In general therefore the laying of underground cables is exempt development provided that the development does not come within the category of development which is deemed not to be exempt by virtue of s. 4(4) of the PDA, namely any development in which an EIA or AA is required of the type identified in s. 171A(1) of the Act.
17. Section 4(4) of the PDA (as substituted by the Act of 2011) provides:
“Notwithstanding paragraphs (a), (i), (ia), and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.”
18. No dispute arises with regard to the characterisation of the grid works as development, and whether the works of development are exempt depends then on the question of whether the works required an EIA/AA.
19. The circumstances in which an EIA or AA is required for a particular development are contained in s. 172 of the PDA, and Article 93 of schedule 5, part 2. para. 3(1) of the Regulations and provision is made for an EIA when a wind farm contains more than five turbines, or in the case of sub-threshold development where the planning authority or the Board determines that the proposed development is likely to have a significant effect on the environment. An underground grid is not an “installation for the harnessing of wind power”, but the treatment of the grid works as exempt must be made in the context of recent jurisprudence.
Project splitting
20. The present case involves a consideration in some detail of the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála [2014] IEHC 632. Peart J. was giving judgment in an application for judicial review of a decision of Cork County Council, affirmed with variation by An Bord Pleanála, to grant planning permission for the erection of six wind turbines and associated buildings and infrastructure. The permission did not relate to grid connection works and Peart J. held that in carrying out the EIA the Board had erred in failing to have regard to the cumulative effect of the entire development including the grid connection works and that an impermissible “project split” had occurred. Peart J. concluded that the turbine development and the grid connection was “one project, neither being independent of the other” and that it was not legally correct to treat the construction of the turbines as a “stand alone project when in truth it is not”. The grid works were an “integral part of the overall development of which the construction of the turbines is the first part”, and the environmental impact of those connection works was required to be considered in conjunction with the consideration of the environmental impact of the primary developments.
21. Peart J. held that the project could not, for planning purposes, lawfully be split into two independent parts:
“The wind turbine development on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, and in principle at least the cumulative effect of both must be assessed in order to comply with the Directive.”
22. Peart J. concluded, having regard to the requirements of the Directive 2001/92/EU (“the EIA Directive”), the successor of Directive 85/337, that an assessment is required as to whether there was any significant environmental impact from the grid connection development works taken on their own “or cumulatively with the wind turbine development itself”.
23. The matter in issue in that case was whether the EIA required to consider the impact of the project as a whole, including the grid works. The present case raises a different question, and where permission exists for the primary development, and where taken alone the grid works are exempt under statute.
24. The planning permission in the present case contains an identical condition relating to the grid connection as was contained in the permission granted by An Bord Pleanála in O’Grianna & Ors. v. An Bord Pleanála, by which it was expressly stated not to comprise a permission for the connection to the grid, and Peart J. noted (at para. 29) that that condition did not make the construction of the turbine conditional upon consent being given for the connection to the national grid.
25. Peart J. did not decide the grid works required planning permission, or a separate EIA or AA. Haughton J. in Sweetman v. An Bord Pleanála & Ors. [2017] IEHC 46, considered the import of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála in circumstances where the question before him was whether the applicant was out of time to bring proceedings seeking judicial review of a decision of An Bord Pleanála under s.5 of the PDA. An Bord Pleanála asserted that it had in fact carried out a cumulative EIA and that the effects of the proposed development taken as a whole were acceptable from the environmental point of view. The applicant argued inter alia, that his challenge to the decision of An Bord Pleanála under s. 5 of the PDA could not be out of time as challenge would have been premature pending the determination of An Bord Pleanála on the application for planning permission when the grid connection was not included in the determination under s. 5.
26. At para. 12.2 Haughton J., having noted that Peart J. considered that the connection to the national grid was fundamental to the entire wind farm project, and that “in principle at least the cumulative effect of both must be assessed in order to comply with the Directive”, commented as follows:
“His decision does not go so far as to say that separate EIA / AA of the grid connection must be carried out. Nor does his decision deal with the status of an earlier s.5 declaration of exemption in respect of the grid connection, or the impact of such a declaration on a later application for planning approval.”
27. The present case concerns to an extent the question observed by Haughton J. The issue here to be determined is whether it can be said that the works under construction are exempt.
28. Haughton J. correctly noted that the decision in O’Grianna & Ors. v. An Bord Pleanála did not address the import of a relevant s.5 declaration, and I turn to consider the argument in the present case regarding the declaration made by Leitrim County Council in relation to the grid works in its functional area.
The applications pursuant to s. 5 of the PDA
29. On 26th February, 2016, the first respondent submitted applications pursuant to s. 5 of the PDA to Leitrim County Council, Roscommon County Council and Sligo County Council for a determination in relation to the laying underground of the overall length of 9.48km of 38kV cable. The Sligo application relates to approximately 5.9km of cable within the townlands of Carrowcashel, Tullynure, Straduff, Glen and Ballynashee, Co. Sligo, of which the subject lands form part.
30. The applications under s. 5 of the PDA were accompanied by an Appropriate Assessment Screening Report and an EIA Screening and Environmental Report. The Screening Reports concluded that the proposed grid development did not fall into the class of development contained in parts 1 or 2 of Schedule 5 of the Regulations, and therefore no requirement for an EIA existed.
31. The applications to Sligo and Roscommon County Councils were withdrawn on 16th March, 2016, following the decision by Roscommon County Council on 14th March, 2016 to refer the questions to An Bord Pleanála for consideration. The affidavit of Denis Calnan sworn on 30th November, 2016 on behalf of the respondents says that the decision to withdraw the applications was made because the respondents were concerned by the length of time which the Board was taking at that particular time in considering such applications.
32. Another application for a s. 5 declaration was lodged with Sligo County Council on 6th October, 2016, in identical terms, but a decision was taken to withdraw that application on the following day, 7th October, 2016, “having regard to the advices received”.
33. Leitrim County Council made a declaration pursuant to s. 5 in respect of the grid works proposed in Co. Leitrim on 24th March, 2016 in which is recorded the following conclusion:
“…. the laying underground of approximately 2.8 km (38 kV) constitutes development and that such development is exempted development.”
34. The report from Bernard Greene, senior planner with Leitrim County Council, dated 21st March, 2016 which accompanies the decision, considered the impact of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála and expressed the view that “a planning authority need not slavishly adhere to an individual High Court case without giving due consideration to the facts in questions, having regard to the fact that the parent permission has not been challenged or revoked and to the legislation which is in place at the time of decision making”.
35. A similar decision was come to by An Bord Pleanála regarding a grid connection in Co. Wexford, RL3408/09/10/11 where the view of the inspector was that, as the permissions for the wind turbines had been granted before the decision in O’Grianna & Ors. v. An Bord Pleanála, and as the permissions were valid and beyond challenge, the development of the grid connection was capable of being considered to be planning exempt.
36. That decision, and other decisions to which the respondents refer, including a s. 5 declaration made An Bord Pleanála in similar circumstances in Co. Kilkenny, reference 10RL.3377, do not represent the law insofar as a view is taken by An Bord Pleanála or the planning authority that development of a grid connection was capable of being treated as exempt from the requirement of planning permission if the parent planning permission for the construction of the wind turbines and related works had been granted before the O’Grianna & Ors. v. An Bord Pleanála decision.
37. The judgment of Peart J. is declaratory of the law, a principle as old as Blackstone’s Commentaries (1766), that the role of the judge was “not delegated to pronounce a new law but to maintain and expand the old one”, what came to be called in later commentary the “declaratory nature” of the common law.
38. But as I explained in Ulster Bank Ireland Limited v. Kavanagh [2014] IEHC 299:
“It used to be said that judges did not make law but merely declared the law as it had always been. This proposition is now recognised as overly simplistic and as having evolved to explain the role of the judge who develops the law but yet does not displace the Oireachtas as law maker. The legal fiction developed to reconcile the interpretative interplay of the roles of stare decisis on the one hand and the fact that the court applies the law in an individual case and may in so doing have to explain or develop a principle only tangentially dealt with in other authorities, or may have to distinguish it by reference to some others”.
39. Whether this means a judicial determination of the meaning of, for example, a statutory requirement is “retrospective”, was explained in In H. v. H. [2015] IESC 7. Clarke J., delivering the judgment of the Court, said at para. 2.3:
“There is a sense in which any development in the common law is potentially retrospective. The court, in declaring the common law when a case comes to trial, is thereby applying the law as so declared to events which occurred, by definition, before the case came to trial. Thus, any evolution in common law principles which are determined as a result of a case heard today necessarily involves applying those principles to facts which occurred before that very evolution.”
40. In A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 Murray C.J. gave an explanation of the dilemma at p. 115 as follows:
“Thus, the conventional manner in which the law has been applied in a particular area for many decades may be greatly altered even turned on its head as a result of a particular issue being raised in a particular case at a particular point in time leading to an extension of the law by reference to general principles, the overriding of precedent or the specific interpretation.”
41. That a judicial determination does not have “retrospective effect” in every sense was explained by Murray C.J. at p. 117:
“Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.”
42. No judicial determination had been made in regard to the grid connection in the present development and accordingly the principles explained by Murray C.J. are not engaged, nor is the principle in Henderson v. Henderson (1843) 3 Hare 100. The view expressed by the inspector is incorrect as a matter of law and the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála is applicable to planning applications where the issue of project splitting is relevant, notwithstanding that there exists an unassailable permission for the primary development, because an application for judicial review or an appeal would be out of time.
43. The declaration made by Leitrim County Council pursuant to its statutory power under s. 5 of the PDA cannot be regarded as an authoritative determination with regard to the central issue before me as to whether the construction of the grid connection required planning permission, or whether it is as a matter of law correct to describe it as exempt from planning permission on account of falling within Class 26 of the Regulations. The s. 5 declaration was made in respect of different works in a different county, and I consider that the basis on which the declaration was made was erroneous as a matter of law, insofar as it determined the question of exemption without a proper consideration of the effect of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála.
Effect of the decision in O’Grianna & Ors. v. An Bord Pleanála
44. It is argued by the applicant that as a result of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, a developer of a wind farm project is not safe to apply for planning permission for the construction of the turbines and the works associated with the turbines without agreeing a grid connection with ESB Networks, and that the only permissible way in which a planning application can be made is by application for the whole project to include the grid works. I am not convinced that the matter can be stated in such broad terms, as there may be a number of ways in which an assessment of the entire project can be dealt with by a planning authority. In the present case, however, the planning permission issued two years before the grid connection was agreed and no EIA has been carried out, of either the grid connection itself, or of the whole project to include the turbines, associated works and grid connection works.
45. In the light of the decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, the grid works must be regarded as an integral part of the project as a whole and the assessment of the grid works is to be made in the context of the entire project, as must the assessment of the application for the turbines and works associated with them. That is not to say that a separate EIA will always be required with regard to the grid works and I adopt the dicta of Haughton J. in his judgment in Sweetman v. An Bord Pleanála & Ors. in that regard.
46. However, as the grid works are part of an overall project, and an EIA is required for the overall project, an environmental assessment must be carried out of the entire project, and, therefore, no part of the project, and ipso facto no individual part treated as a standalone element, can be exempt from planning. This emerges from the European jurisprudence to which I now turn.
European context
47. The approach of Peart J. to “project splitting” was taken within the context of European case law which I consider supports the proposition for which the present applicant contends, namely that grid connection works cannot be treated as exempt development.
48. Whether a particular development divided into a series of projects or sub-projects can be regarded as impermissible project splitting depends on the facts. That this is so is apparent from the opinion of Advocate General Gulmann in Bund Naturschutz in Bayern v. Freistaat Bayern case C – 396/92 [1994] ECR 1 – 13717 where he said:
“71. The important question in the present connection is not, however, which projects are to be subject to an environmental impact assessment. It is whether, in connection with the environmental impact assessment of the specific project, there is an obligation to take account of the fact that the project forms part of a larger project, which is to be carried out subsequently, and in the affirmative, the extent to which account is to be taken of that fact.
The subject-matter and content of the environmental impact assessment must be established in the light of the purpose of the directive, which is, at the earliest possible stage in all the technical planning and decision-making processes, to obtain an overview of the effects of the projects on the environment and to have projects designed in such a way that they have the least possible effect on the environment, that purpose entails that as far as practically possible account should also be taken in the environmental impact assessment of any current plans to extend the specific project in hand.”
49. He goes on to provide examples:
“72. For instance, the environmental impact assessment of a project concerning the construction of the first part of a power station should, accordingly, involve the plans to extend the station’s capacity fourfold, when the question of whether the power station’s site is appropriate is being assessed.
Similarly, when sections of a planned road link are being constructed, account must be taken, in connection with the environmental impact assessment of the specific projects of the significance of those sections in the linear route to be taken by the rest of the planned road link.”
50. In the context of the present case the guiding principle identified by Advocate General Gulmann is that an application must have regard to the purpose of the Directive with the practical effect that any future associated works should in general be included.
51. The ECJ did not consider it necessary to deal with the question in that case and confined its considerations to the determination of the time limits for the transposing into national law of the Directive
52. The matter however, was considered by the ECJ in Commission v. Spain Case C-227/01, [2005] Env LR 20, where the question related to the Valencia to Tarragona railway project. The ECJ considered that it was impermissible to consider the part of the project comprising a new by-pass line to be “a mere modification of an existing project”, and that “the Directive’s obligation could not be allowed to be undermined by the splitting up of such a project into a number of successive shorter sections”. At para. 59 of its judgment the Court pointed to the relevant criterion for the implementation of Directive 85/337 as “the significant effect that a particular project is ‘likely’ to have on the environment”.
53. A similar approach is found in the judgment involving a power line running between Austria and Italy in Umweltanwalt von Kärnten v. Kärntner Landesregierung Case C-205/08, [2010] Env LR 15 where the ECJ held that the whole project was such that it would require mandatory assessment under the Directive, and that the purpose of the Directive could not be circumvented by splitting a project in order to avoid assessment of its cumulative effect. The Court pointed to a number of decisions already given in which this conclusion was established, including Commission v. Spain; Commission v. United Kingdom; Case C-508/03 [2006] E.CR 1-3969 and R. (on the application of Barker) v. Bromley LBC Case C-290/03 [2006] E.CR 1-3949. It summarised that law as follows at para. 53:
“moreover, the court has held that the purpose of Directive 85/337 cannot be circumvented by the splitting of projects and that the failure to take account of the cumulative effect of several projects must not mean in practice that they all cease to be covered by the obligation to carry out an assessment, when, taken together, they are likely to have ‘significant effects on the environment’ within the meaning of Art. 2(1) of Directive 85/337.”
54. As a matter of European law the assessment of whether the grid connection works can be treated as exempted development is one that must be considered in the context of a reading that best achieves the aims and objectives of the EIA Directive. I consider that on account of the fact that the grid works cannot be lawfully separated from the project as a whole, that to treat the grid works as exempt fails to give effect to this principle.
Collateral attack on the wind farm permission
55. I am not persuaded by the argument of the respondents that the present application under s. 160 is an impermissible collateral attack on the wind farm permission. That point was considered by Haughton J. in Sweetman v. An Bord Pleanála & Ors. The primary planning permission is now incapable of challenge, and the present application is confined to the question of whether the grid connection works are exempted development. The assessment of the environmental impact of the project as a whole is one within the competence of the planning authority and a number of possible scenarios may evolve, including that Sligo County Council may grant planning permission, carry out an EIA, or determine that a further EIA is required of the project as a whole. My concern is solely the question whether the works are exempt. The primary permission is not under challenge as it contains no particulars whatsoever of the grid works.
Summary on exemption
56. The onus is on the respondents to establish that the grid works are exempted development: see Hogan J. in Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 and McKechnie J. in South Dublin City Council & Anor. v. Fallowvale Limited [2005] IEHC 408. The respondents have not shown me that as a matter of law, the grid connection works can be deemed to be exempt.
57. The respondents argue that the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála is not on point. Planning permission exists in the present case for the turbine development, and is now exempt from challenge. The decision in O’Grianna & Ors. v. An Bord Pleanála does not mean that Peart J. was of the view that planning permission was required for the grid connection merely on account of the fact that it was part of a larger project. However his judgment, it seems to me, carries a necessary implication that because the grid connection is part of the larger project, and if one identified part of that project requires an EIA, the grid connection works cannot be considered to be exempt development, as they are part of a larger development which requires an EIA.
58. As the grid works are part of a development that does require an EIA, the local authority must carry out an environmental assessment in the context of the project as a whole of which the grid connection forms part.
59. In interpreting the provisions of the PDA which permit an exemption in certain circumstances, a court should not come to a conclusion which has the effect that a project can be impermissibly split, albeit that taken alone part of the project could readily be seen as coming within the exemption. The general principle must be that the project must be considered as a whole, and therefore any argument that an exemption can exist is one that cannot be determined without reference to that first principle.
60. Arising from the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, and the European case law, and because the interpretation of the exemptions in the PDA must be given one that is supported by the European context, I do not consider that my decision rests on whether the respondents are correct, that the net import of the Appropriate Assessment Screening Report and the EIA Screening and Environmental Report submitted which show no likely environment impact.
61. The planning authority has not carried out an EIA and the Screening and Environmental Reports prepared by Fehily Timoney Associates on behalf of the first respondent, while they might have supported the consideration by Leitrim County Council which led to its determination under s. 5, and are to be regarded as evidence of a likely environmental impact, they are not a finding of such. The carrying out of an EIA is the function of the planning authority and one which has not yet been engaged.
62. I am not satisfied that the grid works can be characterised as exempt, and the matter of whether an EIA is required is a matter for the Board. This is the approach taken by Peart J. when the matter returned before him, and he delivered a second judgment, [2015] IEHC 248, by which he rejected the argument that the breach could not be cured by remittal to the Board, and did remit, in order that the Board could proceed in whatever way it considered proper having regard to his conclusion.
The relief sought
63. It was accepted in the course of argument that the applicant would no longer pursue application for the restoration of the lands and the removal of the conduits already laid, a prudent concession having regard to the fact that at the time the proceedings were commenced approximately 70% of the cable had already been laid in the relevant location. I propose therefore to consider the application that the respondents would cease the works, and that they be prohibited from carrying out any further works.
64. The applicant relies on my judgment in McCoy & Anor. v. Shillelagh Quarries Ltd. & Ors. [2015] IEHC 838 and in particular paras. 62-66 thereof, where I reviewed the factors that might influence the discretion of a court in considering whether to grant an order pursuant to s. 160 of the PDA where European environment factors are in play. At para. 66 I said the following:
“Thus I consider that the court has discretion, that it must be exercised sparingly, that the imperative of Community law must be respected in the exercise of discretion, and that the court should have as its starting point the fact that a development is unauthorised and that it may not by the exercise of its discretion “tacitly accept” the breach to adopt the terminology of Clarke J. in Cork County Council v. Slattery Precast Concrete Ltd.”
65. Clarke J. in Cork County Council v. Slattery Precast Concrete Limited & Ors. [2008] IEHC 291 favoured a similar approach, and noted that, while the court retained a discretion as to whether it might grant an order under s. 160 where it is established that there has been unauthorised development, that discretion is to be “sparingly exercised” (para. 12.1):
“At the same time the starting point has to involve recognition that unauthorised development is unlawful and that a court should be slow to tacitly accept the unauthorised nature of a development by giving any undue leeway to the party who has been guilty of the unauthorised development in the first place.”
66. Further, the present case engages the imperative to respect Community law in the exercise of discretion and the requirement under Community law for the protection of the environment as mandated by the EIA Directive. The environmental factor is a significant element in this case, and while I accept that the respondents did not act deliberately in a way that ignored the imperative of Community law, and that planning permissions exists for the primary development, their advice and understanding of the law was incorrect, and the respondents were aware of the rejection of “project splitting” by Peart J. in O’Grianna & Ors. v. An Bord Pleanála.
67. With these principles in mind, I turn now to consider the relevant discretionary factors.
Factors in the exercise of discretion
68. The respondents rely on a number of discretionary factors identified in the case law, as separately, and taken together, sufficient to deny the applicant relief. In particular, reliance is placed on the factors identified by the Supreme Court in Derrybrien Development Society Limited v. Saorgus Energy Limited & Ors. [2015] IESC 77, the relevant ones which may be usefully summarised as follows:
(a) the conduct and motivation of the applicant, including delay;
(b) the balance of prejudice between the applicant and the respondent, it being said that the applicant suffers no prejudice and the respondent will suffer prejudice;
(c) that the breaches are technical or trivial; and
(d) the public interest.
Discretion: conduct generally and delay
69. The primary argument the respondents make is that the applicant has delayed inordinately in seeking relief, having regard to the extent of cable now laid. The concession by the applicant that he does not seek the removal of the cable deals to some extent with the argument of delay, and the justice of the matter can be dealt with by an order which concerns only the prospective application in regard to future works.
70. The respondents argue that the applicant has an ulterior motive and has shown a lack of candour. The applicant objected to the wind farm development and has sought compensation for damages for inconvenience and alleged loss of grazing rights in other proceedings, and no evidence of likely environmental impact has been adduced by the applicant in this application.
71. The planning permission for the wind farm development will not expire until April, 2023. The concern of the respondents that government grant aid was limited in time is no longer a consideration as the grant aid deadline has been extended. The applicant lives locally and made submissions raising concerns regarding the amenities to his house and farm as well as concerns over the loss of grazing rights.
72. The applicant says that he became aware in August, 2016 that the construction of access roads into the wind turbine site had commenced, and that his legal and environmental advice had been that the works could not commence until planning permission existed for the development as a whole, including the grid works. Correspondence commenced with the secretary of the first respondent on 17th August, 2016. That letter related to the possible impact on the grazing rights and did not raise any planning, environmental or statutory concerns. The reply from the solicitors for the first respondent came on 12th September, 2016, but again confined itself to the question of the existence of grazing rights.
73. It was not until 28th September, 2016 that an initiating letter was sent by the solicitors for the applicant in which it was said that the works of laying underground cables had commenced without planning permission. An undertaking was sought, and by a letter of 4th October, 2016, the solicitors for the first respondent denied that unauthorised works were being carried out and suggested a meeting.
74. The applicant’s solicitors sent a letter on 15th November, 2016, identifying the folio lands of which he is registered owner, and again pointed to the requirement for planning permission, an EIA or an AA. A formal threat to commence an application for a planning injunction under s. 160 was made.
75. A reply was received on the following day in which the solicitors for the respondents inter alia confirmed that Kilronan had the benefit of a road opening licence from Sligo County Council to carry out the relevant works on the public road, including the public road “outside” the folio lands of the applicant and that as a “road” for the purposes of the Road Act 1993 includes the grass margin on which most of the works were being carried out, the works were authorised and could not constitute a trespass. An offer was made to reinstate the grass verge to the satisfaction of Sligo County Council. It was said that, as the works had commenced before 4th October, 2016, the works were substantially completed and that the applicant’s delay would prevent the grant of injunctive relief.
76. In the meantime, Sligo County Council sent a warning letter of 1st November, 2016, issued pursuant to s. 152 of the PDA in regard inter alia to the laying of the cables and conduits. It seems that no further steps have been taken by Sligo County Council.
77. Application for an injunction was sought by notice of motion issued on 24th November, 2016, returnable for 30th November, 2016.
78. The chronology on which the respondents rely is as follows:
· Works commenced on 12th September, 2016, and
· The applicant was aware of the works at the latest on 28th September, 2016, the date of the initiating letter.
· A period of eight weeks passed before the motion issued.
79. I consider that it was reasonable for the applicant to delay application for an order under s. 160 once he knew that the local authority had issued a warning letter, as he could have expected a full resolution of his environmental concerns through the Council engagement. Furthermore, I accept his evidence that it was not until 15th November, 2016, that the development works commenced at or near the boundary of his lands. I reject the suggestion that I would concern myself with the motivation of the applicant, and that he is not so much concerned with environmental questions but with his own interest arising from his grazing rights and the fact that his objection to the parent planning permission was not sustained. He is a citizen exercising a statutory right in regard to the works with which the local authority has expressed concerns.
80. The applicant has at all material times opposed the project, and has commenced proceedings seeking declaratory relief with regard to, inter alia his claim of the loss of, or interference to, his grazing rights. I do not accept that there is any significant delay, and delay must be considered in the context of whether it was reasonable of the applicant to negotiate, as he clearly did, and to await consideration by Sligo County Council following service by it of a warning letter.
81. Laches and delays are always a factor in an application for an injunction, because of the fact that a party may, on account of the delay or acquiescence of another, have engaged in actions which are either irrevocable or which are costly to reverse. In the instant case no specific prejudice would be caused to these respondents were the works not to conclude pending further determination by Sligo County Council regarding the planning status of the grid works. At the present time no works of any substance have been carried out on the wind farm project itself, and the timeframe for the relevant Refit grant aid has been extended.
82. In the High Court in Sweetman v. Shell E&P Ireland [2006] IEHC 85, [2007] 3 IR 13 Smyth J. held that it would exercise its discretion to grant relief on account of hardship because the delay:
“has had the effect of very significantly increasing the financial loss that would be suffered if an order under s. 160 had the effect of delaying the completion of the development ….” (para. 67)
83. These circumstances are not operative in the present case.
84. I am not satisfied that the conduct of the applicant should prevent the grant of the limited form of injunctive relief now sought.
The road opening licences: A discretionary factor
85. The question of the ownership of the road became a matter of some dispute in the course of the hearing. The respondents rely on the fact that the road is a public road and that a road opening licence exists in respect of the works, as sufficient evidence, not in regard to the planning status of the works, but as a matter to which regard should be had in the exercise of discretion under section 160.
86. Sligo County Council granted a licence pursuant to the Roads Act 1993 (“the Act of 1993”) for a “road opening licence” under registration 2016 SO 0054 in respect of the works for two periods, 13th June to 13th September, 2016, and thereafter from 13th September, 2016 to 31st December, 2016. Similar licences were granted by Leitrim and Roscommon County Councils. In each case, the licence issued to the predecessor in title of Derrysallagh but nothing turns on that fact for the purposes of the present application. The licence permitted works on the public road subject to detailed conditions for reinstatement and made provision for separation distances with existing pipes and cables and other similar conditions.
87. The subject lands form part of the public road in respect which the road opening licence was granted, and the respondents argue that by virtue of the granting of the road opening licence, they are “thereby authorised to carry out the construction of the said grid connection within the public road” (para. 6 of second affidavit of Denis Calnan sworn 15th December, 2016).
88. The applicant’s folio lands lie on either side of the roadway, and in general ownership of folio lands abutting the public road includes ownership of the surface of the road to the midpoint.
89. It is accepted that the road is a public road within the meaning of s. 2(1) of the Act of 1993 which defines a public road as:
“a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority.”
90. Section 13 of that Act provides the duty and power of the local authority to maintain and construct public roads, the provision for the so called “taking in charge” of roads.
91. The local authority has, by virtue of taking a road in charge, assumed liability and power to maintain the road but the title does not thereby vest. Butler, Keane on Local Government (2nd Edition, 2003) at p. 84 explains the matter as follows:
“At common law everything between the fences including the footpaths, cycle tracks and grass margins constitutes the public road, unless there is evidence to the contrary. Unless their land has been acquired for the purposes of building the road, the owner of the land remains the owner of the soil and the space above subject to the public use of the road. This was defined in ancient times as follows:
‘The King has nothing but the passage for himself and his people, but the freehold and all the profits belong to the owner of the soil.’ (One Roll.ABR.392)
At common law the presumption is that the owner of the land beside the road is the owner of the soil to the centre of the road. The owner of the soil is entitled to the produce of the land, including the trees and grass growing on it.”
92. It is an offence to excavate a public road without the consent of the local authority, and the road opening licence granted by Sligo County Council is given pursuant to the statutory power and subject to conditions, restrictions or requirements to which the same may be made. The road opening licences are granted pursuant to s. 13(10)(b) of the Act of 1993 as follows:
“(b) A consent under paragraph (a) may be given by the road authority subject to such conditions, restrictions or requirements as it thinks fit and any person who fails to comply with such conditions, restrictions or requirements shall be guilty of an offence.”
93. The granting of a road opening licence displaces the provisions of s. 13(10) (a)(iii) that it is an offence to excavate the road without consent, but a road opening licence does not confer a right or interest in the soil, as the purpose of the licence is to provide consent for an action which would otherwise be an offence under the Act.
94. In McKeever v. Hay & Ors. [2008] IEHC 145, Feeney J. held that the laying of pipes across the verge of a public road and the entry onto the lands in the absence of consent amounted to a trespass, and the placing of water pipes thereon resulted in a continuing trespass, notwithstanding that the pipes were being laid on behalf of Donegal County Council.
95. The grass verge is prima facie the property of the applicant, and no consent to enter has been given. Thus, prima facie, there is a trespass, and the road opening licence does not of itself amount to authorisation or permission to enter upon private land.
96. The applicant further argues that my discretion is engaged by the fact that the respondents do not have a licence pursuant to s. 254 of the PDA, the relevant part of which provides as follows:
“(1) Subject to subsection (2), a person shall not erect, construct, place or maintain—
(g) any other appliance, apparatus or structure, which may be prescribed as requiring a licence under this section, on, under, over or along a public road save in accordance with a licence granted by a planning authority under this section.”
97. No such permission or licence exists in the present case and the applicant argues that the respondents are therefore prima facie guilty of a criminal offence.
98. However, it is accepted that the respondents are a statutory undertaker as defined by s. 2(1) of the PDA, being a body authorised to provide or carry out works for the provision of electricity under s. 2(1)(b), and hold a licence or “instrument”, to use the language of s. 2(1), from the Commission for Energy Regulation pursuant to s. 16 of the Electricity Regulation Act 1999. In those circumstances I accept the argument of the respondents that the class of works engaged by them on the roadway the subject matter of the present application is one to which s. 254(2) provides an exemption from the requirements of s. 254(1) namely:
“(2) This section shall not apply to the following—
(c) the erection, construction, placing or maintenance under a public road of a cable, wire or pipeline by a statutory undertaker.”
99. Further, ss. 51 and 52 of the Electricity Supply Act 1957 (“the Act of 1957”), as amended, and s. 48 of the Act of 1999, in certain circumstances give power to local authorities and other authorities to interfere with public roads. Butler at p. 57 of his text suggests that the power of a local authority may include the power “to interfere with the rights of adjacent property owners” even without provision for compensation. For present purposes, I do not consider it necessary to decide if the provisions of the Act of 1957 or of the Act of 1999 are to be read as including a power of those authorised by a licence from a local authority to enter upon private roads, and I am prepared to accept that such proposition is at least arguable.
100. Insofar as the question of whether there was a trespass engages my discretion for the purposes of s. 160 of the PDA, the applicant has sufficiently identified the legal basis on which he makes this challenge and which he argues that the respondents have entered these lands without either planning permission, permission from him, or a statutory power so enabling them. Therefore, I do not accept that if there is a breach of the requirements of planning law, the breach is trivial in that the respondents were otherwise authorised to enter upon the lands and lay the conduits. The existence of a statutory licence or authorisation under the relevant statutory schemes cannot displace the requirement to obtain planning permission, but is a factor in favour of the respondents who cannot be said to have wholly disregarded the necessary other statutory requirements.
Discretion: the public interest
101. There are a number of public interests engaged in the present case. One coincides with the interest under Community law, the interest of the public in preserving what is recognised as being the significant amenity value of the subject lands in an isolated area of exceptional public beauty. Having regard to the prudent concession by the applicant that he will not seek the removal of the conduits already laid, the public interest in not being further inconvenienced by further road works on the site has been adequately dealt with.
102. I do not accept that what has occurred is a technical or trivial breach. It might in certain circumstances be such, were the issues solely related to the carrying out of works on the public road. However, the issue engages questions of environmental protection and the need, in the light of the judgment of Peart J. in O’Grianna & Ors. v. An Bord Pleanála, to have regard to the environmental framework of a wind farm project as a whole. Therefore, while I accept that no specific individual environmental factors have been identified by the expert witness who gave evidence on affidavit on behalf of the applicant, because the grid connection must be considered as part of the overall project, and as the overall project is one of significant potential for environmental damage, a description of the breach as being trivial, minor or technical fails to reflect the broader environmental context in which this application was brought. The assessment of the environmental impact is a matter for the planning authority.
Conclusion
103. For these reasons, and weighing the prejudice likely to be suffered by the respondents, the fact that the Refit grant time limits have been extended, and that the primary works are not yet commenced, I propose making a limited order prohibiting the continuation of the grid construction and laying works, but no order that the works already completed be removed or that the lands be restored.
Dublin Corporation -v- Lowe
[2004] IESC 106
Court: Supreme Court
Composition of Court: Murray C.J., McCracken J., Kearns, J
Judgment by: McCracken J.
Status of Judgment: Approved
J
Judgment of Mr Justice McCracken delivered the 17th day of December 2004
_________________________________________________________
This is a matter with a somewhat lengthy history. By notice of motion dated 18th May 1999 the Appellant sought the following reliefs pursuant to s.27 of the Local Government (Planning and Development) Act 1976 as amended, namely:-
“1 An order, directing the respondents and each or either of them, to forthwith discontinue the unauthorised use of the exterior flank wall (Chancery Place elevation) at first and second floor level of the premises situate at and known as Number 3, Inns Quay, Dublin 7, for advertisement purposes.
2 An order, directing the respondents and each or either of them, to forthwith remove the advertisement hoarding (including all fixtures and fittings) erected on the exterior flank wall (Chancery Place elevation) of the premises situate at and known as Number 3, Inns Quay, Dublin 7, by the respondents and each and either of them, without the benefit of planning permission.”
By order of Morris P dated 4th February 2000 an order in the terms of paragraph 1 of the notice of motion was granted to the Appellant, but an order in the terms of paragraph 2 of the notice of motion was refused. The Respondents appealed to the Supreme Court and by order dated 15th May 2001 the Respondents’ appeal was allowed and the matter was remitted to the High Court for the determination of the remaining issues with directions as to the filing of points of claim and points of defence. The matter was duly re-entered before the High Court and by order dated 4th February 2003 the application of the Appellant was dismissed. Now before the Court is an appeal by the Appellant against such dismissal.
The only issue now before the Court is the claim set out at paragraph two of the notice of motion.
The claim relates to the gable wall on the first and second floors of premises known as Number 3, Inns Quay, which premises are situate at the corner of Inns Quay and Chancery Place. The gable wall in question in fact fronts onto Chancery Place. There is a large advertisement hoarding attached to the gable wall, and it is alleged by the Respondents, and found as a fact by the learned trial Judge, that an advertisement hoarding has been erected and in place on that wall since the late 1950s or even earlier, and that the wall had except for very short periods been used continuously for the purpose of appending to it a hoarding. Prior to December 1995 the use of the hoarding had been contracted out to David Allen Holdings by the first named Respondent and indeed the hoarding that had been then present had presumably been erected by David Allen Holdings. Their contractual arrangements with the first named Respondent terminated in December 1995 and new contractual arrangements were entered into between the first named Respondent and the second named Respondent. The David Allen Holdings hoarding was removed on or about 15th December 1995 and the second named Respondent erected a new advertisement hoarding on the gable wall on 19th December 1995, which has remained there ever since.
The Appellant’s claim is that the erection of the new hoarding on 19th December 1995 constitutes a development within the meaning of s.3 of the Local Government (Planning and Development) Act 1963, where “development”, save where the context otherwise requires, is defined as:-
“The carrying out of any works on, in, or under land or the making of any material change in the use of any structures or other land.”
“Works” is defined in s.2 of the Act as:-
“Includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.”
The relevant portion of the definition of “unauthorised structure” in s.2 is:-
“… a structure other than (i) a structure in existence on the commencement of the appointed day …”
The trial Judge has found as a fact that on the appointed day, namely 1st October 1964, there was in existence the gable wall with a hoarding affixed to it. He also found that hoardings had been renewed or replaced from time to time, with the time periods between the removal and replacement being no more than a few days on any occasion. There is no evidence as to the exact dimensions of the hoarding which was in place in 1964, but it is not suggested by the Appellant that the hoarding which was erected in 1995 by the second named Respondent is in any material way different from that which was on site in 1964, and it is expressly found by the learned trial Judge that the new hoarding erected in December 1995 is identical in its dimensions with that which immediately pre-existed it. The sole issue, therefore, is the effect of such removal and renewal.
I am quite satisfied that this operation constituted “works” within the meaning of the planning legislation, and further that it was a “development”. That being so, the structure which is now on site was not in place or in existence on the commencement of the appointed day, but was placed there in December 1995.
This leads to a consideration of the final portion of the definition of “unauthorised structure” in s.2, namely:-
“… A structure other than (ii) a structure the construction, erection or making of which was the subject of a permission for development granted under s.26 of this Act, being a permission which has not been revoked, or which exists as a result of the carrying out on or after the appointed day of exempted development.”
Clearly no permission for development was granted under s.26 of the Act, but the Respondents argue that what was carried out was an exempted development under s.4(1)(g) of the Act. This provision reads:-
“(1) The following shall be exempted developments for the purposes of this Act
……………
(g) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.”
It is accepted by the Respondents that what took place was not maintenance or improvement, but they argue that it was an alteration. “Alteration” is, not very helpfully, defined in s.2 of the Act as:-
“Includes any plastering or painting which materially alters the external appearance of a structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.”
Clearly s.4(1)(g), by referring to “other alteration”, implies that there can be alterations which do not materially affect the external appearance of the structure or render such appearance inconsistent with the character of the structure or of neighbouring structures. In that context, therefore, “alteration” cannot be confined to something which materially affects the appearance of the structure. The alteration which is contended for in the present case is the replacement on the gable wall of a new hoarding in place of the then existing hoarding.
One of the essential findings of the learned trial Judge was that what he called “the planning unit” consisted of the gable wall with the hoarding attached to it. It follows logically from this finding that there has been an alteration to that planning unit by the substitution of one hoarding by another. I would also put it another way, and hold that the structure with which we are concerned is the structure which has been in place since prior to October 1964, and is in fact the building or gable wall of the building with an advertisement hoarding attached to it.
In Cairnduff v. O’Connell [1986] IR 73 a balcony and staircase were erected at the rear of a building on which there had, some years previously, been a balcony and staircase, although of different dimensions. At page 77 Finlay CJ said:-
“On the facts of this case I am satisfied that the erection of the balcony and staircase and the opening of the window are works which materially affect the external appearance of the structure. It is, I think, clear that if a structure had a particular adjunct such as a balcony and stairway, and if for a relatively short period of time that had been removed or had become demolished, its replacement with one of substantially the same size and appearance would not materially affect the external appearance of the structure on the basis that immediately when that work commenced no balcony or staircase existed.”
While it can be said that that statement is obiter, as those were not the circumstances of the case being considered, nevertheless it does provide some guidance to the Court.
The Appellant also referred to Dublin Corporation v. Regan Advertising Ltd & Ors, which dealt with a situation where there had initially been advertising material painted on the exterior of a wall, which advertised the business of the occupiers of the premises, but subsequently this was changed into advertising material fixed to the wall which did not relate to the occupiers’ business. The Appellant also relied on Finglas County Council v. Crean & Anor (Unreported O’Caoimh J 19th October 2001), which concerned the replacement of and addition to freestanding advertising hoardings which did not form part of any other structure. I do not think that either of these cases are particularly helpful, as the former case was concerned primarily with change of use and the latter case did not deal with advertising as a part of a building, nor did it consider the question of whether there might have been an alteration within the meaning of s.4(1)(g).
For reasons I have already stated, I am of the view that the word “alteration” must apply to something wider than a mere visual alteration. I think the learned trial Judge was correct in treating the gable wall with the hoarding affixed to it as a unit or structure within the meaning of the planning legislation, and that removing the hoarding and replacing it with a new hoarding altered the structure. Indeed, it could at least be argued that the removal of the hoarding could itself be an alteration to the gable wall which would not come within the exemption provided by s.4(1)(g), insofar as it might materially affect the external appearance of the structure.
I think it is unreal to look at a hoarding of this nature as a structure in isolation from the rest of the building. I also think it is unreal to suggest, as seems to be implicit in the Appellant’s case, that it would be lawful to replace all the constituent parts of the hoarding provided the parts were replaced separately, while it is unlawful to replace the entire hoarding at the same time.
The Appellant also submits that in any event the advertisement hoarding did materially affect the external appearance of the premises so as to render its appearance inconsistent with the character of the premises itself or that of neighbouring structures. It is, of course, true that the building itself is an old Georgian building, and no doubt advertising hoardings such as the present one would not have been present or in contemplation of the owners of the original building in Georgian times. However, what this Court is concerned with is the alteration of the hoarding by the substitution of a new hoarding, and that in itself in my view cannot possibly be said to have materially affected the external appearance of the premises.
For the reasons given, therefore, I would dismiss this appeal.
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)
1
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.
Cases Unlawful but Immune
Dunnes Stores v Dublin City Council (No. 1)
[2017] IEHC 148
JUDGMENT of Mr Justice Max Barrett delivered on 2nd March, 2017.
I. Background
1. Dunnes Stores is an unlimited company that operates a number of clothes, homeware and grocery stores. Perhaps its most prominent Dublin City premises is its anchor store in the St Stephen’s Green Shopping Centre on the north-west corner of St Stephen’s Green. The store can be entered via an entrance to the shopping centre on South King Street; some of the display-windows of its store also front onto that street.
2. Taculla Limited is a limited liability company that operates a public house and eatery known as Harry’s on the Green that is situate at Unit B3A of St Stephen’s Green Shopping Centre; the unit is entered via an entrance on South King Street.
3. South King Street is a public road within the meaning of s.2(1) of the Roads Act 1993, as amended. Section 254 of the Planning and Development Act 2000 contains a mechanism whereby a person may apply to a planning authority for a licence to permit the erection, construction, placing or maintaining of an apparatus or structure on the public road. Regulation 201(b) of the Planning and Development Regulations 2001, as amended, provides that “tables and chairs outside a hotel, restaurant, public house or other establishment where food is sold for consumption on the premises” are among the structures requiring a licence under s.254. Section 254(9) makes clear that any person who erects, constructs, places or maintains an apparatus or structure on a public road without a licence or otherwise than in accordance with the terms of a licence granted under s.254 “shall be guilty of an offence”.
4. In the past a Mr Boland, an officer of Taculla Limited, was granted a licence under s.254 that was effective from 27th June, 2014, to 26th June, 2015, titled a “Licence for Tables and Chairs outside a Hotel, Restaurant, Public House or other Establishment where Food is Sold for Consumption on the Premises”, and which licensed the placing outside Harry’s of some 12 tables and 24 chairs in two screened areas measuring 28 square metres. There were 29 general conditions attaching to the licence, including a condition that “Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted.” Central to the within proceedings is the fact that for a long period, most likely a period in excess of seven years, Taculla has had a couple of overhead front awnings that can be winched forwards and backwards, at the election of Taculla, to provide a protective canopy for on-street patrons of Harry’s as the weather demands.
5. The manner in which Harry’s has operated the on-street part of its business has for some time been a matter of irritation to Dunnes. A particular irritation arising is that the just-described awnings, when open, block certain window-displays that Dunnes uses to attract the custom of pedestrians who pass along South King Street. There is also a more general concern about an alleged more pervasive want of compliance with such street furniture licences as the Council has issued thus far to Taculla. Dunnes has been sufficiently vexed by alleged past breaches of the street furniture licence provisions that, on 10th October, 2014, it sent an e-mail to Dublin City Council which stated, inter alia, as follows:
“…We have an issue with our Stephen’s Green store in that a neighbouring tenant…Harry’s Bar has a street licence allowing them to put tables and chairs on the pavements outside their premises. We have no issue with this if he actually complied with the restrictions in the licence that the council have given him, but they seem to do whatever they want on the street without any consideration for the impact on our business….We are about to launch our Christmas marketing campaign and intend to invest considerably in our window displays. The impact of this will be lost on South King Street if the activities of Harry’s Bar are not curtailed. I understand that the licence is an annual licence and would be obliged if you could let me know when it is up for renewal as we would want to object to renewal as this problem has been going on for some years. I believe that your colleagues in Planning did initiate proceedings against Harry’s Bar under the enforcement regulations but then dropped them because of concerns that they could not prove that the breach had been going on for over 4 years and a deemed planning consent may exist….”.
6. This e-mail met with the following response that issued from Dublin City Council on 17th October, 2014:
“…Harry’s Bar was inspected on October 16th and found to be outside their licensed area by approximately 2m in length and 1m in width. They were found to have 14 tables instead of the licensed 12, however premises will sometimes change their table arrangement and use smaller tables in order to accommodate an extra table or two, this is not an issue for this department. Harry’s Bar will be notified that they are in breach of their licence and advised that the licence will not be renewed should they continue to breach their licence conditions. Their licence is due for renewal on June 26th 2015….”.
7. By 11th June, 2015, Dunnes was back onto the Council again. In a letter of that date, Dunnes wrote to Mr Aidan Walsh in the Street Furniture Unit of Dublin City Council, complaining again about alleged breaches. This letter drew attention to Dunnes’ retail business, noted that the window displays in Dunnes’ premises play an integral part in attracting customers into its St Stephen’s Green store, and asserted that it was unacceptable that Harry’s should be allowed to erect unauthorised structures to block customer’s sight lines to the store windows along South King Street. The letter is notably forceful, at points almost directional in tone, stating, inter alia, as follows:
“In your email correspondence [of 17th June, 2014]…you acknowledged that the licensee was in breach of their Street Furniture Licence and advised that the licence will not be renewed should they continue to breach their licence conditions. As the Licensee clearly continues to operate its Street Licence in clear and blatant breach of the terms of its Licence, it is obvious that the breaches are so fundamental, numerous and continuous that the Street Renewal Licence must not be renewed by Dublin City Council on 26th June 2015….
Action Required
This is an extremely important issue for our business as the continued breach of licence coupled with unauthorised development (i.e. signage and canopy) along South King Street, in respect of which we call on Dublin City Council to issue appropriate enforcement action. This has escalated to a level that it is adversely impacting on our business operations and cannot be allowed to continue.
As a key retail stakeholder in Dublin City paying very substantial commercial rates we expect our complaint to be acknowledged and for the Council to put in place measures to rectify this situation within a reasonable timeframe.
We insist that the Street Licence is not renewed as the licensee has failed over the last 12 months to demonstrate a willingness to comply with the licence conditions….In fact, it is difficult to identify any condition in the Licence that has been properly complied with, which makes a mockery of the statutory framework under which this scheme operates. There are so many breaches of the conditions in this case that this Street Licence is not suitable for renewal and in light of these documented breaches any renewal would be grossly negligent on the part of Dublin City Council and not consistent with your stated approach to this problem. We would also draw your attention to your email…dated 17th October 2014 in which you stated ‘Harry’s Bar will be notified that they are in breach of their Licence and advised that the Licence will not be renewed should they continue to breach their Licence conditions. Their Licence is due for renewal on June 26th.’ Clearly there have been continuous and material breaches of the Street Licence since October 2014 and so in the circumstances the only rational decision is to follow your own stated approach and refuse to renew the Street Licence for Harry’s on the Green on 26th June….”.
8. A flurry of correspondence now ensued. On 16th June, 2015, Dublin City Council wrote to Dunnes indicating that enforcement procedures had been initiated. On 2nd July, Dunnes wrote to indicate that notwithstanding the expiration of the most recent street furniture licence, Harry’s continued to trade on the street-side. On 7th July, a holding letter issued from the Council. On 13th July, Dunnes’ solicitors wrote to Taculla and Mr Boland seeking a written undertaking that the unauthorised use of the road would cease. On 14th July, Taculla’s solicitors wrote denying the alleged breaches and asserting that any legal proceedings would be resisted vigorously. On 16th July, proceedings for injunctive relief under s.160 of the Planning and Development Act 2000 were commenced by Dunnes and came before the High Court (Noonan J.) on 31st July, 2015.
9. In advance of the just-mentioned hearing date, affidavits filed on behalf of Taculla admitted that Harry’s had both exceeded the permitted licensed area space and erected associated temporary furnishings in contravention of the licence. Thus in an affidavit sworn by Mr Christy Leonard, a director of Taculla, on 25th July, 2015, it was stated that the contraventions aforesaid “were intended to be temporary measures which usually coincided around very favourable weather conditions where there was considerable demand by customers to be seated outside. I acknowledge, however, that what was intended to be simply temporary extensions of the seated areas became routinely erected and that the placing of large parasols within that area did, in hindsight, have the effect of obscuring some of the windows at the Applicant’s retail outlet.”
10. When the s.160 proceedings came before the High Court on 31st July, 2015, Taculla, through Mr Leonard, filed a further affidavit which indicated that as of that date he had received confirmation that the street furniture unit of the Council had drafted an order confirming the renewal of the street furniture licence and back-dating same to 27th June, 2015. On that occasion, Mr Leonard gave an undertaking to the court on behalf of Taculla “not to place any apparatus or thing on the public road known as South King Street in connection with the operation of the public house known as ‘Harry’s on the Green’ unless it is within the scope of the terms and conditions of a licence for same having been granted by Dublin City Council pursuant to Section 254 of the Planning and Development Act 2000 (which would confer exempted development status) or the terms and conditions of a grant of planning permission and/or pending further order of this Honourable Court.”
11. A new licence issued to Taculla on or around 31st July, 2015. Whereas the previous licence permitted the placing of 12 tables and 24 chairs in two specific areas, totalling 28 square metres, the licence which issued on or around 31st July, 2015, permitted the same number of tables and chairs in a single screened area measuring 28 square metres outside Harry’s. The licence was again granted subject to various general licence conditions, including the condition that “Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted.” The significance of this condition is that, already by this time, and it seems for a period in excess of seven years, overhead front awnings had been in use at Harry’s, with the result that the seven-year time limit on enforcement proceedings (pursuant to s.157 of the Act of 2000) came to bear.
12. On 18th January, 2016, a letter from the Council to Dunnes’ solicitors indicated that an application had been received to reduce the area covered by the street furniture licence from 28 square metres to 24 square metres. It was stated that the application had been submitted on 26th November, 2015, and was “currently being processed”. With regard to the overhead front awnings, the letter indicated that it had been “the subject of an investigation by the Council’s planning department. An enforcement notice was served on the owners of the premises but had to be withdrawn subsequently as there was evidence to the effect that it was in situ for in excess of 7 years and therefore outside the period in respect of which enforcement action could be taken.” Notably, the letter did not state that the overhead front awnings had planning permission; instead it, quite correctly, stated that because the awning appeared to have been in situ for in excess of seven years, no enforcement proceedings could be brought. (Taculla and the Council sometimes refer to one awning; it appears from the photographic evidence before the court that there are in fact two overhead front awnings, though it may be that they are raised and lowered together; nothing in any event turns on this point).
13. On 11th February, 2016, Dunnes became aware that the Council had issued a fresh licence to Taculla on or around that date, permitting the placing of 12 tables and 24 chairs in two screened areas measuring 24.4 square metres. This licence was back-dated to 27th June, 2015 and had a one-year lifespan to 27th June, 2016. As with the previous licences, this licence came subject to various general conditions, including the usual condition that “Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted.”
14. An inspection of the Council’s planning file undertaken by Dunnes’ planning consultant around the time the fresh licence was issued yielded the discovery that Taculla’s solicitors had sent a letter of 21st January, 2016, to the Council’s Planning Enforcement Department which stated, inter alia, as follows:
“We…note that you have met with our client on a number of occasions recently regarding the Awning attaching to our client’s property and also in relation to the terms and conditions of the Street Licence that issued from Dublin City Council for our client’s premises.
Our client has instructed that he has been advised by your offices that no issue arises in relation to the existence of the awning from a Planning point of view and that same has been dealt with to the satisfaction of the Local Authority.
To this extent and based on our client’s Court Undertaking we would be obliged if by way of clarification for the Courts if you might confirm that Condition 26 of the Street Licence is not being infringed by our client…[if] he uses the front awning taking into account that Dublin City Council were satisfied that the awning has been in existence for over 6 years”.
15. This last letter was responded to by letter of 22nd January, 2016, from the Council to Taculla’s solicitors stating as follows:
“Condition 26 of the General Licence Conditions for the placing of tables and chairs outside a public house states that side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted. In the case of Harry’s Bar the awnings are on their own private property and were placed there by a previous owner. These awnings have been in place for more than seven years, therefore the owners of Harry’s Bar are not required to apply for Planning Permission, and the use of the awnings complies with the conditions of their street furniture licence.”
16. On 25th February, 2016, Dunnes’ solicitors wrote to the Council, noted that Condition 26 of the street furniture licence provided that “Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted”, referred to the just-quoted exchange of correspondence and then continued, inter alia, as follows: “Condition 26 clearly provides that the awnings may only be used where planning permission has been granted. As you are well aware, the fact that the awnings may be in place for in excess of 7 years does not equate to a grant of planning permission and as a result we call upon you to immediately retract your letter [i.e. the letter of 22nd January, 2016, from the Council to Taculla]”. No retraction followed; instead the within application commenced by way of an ex parte motion on 11th March, 2016.
17. In passing, Taculla has suggested that since Dunnes knew (and it did know) from at least the summer of 2015 that enforcement proceedings as regards the awnings had previously been commenced by the Council and were abandoned in light of the difficulty perceived to present by virtue of what the Council understands to be the usage of the awnings for at least a seven-year period, that was the time when the ‘clock started ticking’ in terms of bringing judicial review proceedings within the eight-week period contemplated by s.50(6) of the Act of 2000, as substituted by s.13 of the Planning and Development (Strategic Infrastructure) Act 2006. But while that may have been when the time started to run on some other set of proceedings, it cannot, as a simple matter of chronology, have been when time started to run as regards the objections raised now by Dunnes to the decision manifest in the later letter of 22nd January, 2016 and, in particular, to the Council’s recognition therein of a positive right accruing to the benefit of Taculla in respect of the ongoing unauthorised development represented by the overhead front awnings and the continuing usage of the awnings in tandem with the street furniture licence and, in particular, Condition 26 of same.
II. Reliefs Sought and Related Issues
(i) Reliefs Sought.
18. Concerned by (i) the continued use of the awnings by Taculla which, armed with the letter of comfort of 22nd January, 2016, continued using the awnings in conjunction with the licence, fortified in such usage by the fact that the Council had decided that so to act was compatible with the terms of the licence and/or did not contravene Condition 26 attaching to the licence, and (ii) the consequent material obstruction of one of its South King Street display-windows, Dunnes issued a notice of motion on 18th March, 2016, seeking, inter alia, the following reliefs: (i) an order of certiorari quashing the decision or purported decision of Dublin City Council as communicated by the Council to Taculla’s solicitors by letter of 22nd January, 2016, that the overhead awnings could be used in connection with the street furniture licence; and (ii) a declaration that the Council erred in law in deciding that the use of the said awnings did not contravene Condition 26 of the said licence.
(ii) A “decision or other act”?
19. One issue that has been raised in the within proceedings and which is usefully dealt with at this juncture is whether, in fact, the letter of 22nd January, 2016, contains, comprises or reflects a “decision or other act” of that date. This is an issue in the within proceedings because they have been brought pursuant to ss. 50 and 50A of the Act of 2000; and s.50(2) of that Act provides that a person shall not question “the validity of any decision made or other act done by…(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act…otherwise than by way of an application for judicial review”.
20. In Linehan v. Cork County Council [2008] IEHC 76 and MacMahon v. An Bord Pleanála [2010] IEHC 431, the High Court indicated that the effect of this provision was to impose strict time limits on, and thus bring a new urgency to, the timing of any challenge by way of judicial review to decisions made in the planning process. The necessary promptitude, it appears to the court, has been demonstrated by Dunnes insofar as the commencement of the within application is concerned. In the more recent decision of An Taisce v. An Bord Pleanála [2015] IEHC 604, Haughton J. approved those earlier decisions and, at para. 64, noted the breadth of the terminology employed in s. 50(2) which refers, as mentioned, to “any decision made or other act done”.
21. Is the court dealing in the within application with a challenge to “the validity of any decision made or other act done”? In principle, it would seem that the narrower the time-span allowed for a challenge by way of judicial review in a particular field, the wider the range of intermediate decisions or actions in that field that will be judicially reviewable. This is because an applicant in affected judicial review proceedings may now have to challenge in the embryonic stage a deed which previously would have been challenged as a composite element of some ultimate later decision. Indeed, the breadth of what is challengeable under the Act of 2000 appears to be recognised expressly in the text of s.50(2) insofar as it contemplates a challenge being brought to the validity of “any decision made” or “other act done”. Regardless, it appears to the court that there is here in any event a decision to be challenged, being the decision, first made manifest in the Council’s letter of 22nd January, 2016, to give the legal comfort sought by Taculla, such comfort being considered by Taculla to be appropriate and/or necessary for it to seek in all the circumstances presenting. The said decision effectively ‘green-lighted’ Taculla’s continuing use thereafter of the awning in conjunction with the street furniture licence, and yielded continuing interference with the sightline from the street to those display-windows of Dunnes that sit behind the awnings.
22. Even if the decision reflected in the letter of the 22nd was not a “decision made”, and the court has just concluded that it was, the substantive decision manifest in that letter must and does constitute some form of “other act”. Either way the within application is in this respect, it seems to the court, legally proper.
23. The court does not see in R. v. Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 A.C. 1, R. v. Devon County Council ex p L [1991] 2 FLR 541, or Shatter v. Guerin [2015] IEHC 301 any reason for departing from its conclusions in this regard:
– the Employment Opportunities Commission case was concerned, inter alia, with the reviewability of a purported decision of a Crown minister, as communicated to, and at the behest of, the Employment Opportunities Commission, that he would not introduce certain statutory amendments pursuant to European Community law. As a decision of a foreign court, the decision in Employment Opportunities Commission is, of course, but persuasive in an Irish court, and this Court must respectfully admit to being rather less than persuaded. It appears to it that in Employment Opportunities Commission there was an official and considered decision, in the ordinary sense of the relevant Crown minister making up his mind and communicating his considered view, at the request of the Employment Opportunities Commission, that it was not necessary, as a matter of the proper construction and application of Community law, to introduce certain statutory amendments. That is a decision which, in Ireland, would appear susceptible to judicial review. Regardless, the court is not in any event persuaded that a view taken in one case in another country as to the reviewability of a particular decision in circumstances radically different to those now presenting is an especially persuasive deployment of case-law: for the analogy to work one has to look at the foreign case considerably in abstracto but the observations of Lord Keith of Kinkel to which the court’s attention were drawn were made very much in concreto.
– the L case appears to the court, with respect, not to be ‘on point’. That was a case in which the solicitors for a suspected child molester, Mr A, sought assurance from a county council that it would instruct its employees to stop disseminating their beliefs, inter alia, to partners of Mr A, that he was a threat to children in whose households he lived. A Divisional Court held that the reply letter was not reviewable because (like ships passing in the night) the solicitors had sent a letter seeking assurance on one point and the reply letter did not deal in any way with the assurance sought. Here, by contrast, Taculla sought comfort on one point and the reply letter fully engaged with the point on which assurance was sought. L was also a case that occurred in the area of child sexual abuse where the Divisional Court, rightly watchful for the interests of potentially vulnerable children, held that in order fully to protect a child, the interests of an adult had at times to be subordinated to those of the child; there are no like policy factors presenting in the within case.
– as for the decision in Shatter, the facts of the within application meet the test identified by Noonan J., at para. 84, which test this Court respectfully applies. Thus there has been, as the court indicated above, a decision or act; and that decision or act affects a legally enforceable right of Dunnes in that it has effectively foreclosed any opportunity Dunnes would otherwise have had to make submissions and objections in any application for retention permission that would have ensued, in the absence of the letter of 22nd January, if Taculla had wanted to retain the overhead front awnings and also to conform with the provisions of the street furniture licence.
(iii) Seeking Clarification.
24. In passing, the court does not accept the suggestion that this is a case akin to Dublin City Council v. Liffey Beat Ltd [2005] 1 IR 478. There Quirke J. suggested that there may be a duty on local authorities to clarify the meaning of restrictive planning conditions, opining, at para. 83, that “[W]here clarification is sought from the planning authority (or An Bord Pleanála) by a party having an interest in the property as to the nature and extent of the restriction imposed by a condition within a planning permission, then reasonable steps should be taken by the planning authority (or the board) to provide the clarification sought.” Dublin City Council contends that the within application is but an example of a clarification being sought and granted. However, it seems to the court that what is at play in the within application is a sequence of events rather different to that contemplated by Quirke J. in Liffey Beat. The within application does not involve a case where an ostensibly law-abiding person is merely seeking clarification from an executive body as to the effect of a particular licence condition within the context of a substantially consultative planning regime. This is a case where (a) a party that is acting on an ongoing basis in breach of the planning regime, through its continuing operation of the overhead front awnings at Harry’s without planning permission, (b) wants the continuing additional benefit of a street furniture licence without prejudicing its ongoing ability to breach the planning regime without fear of enforcement action, (c) has elected to seek (doubtless for reasons it perceived to be necessary) a letter of comfort from an executive body, here the Council, as to the interplay between its existing immunity from enforcement and its obtaining a licence, which it freely sought and accepted, and (d) has received in return a comfort letter which manifests a decision whereby the benefits of the party’s existing immunity are positively accentuated.
(iv) Collateral Purpose?
25. It has been suggested in the within application that Dunnes’ true objective in bringing its application is been to secure the collateral objective of enforcement of the planning code. In effect, what is being suggested in this regard is some form of abuse of process. The High Court considered the principles applicable in this area of the law in Dunnes Stores v. An Bord Pleanála [2015] IEHC 716 and the court does not propose to consider those principles afresh. Suffice it to note that this case does not even get to the threshold of involving an abuse of process or the pursuit of some collateral advantage, let alone cross that threshold.
26. In the within application, Dunnes is aggrieved that the Council by way of the decision communicated in its letter of 22nd January, effectively legitimised the awnings by indicating that they could be used without contravening Condition 26, notwithstanding the absence of planning permission, and thereby conferred positive rights on Taculla. That in itself is an honestly held grievance, and it is clear from the evidence before the court that Dunnes considers a serious commercial wrong to have been inflicted upon it in this regard: Dunnes is paying high rent for its store in St Stephen’s Green Shopping Centre; its window-displays are a means of attracting passing pedestrian traffic into that store; and the overhead front awnings at Harry’s are blocking the sight line of certain window displays. A further honestly held grievance on the part of Dunnes arises from how the Council has proceeded: if Taculla wanted to enjoy the use of the awnings with the licence, it was open to it, Dunnes maintains, to make an application for retention permission; Dunnes could then have participated in that process by making submissions or observations; however, the practical effect of the letter of 22nd January, 2016, has been to deny Dunnes of that opportunity.
27. Beyond a bald assertion that the within application is being employed for some purpose other than the attainment of the reliefs now sought, there is nothing in the evidence before the court to suggest that this is so. Instead there is an entirely reasonable relationship between (a) the result intended by Dunnes and (b) the scope of the remedy sought and available. Moreover, even if there were mixed, i.e. proper and collateral, objectives underpinning the bringing of the within proceedings – and again there is nothing in the evidence to suggest that this is so – when one answers the question ‘If one had regard to the legitimate purpose only, would Dunnes have brought the within proceedings?’ the answer is ‘yes’. This is because in s.160 proceedings (as is clear from Mahon v. Butler [1997] 3 I.R. 369) the court cannot intervene to set aside the Council’s decision. By contrast, the within application affords a legitimate mechanism whereby the impugned actions of the Council can be assailed and due relief sought. Finally, and again noting the court’s overriding conclusion that there is nothing to suggest that the within application is being employed for some purpose other than the attainment of the reliefs now sought, it is important to remember that there is in any event a proper distinction to be drawn between (i) legitimate use of the court’s processes which yields an incidental benefit, and (ii) the devious deployment of processes aimed at one end to secure an alternative collateral end. The court, by virtue of the just-mentioned overriding conclusion, does not have to consider whether the within application comes within category (i) or (ii); however, on the evidence before it the court entertains no doubt in any event that the within application is most assuredly within category (i).
(v) Aptness of the Within Proceedings?
28. Taculla has suggested that the within proceedings are not an appropriate avenue of relief when Dunnes has a statutory right of appeal under s.254(6)(a) of the Act of 2000 with regard to each annual granting of the street furniture licence. However, it does not appear to the court that it is a necessary bar to the granting of discretionary relief in judicial review proceedings which seek to impugn one decision before the court that an alternative avenue of relief exists in respect of some other decision that is not being challenged before the court.
III. Legal Status of Awnings and Consequences of Same
(i) Legal Status of the Awnings.
29. It appears to be common case between the parties that Taculla has no planning permission for the overhead front awnings; certainly the court has had no sight of any such permission. Whether or not the overhead front awnings have been in situ for more than seven years is not a matter on which this Court has to rule. Suffice it to note that even if they are immune from planning enforcement action, that does not suffice to transmute the overhead front awnings from unauthorised development into authorised development; they remain unauthorised development.
30. The foregoing involves so trite a statement of law that the court does not suffice to consider the relevant case-law or commentary in any detail. Instead it would respectfully point the reader to the long-ago decision of the High Court in Dublin County Council v. Mulligan (Unreported, High Court (Finlay P.), 6th May, 1980) (a case concerned with s.31 of the Act of 1963 and since replaced by the enforcement notice provisions in Part VIII of the Act of 2000) and to the helpful summary of the present law provided by Mr Simons in his learned text Planning and Development Law (2nd ed.), at para. 7.50:
“The fact that the limitation period has expired without enforcement action having been taken does not have the effect of making the unauthorised development lawful. It is not, for example, equivalent to planning permission having been granted by operation of law. Rather, the development enjoys a hybrid status as unlawful but immune.”
31. The only means by which the overhead front awnings at Harry’s may be rendered lawful is through a grant of retention planning permission under s.34 of the Act of 2000. The awnings are and remain unauthorised development until such retention permission is granted (if ever granted).
(ii) Consequences of Legal Status of Awnings.
32. There is some suggestion in the pleadings that the overhead front awnings at Harry’s are not front awnings. In reality, however, there appears to be no doubt but that the overhead front awnings are understood by all the parties to be front awnings. Thus Taculla, in the above-quoted letter of 21st January, 2016, queries the continuing use of “the front awning taking into account that Dublin City Council were satisfied that the awning has been in existence for over 6 years”, and clearly the Council, in its reply of 22nd January, 2016, had no difficulty in recognising which “front awning” was being referred to in the just-quoted text or as to what comfort was being sought in respect of the continuing use of same.
33. Parties cannot in the course of everyday activity use the same term to describe the same thing, with each correctly understanding what the other means, and then come to court contending for an alternative meaning to be ascribed to that mutually understood term, which alternative meaning might be justifiable by reference to a dictionary definition and/or an expert report, but is utterly unjustifiable by reference to the previous behaviour and mutual understanding of, and absence of misunderstanding between, the parties in their everyday dealings. In the spectrum of behaviours that embraces quod approbo non reprobo and estoppel by convention, such inconsistency of action falls generally to be deprecated by the courts.
34. As the overhead front awnings are front awnings which are being used in circumstances where no planning permission has been granted, they are clearly being used in breach of Condition 26. Whether one uses the ‘ordinary meaning’ approach of McCarthy J. in Re XJS Investments Ltd [1986] I.R. 750 or the ‘text in context’ approach referred to by Clarke J. at para. 3.11 of his recent judgment in Lanigan & anor t/a Tullamaine Castle Stud v. Barry & anor t/a Tipperary Raceway [2016] IESC 46, the natural, proper and sensible reading of a condition that “Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted” has to be that contended for in the within application by Dunnes, viz. that the overhead front awnings at Harry’s may only be used where planning permission has been granted, and not the alternative proposition that the overhead front awnings may only be used where planning permission (a) has been granted or, (b) alternatively, has not been granted but sufficient time has elapsed that enforcement proceedings cannot now be commenced.
35. It has been suggested by the Council that curial deference ought to be shown to the latter alternative proposition, it being the proposition that arises from a reading of the letter of 22nd January, 2016, that being a letter which, the Council claims, goes to its technical expertise. With respect, however, what confronts the court in the within application is but the interpretation of planning documentation, a task in which the courts regularly engage and which, in the within matter, whether one approaches matters via XJS or Lanigan, yields as the proper reading of Condition 26 the un-forced reading for which Dunnes contends, and not the forced reading which the Council has hitherto preferred. Even if this were an area for some curial deference, and it does not appear to the court that it is, no court can or would defer to the clearly wrong; that itself would be to do a wrong, and that no court should consciously do.
36. The Council, with respect, also appears to the court to be wrong in the assertion it makes in its letter of 22nd January, 2016, that because the awnings “have been in place for more than seven years” – so, at least the Council maintains – “the owners of Harry’s Bar are not required to apply for Planning Permission, and the use of the awnings complies with the conditions of their street furniture licence.” That proposition rests upon the notion that positive rights could accrue in respect of the unauthorised development represented by the awning and that notion seems both logically objectionable and legally wrong. It overlooks the fact that, as Mr Simons notes in his learned text, again at para. 7.50, “It is important to bear in mind that although the development is immune from enforcement, it continues to be afflicted by certain adverse consequences because of its unlawful status”. And it seeks mistakenly to construct a positive right on that unlawful foundation.
37. In this last regard, the court respectfully considers the reliance placed by the Council on such decisions as Hartnell v. Minister of Housing and Local Government [1965] A.C. 1134, Hughes v. Doncaster Metropolitan Borough Council [1990] UKHL J1213-2 and, for example, O’Hara and McGuinness v. An Bord Pleanála (Unreported, High Court (Barron J.) 8th May, 1986) to be misplaced. All of those cases were concerned with curtailments of existing property rights:
– in Hartnell, what the House of Lords objected to was the limitations that it was sought to impose on the scope of a caravan site-owner’s existing use right.
– in Hughes, what the House brought to bear in its decision was the well-known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms.
– in O’Hara, Barron J. was concerned to preserve intact the principle that where a right already exists a landowner cannot be deprived of it by oblique means, but only by the means set down in statute.
38. In the within application, by contrast, what is in focus before the court is an immunity from enforcement proceedings. That is not a vested property right; it is the toleration by the State of a continuing illegality, and but a qualified toleration at that. As Mr Simons notes, at para. 7.50, “[T]he development…continues to be afflicted by certain adverse consequences because of its unlawful status”. For example, the benefit of certain classes of categories of exempted development are lost, the calculation of market value for the purposes of compensation may be affected, it may impact on an application for an intoxicating liquor licence, it may be of relevance in the context of landlord and tenant legislation, and it might be taken into account on any application for further development.
39. Cases such as Hartnell, Hughes, and O’Hara rightly point to the fact that vested property rights must be preserved from improper curtailments, immunity from enforcement proceedings, being but the toleration by the State of a continuing illegality, appears qualitatively different. There is no principled justification for the notion that immunity from enforcement action in respect of continuing illegality must be preserved from proper constraints sought by the executive in the lawful discharge of its legal powers and freely agreed to by the party accepting such constraints.
40. It follows from the foregoing that if Taculla freely elects (as it did) to seek the benefit of a street furniture licence to which it is not entitled and finds that the prospective licence for which it has made application will come with a general requirement as to lawful behaviour, it is free to decide not to take the licence; but if it freely elects (as it did) to take the licence subject to a requirement as to lawful behaviour, such as that contained in Condition 26, it cannot then seek to construct, in tandem with the usage of that licence, a positive right to the continuation of its illegal behaviour, in circumstances where the licence, freely sought and accepted, proscribes the very illegal behaviour in which it is sought to persist. There is no general legal principle that a person may not freely choose to place itself in a situation where at its own behest and election and by virtue of accepting, say, a particular licence that comes with a common set of conditions, it sees a diminution or qualification of some other immunity which it previously enjoyed.
IV. Conclusion
41. There is no evidence before the court to suggest that the overhead front awnings at Harry’s are not unauthorised development. This being so, their use is precluded by Condition 26 of the licence which provides that “Side awnings or front awnings may only be used to cover the licensed area where planning permission has been granted.” The Council’s letter of 22nd January, 2016 purports to alter that position in its assertion that “These awnings have been in place for more than seven years, therefore the owners of Harry’s Bar are not required to apply for Planning Permission, and the use of the awnings complies with the conditions of their street furniture licence.” This was, to borrow from the submissions made by counsel for Dunnes, “a fundamental misunderstanding of the status of ‘illegal but immune’ unauthorised development’”. That is an error which falls to be corrected by this Court and requires to be corrected in circumstances where the Council’s decision effectively ‘green-lighted’ Taculla’s continuing use thereafter of the awning in conjunction with the street furniture licence, yielding an ongoing interference with the sightline from the street to Dunnes’ display-windows. The court is therefore minded to grant the order of certiorari sought; by virtue of this order being granted, the separate declaratory relief sought seems to the court not to be required.