Case Note: Wicklow County Council v Fortune (No 2): Foundations Built on Sand?

• Author: Andrew Heffernan
• Position: Senior Freshman LL.B Candidate, Trinity College Dublin
• Pages: 201-211

© 2014 Andrew Heffernan and Dublin University Law Society

WICKLOW COUNTY COUNCIL V FORTUNE (NO2):

FOUNDATIONS BUILT ON SAND?

ANDREW HEFFERNAN*

Introduction

This casenote proposes to examine the High Court judgment in the case of

Wicklow County Council v Fortune (No 2),

1 a decision that examined a

broad interpretation of Article 40.5 of the Constitution and its effects on

the requirements of Irish planning law under the Planning and

Development Act 2000.2

The constitutional guarantee under Article 40.5 states that “[t]he

dwelling of every citizen is inviolable and shall not be forcibly entered

save in accordance with law.” It must be noted that Article 40.5 has its

origins in criminal rather than civil law, primarily concerning the power of

Gardaí to issue search warrants in respect of private dwellings.

However, recent case law, stemming from the decisions in Damache

v DPP,3 DPP v Cunningham4 and Sullivan v Boylan5 demonstrates an

emerging shift in the conceptual understanding of this constitutional

guarantee. Notably, in Sullivan v Boylan6 Hogan J highlighted the level of

protection available under Article 40.5, as it stresses “the concepts of

safety and security of the dwelling.”7 Subsequently, in Fortune (No 2),

Hogan J emphasised the sentiments of Hardiman J in The People v

O’Brien,8 where the safeguarding of the dwelling was considered one of

the hallmarks of a free society. Thus, the case law has stressed the

* Senior Freshman LL.B Candidate, Trinity College Dublin. The author would like to thank

his family for their support.

1 Wicklow County Council v Fortune (No 2) [2013] IEHC 255 [hereinafter Fortune (No 2)].

2 Planning and Development Act 2000 [herinafter ‘Act’].

3 Damache v Director of Public Prosecutions [2011] IESC 11.

4 The People (Director of Public Prosecutions) v Cunningham [2011] IECCA 64.

5 Sullivan v Boylan [2013] IEHC 104.

6 [2013] IEHC 104.

7 [2013] IEHC 104, at [22].

8 The People v O’Brien [2012] IECCA 68.