County Council of County of Wicklow v Katie (aka Catherine) Fortune (No.4)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date06 May 2014
Neutral Citation[2014] IEHC 267
Date06 May 2014

[2014] IEHC 267

THE HIGH COURT

[No. 26 CA/2011]
Wicklow Co Council v Fortune (No 4)
BETWEEN:-
THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
PLAINTIFF

AND

KATIE (OTHERWISE CATHERINE) FORTUNE (No.4)
DEFENDANT

PLANNING & DEVELOPMENT ACT 2000 S160

WICKLOW CO COUNCIL v FORTUNE (NO 1) UNREP HOGAN 4.10.2012 2012/46/13830 2012 IEHC 406

WICKLOW CO COUNCIL v FORTUNE (NO 2) UNREP HOGAN 6.6.2013 2013 IEHC 255

WICKLOW CO COUNCIL v FORTUNE (NO 3) UNREP HOGAN 5.9.2013 2013/54/15171 2013 IEHC 397

PLANNING & DEVELOPMENT ACT 2000 S160(1)

SUPREME COURT OF JUDICATURE ACT IRL 1877 S28(8)

SUPREME COURT OF JUDICATURE ACT 1873 (UK)

WOOLF THE DECLARATORY JUDGMENT 3ED 2002 12-22

CHAPMAN v MICHAELSON 1909 1 CH 238

CHANCERY (IRL) ACT 1867 S155

RSC O.19 r29

CONSTITUTION ART 34.3.1

ALBION PROPERTIES LTD v MOONBLAST LTD & KILLALEA 2011 3 IR 563 2012 1 ILRM 439 2011/2/485 2011 IEHC 107

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.5

Land – Planning – Statutory Injunction – Planning Permission – Mobile Homes – Declaration – Jurisdiction – Unauthorised Development - Planning and Development Act 2000

Facts: The case before the court was the fourth judgement dealing with aspects of the planning status of certain structures on lands owned by members of the Fortune family. The first two judgements addressed the issue of whether a statutory injunction should have been granted pursuant to s. 160 of the Planning and Development Act 2000 (‘the 2000 Act’) requiring Ms. Kate Fortune to demolish a small chalet constructed by her without planning permission which she used as her principal private dwelling. In Wicklow County Council v. Fortune (No.1) [2012] IEHC 406, Justice Hogan articulated the test which a planning authority would be required to satisfy in those s. 160 cases where the demolition of a private dwelling was sought. In the second judgment, Wicklow County Council v. Fortune (No.2) [2013] IEHC 255, he applied that test in the course of rejecting the Council”s argument that Ms. Fortune”s chalet should be demolished. In the third judgement, Wicklow County Council v. Fortune (No.3) [2013] IEHC 397, Justice Hogan re-visited aspects of those earlier judgments in the course of a decision which principally dealt with the planning status of certain caravans and mobile homes which were situate on Ms. Fortune”s lands. It was held in that judgement that the court did not accept that Ms. Fortune”s actions in constructing the chalet were within the law and that the development was unlawful. In the case at hand, the remaining issue to be decided upon was whether a formal declaration should have been granted to the effect that the chalet had been illegally constructed. Counsel for Ms. Fortune, argued that the court had no jurisdiction in these s. 160 proceedings to grant such a declaration. Counsel for the Council, contended on the other hand that it was appropriate that the court should grant such a declaration in order to give full effect to both the letter and the spirit of the earlier judgments.

Held by Justice Hogan that s. 160(1) of the 2000 Act did not expressly vest the court with a jurisdiction to grant a declaration to the effect that a development was unauthorised. He reasoned that s. 160 was simply a lex specialis which gave the court a wider jurisdiction to grant an injunction in respect of unauthorised development in planning cases than might have been the case under the ordinary law. Having examined the applicable law, Justice Hogan reasoned that the statutory power to grant an injunction could be found in s. 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 (‘the 1877 Act’). He further reasoned that whilst that subsection did not expressly empower the court to grant a declaration in lieu of granting an injunction, the court was not prohibited from making such a declaration in such circumstances as both the injunction and the declaration were regarded as independent and, to some degree interchangeable remedies developed by the Court of Chancery in the decades leading up to the creation of one unified High Court by the (English) Supreme Court of Judicature Act 1873 and, in Ireland, by the 1877 Act. Reinforcing the belief that, the declaration is an essential aspect of the court”s jurisdiction, Justice Hogan stated that if the court did not grant a declaration of right, it would be difficult to see how the constitutional mandate “to determine all matters and questions” could properly be fulfilled. Consequently, in light of Albion Properties Ltd. v. Moonblast Ltd. [2011] IEHC 107, [2011] 2 I.R. 563 which reinforced the principle that the express language of Article 40.3.2 of the Constitution required the courts to furnish an adequate and effective remedy, Justice Hogan determined that the granting of a declaration in the case at hand was apt. He reasoned that whilst the transgression of the law by the defendant should be marked by judicial order, in reality such an order would simply give more effect to his earlier judgements. Those judgements, he stated, stressed that whilst while Ms. Fortune had unlawfully constructed her chalet, the guarantee of the inviolability of the dwelling in Article 40.5 meant that, having regard to the facts of her case, it should not be demolished. Thus, he reasoned that it was not enough for the Council to show that the chalet had been unlawfully constructed as it would have been necessary to show that the continued occupation and retention of the dwelling would have be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. Moreover, for the reasons set out in Fortune (No.2), Justice Hogan further concluded that those reasons which may otherwise justify the making of the demolition order under s. 160 had not been made by the Council. He reinforced his position that the chalet had been illegally constructed and that the court order should reflect this. Reasoning that the planning status of the chalet was essentially a matter of public record and in the absence of a demolition order under s. 160 of the 2000 Act, it was reasoned that the court should take the necessary steps to ensure that any possible confusion was avoided and uncertainty dispelled, especially as far as the planning authority, other public bodies, and indeed, private parties where concerned. For all these reasons, Justice Hogan took the view that the court had a free standing and independent jurisdiction to grant a declaration which was distinct from the special jurisdiction under s. 160 of the 2000 Act. According Justice Hogan granted a declaration in the terms sought by the council, namely, that the chalet constructed by Ms. Fortune was an unauthorised development.

1

JUDGMENT of Mr. Justice Hogan delivered on 6th May, 2014

2

1. This is now the fourth judgment dealing with aspects of the planning...

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6 cases
  • Moore v Minister for Arts, Heritage and the Gaelteacht
    • Ireland
    • High Court
    • 18 March 2016
    ...to issue declarations, albeit in the context of s. 160 injunction proceedings, was provided in Wicklow County Council v. Fortune (No. 4) [2014] IEHC 267. In issue there was the power of the court to grant a declaration that a timber chalet had been constructed illegally. In giving judgment......
  • St. Margaret's Concerned Residents Group v Dublin Airport Authority Plc
    • Ireland
    • High Court
    • 21 November 2017
    ...v. Craddock [67] (iv) Dandean Ltd v. Talebury Properties Ltd [69] (v) Boliden Tara Mines Ltd v. Cosgrove and ors [71] (vi) Wicklow County Council v. Fortune (No 4)[73] (vii) Meath County Council v. Murray [75] XIX. Some Statutory Provisions of Relevance [83] XX. The Importance of the Dublin......
  • MB
    • Ireland
    • High Court
    • 18 March 2016
  • Brownfield Restoration Ireland Ltd v Wicklow County Council
    • Ireland
    • High Court
    • 7 July 2017
    ...the environmental risk that has been established. Mr. Connolly is uncomfortably driven to rely on Wicklow Co. Council v. Fortune (No. 4) [2014] IEHC 267 as a precedent in this regard; but if anything the (in my very respectful view, inappropriate) approach taken in that unhappy case well d......
  • Request a trial to view additional results

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