County Council of the County of Wicklow v Whelan

JurisdictionIreland
JudgeMs. Justice Heneghan
Judgment Date07 July 2017
Neutral Citation[2017] IEHC 480
Docket Number[2015 No. 153 C.A.]
CourtHigh Court
Date07 July 2017

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

AND IN THE MATTER OF ORDER 56 OF THE RULES OF THE CIRCUIT COURT

BETWEEN
THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
APPLICANT
AND
SEAN WHELAN, TERESA ENRIGHT

AND

MICHAEL ENRIGHT
RESPONDENTS

[2017] IEHC 480

[2015 No. 153 C.A.]

THE HIGH COURT

Planning & Development – S. 160(1) of the Planning and Development Act 2000 – O. 56 of the Rules of Circuit Court – Plea of limitation – Planning and Development Regulations 2001 – Exemption for certain works

Facts: Following the grant of an order by the Circuit Court to the applicant to the effect that the respondents were restrained from carrying on the unauthorized development of lands on the subject property, the respondents had now filed an appeal against that order. The applicant also filed a cross-appeal in relation to the costs order made by the Circuit Court. The applicant argued that the erection of a gate in front of the house and the erection of a shed constituted ‘works’ within the ambit of s. 2 of the Planning and Development Act (‘PDA’) 2000 for which the planning permission was required. The respondents asserted that there was no material change of the use, and thus, the planning permission was not needed.

Ms. Justice Heneghan dismissed the appeal filed by the respondents and adjourned the hearing of the cross-appeal in relation to the costs. The Court held that the erection of the gate and the shed was not done prior to the prescribed time period, and thus, they were not exempted from receiving the planning permission. The Court observed that the erection of the gate and the shed constituted ‘works’ within s. 2 of the PDA 2000, and thus, the planning permission was required. The Court found that the second named respondent had failed to provide any evidence that showed that a portion of the subject property had been ceded to her by the applicant.

JUDGMENT of Ms. Justice Heneghan delivered on the 7th day of July, 2017
1

This matter comes before this Court by way of an appeal from the order of the Circuit Court dated 27th July, 2015. In the Circuit Court the applicant was granted an order pursuant to s.160 (1) of the Planning and Development Act 2000, as amended, restraining the respondents from carrying on or continuing with the unauthorised development of lands being carried on in Folios 7062F, 26578F and 33734F of the County of Wicklow. Further, the respondents were directed to remove a gate, a shed, materials and vehicles from the said lands and were further directed to restore the lands to their condition prior to the commencement of the unauthorised development, pursuant to s.160(2) of the Planning and Development Act 2000.

Background
2

Mr. Whelan and Ms. Enright were registered as full owners of Folio 7062F on 8th December, 1988. Wicklow County Council was registered as full owner of Folio 33734F on 25th May, 2009. Wicklow County Council was also registered as full owner of Folio 26578F on 9th November, 1998.

3

Proceedings were issued by way of originating notice of motion, dated 13th August, 2012, against the three named respondents, Mr. Sean Whelan, Ms. Teresa Enright and Mr. Michael Enright. The motion was first listed for hearing on the 2nd October, 2012 in the Circuit Court. The reliefs sought in the Notice of Motion are as follows:-

‘1. An order pursuant to s. 160 (1) of the Planning and Development Act 2000, as amended, restraining the respondents and each of them from carrying on or continuing with the unauthorised development of the hatched area of land on the map attached thereto (forming part of the lands comprised within Folios 7062F County Wicklow, 26578F County Wicklow and 33734F County Wicklow) in the form of

(a) the erection of a gate

(b) the erection of a shed

(c) the storage of materials

(d) the storage of commercial vehicles and

(e) further requesting the removal of the said gate, shed, materials, and vehicles, and restoring the lands to their condition prior to the commencement of the unauthorised development.

2. An Order pursuant to Section 160(2) of the Planning and Development Act 2000, directing the Respondents and each of them to remove the said gate, shed, materials and vehicles, together with a further Order pursuant to Section 160(1) of the Planning and Development Act, 2000, directing the Respondents and each of them to restore the said lands to their condition prior to the commencement of the aforesaid unauthorised development.’

4

On the 27th July, 2015, at Wicklow Circuit Court sitting in Bray, the hearing proceeded and was determined. The orders sought by the applicant were granted in the terms of the notice of motion, together with an order measuring costs and an order directing that the applicant be entitled to 25% of the said costs plus vat against the respondents with a stay on the order in the event of an appeal.

5

Prior to the hearing in the Circuit Court, twenty three affidavits had been filed in these proceedings, sixteen on behalf of the applicant and seven on behalf of the respondents. Those affidavits were sworn on various dates commencing in August 2012, and concluding with the fourth affidavit of Ms. Enright sworn on the 18th May, 2015. Legal submissions by the applicant are dated 9th June, 2015, legal submissions by the respondent are dated 7th June, the applicant's response to the respondents' submissions are dated 15th June, 2015 and supplemental submissions of the respondents are dated 16th June, 2016.

6

The respondents filed a notice of appeal dated 29th July, 2015, the applicant cross-appealed, by notice dated 4th August, 2015, in respect of the costs order. The respondents thereafter applied to the High Court in advance of the hearing of the appeal proceedings for leave to adduce fresh evidence by way of affidavits from 3 further named persons. By order of the High Court dated 11th March, 2016, the respondents were granted leave to adduce fresh evidence at the hearing of the appeal, specifically the affidavits of Mr. Micheal Enright, Mr. Ned Duffy and Mr. Eftim Ivanoff, all filed on the 23rd November, 2015, as referred to by Ms Enright in her affidavit grounding the application.

7

The appeal hearing in this Court commenced on the 9th November, 2016, and was resumed on the 30th November, 2016. Despite the order of the High Court granting leave for fresh evidence to be adduced to include the affidavit of Mr. Enright, it is significant that no affidavit of Mr. Enright, the third named respondent, was ever put before the court.

8

The applicant filed a notice to cross-examine Mr. Duffy, dated 22nd March, 2016, on foot of his affidavit sworn on the 13th October, 2015 and filed on the 23rd November, 2015. The applicant filed a further notice to cross-examine Mr. Ivanoff on the 26th May, 2016, on foot of his affidavit sworn on the 9th October, 2015 and filed on the 23rd November, 2015. It is significant that at the appeal hearing, neither Mr. Duffy nor Mr. Ivanoff were produced for the purposes of cross-examination. The court was advised of correspondence between the solicitors for the parties, wherein on the 22nd March, 2016, the applicant's solicitors served a notice of intention to cross examine Mr. Duffy and further requested if the affidavit of Mr. Ivanoff was to be withdrawn, as it stated therein that he is a director of Somoza Ltd. with whose authority and consent he makes the affidavit, Somoza Ltd. having being dissolved since the 14th December, 2009 was not therefore a legal entity. By reply dated 23rd March, 2016, solicitor's for the respondent stated:-

‘With regard to Eftim Ivanoff, we will seek instructions. We imagine Mr. Ivanoff was referring to him (sic) directorship of the company at the relevant time and this may have been a simple error in the drafting of the Affidavit. We see no basis at all for your suggestion that Mr. Ivanoff would withdraw his Affidavit. It would seem far more appropriate and sensible that he would be given the opportunity to file a corrective Affidavit. We will come back to you shortly in this regard.’

By further letter from the applicant's solicitors, dated 1st April, 2016, it was stated: –

‘In relation to your point 3 therein in which you referred to Mr. Ivanoff's directorship of the company “at the relevant time”. In this regard we refer you to your clients exhibited letter which is dated 26 November, 2012. Thus at the relevant time of 26 November, 2012, Somoza Limited stood dissolved since 14 December, 2009 and accordingly we disagree with you that the same is a “simple error” in the drafting.

Accordingly we again request that Mr. Ivanoff withdraw his Affidavit where in paragraph 1 of Mr. Ivanoff's Affidavit is patently untrue.’

By further letter dated 24th May, 2016, the applicant's solicitors inter alia again called on the respondent's solicitors to withdraw the affidavit of Mr. Ivanoff, and by replying e-mail dated 1st June, 2016, solicitors on behalf of the respondent advised inter alia as follows:-

‘We do not act for either Mr. Duffy or Mr. Ivanoff.’

By letter of the same date, the applicant's solicitors wrote to respondent's solicitors, as follows:-

‘In the light of your obfuscation, please confirm that you will not be relying on the affidavits of Mr. Duffy or Mr. Ivanoff. To suggest that you do not act on behalf of either deponent completely ignores the fact that you have chosen to procure affidavits from same on behalf of your clients.’

By further letter from the applicant's solicitors to the respondent's solicitors dated 16th August, 2016, it was stated inter alia, with respect to Mr. Duffy and Mr. Ivanoff as follows:-

‘In the event that the two deponents in question will not be available for cross examination on 9 November next, we shall be objecting to the admission of their respective affidavits.’

Neither affidavit was withdrawn,...

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3 cases
  • Kerry County Council v Michael McElligott
    • Ireland
    • High Court
    • 30 July 2021
    ...relief and establish the relevant facts in that respect. The plaintiff relies upon the decision in County Council of Wicklow v. Whelan [2017] IEHC 480 where, at paragraph 73, Heneghan J. held that it was “ now well established by the case law that the seven year limitation period was a matt......
  • Fingal County Council v James Nugent
    • Ireland
    • High Court
    • 1 October 2021
    ...is a matter of defence and the onus of proof lies with the party asserting it (see for example County Council of Wicklow v. Whelan [2017] IEHC 480 and Pierson v. Keegan Quarries Ltd. [2010] IEHC 404). Here it appears undisputed that the trailer has been on the lands for a period of more tha......
  • County Council of the County of Wicklow v Whelan, Enright & Enright
    • Ireland
    • Supreme Court
    • 27 July 2018
    ...of fact adverse to the applicants, having heard oral evidence. These findings of fact are set out in the judgment of the High Court [2017] IEHC 480, at para. 73 onwards. The High Court found that a gate placed by the applicants, without planning permission, was an unauthorised development c......

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