County Council of Wicklow v Katie (n/a Katherine) Fortune (No. 3) and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 05 September 2013 |
| Neutral Citation | [2013] IEHC 397 |
| Court | High Court |
| Date | 05 September 2013 |
BETWEEN
AND
AND
[2013] IEHC 397
THE HIGH COURT
PLANNING AND ENVIRONMENTAL LAW
Unauthorised development
Enforcement - Planning injunction - Exempted development - Jurisdiction - Whether court had free-standing jurisdiction to determine whether development exempted where planning authority made s. 5 declaration - Whether appropriate to adjourn proceedings to allow making of s. 5 application - Whether placement of caravan and mobile home constituted development - Whether constitutional protection of the dwelling applicable to caravan or mobile home - Whether applicant having discharged burden that development commenced seven years prior to initiation of enforcement proceedings - Grianan an Aileach Interpretative Centre Co Ltd v Donegal County Council [2004] IESC 41, [2004] 2 IR 625 and Sligo Council v Martin [2007] IEHC 178, (Unrep, Ó Néill J, 24/5/2007) applied - Wicklow County Council v Fortune [2012] IEHC 406, (Unrep, Hogan J, 4/10/2012); Wicklow County Council v Fortune [2013] IEHC 255, (Unrep, Hogan J, 6/6/2013); Cunningham v An Bord Pleanála [2013] IEHC 234, (Unrep, Hogan J, 15/5/2013); Mallak v Minister for Justice [2012] IESC 59, [2013] 1 ILRM 73; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; People (AG) v Hogan (1972) 1 Frewen 360 and Dublin Corporation v Lowe (Unrep, Morris P, 4/2/2000) considered - Planning and Development Regulations 2001 (SI 600/2001), art 9 and Sch 2 - Planning and Development Act 2000 (No 30), ss 3, 5, 152 and 160 - Directive 92/43/EEC - Constitution of Ireland 1937, Art 40.5 - Orders made (2011/25CA & 2011/26CA - Hogan J - 5/9/2013) [2013] IEHC 397
Wicklow County Council v Fortune
These were two related sets of proceedings which both concerned the planning status of certain structures on the adjoining lands of Mr Johnny Fortune and Ms Katie Fortune, who were brother and sister. There had been two previous High Court judgments that concerned a small chalet that had been constructed by Katie Fortune without planning permission, the outcome of which was a refusal to grant a statutory injunction to the County Council of The County of Wicklow (‘the Council’) pursuant to s. 160 of the Planning and Development Act 2000 (‘the 2000 Act’) (as amended) requiring Ms. Kate Fortune to demolish the building. It was determined there that although the chalet with been constructed without authorisation, the Council had not established an overriding public interest which would justify the Court overriding Ms Fortune”s right under Article 40.5 of the Constitution of Ireland to the inviolability of her dwelling.
In the first of the present proceedings, the Council sought orders restraining the use of Mr Fortune”s lands for the keeping of certain vehicles and the parking of a caravan on the site, as well as an order providing for the demolition and removal of two wooden timber shed structures, which were known as ‘the large shed’ and ‘the garden shed’ respectively, from the lands, pursuant to s. 160 of the 2000 Act. It was undisputed that no relevant planning permission was in place. In regards to the large shed, Mr Fortune had applied for a certificate of exemption pursuant to s. 5 of the 2000 on the basis that it was used for horses and livestock; however, this was refused by the Council who determined that there was little evidence of this assertion. No such application was made in respect of the garden shed. It was Mr Fortune”s contention that both sheds should be considered as exempted developments. In respect of the second proceedings, the Council sought orders pursuant to s. 160 of the 2000 Act requiring Ms Fortune to remove two mobile homes and a caravan from her land. It was undisputed that no relevant planning permission existed. However, it was argued that she satisfied the test outlined in s. 160(6)(a)(i) of the 2000 Act which precluded the High Court from making a s. 160 order in respect of a development ‘where no permission has been granted after the expiration of seven years from the date of the commencement of the development."
Held by Hogan J that in respect of the use of Mr Fortune”s lands for the keeping of certain vehicles and a caravan, an order restraining this action was not required because the user had been discontinued. It was said that Mr Fortune”s son had accumulated the vehicles on the land because of his interest in vehicle restoration despite the fact that this activity had not been authorised. However, because this use of the land had been discontinued prior to the commencement of proceedings, it was determined that the correct relief would be a declaration that any further activity of this type on the lands would amount to unauthorised user. In regards to the large shed, it was held that although the Court could determine the question of exempted developments in enforcement proceedings, it had no jurisdiction to determine such a question where a s. 5 application for a certificate of exemption had been refused and had not been quashed in judicial review proceedings. This was said to be implied by the decision of Grianán an Aileach Interpretative Centre Co. Ltd. v. Dunegal County Council [2004] IESC 41, [2005] 1 I.L.R.M. 41. Because Mr Fortune”s s. 5 application had been refused, and because no judicial review proceedings had been initiated challenging that decision, it was held that the Court was precluded from determining whether the large shed constituted an exempted development. The Council was therefore entitled to an order pursuant to s. 160 of the 2000 Act requiring Mr Fortune to demolish the large shed. However, it was also determined that the reasons given by the Council in refusing Mr Fortune”s s. 5 application were so inadequate that the basis of the decision could not easily be ascertained. As a consequence, it was held that the making of the s. 160 order would be adjourned to allow Mr. Fortune to make a fresh application for a certificate of exemption in respect of the large shed, if he so desired.
In regards to the garden shed, it was determined that because no application had been made for a certificate of exemption, the Court had jurisdiction to determine whether the structure constituted an exempted development. It was said that the certification of a garden shed of this nature as exempted was subject to the conditions outlined in Class 3 of Schedule 2 of the Planning and Development Act Regulations 2001. Because these conditions had not been addressed by the parties, it was decided that the matter would be adjourned to allow Mr. Fortune to acquire an affidavit from a planning consultant on whether the exemption conditions were satisfied.
In regards to the mobile homes and caravan on the lands of Ms Fortune, it was held that pursuant to the case of Sligo Corporation v. Martin [2007] IEHC 153, the seven year limitation period outlined in s. 160(6)(a)(i) of the 2000 Act could only be said to have expired in respect of a mobile home or a caravan where the party making that assertion was able to demonstrate that for the seven years prior to the commencement of proceedings, the mobile home or caravan had rested at the same location, except where any movement of the caravan or mobile home was either minimal or for the purposes of temporary repair and/or alteration. Because Ms Fortune was unable to satisfy this test, orders pursuant to s. 160 of the 2000 Act were made requiring her to remove the mobile homes and caravan from her land.
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
PLANNING & DEVELOPMENT ACT 2000 S152
GRIANAN AN AILEACH INTERPRETATIVE CENTRE CO LTD v DONEGAL CO COUNCIL 2004 2 IR 625 2005 1 ILRM 106 2004/19/4446 2004 IESC 41
PLANNING & DEVELOPMENT ACT 2000 S5
PLANNING & DEVELOPMENT ACT 2000 S5(3)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9
CUNNINGHAM v BORD PLEANALA UNREP HOGAN 15.5.2013 2013 IEHC 234
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 3 CLASS 6
MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART 1 CLASS 3
EEC DIR 92/43
CONSTITUTION ART 40.5
MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3
PLANNING & DEVELOPMENT ACT 2000 S3
PLANNING & DEVELOPMENT ACT 2000 S3(1)
PLANNING & DEVELOPMENT ACT 2000 S3(2)
PLANNING & DEVELOPMENT ACT 2000 S3(2)(B)(i)
PLANNING & DEVELOPMENT ACT 2000 S3(2)(B)(ii)
SLIGO CO COUNCIL v MARTIN UNREP O'NEILL 24.5.2007 2007/56/12103 2007 IEHC 178
AG, PEOPLE v HOGAN 1 FREWEN 360
PLANNING & DEVELOPMENT ACT 2000 S160(6)(A)(i)
DUBLIN CORP v LOWE & SIGNWAYS HOLDINGS LTD UNREP MORRIS 4.2.2000 2000/6/2107
1. This is now the third judgment dealing with aspects of the planning status of certain structures onlands owned by members of the Fortune family at Carrigeenshinnagh, Lough Dan, Roundwood, Co. Wicklow. The first two judgments dealt with the question of whether a statutory injunction should be granted pursuant to s. 160 of the Planning and Development Act 2000 ("the 2000 Act")(as amended) requiring Ms. Kate Fortune to demolish a small chalet constructed by her without planning permission which she uses as her principal private dwelling. In Wicklow County Council v. Fortune (No.1) [2012] IEHC 406, I articulated the test which a planning...
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