Fingal County Council v James Nugent

JudgeMs. Justice Niamh Hyland
Judgment Date01 October 2021
Neutral Citation[2021] IEHC 618
Docket NumberRECORD NUMBER: 2019 493 CA
CourtHigh Court

In the Matter of an Application Under Section 160 of the Planning and Development Act, 2000 (As Amended)

Fingal County Council
James Nugent

[2021] IEHC 618



JUDGMENT of Ms. Justice Niamh Hyland delivered 1 October 2021


This is an appeal by Mr Nugent (“the appellant”) against the Order of Linnane J. of 28 November 2019 directing him to take various steps pursuant to s. 160 of the Planning and Development Act 2000 (as amended) (the “2000 Act”).


The first part of the appeal concerns an electronic gate (also referred to as the “inner gate”) on the appellant's lands measuring 2m by 7m wide, located approximately 23m from the public road (R108) and from an outer gate along the public road. The respondent's concern was that (a) the use of this electronic gate amounts to a breach of a condition of the planning permission for the outer gate; and (b) constitutes a potential traffic hazard. Linnane J. found the gate was unauthorised development and ordered its removal.


Second, the appellant is appealing that part of the Order relating to a waste trailer located on the appellant's lands that was ordered to be removed by Linnane J. The appellant accepts that the trailer requires planning permission, and that no planning permission exists for it, but argues that the waste trailer is immune from enforcement due to the limitation period under s. 160 of the 2000 Act.


The land the subject of these proceedings is situated in Belinstown, Ballyboughal, County Dublin with folio number DN19779. The outer gate of the property, along the public road R108, was built in December 2008 to secure the appellant's lands against trespass, theft, and vandalism. Retention planning permission was granted on 4 August 2009.


Following a site inspection of the lands on 16 May 2017, an enforcement notice was issued on 3 July 2017 giving a two-month period to the appellant to, inter alia, remove the new electronic inner gate on the property and remove the trailer being used to store food waste. The appellant sought retention permission (reference number F18A/0417), which was refused by the respondent on 10 September 2018. The appellant appealed this decision to An Bord Pleanála (reference ABP-302716-18). This was refused on 12 February 2019.


The land in question is known as Site A. Site B, which is situated close to it, is also owned by the appellant. The Site B lands were used for reception, storage, processing and distribution of farm produce, including produce grown on the lands and produce grown elsewhere. In the Circuit Court, there was a significant dispute between the parties as to the use of the lands at Site A but ultimately Linnane J. held that the appellant was using it as part of commercial activity and for the purpose of carrying on his food processing business located at Site B. She held, inter alia, that the principal use of three sheds that had been erected was to provide a storage facility for the food processing business and not for agricultural use. That part of her Order has not been appealed.


The original proceedings in this case commenced by way of Notice of Motion dated 12 February 2019 and came on before Linnane J. on 21 and 22 November 2019. By Order dated 28 November 2019 Linnane J. required the appellant to remove certain structures on his lands and cease certain uses occurring on those lands.


A Notice of Appeal dated 5 December 2019 was served on 6 December 2019, in which the appellant appealed against the entirety of the Order. However, counsel for the appellant has explained that the appeal is now limited to paragraphs 1 and 4 of that Order, following correspondence by the appellant's solicitor on 21 October 2020.


The Order of Linnane J. reads in material part:

“1. The Defendant, his servants or agents to remove the new electronic inner gate measuring approximately 2 metres high by 7 metres wide, the subject of the proceedings herein, and situated on the Site and identified with the label “Electronic gate” on the aerial photograph attached hereto within four weeks of the date hereof.

4. The Defendant, his servants or agents to remove the trailer, the subject of the proceedings herein, situated on the Site and used in connection with business outside of the Site and identified with the label “Waste trailer” on the aerial photograph attached hereto within four weeks of the date hereof.”


Due to the appellant's non-compliance with this Order, Fingal County Council (“the respondent”) brought contempt proceedings and on 6 February 2020 the appellant was found to be in contempt. In response to those proceedings the appellant undertook to comply with the terms of the Order and I am informed that the electronic gate and waste trailer have been removed. Should this appeal be successful I am told that the appellant intends to resume use of the trailer and gate.

Arguments of the parties
Appellant's arguments
Electronic Gate

In his affidavit of 30 April 2019, the appellant avers that he built the inner gate 23m back from the road at the request of a neighbour to ensure that vehicles would not be left waiting on the public road as the outer gate opened, causing a build-up of traffic (paragraph 22). The appellant says that he understood that such a development would be an exempted development.


The appellant submits that the electronic gate is an exempted development under Article 6(1) of the Planning and Development Regulations 2001 (S.I. 600/2001) and that no basis was given by the respondent for restricting that exemption. Article 6(1) reads as follows:

Subject to article 9, development of a class specified in column 1 of Part 1 of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 1.

Class 9 of Part 1 of the Second Schedule provides:

The construction, erection, renewal or replacement, other than within or bounding the curtilage of a house, of any gate or gateway.

The height of any such structure shall not exceed 2 metres.

13. The appellant argues therefore that the electronic gate is prima facie an exempted development although he concedes that this is subject to Article 9 of the Planning Regulations. Two separate provisions of Article 9 are potentially relevant.


Article 9 (1)(a)(i) provides that a development will not be exempted should it contravene a condition attached to a permission under the Act or be inconsistent with any use specified in a permission under the Act. Separately, under Article 9 (1)(a)(iii), a development will not be exempted should it endanger public safety by reason of traffic hazard or obstruction of road users.


The appellant argues that Condition 4 of the planning permission for the outer gate F09A/0234 could not be read in such a way as to prevent any works for the electronic gate.

Condition 4 provides that “4. The entrance hereby approved shall be used solely as an agricultural entrance and shall not facilitate access to commercial or other development without a prior grant of planning permission”.


The appellant argues that such a condition does not in fact prohibit the erection of the electronic gate, citing Camiveo Ltd v. Dunnes Stores [2019] IECA 138 for the proposition that the ordinary meaning of the condition would be understood by the public to concern use and not works. The appellant submits therefore Article 9 (1)(a)(i) is not engaged.


The appellant further disputes the respondent's argument that the electronic gate could constitute a traffic hazard or danger, as the electronic gate is set back a substantial distance (approximately 23m) from the side of the public road, R108. The appellant argues that the electronic gate would neither cause nor contribute to traffic, and in fact the very purpose of the electronic gate was to avoid vehicular traffic queuing on the public road. The appellant therefore argues that Article 9 (1)(a)(iii) is not engaged.


The appellant summarises his position by stating that, as Article 9 is not engaged, the electronic gate should be classified as an exempted development and that Linnane J. erred in making an order requiring the removal of the electronic gate.

Waste Trailer

The appellant points to the limitation period in s. 160(6)(a)(i) of the 2000 Act, to the effect that no order shall be made for a development after a period of 7 years from the commencement of that development.


Section 160(6)(a)(i) provides that:

(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,


The appellant submits that per Wicklow County Council v. O'Reilly [2015] IEHC 667 the practical effect of s. 160 is that once a period of 7 years and 63 days has elapsed, works commenced before that time are immune from enforcement proceedings.


The appellant avers at paragraph 44 of his affidavit of 30 April 2019 that the trailer on the lands is used to store animal product and has been used for this purpose for a period amounting to more than 7 years, 63 days (since 2008). He argues that the limitation period contained in s. 160(6)(a)(i) of the 2000 Act prohibits an Order in relation to any development commenced before a certain period (in this case 11 December 2011).


The appellant submits that this trailer was in use before the December 2011 date and exhibited, inter alia, aerial images of the lands concerned which show the waste trailer in use. He exhibits documents to that effect and points to...

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    ...with previous authorities was arrived at without the parties opening all those authorities. 125 . In Fingal County Council v. Nugent [2021] IEHC 618, ( [2021] 10 JIC 0101 Unreported, High Court, 1st October, 2021), Hyland J. said it was well-established that the onus of proving a defence by......

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