Gerard Doorly v Ciara Corrigan and Padraig Corrigan

• Jurisdiction: Ireland
• Judge: Humphreys J.,Ní Raifeartaigh J.
• Judgment Date: 21 January 2022
• Neutral Citation: [2022] IECA 6
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/145

In the Matter of an Application Pursuant to Section 160 of the Planning and Development Act 2000, as Amended

Between

Gerard Doorly

Applicant/Appellant

and

Ciara Corrigan and Padraig Corrigan

Respondents

[2022] IECA 6

Ní Raifeartaigh J.

Pilkington J.

Humphreys J.

Court of Appeal Record No. 2020/145

High Court Record No. 2018/246/MCA

THE COURT OF APPEAL

CIVIL

Planning & development – Trees – Felling of trees – Refusal of injunction under s 160 of the Planning and Development Act 2000 – Appeal against refusal

Facts: In 2018, a number of trees were felled at Claremount Demesne in County Offaly. The appellant contended that this felling constituted unauthorised development and applied for an injunction under s 160 of the Planning and Development Act 2000. The High Court had refused relief in 2019, and the order was perfected in June 2020. The matter now came before the Court of Appeal.

Held by Humphreys J that the appeal would be allowed, and the High Court order would be set aside. The Court was persuaded that the trial judge had assessed the affidavits with the mistaken view that the burden of proof fell on the appellant. The Court considered the submissions of the parties and the relevant domestic and EU jurisprudence and ordered that the respondents were required to restore the lands to the position before the first felling of trees. Ní Raifeartaigh J. also handed down a concurring judgment in the matter, and Pilkington J also concurred.

JUDGMENT of Humphreys J. delivered on Friday the 21st day of January, 2022

Background and Procedural History

1 . The core issue in this appeal is whether the felling of trees at Claremount Demesne, Co. Offaly, constituted unauthorised development. The trial judge thought not, and refused to grant an injunction pursuant to s. 160 of the Planning and Development Act 2000 against that alleged unauthorised development. The appellant now argues that that approach was incorrect.

2 . Section 160 provides as follows:

“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.

(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”

The section was recently described as follows: “[s]ection 160 is intended to provide a summary procedure whereby breaches of the planning legislation can be brought before the court expeditiously. The procedure is colloquially described as an application for a “planning injunction”. The procedure is available to “any person”, and benefits from special costs rules under Part 2 of the Environment (Miscellaneous Provisions) Act 2011” ( Krikke v. Barranafaddock Sustainability Electricity Limited [2019] IEHC 825, [2019] 12 JIC 0601 (Unreported, High Court, Simons J., 6 ^th December, 2019)). That description is helpful, and wasn't disturbed by this court when allowing the appeal in that case ( Krikke v. Barranafaddock Sustainability Electricity Limited [2021] IECA 217, [2021] 7 JIC 3001 (Unreported, Court of Appeal, Donnelly J. (Costello and Collins JJ. concurring), 30 ^th July, 2021)).

Procedural history in the High Court

3 . The tree-felling apparently commenced in early March, 2018 (grounding affidavit of appellant, para. 59).

4 . On 17 ^th April, 2018, an application for a felling licence was made to the Department of Agriculture, Food and the Marine. This fact was notified to the trial judge who appears to have placed at least some reliance on it. While the application was for clear-felling, the licence ultimately granted was only for thinning, as we shall see.

5 . Plenary proceedings were issued on 24 ^th April, 2018 relating to alleged trespass. An undertaking by the defendants to stop tree-felling was noted by Costello J. by order of 16 ^th May, 2018. Cross-examination of the second defendant was refused by Stewart J. by order of 6 ^th July, 2018. Two motions in those proceedings were dealt with by the trial judge simultaneously with the matter currently on appeal, but no issues arise for present purposes in relation to the plenary action.

6 . A motion seeking relief under s. 160 of the Planning and Development Act 2000 was issued on 22 ^nd June, 2018 (dated 14 ^th May, 2018 and issued on foot of an order of Costello J. of 21 ^st June, 2018) grounded on an affidavit of the appellant.

7 . The appellant delivered submissions on 17 ^th July, 2018 and the respondents delivered submissions on 27 ^th July, 2018 which are dated as of after the start of the hearing.

Hearing in the High Court

8 . The High Court action was heard over two days on 26 ^th and 27 ^th July, 2018. No oral evidence was heard and all factual findings in the trial judge's judgment, insofar as factual findings are set out, are based on her assessment of the affidavits. Obviously, this court, while having regard to that assessment, is in as good a position as the trial judge to read the affidavits.

The evidence

9 . As set out in the book of appeal, the critical evidence (leaving aside papers filed in the plenary proceedings) was as follows:

• (i). affidavit of appellant of 11 ^th May, 2018 (grounding the original application), which inter alia exhibited the first of two reports from Mr Costin, the appellant's adviser;

• (ii). replying affidavit of the second respondent of 1 ^st June, 2018;

• (iii). affidavits of the appellant of 8 ^th and 21 ^st June, 2018 in reply;

• (iv). a short affidavit of Anthony Mounsey, the respondents' adviser, who carried out the tree-felling on behalf of the respondents, of 4 ^th July, 2018;

• (v). a short affidavit of Brendan Garry, developer and father of the first respondent, of 4 ^th July, 2018.

10 . Claremount House is listed as a protected structure in County Offaly in the following terms: “Claremount House is a wonderful example of a late eighteenth-/early nineteenth-century country house. Located south of Banagher town in a mature wooded parkland, the house, outbuildings, entrance gates and gates lodge form an important group of related structures.” A historic map of the property marked “OSI” (Ordnance Survey Ireland) is set out at exhibit GD11 to the appellant's affidavit of 21 ^st June, 2018 as part of the record of the Heritage Gardens maintained on the National Inventory of Architectural Heritage (NIAH).

11 . The court has been provided with an illuminating map of the property at exhibit BB4 to the affidavit of the appellant of 11 ^th May, 2018. Claremount Demesne, a Heritage Garden by NIAH, is shaped very roughly like an isosceles triangle. One side of the triangle is mainly folio OY9592 which is a heavily wooded area with ancient native Irish trees, and the other side is folio OY22812F which had tree-lined hedgerows along two sides of the boundary. Claremount House (folio OY9739) is near the apex of the triangle, with an access road cutting through the wooded area.

12 . In circumstances which don't arise for the court's consideration here, the two folios making up Claremount Demesne, apart from the House and access, came into the legal ownership (in trust) of the respondents. Hurricane Ophelia arrived in Ireland in October, 2017, blowing down a single identified tree in this heavily wooded Demesne as well possibly damaging a limited number of unidentified trees.

13 . A short one-page “Report on condition of Trees at Claremont [ sic] Banagher” was prepared by Mr. Anthony Mounsey (“Forestry Services/ Plant Hire”) of Roscrea, dated 26 ^th January, 2018. That report claims that the hedgerow ash trees were “very susceptible to infection”. There is no statement that they were actually infected.

14 . Mr. Mounsey went on to say that in respect of the roadside mature trees in the heavily wooded area, “there is significant evidence of heterobasidion annosum – Root and Butt rot Fungus”. Thus, it was suggested that there was a risk of “collapse or windthrow”. In respect of the trees further into the wooded area, mature Beech, Sycamore and Ash trees, it was suggested that “[a] number of these trees” (unspecified) “are in a hazardous state. “Some” (number unspecified) “are already completely dead”. The Beech trees were alleged to show signs of Neonectria canker and Heterobasidion annosum. The Ash trees were allegedly at high risk of infection which again suggests that they were not actually diseased.

15 . The map attached (at exhibit E to the respondent's affidavit) is not entirely consistent with this. It notes that a single tree was blown down by a storm. Point “D” is “[s]tart of wooded area”. The large cut-down area in the heavily wooded area is described on the map as area “E” described as “[a]rea that had to be removed in order to grant access to area beyond “D” for future felling.

16 . Large scale tree-felling operations took place between March, 2018 and 2 ^nd May, 2018 on the lands in question. No environmental impact assessment, planning permission, tree-felling licence under the Forestry Act 2014, notice under the Roads Act 1993 or other development consent was obtained in advance of commencement of works.

17 . Some way into the...