Kerry County Council v Michael McElligott

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] IEHC 542
• Court: High Court
• Docket Number: RECORD NO. 2020 206 CA

Between

Kerry County Council

Plaintiff

and

Michael McElligott

Defendant

[2021] IEHC 542

RECORD NO. 2020 206 CA

THE HIGH COURT

Planning and development – Unauthorised development – Planning and Development Act 2000 s. 160 – Plaintiff seeking Planning and Development Act 2000 s. 160 relief – Whether there was evidence of unauthorised development

Facts: The plaintiff, Kerry County Council, appealed to the High Court from a decision of the Circuit Court in the South Western Circuit of Kerry of 13 November 2020 whereby, pursuant to s. 160 of the Planning and Development Act 2000, as amended, it was ordered that the defendant, Mr McElligott, carry out works necessary to render his development at Ross Court, Tarbert, Co. Kerry compliant with planning condition 12 of a 2008 planning permission. No order was made in relation to additional reliefs sought by the plaintiff seeking the removal of gates. This appeal was concerned solely with the failure of the Circuit Court to grant those additional reliefs. The defendant raised a large number of technical defences in relation to jurisdiction, as well as asserting that there was insufficient proof of unauthorised development, that it was for the plaintiff to establish that no exemption applied that would render the presence of the gates compliant with planning rules, and that the plaintiff was motivated by considerations unrelated to planning when bringing these proceedings.

Held by Hyland J that the gates in question did not have planning permission and prevented compliance with condition 12 of the existing planning permission. She concluded that none of the defendant’s arguments were meritorious. In relation to evidence of unauthorised development, she was satisfied with the evidence adduced by the plaintiff. Insofar as the defendant invoked exemptions, she concluded that if the defendant wished to rely upon an exemption or other exception, he needed to identify and prove it. She held that no such identification or proof had been proffered. The discretionary factors that she considered in the context of s. 160 all pointed to the grant of the relief: the defendant had never sought to explain the reason for the erection of the gates or explain why they were compliant with the 2008 planning permission; he had made unwarranted complaints about the motivation of the plaintiff in taking these proceedings; and the gates he erected had resulted in a traffic hazard over a considerable period, impacting in particular on the users of a local GAA club (who included young children).

Hyland J granted the relief sought under s. 160.

Relief granted.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 30 July 2021

Summary

1 This is an appeal by Kerry County Council (the “plaintiff”) from a decision of the Circuit Court in the South Western Circuit of Kerry of 13 November 2020 whereby, pursuant to s. 160, it was ordered that Mr. McElligott (the “defendant”) carry out works necessary to render his development at Ross Court, Tarbert, Co Kerry compliant with planning condition 12 of a 2008 planning permission. No order was made in relation to additional reliefs sought by the plaintiff seeking the removal of gates. This appeal is concerned solely with the failure of the Circuit Court to grant those additional reliefs.

2 The gates in question do not have planning permission and I have concluded they also prevent compliance with condition 12 of the existing planning permission. The defendant has raised a large number of what might be described as technical defences in relation to jurisdiction, as well as asserting there is insufficient proof of unauthorised development, that it is for the plaintiff to establish that no exemption applies that would render the presence of the gates compliant with planning rules, and that the plaintiff was motivated by considerations unrelated to planning when bringing these proceedings. I have concluded that none of these arguments are meritorious. In relation to evidence of unauthorised development, I am satisfied with the evidence adduced by the plaintiff, and I identify and consider same below. Insofar as the defendant invokes exemptions, I conclude that if the defendant wishes to rely upon an exemption or other exception, he must identify it and prove it. No such identification or proof has been proffered. Finally, the discretionary factors that I must consider in the context of s.160 all point to the grant of the relief: the defendant has never sought to explain the reason for the erection of the gates or explain why they were compliant with the 2008 planning permission; he has made unwarranted complaints about the motivation of the plaintiff in taking these proceeding; and, most significantly, the gates he erected have resulted in a traffic hazard over a considerable period, impacting in particular on the users of a local GAA club (who include young children). Accordingly, I have granted the relief sought under s.160.

Nature of works

3 The development in question is for four residential houses and associated parking at Ross Court. Planning permission was granted for two houses in 2005 under planning reference 1974/05 (the “2005 permission”). In 2008 an application was made for a further two houses. As part of that application a letter of 8 May 2008 was sent by Paul O'Dowd & Associates, consulting engineers, on behalf of the defendant. In that letter, Mr. O'Dowd stated that the proposed vehicular access to the site via the laneway was as a result of earlier discussions had with Kerry County Council Planning Office but that they were happy to regard the access through this laneway as pedestrian access only. The laneway in question is called Chapel Lane. I attach a copy of the revised site layout sent by Mr. O'Dowd showing vehicular access from Church Street only and pedestrian access to the laneway as appendix A to this judgment since understanding the layout of the site makes understanding the issues arising in this case easier to understand. It may be noted that Chapel Lane is simply described as “laneway” at the bottom left-hand corner of the site layout.

4 It is also important to understand there is a second laneway relevant to the issues arising in this case and that is the strip of land owned by the defendant between Church St. and Chapel Lane. That is described as the “defendant's laneway” in this judgment.

5 Planning permission was granted by the plaintiff under Planning Register 493/08 on 5 June 2008 (the “2008 permission”). Condition 12 dealt with the question of vehicular access and car parking. It provided as follows:

“the 2 no. dwelling houses shall be erected and located on the site as outlined on the site layout received on the 13th May 2008. Vehicular access to the dwelling houses shall be from the Church Street entrance only and car parking shall be provided as shown on the site layout received by the Planning Authority on the 13th May 2008”

The reason given was to regulate and control the layout of the development.

6 Condition 12 is clear – there is to be no vehicular access other than from the Church Street entrance and car parking was to be provided as shown in the drawing i.e. recessed off the defendant's laneway to the right of the two sets of houses approaching the lane from Church Street. That parking is clearly identified in the site plan. It is clear from looking at the drawing that to access that parking, there must be unimpeded access from Church Street as vehicular access may only be from the Church Street entrance. Moreover, the defendant's lane is effectively a cul-de-sac and does not connect with Chapel Lane.

7 In 2015, complaints were sent to the plaintiff from users of the GAA pitch, Tarbert GAA, adjacent to the housing the subject of the application, which pitch is accessed through Chapel Lane. It was asserted that the occupants of the four houses (the defendant's tenants) were parking their vehicles outside the house on Chapel Lane, even though the planning permission only grants pedestrian access to those properties from Chapel Lane.

8 A letter was exhibited to the affidavit of Mr. Van Schoor of 14 June 2018 from Ms Maire Ni Scanlain, the parent of a child who plays at Tarbert GAA, of 4 March 2016, which referred inter alia to a gate having been constructed which prohibited access via Church Street. She said that the old gate had been recently removed and a new gate erected. A similar assertion was made in a letter of 4 April 2016 from Tarbert GAA, where Mr Joe Langan stated that a new gate had recently been erected across the authorised entrance to the two houses in question in Church Street and photographs of the original gate and of the new gate were included.

9 On 4 March 2015, the defendant had applied to the plaintiff for permission to retain the houses with revised site boundaries and to vary the parking arrangements at the said house. The application was for 4 car parking spaces to be placed in front of the houses adjacent to Chapel Lane. In the site layout map that accompanied the application there was a drawing of a barrier across the defendant's lane close to the Church Street side and this was described as “ existing gate”.

10 A decision was made on 24 April 2015 to refuse the application on the basis that it would (1) “contravene materially condition 12… The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area” and (2) “It is considered that the proposed development would endanger public safety by reason of traffic hazard, because the traffic movements generated by this development would be likely to cause an obstruction to road users.”

11 This decision was appealed to An Bord Pleanala and a decision was made on 7 August 2019, whereby the proposed development was refused permission on the following basis:

“Having regard to the planning history of the site and...