McArdle v Carroll
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 03 December 2019 |
| Neutral Citation | [2019] IEHC 850 |
| Docket Number | [2018 No. 234 MCA] |
| Court | High Court |
| Date | 03 December 2019 |
[2019] IEHC 850
THE HIGH COURT
MacGrath
[2018 No. 234 MCA]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)
AND
03/12/2019 No. 2018/234 MCA
Planning and development – Boundary wall – Parties in dispute regarding height of wall – Substantive proceedings becoming moot - Costs
Facts: The respondent and applicants were neighbours in County Louth and had been on cordial terms. The respondent proceeded to build a boundary wall which the applicants believed required planning permission due to its height and brought proceedings to prevent this. The substantive proceedings were now moot, and the matter now came before the Court in respect of the costs.
Held by the Court, that costs would be awarded to the applicants up to the period of the decision of An Bord Pleanála in December 2018. The Court considered the conduct of the parties and stated that the primary cause of the proceedings was the respondent’s erection of a wall without planning permission or communication with his neighbours.
These proceedings were commenced by way of notice of motion dated the 8th June, 2018. The applicants, inter alia, sought an order pursuant to s. 160(1) of the Planning and Development Act 2000 as amended ( “the Act of 2000”) to restrain the respondent from carrying out an unauthorised development on his lands, being a boundary wall. It was contended that the wall was of such a height as required planning permission in accordance with the provisions the Act of 2000 and Regulations made thereunder. An order was also sought for inspection of the respondents' property. In circumstances outlined hereunder, it is accepted that proceedings have now become moot and the sole remaining issue requiring the court's determination is in relation to costs.
The applicants and the respondent are neighbours and reside at Rock Road, Blackrock, Co. Louth. Before the emergence of this dispute in April, 2018, there is nothing to suggest that they were on anything but good terms. The respondent has described his family's relationship with the applicants as cordial and friendly. This situation pertained before the respondent decided to build a boundary wall. The wall was constructed to the rear of the applicant's dwelling house and behind an existing boundary wall thereon. The lands of the respondent are zoned for residential use. The respondent, in an affidavit sworn in opposition avers that he built the wall to improve and secure his own boundary. The applicants objected.
In circumstances outlined hereunder, the respondent applied to the local planning authority for permission to retain the wall and in the events which have transpired, An Bord Pleanála confirmed the local authority's decision to grant retention permission. The decision of the Board was made on 17th December, 2018. Thus, it is agreed that the proceedings became moot at this time.
The application for retention was lodged with the planning authority on 12th June, 2018. Some days prior to that, a site notice was erected. On the evidence, this occurred on the morning of the 7th June, 2018, being the day on which the first applicant swore her affidavit grounding the proceedings and one day prior to the institution of these proceedings. It appears, nevertheless, that the preparation of the proceedings was in train prior to the 7th June, 2018. This is evident from the supporting affidavit of Mr. J.P. Murphy, engineer, which was sworn on 6th June, 2018. He deposed to having inspected the planning register and he addressed the planning status of the property in his affidavit. He confirmed that the lands are zoned residential, that no applications had been submitted for planning permission and that a warning letter had been issued to the respondent by the local planning authority.
In her affidavit, the first named applicant also complained that the wall had been erected over pipes servicing the dwelling house of the second and third named applicants and that a gap had been left between the two walls which was considered by the applicants to be dangerous and hazardous, particularly to children. The court was informed that separate proceedings had been commenced in respect of an alleged trespass. These also issued on 8th June, 2018. Apart from being served on the respondent, they have not been progressed to date.
The applicants maintain that the wall was built at such a pace that it was substantially completed by the morning of the 9th April, 2018, despite conversations which had taken place on site and the sending of a letter written on the 5th April, 2018 in which the applicant had expressed concerns. They maintain that they sought to avoid proceedings.
On the evidence, I am satisfied that the works commenced without prior consultation by the respondent with the applicants. I accept, on the evidence, that Mr. Carroll engaged a contractor on Wednesday 4th April, who in turn commenced excavation and poured the foundations for the wall.
I am also satisfied that there was communication on that day when the third applicant, Ms. Olivia McArdle, who leaned over the rear wall of her home and queried what was happening. She maintains that certain assurances were given to her as to the pace at which the works might take place. In his affidavit, para. 10, the respondent avers that she enquired of him as to when he proposed to construct a wall and he responded that it would probably be Monday or the following week. Ms. McArdle queried why he had not informed her that he was building a wall and Mr. Carroll states that he had intended to inform her sister, Ms. Shirley McArdle, in short course. On enquiry as to the height of the wall, Mr. Carroll avers that he confirmed that the wall would be the same height as the wall to the east, which bounded the property of another neighbour, approximately 1.8m above her garden level but that it would not be as high as a wooden partition fence dividing the applicant's garden into two sections. He also states that Ms. Olivia McArdle said to him “[w]hat about my view?”. She inquired about the sewage pipe passing from her property to a council sewer running under and through her own property and he confirmed that he was aware of the council pipe and that he would not be encountering any pipe work in the course of excavating the foundation for the wall. This was because the pipe was approximately 2.6m underneath the ground.
Mr. Carroll also accepts that on the 5th April, at approximately 8:30a.m., Ms. Olivia McArdle once again leaned over the wall and requested that he cease all works immediately. A discussion ensued about the height of the wall and the respondent avers that he informed her that he understood that it was permissible to build a wall up to 2m in height without planning permission and that the finished wall would be less than 2m above ground level on her side. He states that Ms. McArdle informed him that she wished to have her engineer inspect the works to which he replied that he had no difficulty with such course of action. Ms. McArdle also expressed concerns regarding the foundation of her boundary wall and Mr. Carroll states that he put her mind at ease about this. However, Mr. Carroll maintains that Ms. McArdle again demanded, in what he described as a very pointed and aggressive fashion that all works cease immediately, to which he responded that the works were in progress with men and all materials on site and advised her that he had a delivery of concrete arriving to fill the foundations which was “arriving imminently”.
Mr. Carroll also confirms at para. 13 of his affidavit that the construction of the wall commenced on the 7th April, 2018 and that he was approached at approximately lunchtime by Ms. Sharon McArdle and Ms. Olivia McArdle who he says were quite aggressive towards the blocklayers and who demanded that they immediately cease laying blocks otherwise they would call the Gardaí. Mr. Carroll states that he believes the import of this communication to the workers in question was that they were in some way committing a criminal offence. Later that afternoon, Saturday 7th April, Ms. Olivia McArdle called to his front door. He was not there and his daughter informed Ms. McArdle that she was unaware of his whereabouts. Once again Mr. Carroll complains about the demeanour, tone and what he describes as the aggressive and oppressive nature of that demeanour, which made his daughter feel uncomfortable.
Mr. Carroll avers that on Sunday 8th April, 2018, he was present in the garden with a number of blocklayers and was confronted again. He informed Ms. Sharon McArdle that this was not a party wall, it was built entirely on his property, that the blocklayers were independent contractors who started on Saturday as they had another job waiting and because the weather was forecast to deteriorate. However, he confirmed that engineers retained by the applicants were welcome to inspect the works and could liaise with his engineer, Mr. McMahon, of Messrs. Padraig Herr and Associates who, he states, had already inspected the works the previous day and found that there was nothing wrong with either the wall or the foundations. He forwarded a copy of the engineer's report to them on Monday, 9th April, 2018. However, he states that Ms. Sharon McArdle dismissed this immediately and indicated that the report would not stand up in court. He acknowledges that Ms. Olivia McArdle accused him of deliberately misleading her because the workers had started on site on Saturday and not on the following Monday. That apparently was the last verbal communication between the parties.
I am satisfied that while there may have been no legal obligation to...
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