Meath County Council v Murray and Murray

JurisdictionIreland
CourtHigh Court
JudgeMr Justice John Edwards
Judgment Date29 June 2010
Neutral Citation[2010] IEHC 254
Date29 June 2010

[2010] IEHC 254

THE HIGH COURT

RECORD NO 76MCA/2007
Meath Co Council v Murray
IN THE MATTER OF SECTION 160 OF THE PLANNING & DEVELOPMENT ACT 2000 AS AMENDED, AND IN THE MATTER OF AN APPLICATION BY:
THE COUNTY COUNCIL FOR THE COUNTY OF MEATH
APPLICANT
-AND-
MICHAEL MURRAY AND ROSE MURRAY
RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S50(2)

DUBLIN CORP v MCGOWAN 1993 1 IR 405 1993/2/303

STAFFORD & BATES v ROADSTONE LTD 1980 ILRM 1 1980/3/530

AVENUE PROPERTIES LTD & MCCABE v FARRELL HOMES LTD 1982 ILRM 21 1981/9/1463

WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374 1994/13/4310

DUBLIN CORP v MULLIGAN T/A FRANCIS X MULLIGAN & SON UNREP FINLAY 6.5.1980 1980/5/969

DUBLIN CORP v LOWE & SIGNWAYS HOLDINGS LTD UNREP MORRIS 4.2.2000 2000/6/2107

SWEETMAN v SHELL E & P IRL LTD & ORS 2007 3 IR 13 2006/55/11657 2006 IEHC 85

RYAN v ROADSTONE DUBLIN LTD UNREP O'DONOVAN 6.3.2006 2006/50/10737 2006 IEHC 53

KILDARE CO COUNCIL v GOODE UNREP MORRIS 13.6.97 1998/8/2312

DUBLIN CO COUNCIL v MATRA INVESTMENTS LTD & ORS 1980 114 ILTR 102

WICKLOW CO COUNCIL v FOREST FENCING LTD (T/A ABWOOD HOMES) & SMULLEN 2008 1 ILRM 357 2007/60/12933 2007 IEHC 242

CURLEY & ORS v GALWAY CORP UNREP KELLY 30.3.2001 2001/4/970

WESTPORT URBAN DISTRICT COUNCIL v GOLDEN & ORS 2002 1 ILRM 439 2000/18/6742

LEEN v AER RIANTA CPT 2003 4 IR 394 2003/30/7167

DUBLIN CORP v GARLAND & ORS 1982 ILRM 104 1982/4/746

MORRIS v GARVEY 1983 IR 319 1982 ILRM 177 1982/7/1253

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(1)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S27(1)(B)

PLANNING & ENVIRONMENTAL LAW

Default planning permission

Unauthorised development - Unauthorised use - Conditions - Refusal of planning permission - Retention - Dwelling house - Effect of demolition on respondents' children - Planning and sustainable development of the area - Excessive density of development in rural area - Limited size of original landholding - Urgency - Undue delay - Discretionary relief - Whether development in breach of planning laws - Whether breach justified - Whether development materially contravened conditions - Whether decisions reflected legitimate planning objective - Whether inappropriate use of s. 160 proceedings - Whether s 160 could be invoked in circumstances other than of great urgency - Dublin Corporation v McGowan [1993] IR 405; Stafford v Roadstone Ltd [1980] ILRM 1; Avenue Properties Ltd v Farrell Homes Ltd (Unrep, HC, Barrington J, 27/5/1981); White v McInerney Construction Ltd [1995] 1 ILRM 374; Dublin Corporation v Mulligan (Unrep, HC, Finlay P, 6/5/1980); Dublin Corporation v Lowe (Unrep, HC, 4/2/2000); Sweetman v Shell E & P Ireland Ltd [2007] 3 IR 13; Ryan v Roadstone Dublin Ltd [2006] IEHC 53; Kildare County Council v Goode [1997] IEHC 95; Dublin City Council v Matra (1978) 114 ILTR 102; Wicklow County Council v Forest Fencing Ltd [2007] IEHC 242; Curley v Galway County Council (Unrep, HC, Kelly J, 30/3/2001); Westport UDC v Golden [2002] 1 ILRM 439; Leen v Aer Rianta cpt [2003] 4 IR 394; Dublin Corporation v Garland [1982] ILRM 104 and Morris v Garvey [1983] IR 319 considered - Planning and Development Act 2000 (No 30), ss 47, 50(2) and 160 - Local Government (Planning and Development) Act 1963 (No 28), s 27 - Relief granted (2007/76MCA - Edwards J - 29/6/2010) [2010] IEHC 254

Meath County Council v Murray

Facts: The proceedings were for a planning injunction and the applicant sought an order pursuant to s. 160 Planning and Development Act 2000 for the respondent to carry out any unauthorised development and an Order to remove the development and restore the lands to a condition suitable for agricultural use. The proceedings related to a newly constructed dwelling house in Navan. The respondents were refused planning permission in 2006 and in 2007, a complaint was received that the respondents had constructed a dwelling house double the size of the refused planning permission for which no planning permission had been sought. A retention application was received in 2007 and refused. It was argued by the applicants that the breach of the law was flagrant and completely unjustified, while the respondents contended that the reliefs sought were disproportionate and unduly harsh.

Held by Edwards J. that the relief sought was of a discretionary nature and the Court had to exercise its discretion judicially. With very great regret, the Court found itself in agreement with the applicants in the case. This was not a case of a minor infraction or of accidental compliance or some level of technicality. The unauthorised development was a flagrant breach of the law and while it would undoubtedly constitute an enormous hardship to the respondents to have to demolish their dwelling house, given the financial circumstances of the respondents, the law had to be upheld. The Court had to accede to the application and grant the relief sought. On a humanitarian basis, the Court would put a stay on its Order of 24 months from today's fate for compliance to take effect with the order. The Order had to be complied with, however, on or before the expiry of the stay,

Reporter: E.F.

Introduction and Pleadings.
1

1. This is an application for a planning injunction and other relief which came on for hearing before this honourable Court on the 8th day of March, 2010. The applicant's Notice of Motion is dated the 25 th of June 2007 and it claims the following:

2

"1. An Order pursuant to the provisions of Section 160 of the Planning & Development Act, 2000 restraining the Respondents and each of them, their respective servants or agents, licensees, or any persons acting in consort with them, and all persons having knowledge of the granting of any Order herein, from carrying out any unauthorized development of land owned and occupied by the Respondents at Faughan Hill, Bohermeen, Navan, in the County of Meath, being part of the lands comprised in Folio 14049 of the Register of Freeholders, County Meath (hereinafter referred to as 'the said lands').

2

An Order restraining the Respondents and each of them, their respective servants or agents, licensees or anyone acting in consort with them and all persons having knowledge of the granting of any Order herein, from continuing with the unauthorised use of the said lands and in particular the use of the said lands for residential purposes.

3

An Order directing the Respondents to remove an unauthorised development from the said lands namely a residential building constructed by or on behalf of the Respondents on the said lands.

4

An Order directing the Respondents to forthwith restore the said lands to a condition suitable for agricultural use being their condition prior to the carrying out of the unauthorized development on the said lands namely the construction of a residential building.

5

Such further or other relief pursuant to Section 160 of the Planning & Development Act, 2000, as amended, as to this Honorable Court shall seem meet."

2

2. The application is grounded upon the affidavit of Jimmy Young, a Senior Staff Officer in the Planning Department of Meath County Council, sworn on the 29 th day of June 2007, and the documents therein exhibited; the affidavit of Wendy Moffat, a Senior Planner in the Planning Department of Meath County Council, sworn on the 29 th day of June 2007, and the documents therein exhibited; and the affidavits of Michael Griffin, a Senior Executive Officer in the Planning Department of Meath County Council, sworn on the 24 th day of January 2008, and on the 30 th day of June 2009, respectively, and the documents exhibited with both of those affidavits.

3

3. The respondents have filed two affidavits in response to the applicant's application, namely an affidavit of Michael Murray, the first named respondent, sworn on the 11 th day of April 2008, and the documents therein exhibited and an affidavit of Rose Murray, the second named respondent, sworn on the 25 th day of November, 2009 and the documents therein exhibited.

Facts Not In Dispute
4

4. The property to which these proceedings relate is a newly constructed dwelling house on a site of approximately 4 acres at Faughan Hill, Bohermeen, Navan. Searches carried out by the applicant in the Land Registry have disclosed that these lands form part of the lands comprised in Folio 14049 of the Register of Freeholders for the County of Meath which lands are registered in the names of Michael Murtagh, John Murtagh and Nora Drain. Further, searches have also revealed the existence of a pending application for the registration of a transfer of part of the lands in the said folio to Rose Murray, the second named respondent herein, under Dealing No. D2007NL02494, which dealing was lodged in the Land Registry on the 24th of April 2007 by Steen O'Reilly and Company Solicitors.

5

5. The lands the subject matter of these proceedings originally formed part of a larger agricultural holding owned by the Murtagh family. Planning permission was previously granted by Meath County Council for a number of dwelling houses thereon for members of that family. These planning permissions included permissions reference no KAJ40653 granted on the 7th of July 2005 to Orla Murtagh and Karl Brady, and reference no KA40669 granted on the 5th of August 2005 to Aoife Murtagh and David Reilly.

6

6. Both of these planning permissions were issued subject to conditions. Condition 3 of both permissions was in the following terms:-

"Prior to commencement of the development the owner of the landholding of which the site forms part as shown outlined in blue on the location map submitted on (in the case of planning permission reference no KA/ 40653, t...

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4 cases
  • Meath County Council v Murray
    • Ireland
    • Supreme Court
    • 19 May 2017
    ...for its rejection of the first appeal. High Court Judgment: 12 The learned judge, in delivering judgment on the 29th June, 2010 ( [2010] I.E.H.C. 254), recounted the Murrays' affidavit evidence in considerable detail, indicating that Michael Murray was a native of the parish and had been b......
  • Wicklow County Council v Fortune [High Court] (No 1)
    • Ireland
    • High Court
    • 4 October 2012
    ...a quiet area and the reasonable use by neighbours of their farms and dwelling." 31 31. Likewise, in Meath County Council v. Murray [2010] IEHC 254 Edwards J. granted an injunction pursuant to s. 160 requiring the respondents to demolish an enormous dwelling house which was approximatel......
  • Wicklow County Council v Jessup & Smith
    • Ireland
    • High Court
    • 8 March 2011
    ...DUBLIN CO COUNCIL v SELLWOOD QUARRIES LTD & DUNNE 1981 ILRM 23 1981/9/1619 MEATH CO COUNCIL v MURRAY UNREP EDWARDS 29.6.2010 2010 IEHC 254 PLANNING AND ENVIRONMENTAL LAW Appeal Development - Application restraining development - Development plan - Burden on applicant - Current use of st......
  • Wicklow County Council v Kinsella
    • Ireland
    • High Court
    • 17 April 2015
    ...the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Meath County Council v. Murray [2010] IEHC 254, i.e., grant the injunction, albeit subject to a two year stay." 118 The learned trial judge then turned to examine the constitutional ......
1 books & journal articles
  • Case Note: Wicklow County Council v Fortune (No 2): Foundations Built on Sand?
    • Ireland
    • Trinity College Law Review Nbr. XVII-2014, January 2014
    • 1 January 2014
    ...Fencing Ltd [2007] IEHC 242. 19 Lanigan v Barry [2008] IEHC 29. 20 [2012] IEHC 406, at [28] – [30]. 21 Meath County Council v Murray [2010] IEHC 254. 2014] Wicklow County Council v Fortune (No 2) 205 pleasure to say it, and it is stating the obvious, they have brought this on themselves.” 2......

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