Minister for the Environment, Community and Local Government v Damiens
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 24 October 2018 |
| Neutral Citation | [2018] IEHC 627 |
| Court | High Court |
| Docket Number | [2013 No. 2849 P.] |
| Date | 24 October 2018 |
[2018] IEHC 627
THE HIGH COURT
Faherty J.
[2013 No. 2849 P.]
AND
AND
Development works – Injunctive and declaratory relief – Damages – Plaintiffs seeking injunctive and declaratory relief and/or damages in respect of development works carried out by the defendants – Whether the plaintiffs should be denied relief by the failure of the plaintiffs to comply with the provisions of s. 12 (1) of the Foreshore Act 1933
Facts: The plaintiffs, the Minister for the Environment, Community and Local Government, Ireland and the Attorney General, claimed injunctive and declaratory relief and/or damages in respect of development works carried out by the defendants, Mr and Ms Damiens, and their predecessors in title on State owned foreshore adjacent to the defendants' property at Blind Harbour, Reen, Union Hall, Co. Cork. Extensive written and oral submissions, together with certain factual disputes arising from the evidence, gave rise to a number of issues which required determination, namely: the defendants' contention that the plaintiffs should be denied relief in this case by the failure of the plaintiffs to comply with the provisions of s. 12 (1) of the Foreshore Act 1933; the defendants' contention that they did not construct and were never in possession of the breakwater; whether the plaintiffs' delay in instituting the proceedings caused prejudice to the defendants; whether in all the circumstances the breakwater should be left in situ given that it provided protection for the defendants' property in excess of twenty seven years.
Held by the High Court (Faherty J) that, having had regard to the findings that the defendants asserted ownership of the breakwater and that it would be neither unduly prejudicial nor oppressive to the defendants if the breakwater was removed, it was satisfied to direct the defendants to remove the breakwater from the State foreshore at Blind Harbour and to restore the foreshore to its condition prior to the said works.
Faherty J held that the Court was mindful that the defendants would be afforded a period of time to carry out the said works and that same should be engaged on in a timeframe when storms are less likely. Faherty J held that she would hear submissions in that regard.
Relief granted.
The plaintiff's claim is for injunctive and declaratory relief and/or damages in respect of development works carried out by the defendants and their predecessors in title on State owned foreshore adjacent to the defendant's property at Blind Harbour, Reen, Union Hall, Co. Cork.
The defendants are French citizens who acquired their property in or about 1999/2000.
At the commencement of the within proceedings in 2013, the developments in issue comprised a breakwater the majority of which is constructed on the State foreshore, a seawater retention basin (hereinafter referred to as a swimming pool) part of which was constructed on the State foreshore, certain elements pertaining to the swimming pool, namely a seawater intake valve and a water outlet valve constructed on the State foreshore, and a slipway part of which was also on the State foreshore. Subsequent to the issue of the within proceedings, certain adjustments and reconfigurations were made by the defendants to the swimming pool, the valves and the slipway such that these structures no longer protrude onto the State foreshore.
The position, however, with regard to the breakwater is that it remains substantially on the State foreshore, as it is largely constructed below the mean High Water Mark (HWM). As will be referred to in detail later, it was originally the defendants" position that the breakwater was within the confines of their property, it is now accepted by all concerned that the majority of the breakwater is on the State foreshore. This is set out in a letter from the defendants" solicitor to the plaintiff dated 8th December, 2016:-
'[F]or the avoidance of any doubt we would ask you to note that our clients are the unfortunate victims of history in this matter. They did not construct the breakwater...It was present when they purchased the said property. A portion of the breakwater is undoubtedly on your client's property and it is for your client to decide how it wishes to deal with the same going forward. In making this decision we would ask you to note that the pre-existing and longstanding breakwater performs [an] extremely useful protective function from our clients" perspective for the protection of their family home and the elements of the sea...It is very exposed and open to the elements particularly in bad weather and while we do not wish to get into the technicalities of the legal position, our clients are anxious that the State would take the protective nature of the breakwater into account when determining as to how it wishes to proceed.'
It is common case that the breakwater was constructed by one of the defendants" predecessors in title, a Mr. Len Forsey, in or about 1990 following a significant storm event which occurred on 16th December, 1989 and which caused substantial damage to what was then Mr. Forsey's house and which is now in the ownership of the defendants. It transpired that Mr. Forsey had just acquired the house from the previous owners when it was hit by the December 1989 storm. He subsequently arranged for the construction of the breakwater which was completed in 1990. In or about 1991, Mr. Forsey applied for planning permission for an extensive development concerning the house itself and the development of a commercial enterprise including a diving centre. In this context, he applied also for retention permission for the breakwater. He was refused planning permission for all of the developments, including the retention of the breakwater, by Cork County Council and by An Bord Pleanála.
While the breakwater was constructed in or about 1990, it appears that its existence only came to the plaintiff's attention in or about 2006.
According to Mr. Niall Dunne, who in 2006 was an engineer in the plaintiff's department, on 14th March, 2006, the plaintiff received notification about a structure which was then being built on the State foreshore at Blind Harbour. This notification related in all probability to a swimming pool then being constructed by the defendants. Mr. Dunne inspected the locus on 29th March, 2006. His report of 12th April, 2006 makes reference to a breakwater approximately ten to twelve (3/4 metres) in height and some 30m in length. It refers also to the swimming pool then under construction. The report goes on to state:-
'The structure is below the high watermark and does require a foreshore licence. The structure does restrict pedestrian access across the beach. The structure is for private use only and does not have any public merit. I therefore recommend that CZMD instruct [the first defendant] to remove both the breakwater and the swimming pool.'
A manuscript note on the report describes the developments as 'unauthorised' and 'not in the public interest to remain'.
Following this report, the first named plaintiff wrote to first named defendant was written on 19th April, 2006, c/o of a Mr. Michael Burns. Mr. Burns had been an engineer in the firm of O'Sullivan & Associates, Consulting Engineers, who had been retained by the defendants to conduct a survey prior to the purchase of their property in 1999/2000. The first plaintiff requested the defendant to remove the breakwater and the swimming pool within four weeks of the date of the letter.
On 24th April, 2006, Mr. Burns telephoned the first plaintiff's department and advised that the developments were on privately owned foreshore and that he would furnish title documents to this effect. Mr. Burns was advised at that juncture that even if on privately owned lands, permission for the developments was still required pursuant to s. 10 of the Foreshore Act 1933 (hereinafter 'the 1933 Act').
The first defendant was next written to on 2nd June, 2006, again care of Mr. Burns, and the promised title documents were requested. By letter of 1st August, 2006, the first defendant was advised that if, following inspection, the developments remained in situ the plaintiff would have no alternative but to seek legal advice. This letter did not elicit any response from the defendants. The plaintiff wrote again on 3rd October, 2006 to the first defendant care of Mr. Burns, again requesting that the defendants furnish their title documents in respect of the privately owned foreshore and requesting the first defendant's full address. This correspondence elicited an email on 20th October, 2006 from Mr. Burns who provided an email address for the first defendant.
In evidence, Mr. Bernard Nolan, Assistant Principal Officer, in the plaintiff's department testified that throughout 2006 and 2007, the first plaintiff's department received further complaints in respect of the swimming pool then being constructed by the defendants.
On 9th October, 2007, Mr. Gearóid O'Shea of the engineering division of the Department of Agriculture, Fisheries and Food, inspected the locus. His report of 30th October, 2007, described the works in the following terms:-
'Breakwater
The existing breakwater consists of large rock units. The structure is 4 metres above the beach level in places and is approximately 30 metres in length. The location and size of the breakwater restricts pedestrian access across the beach safely at most stages of the tide...The survey shows the majority of breakwater lies on State owned foreshore.
Out-door Seawater Retention Basin
The out-door seawater retention basin is constructed against an existing...
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