Murray and Another v Meath County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Conor Dignam
• Judgment Date: 20 November 2024
• Neutral Citation: [2024] IEHC 658
• Court: High Court
• Docket Number: Record No. 2022/4876P

Between

Chris Murray and Rose Murray

Plaintiff

and

The County Council of County of Meath

Defendant

[2024] IEHC 658

Record No. 2022/4876P

THE HIGH COURT

Judgment ofMr. Justice Conor Dignamdelivered on the 20 ^th day of November 2024

INTRODUCTION

1 This judgment concerns two motions. In order to understand the relief that is sought it is worth noting at the outset that these proceedings are concerned with an earlier set of proceedings brought by the defendant (“Meath County Council” or “the Council”) against the plaintiffs (“the Murrays”) under section 160 of the Planning and Development Act 2000. In those proceedings, Edwards J made an Order against the Murrays directing them to remove an unauthorised development from their land. That Order was subsequently upheld by the Supreme Court. The relevant judgments are to be found at [2010] IEHC 254 and [2018] 1 IR 189 respectively. Meenan J also made a subsequent consent Order. I will refer to those proceedings as “the section 160 proceedings”. In the current proceedings the Murrays seek, inter alia, to set aside the Orders made in the section 160 proceedings.

2 In one of the motions before the Court, the Murrays seek various interlocutory Orders in the nature of injunctions or a stay in respect of the section 160 proceedings and the Orders made therein. In summary, they seek an injunction restraining Meath County Council from taking any steps in those proceedings, including on foot of Edwards J's Order or the Order of the Supreme Court, or a stay on those proceedings and a stay on Meenan J's Order or any undertakings given by the Murrays on the occasion of that consent Order.

3 Meath County Council, by separate motion, seeks an Order pursuant to Order 19 Rule 28 striking out the Murrays' Plenary Summons and Statement of Claim and dismissing the proceedings on the grounds that the claims made are frivolous, vexatious and/or disclose no reasonable cause of action or an Order pursuant to the Court's inherent jurisdiction striking out the proceedings on the basis that they are bound to fail and constitute an abuse of process.

4 The evidence in relation to the Murrays' application is an affidavit of Ms. Rose Murray of the 22 ^nd September 2022, an affidavit of Mr. John Murtagh which bears the date the 16 ^thSeptember 2020 but which appears likely to have been sworn on the 16 ^th September 2022, an affidavit of Mr. Seán Clarke (of Meath County Council) of the 15 ^th December 2022, a First Supplemental Affidavit of Ms. Rose Murray of the 26 ^th January 2023, and an affidavit of Ms. Rose Murray of the 9 ^th June 2023 (this affidavit was sworn in respect of both motions). There was a dispute about the admissibility of this affidavit in circumstances where it was delivered after the date that had been fixed for delivery of the Council's submissions, where leave had not been given for delivery of any further affidavits, and the Council therefore did not have an opportunity to reply. The Council formally objected to it being admitted but did not push the objection. It seems to me that the affidavit should be admitted, with the Court noting that the Council had not had an opportunity to reply and therefore its contents should not be treated as accepted by the Council. The evidence in respect of Meath County Council's motion is an affidavit of Mr. Seán Clarke of the 8 ^th February 2023 and the affidavit of Ms. Rose Murray of the 9 ^th June 2023. Mr. Clarke, in his affidavit of the 15 ^th December 2022, exhibits the section 160 proceedings. I have considered all of these affidavits and the exhibits thereto. The parties also provided the Court with chronologies and Counsel for the Murrays referred to a presentation aid. There were disputes about these three documents and I therefore did not refer to them.

BACKGROUND

5 There is a lengthy factual background to the current proceedings and these applications. Much of that background is set out in detail by McKechnie J in his judgment in the Supreme Court ( Meath County Council v Murray[2018] 1 IR 189) and I gratefully adopt that account. In those circumstances, I endeavour to summarise the factual background and will then deal with the up-to-date facts which give rise to the current claims and application for interlocutory relief.

6 In or around 2006, the Murrays became the owners of lands in County Meath owned by three siblings, John Murtagh, Michael Murtagh and Nora Drain (“the Murtaghs”). The lands were part of a larger holding owned by the Murtaghs. Prior to the Murrays' purchase of their lands, the Murtaghs had decided, inter alia, to give sites to the children of John Murtagh and Michael Murtagh and grants of planning permission had issued in respect of two daughters of John Murtagh for the construction of houses on parts of the original holding. These permissions were recorded in the planning register with reference numbers KA140653 and KA140669 and issued on the 7 ^th July 2005 and the 18 ^th August 2005 respectively.

7 Both of these permissions contained a condition which is at the centre of these proceedings. It read:

“Prior to commencement of the development the owner of the land holding of which the site forms part as shown outlined in blue on the location map submitted on […] shall have entered into a legal agreement with the planning authority under the provisions of s.47 of the Planning and Development Act 2000, providing for the sterilisation from any housing or non-agricultural development on the entire remainder of this land holding.”

8 Prior to the grant of these permissions, by identical letters dated the 20 ^th April 2005, Mr. John Murtagh wrote to the planning authority in relation to each of the applications indicating his willingness to agree to sterilisation of the lands. These letters are also central to the Murrays' claims in the current proceedings and it is therefore worth quoting from them. In his letters. Mr. Murtagh, having referred to the relevant application, wrote:

“To whom it may concern,

I refer to the above planning application and hereby state that I am willing to enter into an agreement to sterilise the remainder of the land holding (excluding the site which relates to a current application [referring to the other application])”

It will be noted, of course, that Mr. John Murtagh was just one of the owners (the others being Mr. Michael Murtagh and Ms. Nora Drain). McKechnie J stated in his judgment (paragraph 8) that Mr. John Murtagh wrote this letter “ presumably on behalf of the then registered owners…” This also plays a central part in the current proceedings.

9 Formal agreements under section 47 of the 2000 Act were not entered into in respect of either of these planning permissions. McKechnie J notes at paragraph 9 of his judgment:

“For some reason, which has not been explained, formal agreements under s.47 of the 2000 Act were never entered into in respect of either planning permission. However, it would appear that the Planning Authority was satisfied with such letters, particularly having received commencement notices in respect of both developments, and in the knowledge that each has been completed.”

10 The Murrays sought planning permission for the construction of a house on part of the lands they had bought. That application was refused on the 29 ^th June 2006. Four reasons were given for this refusal. These are set out in McKechnie J's judgment and I do not propose to quote them in full. In summary, they were that (i) the development would give rise to an excessive density and would contravene the Meath County Development Plan, (ii) would result in an excessive concentration of development served by the wastewater treatment systems in the area, and (iii) the scale, height and design of the development would be contrary to the proper planning and sustainable development of the area. The fourth reason is central to these proceedings. It states:

“The development contravenes materially conditions attached to existing permissions for development, namely, condition number three attached to the permission granted by Meath Council under planning register reference number KA/40669 and condition number three attached to the permission granted by Meath County Council under planning register reference number KA/40653.”

11 This refusal was not appealed by the Murrays.

12 Notwithstanding the refusal of planning permission, the Murrays constructed a dwelling house on the lands. This was very considerably larger than the development for which they had sought permission.

13 Meath County Council wrote to the Murrays on the 2 ^nd March 2007 referring to what they referred to as an “unauthorised development” and requesting its removal. Proposals were sought, failing which enforcement proceedings were threatened. The Murrays made a retention application shortly thereafter. This was refused by Meath County Council on the 3 ^rd May 2007. This refusal was appealed by the Murrays to An Bord Pleanála and this appeal was refused on the 12 ^th December 2007. In the meantime, the section 160 proceedings were issued by the Council on the 29 ^th June 2007. A further application for planning was made on the 8 ^th September 2008 consisting of an application to demolish parts of the house and retain the other part. That application was refused by Meath County Council on the 30 ^th October 2008 and an appeal by the Murrays was subsequently rejected by An Bord Pleanála. As noted by McKechnie J (paragraph 13 of his judgment) the reasons set out above were common to all of these refusals by Meath County Council and the Board.

14 Ultimately, Edwards J gave judgment on the application under section 160 on the 29 ^th June 2010 ( [2010] IEHC 254) and made Orders restraining the Murrays from carrying out any unauthorised development on the lands, from continuing with the unauthorised use of the lands, directing them to remove the unauthorised...