Sligo County Council v Martin

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 24 May 2007
• Neutral Citation: [2007] IEHC 178
• Court: High Court
• Date: 24 May 2007

[2007] IEHC 178

THE HIGH COURT

[No. 147 M.C.A./2006]

Sligo County Council v Martin

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT,

2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION PURSUANT TO S. 160

OF THE PLANNING AND DEVELOPMENT ACT, 2000

AND IN THE MATTER OF AN APPLICATION BY SLIGO COUNTY

COUNCIL

BETWEEN

SLIGO COUNTY COUNCIL

APPLICANT

AND

GAVIN MARTIN

RESPONDENT

1 JUDGMENT of O'Neill J. delivered the 24th day of May, 2007

2 In these proceedings by its Notice of Motion of the 22nd January, 2007 the applicants seek orders pursuant to s. 160 of the Planning and Development Act, 2000 (hereinafter referred to as the Act), to restrain the respondent from carrying out or continuing to carry out any development or further development at a site owned by the respondent at Kilkillogue, Mullaghmore in the County of Sligo, and directing the respondent to remove forthwith all unauthorised development carried out by him on this site.

3 The unauthorised development complained of by the applicants in this case is a mobile home placed on this site by the respondent.

4 This case is unusual in that the applicants sought similar reliefs against the respondent in respect of another mobile home on this site pursuant to a Notice of Motion dated the 21st February, 2003. On foot of that Notice of Motion his Honour Judge Kennedy in the Circuit Court restrained any further unauthorised development and ordered the dismantling and removal of the unauthorised development from the site. The applicant appealed this order and that appeal was heard by Gilligan J. in the High Court on the 8th March, 2005, who dismissed the appeal and ordered the respondent to remove from the site the entire base of the mobile home together with the existing mobile home and all pipe work associated with it and to render safe all electrical current attached thereto. Subsequent to the order of the High Court as aforesaid the respondent did remove the mobile home and the concrete base and the pipe work attached but replaced it with a smaller mobile home on a gravel base. It is this smaller mobile home with its gravel base that the applicants seek to have removed from the site on the basis that it is an unauthorised development.

5 The background to this matter is as follows.

6 The respondent's father acquired the site in question in or about 1972 and from 1974 onwards kept a mobile home on the site. This mobile home was used by him and his family as a holiday home. It is apparent from the photographs exhibited both in the previous application and in this application that the site upon which this mobile home was located is one of considerable scenic beauty overlooking as it does the bay at Mullaghmore and being quite close to the sea front.

7 Over the years the mobile home placed there in 1974 fell progressively into disrepair. In the meantime the respondent had taken over the mobile home and in the year 2000 he removed the old mobile home and replaced it with a new one. The old mobile home had measured approximately 28 feet by 10 feet (8.5344 metres by 3.048 metres). The new mobile home placed there in March, 2000 was somewhat larger measuring 37 feet by 12 feet.

8 In an affidavit sworn in the earlier application on the 26th day of May, 2003 at paragraph 3 thereof the respondent said the following:

"Thomas Martin purchased the lands in the year 1972 or 1973 from one Maurice McChesney. Thomas Martin placed a mobile home on the lands in 1974. From 1974 the lands were occupied by Thomas Martin and his family and the mobile home on it was sited on a concrete base with electricity and water connected…"

9 In his affidavit sworn on the 1st March, 2007 in these proceedings, at paragraph 4 the respondent says the following:

"In or around 1974, my father placed a mobile home on the lands in question which measured 28 feet by 10 feet (8.5344 metres by 3.048 metres). The said mobile home was placed on a gravel base. The said mobile home was further supported by concrete over the following years. I say that the mobile home remained in situ from 1974 and throughout the years my father, mother, myself and my seven siblings enjoyed many holidays at the said mobile home…"

10 Further on in this affidavit at paragraph 7 the respondent says:

"This new mobile home was larger than the original mobile home, 37 feet by 12 feet, approximately one third of a size larger than the original mobile home. Additionally I placed a wooden fence to enhance the old barbed fences which had deteriorated and built a stone wall to bound the county road. In order to accommodate the larger structure, it was necessary for me at the time to concrete over the gravel base…"

11 At paragraph 10 of this affidavit the respondent says:

"In compliance with the order Mr. Justice Gilligan of the 8th March, 2005, and as set out in correspondence between the respondent's solicitors and the applicants solicitors, the respondent removed on the 26th August, 2005 the new mobile home from the site and removed the concrete base and replaced the original mobile home with an identical mobile home in size and dimension and left the original gravel surface in place…".

12 At paragraph 12 he says:

"The land has now been reinstated to the situation which pertained prior to the placing of the new larger mobile home in 2000. There has been no material change in use in respect of the land since 1974.

13. The County Council is effectively seeking to alter the use of the land having taken no action for decades. The land as now used complies with the status quo as existed prior to the 15th March, 2000 and all bone fide concerns of the Council and any other complainant that arose from a larger caravan being on the site have been addressed…"

13 At paragraphs 15 and 16 the following is said:

14 2 "15. I am advised and believe that it is not the practice to obtain planning permission for a particular mobile home/caravan as opposed to permission for the use of lands for that particular purpose and I am advised and believe that where lands are used as a site for a mobile home/caravan it is the invariable practice that a particular mobile home/caravan is replaced from time to time without any requirement that planning permission be obtained. The issue in the previous proceedings turned essentially on the Council's contention that we were not replacing like with like and that the placing of a larger unit constituted development.

15 16. At no stage have we abandoned the use of the site of land as a site for a mobile home. However the High Court held that we were in error in placing a large unit on the site that error on our part did not constitute an abandonment of long established and continuing user of the site…"

16 The issue which arises for determination on this application is whether as is contended for by the respondent, the replacement on the site in August of 2005 of a mobile home of...