The County Council of Meath -v- Murray & anor, [2017] IESC 25 (2017)

Docket Number:127/2011
Party Name:The County Council of Meath, Murray & anor
 
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THE SUPREME COURT[Appeal No. 127/2011]

Denham C.J.

O’Donnell J.

McKechnie J.

Laffoy J.

Dunne J.

IN THE MATTER OF SECTION 160 OF THE PLANNING & DEVELOPMENT ACT 2000, AS AMENDED

Between /

THE COUNTY COUNCIL OF THE COUNTY OF MEATHApplicant/Respondent-and-

MICHAEL MURRAY and ROSE MURRAYRespondents/Appellants

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of May, 2017

Introduction:

  1. This is an appeal from a decision of Edwards J., dated the 29th June, 2010, given on an application for a statutory injunction under section 160 of the Planning and Development Act 2000, as amended (“the 2000 Act”), whereby he granted the reliefs prayed for by Meath County Council as the Planning Authority for the area in question. The resulting order, which reflected his judgment, has the effect of prohibiting the respondents (the appellants on this appeal) from carrying out any unauthorised development on the subject lands, and of requiring them to remove the dwelling house as constructed thereon and to restore the lands to their pre-development condition, which was one fit for agricultural use only. A stay of 24 months was placed on the execution of the order. The order so made can readily be positioned by a further word as to the circumstances.

  2. In 2006, the appellants purchased a land holding at Faughan Hill, Bohermeen, Navan, on which they proposed to build a family home for themselves and their three children. A planning application for such a construction was refused in June of that year. Within the following six months, the Murrays constructed a dwelling house of double the size of that for which permission had been refused. They moved into the house in December, 2006. Having become aware of this development, the respondent to this appeal (“the Council” or “the Planning Authority”) threatened enforcement proceedings unless demolition took place. An application for retention was refused by both the Planning Authority and An Bord Pleanála in 2007. A further application for a slimmed down version of the construction was also refused by both bodies: the Planning Authority in October, 2008, and the Board in June, 2009. Even allowing for the appellants’ “frustration” with the actions of Meath County Council, and notwithstanding their personal circumstances, the trial judge, having described the breach as “flagrant” and stating that the appellants had “sought to drive a coach and four through the planning laws”, felt that the only appropriate order was that as above described. For the reasons which follow, the appellants have submitted that as a matter of law he was wrong to so do.

    Background:

    Land Ownership:

  3. The subject site is part of a larger holding of about 25 acres comprised in Folio 14049, Register of Freeholders, Co. Meath, whose registered owners, at the date of the institution of these proceedings in June, 2007 were Michael Murtagh, John Murtagh and one Nora Drain. It would appear that either Mrs. Murray, or both she and her husband, acquired these lands sometime in 2006; this uncertainty flows from the fact that both situations are averred to in the affidavits. In any event, nothing turns of the formality of ownership. It is accepted by all that the Murrays have a sufficient interest in the lands to justify any and all planning applications as made by them.

    Planning History - Murtaghs:

  4. On the 7th July, 2005, notification of a grant of planning permission, under reference KA/40653, issued to one Orla Murtagh and one Karl Brady for the construction of a house on part of the original holding. A similar permission was granted on the 18th August, 2005, under reference KA/40669, to one Aoife Murtagh and one David Reilly, evidently on a different parcel of land but also from that holding.

  5. Both permissions contained a common Condition, numbered 3 in each, which read as follows:-

    “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 [(in the case of KA/40653, the 22nd December, 2004, and in the case of KA/40669, the 23rd December, 2005)] shall have entered into a legal agreement with the planning authority under the provisions of Section 47 of the Local Government (Planning and Development) Act 2000, providing for the sterilisation from any housing or non-agricultural development on the entire remainder of this land holding.”

    The location map by reference to which the sterilised lands were identified was identical for both permissions.

  6. By letter dated the 20th April, 2005, Mr. John Murtagh, presumably on behalf of the then registered owners, wrote to the planning authority as follows:-

    “Re: File Reference No: KA/40653 – (Orla Murtagh and Karl Brady)

    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 planning application by Aoife Murtagh and David Reilly – Reference No: KA/40669).”

    A letter of the same date and in identical terms, save the necessary variation to reflect the different applicants, site and reference number, was sent by Mr. Murtagh in respect of Reference No. KA/40669. Evidently both letters were sent in the knowledge that such would be required should the permissions otherwise be granted.

  7. For some reason, which has not been explained, formal agreements under section 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.

    Planning History – Murrays:

  8. Prior to having carried out any development on the subject lands, the appellants, at least one of whom had a historical connection with the locality (see paras. 12 and 134, infra) applied to Meath County Council, as the planning authority, seeking permission to construct a dormer type dwelling house measuring in total 283 sq. metres (3,045 sq. ft) and to carry out associated works on an overall site of 0.7811 hectares. That application (Reference No. KA/60180) was refused by decision dated the 29th June, 2006, from which no appeal was taken.

  9. Within a very narrow timeframe, the Murrays, having been notified of the above refusal, commenced and thereafter completely finished the construction of a dwelling house, with associated works, of about 588 sq. metres (6,329 sq. ft.) on a subject site of 1.675 hectares (4.139 acres). This structure, which Mr. and Mrs. Murray first occupied in December, 2006, was first discovered by the planning authority in February, 2007, as a result of a complaint by a member of the public. Following an inspection by its officials, Mr. Jimmy Young, a senior staff officer, wrote to the appellants on the 2nd March, 2007, referring to what he described as an unauthorised development and requesting its removal. Proposals to that end were sought within seven days; otherwise, enforcement proceedings were threatened. That prompted the making of an application to retain the unauthorised development on the 12th March, 2007, which was refused by the planning authority on the 3rd May of that year. These proceedings were then commenced by motion dated the 29th June, 2007. Before detailing such proceedings however, it is important to note the following steps taken by Mr. and Mrs. Murray in terms of their interaction with the Planning Authority.

  10. The appellants appealed to An Bord Pleanála from the decision to refuse the application to retain, as built, the structure above described. The Board, by decision dated the 12th December, 2007, rejected that appeal. A third application was then made on the 8th September, 2008, under Reference No. KA/802674, seeking permission to demolish the two wings of the dwelling house, but to retain the rest of the structure. That application was refused by the planning authority on the 30th October, 2008, and by An Bord Pleanála on the 5th June, 2009.

  11. Although there was no further movement on the planning side, it is important at this juncture to set out the reasons, virtually common to all decisions, for the initial refusal of permission by the Planning Authority, for that Authority’s refusal of both retention applications, and subsequently for the rejection of all appeals by the Board. Such can be done by reference to the Board’s decision of the 5th June, 2009, upholding the refusal of permission/retention permission. This reads as follows:-

    “Reasons and Considerations

    (1) Taken in conjunction with existing development in the vicinity, which is an area under strong urban influence, the development proposed to be retained would give rise to an excessive density of development in a rural area lacking certain public services and community facilities, would contravene the policy of the planning authority as expressed in the current Meath County Development Plan to direct residential development to serviced areas, which policy is considered to be reasonable, and would establish an undesirable precedent for further development of this type. The development would, therefore, be contrary to the proper planning and sustainable development of the area.

    (2) It is considered that, taken in conjunction with the existing development in the vicinity, the development proposed to be retained would result in an excessive waste water concentration of development serviced by wastewater treatment systems in the area. The development would, therefore, be prejudicial to public health.

    (3) It is considered that the two-storey dwelling which is proposed to be retained is out of character, by reason of scale, height and design, with existing dwellings in the area notwithstanding the proposed alterations. It represents an unduly prominent and incongruous feature in the local...

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