The County Council of the County of Wicklow v Fortune (No. 2)

JudgeMr. Justice Hogan
Judgment Date06 June 2013
Neutral Citation[2013] IEHC 255
Docket Number[2011 No. 26 CA]
CourtHigh Court
Date06 June 2013



[2013] IEHC 255

[2011 No. 26 CA]


Practice and procedure - Planning and Development law - Unauthorised dwelling - Demolition - Whether court would order demolition - Planning & Development Act 2000

Facts: The Court considered in what circumstances it could order the demolition of an unauthorised dwelling pursuant to s. 160 Planning & Development Act 2000. The Court in an earlier judgment had ruled that it had been built without planning permission and that an application by the County Council pursuant to s. 160 was not time-barred. The Court considered the precedential status of the unauthorised dwelling, the nature of the area as a special area of conservation and the effluent treatment system.

Held by Hogan J. that the Court would refuse to make an order requiring the demolition of the chalet. The case for the demolition of the chalet had not been convincingly established. The Court would make an order requiring Ms. Fortune to operate an effluent system which was external to the dwelling.

Mr. Justice Hogan
JUDGMENT of Mr. Justice Hogan delivered on 6th June, 2013

To those unversed to the sometimes haphazard manner by which legal doctrine and jurisprudence can evolve, it may seem remarkable that a Supreme Court decision concerning the power of Gardaí to issue search warrants in respect of a private dwelling ( Damache v. Director of Public Prosecutions [2012] IESC 12, [2012] 2 I.L.R.M. 153) should have potentially far-reaching consequences in areas of civil law far removed from the criminal sphere, such as planning law. Yet perhaps it required a decision of this magnitude to illustrate that which in itself ought to have been obvious over the last 75 years or so, namely, that Article 40.5 of the Constitution ensures that the dwelling must be safeguarded in an extensive manner as befits a free and democratic society.


As Hardiman J. observed in one of the first post-Damache decisions, namely, The People v. O’Brien [2012] IECCA 68:

“….Article 40.5 by guaranteeing the “inviolability” of the dwelling reflects long standing constitutional traditions in both common law and civil law jurisdictions, features of which were stressed in both Damache and Cunningham respectively. This constitutional guarantee presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world. In so doing, Article 40.5 complements and re-inforces other constitutional guarantees and values, such as assuring the dignity of the individual (as per the Preamble to the Constitution), the protection of the person (Article 40.3.2), the protection of family life (Article 41) and the education and protection of children (Article 42). Article 40.5 thereby assures the citizen that his or her privacy, person and security will be protected against all comers, save in the exceptional circumstances presupposed by the saver to this guarantee.”


As I pointed out in my first judgment in this matter, Wicklow County Council v. Fortune (No.1) [2012] IEHC 406, these developments from Damache onwards compel us to conduct a complete re-appraisal of even familiar features of the legal system - including the operation of the planning laws - insofar as they impact on the private dwelling. This is the first case in which Article 40.5 has been relied on in a case of this kind, as remarkable as it may seem, the issue has never previously been raised – much less decided – in any application brought under s.160 of the 2000 Act in order to seek the demolition of a dwelling for non-compliance with the planning laws.


In that respect, the test previously articulated in cases such as Morris v. Garvey [1983] I.R. 319 (which, of course, concerned the precursor to the present s. 160, namely, s. 27 of the Local Government (Planning and Development) Act 1976) has accordingly to be recalibrated in the light of Damache and, indeed, the modern case-law regarding proportionality and the protection of constitutional rights..


It must also be recalled that the making of a s.160 order would have far-reaching implications for the property rights of the owner of the property, as she would in effect be required by judicial order to demolish her own house (albeit one which was illegally constructed) without compensation. It is manifest from a series of decisions ranging from Heaney v. Ireland [1994] 3 I.R. 590 to Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701 that the exercise of any such judicial power would also have to satisfy a proportionality test, not least given that the making of such an order would, at least, in the context of a case such as the present one significantly affect constitutional rights, not least the inviolability of the dwelling (Article 40.5) and the protection of property (Article 40.3.2). Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J. in Morris v. Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, the whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.


This brings us then to the principal issue which arises at this stage of this appeal from the Circuit Court, namely, under what circumstances should a court order the demolition of an unauthorised dwelling pursuant to s. 160 of the Planning and Development Act 2000 (“the 2000 Act”)?


The basic facts of this case are set out in my first judgment in Fortune (No.1). In that case I found that the defendant had at some stage in the last 13 to 14 years constructed a small timber frame chalet of approximately 70sqm in size in a wooded area of high natural beauty near Lough Dan, County Wicklow. While this is her only home, it is nonetheless important to stress that this structure is entirely unlawful since in my first judgment I found that it had been constructed without the necessary planning permission. In the course of that judgment I also ruled that this application by Wicklow County Council pursuant to s. 160 of the 2000 Act was not time barred by reason of the operation of s. 160(6)(a)(i) of the 2000 Act.


In the course of preparing this judgment I had the occasion to visit the site. This was done with the consent of the parties. The site itself is close to a country road which is often used by hill-walkers on their way to Lough Dan and a major scout centre lies about 1km. distant. The site is completely hidden and obscured from the road and it is accessed only by traveling up a unpaved country lane for perhaps some 200 metres and then turning off that lane. A deep forest lies on the other side of the lane. While this to some degree is a matter of subjective observation, I found that the chalet was tastefully constructed. The chalet certainly does not impinge on the amenities or aspect of any other landowner or local inhabitant.


The central part of the defendant’s case was that the demolition of the applicant’s dwelling would compromise her constitutional guarantee under Article 40.5 of the Constitution safeguarding the inviolability of the dwelling. In that earlier judgment I rejected the argument that Article 40.5 conferred a complete immunity from legal action of this nature in the manner which had been contended by the defendant. In that regard I observed:-

“The Constitution was not intended to bring about a situation where someone could profit from their own deliberate and conscious wrongful actions by asserting an immunity from legal action appropriate enforcement by invoking Article 40.5.”


I then proceeded on to posit the following test:-

“At the same time, Article 40.5 affords real protection which the courts must safeguard by word and deed. Insofar as Article 40.5 speaks of ‘inviolability’, the drafters must be taken to have intended to convey through the use of rhetorical and philosophically inspired language drawn…from the European constitutional tradition so that the dwelling should enjoy the highest possible level of legal protection which might realistically be afforded in a modern society. In a planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s. 160 jurisdiction in such a manner as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and…the case for such a drastic step is convincingly established.”


I then concluding by observing:-

“In this regard, it is not simply enough for the applicant council to show that – as, indeed, it really has – that the structure is unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It will be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detract from an area of high natural beauty or present a real and immediate traffic or fire hazard or the structure in question so manifestly violated...

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8 cases
  • Wicklow County Council v Kinsella
    • Ireland
    • High Court
    • 17 Abril 2015
    ...J. in the same matter, namely, Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 and Fortune v. Wicklow County Council (No. 2) [2013] IEHC 255. Both were cases concerning the unauthorised construction of a dwelling in a scenic location near Lough Dan in Co. Wicklow and both formed d......
  • Moore v Minister for Arts, Heritage and the Gaelteacht
    • Ireland
    • High Court
    • 18 Marzo 2016 Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 and, more particularly perhaps, Fortune v Wicklow County Council (No. 2) [2013] IEHC 255. While the constitutional point addressed by Kearns P. and Hogan J. does not arise for adjudication in these proceedings, this Court would ......
  • Meath County Council v Murray
    • Ireland
    • Supreme Court
    • 19 Mayo 2017 s. 160(1) has, in fact, been convincingly established.’ 99 The determination of this point is to be found in Fortune (No. 2) [2013] I.E.H.C. 255. There Hogan J., having said that the test in Morris v. Garvey required to be recalibrated in light of Damache, described at para. 5, his under......
  • Clare County Council v Bernard McDonagh and Helen McDonagh
    • Ireland
    • Supreme Court
    • 31 Enero 2022
    ...(as a judge of the High Court) in Wicklow County Council v. Fortune (No.1) [2012] IEHC 406 and Wicklow County Council v. Fortune (No.2) [2013] IEHC 255 and, subsequently, by this Court in Murray. I will have occasion to discuss the importance of these decisions shortly, but for the moment i......
  • Request a trial to view additional results
1 books & journal articles
  • Case Note: Wicklow County Council v Fortune (No 2): Foundations Built on Sand?
    • Ireland
    • Trinity College Law Review No. XVII-2014, January 2014
    • 1 Enero 2014
    ...the criteria necessary for the demolition order had been met convincingly based on the immediate facts. 22 [2010] IEHC 254, at [44]. 23 [2013] IEHC 255, at [3]. 24 Sullivan v Boylan, [2013] IEHC 104 25 [2013] IEHC 255, at [10]. 26 [2012] IEHC 406, at [27]. 206 Trinity College Law Review [Vo......

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