Wicklow County Council v Jessup & Smith

• Jurisdiction: Ireland
• Judge: Mr Justice John Edwards
• Judgment Date: 08 March 2011
• Neutral Citation: [2011] IEHC 81
• Court: High Court
• Date: 08 March 2011

[2011] IEHC 81

THE HIGH COURT ON CIRCUIT

Record No 253CA/No: 2008

Wicklow County Council v Jessup & Smith

APPROVED

Mr. Justice Edwards

JUDGMENT

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN/

THE COUNTY COUNCIL FOR THE COUNTY OF WICKLOW

APPLICANT

AND

SAMUEL JESSUP AND FIONA SMITH

RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S160(1)

PLANNING & DEVELOPMENT ACT 2000 S160(2)

RSC O. 40 r4

LEOPARDSTOWN CLUB LTD v TEMPLEVILLE DEVELOPMENTS LTD UNREP EDWARDS 29.1.2010 2010 IEHC 152

THOMAS v JONES 1921 1 KB 22

PLANNING & DEVELOPMENT ACT 2000 S152(4)

PLANNING & DEVELOPMENT ACT 2000 S4(1)(H)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 6

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART III CLASS 11(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART I CLASS 6

PLANNING & DEVELOPMENT ACT 2000 S154

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART I CLASS 6(B)(i)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 2 PART I CLASS 6(A)

DUBLIN CORP v SULLIVAN UNREP FINLAY 21.12.1984 1985/1/181

CARROLL & COLLEY v BRUSHFIELD LTD UNREP LYNCH 9.10.1992 (EX TEMPORE)

DUBLIN CORP v MCGOWAN 1993 1 IR 405 1993/2/303

WESTPORT URBAN DISTRICT COUNCIL v GOLDEN & ORS 2002 1 ILRM 439 2000/18/6742

SOUTH DUBLIN CO COUNCIL v FALLOWVALE LTD & WESTON LTD UNREP MCKECHNIE 28.4.2005 2005/55/11532 2005 IEHC 408

FINGAL CO COUNCIL v DOWLING & PETERS UNREP DE VALERA 26.7.2007 2007/23/4735 2007 IEHC 258

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 6(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9

DUBLIN CO COUNCIL v TALLAGHT BLOCK CO LTD UNREP SUPREME 17.5.1983 1983/2/351

HARTLEY v MIN OF HOUSING & LOCAL GOVT & ANOR 1970 1 QB 4131970 2 WLR 1 1969 3 AER 1658

MCCABE v CORAS IOMPAIR EIREANN (CIE) & IARNROD EIREANN (IRISH RAIL) 2007 2 IR 392 2006/34/7371 2006 IEHC 356

CAIRNDUFF v O'CONNELL 1986 IR 731986 ILRM 465 1986/1/209

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 9(1)(B)

WHITE v MCINERNEY CONSTRUCTION LTD 1995 1 ILRM 374 1994/13/4310

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LEEN v AER RIANTA CPT 2003 4 IR 394 2003/30/7167

DUBLIN CO COUNCIL v SELLWOOD QUARRIES LTD & DUNNE 1981 ILRM 23 1981/9/1619

MEATH CO COUNCIL v MURRAY UNREP EDWARDS 29.6.2010 2010 IEHC 254

PLANNING AND ENVIRONMENTAL LAW

Appeal

Development - Application restraining development - Development plan - Burden on applicant - Current use of structure - Whether unauthorised - Whether continuation of legitimate use which was not abandoned - Judicial notice of general downturn in economy - Leopardstown Club Ltd v Templeville Developments Ltd [2010] IEHC 152, (Unrep, Edwards J, 29/1/2010); Thomas v Jones [1921] 1 KB 22; Dublin Corporation v Sullivan (Unrep, Finlay P, 21/12/1984); Carroll and Colley v Brushfield Ltd (Unrep, Lynch J, 9/10/1992); Dublin Corporation v McGowan [1993 IR 405; Wesport UDC v Golden and Ors [2002] ILRM 439; Dublin City Council v Fallowvale [2005] IEHC 408 (Unrep, McKechnie J, 28/4/2005); Fingal County Council v Dowling and Anor [2007] IEHC 258 (Unrep, de Valera J, 26/7/2007); Dublin City Council v Tallaght Block Co. Limited [1985] ILRM 512; Hartley v Minister for Housing and Local Government [1970] 1 QB 414; Webber v Minister of Housing and Local Government [1968] 1 WLR 29; Miller (TA) Ltd. v, Minister of Housing and Local Government [1968] 1 WLR 992; White v McInerney [1995] 1 ILRM 374; Avenue Properties Ltd. v Farrell Homes Ltd [1982] ILRM 21; Leen v AerRianta [2003] 4 IR 394 and Dublin City Council v Sellwood Quarries Ltd.[1981] ILRM 23 considered . McCabe v Iarnrod Eireann [2007] 2 IR 392; Cairnduff v O'Connell [1986] IR 73 and Meath Co Council v Murray [2010] IEHC 254 (Unrep, Edwards J, 29/6/2010) distinguished - Planning and Development Act 2000 (No.30 ), ss 2, 4, 152, 154 and 160 - Local Government (Planning and Development) Act 1963 (No.28 )s 4 - Rules of the Superior Courts 1986 (SI 15/1986), O 40 -Planning and Rural Development Regulations 2001 (SI 600/2001), arts 6 and 9 - Order pursuant to s.160 refused but court of own motion made declaration that development unauthorised (2008/253CA - Edwards J- 8/3/2011) [2011] IEHC 81

Wicklow Co Council v Jessup and Anor

Facts: The applicants sought to appeal the judgment of the Circuit Court where the Court had refused an Order pursuant to s. 160 Planning and Development Act 2000 to restrain the respondents from carrying or continuing the development of lands, in particular substantial structural works on a former ruin. The question arose as to the onus of proof, the alleged unauthorised use, the alleged unauthorised works, the discretionary nature of the s. 160 remedy and the question of abandonment. The respondents submitted that the reliefs sought would be unduly harsh in all the circumstances and that it would put disproportionate hardship upon them for works innocently carried out.

Held by Edwards J. that the Court would of its own motion simply declare that the respondents and reach of them had engaged in unauthorised and non-exempt development. The Court was not disposed to make any orders pursuant to s. 160. There was no deliberate attempt to flout the law and the consequences of demolition would be disproportionate for the respondents. The costs of the proceedings would be awarded against the respondents.

Reporter: E.F.

1 JUDGMENT of Mr Justice John Edwards delivered on the 8th day of March, 2011.

1. Introduction.

2 2 1.1 This is the applicants' appeal against the judgment and Order of his Honour Judge Terence O'Sullivan, given at Bray Circuit Court on the 2 ^nd of December 2008 wherein the learned Circuit Court Judge refused to grant an Order pursuant to s. 160 of the Planning and Development Act 2000 to restrain the respondents, and each of them, from carrying on or continuing the development of the lands comprised in Folio No 19832F of the Register of Freeholders for the County of Wicklow

2. Pleadings and Evidence

3 2 2.1 The application was commenced by an originating Notice of Motion dated the 7 ^th of September 2007. This claimed:

4 2 "1. An Order pursuant to s. 160(1) of the Planning and Development Act 2000 to restrain the respondents, and each of them, from carrying on or continuing the development of the lands comprised in Folio No 19832F of the Register of Freeholders for the County of Wicklow., and in particular from:

5 (a) the carrying out of substantial structural works on a former ruin in order to create a residential unit therein;

6 (b) the commencement of residential usage of the new structure;

7 (c) the upgrading of an existing roadside entrance by the building of new entrance walls and pillars;

8 (d) the erection of a new roadside boundary wall;

9 (e) the placement of a garden shed on the property;

10 (f) the provision of an effluent treatment system; and

11 (g) associated site development works including extraction, excavation and alteration of a surrounding field.

12 2. An Order pursuant to s. 160(2) of the Planning and Development Act 2000 directing the respondents, and each of them, to restore the said lands to their condition prior to the commencement of the aforesaid development.

13 3. Such further and other relief as this Honourable Court may deem appropriate.

14 4. An Order providing for costs."

15 (The Court was informed at the commencement of the appeal hearing that the matters complained of in sub- paragraphs 1(c), 1(d) and 1(e) of the Notice of Motion were no longer being relied upon.)

16 3 2.2 The application was grounded upon three affidavits of Louise Casey, an Administrative Officer in the Planning Control Section of Wicklow Co Council, and the documents exhibited therein, which affidavits were sworn on the 7 ^th of September, 2007; the 14 ^th of January, 2008 and the 2 ^nd of September 2008, respectively. The application was further grounded upon two affidavits of Tim Walsh, Senior Executive Planner employed by Wicklow Co Council, sworn on the 7 ^th of September, 2007, and on the 18 ^th of November, 2008, respectively, and the documents exhibited therein,.

17 4 2.3 The application was, and continues to be, opposed by the respondents who rely upon an affidavit of the first named respondent sworn on the 30 ^th of September 2008, and the documents exhibited therein.

18 5 2.4 Ms Casey states in her first affidavit that Wicklow Co Council was notified by third parties of works which were taking place on a ruined structure at Aghfarrell, Brittas, Co Wicklow, on the County Dublin border. The Council was informed, inter-alia, that previously there was a ruin on-site with two walls only standing, together with fencing, but that the entrance had been knocked down, that two further walls had been erected as had roofing, and that services had been installed. Furthermore, the Council was informed that an extensive area had been cleared with the excavated material being dumped in an adjoining field. Ms Casey stated that as a result of the aforesaid complaints she asked Mr. Tim Walsh of Wicklow Co Council to carry out an inspection of the property in question.

19 6 2.5 Mr John Gibbons S.C., on behalf of the respondents, objected at an early stage of the case to the Court having any regard to the evidence just described on the grounds that Ms Casey was deposing to hearsay. He relied in particular upon Order 40, Rule 4 of the Rules of the Superior Courts which states:

"Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters...