Wicklow County Council v Kinsella

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 17 April 2015
• Neutral Citation: [2015] IEHC 229
• Court: High Court
• Date: 17 April 2015

Wicklow Co Council v Kinsella

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

APPLICANT

AND

GREGORY KINSELLA AND GILLIAN KINSELLA

RESPONDENTS

[2015] IEHC 229

[No. 338 MCA/2013]

THE HIGH COURT

Planning & Development – S. 160 of the Planning and Development Act 2000 – Removal of chalet from residential premises – Doctrine of Stare decisis – Art. 40.5 of the Constitution

Facts: The applicants sought an order for restraining the respondents from carrying out unauthorized developments of lands on the relevant folio where a timber chalet had been erected for residential purposes without planning permission. The applicants contended that the permission was refused as it would lead to a serious traffic hazard. The respondents alleged that in light of the decision of the High Court in The County Council of the County of Wicklow v Katie Fortune [2012] IEHC 406, they should be afforded constitutional protection for dwelling under art. 40.5 of the Constitution.

Mr. Justice Kearns P. granted an order for the demolition of the subject unauthorized chalet erected on the premises of the respondent. The Court while recognising that it was bound to follow the decisions of other High Court judges found compelling reasons to depart from the judgment of Hogan J. in said Fortune case. The Court expressed its dissent from the judgment to the extent that the planning authority must objectively justify its decision to enforce procedures irrespective of the conduct of the respondent. The Court opined that the jurisdiction conferred by s. 160 of the Planning and Development Act 2000 was a special statutory original jurisdiction. The Court held that the scheme of the Act envisaged an effective planning control, which ultimately depended upon public compliance. The Court was not precluded to take wide factors into account, viz. personal hardship, impact of development on others, prospect of retention permission being forthcoming and prolonged unauthorized use, while scrutinizing the planning decisions. The Court held that citizens who flouted planning rules could not claim immunity under art. 40.5 of the Constitution because acceding to such conduct would lead to erection of haphazard and dangerous developments, undermining the scheme of the Act of 2000, giving rise to a free-for-all development culture. The Court found that the respondents despite being aware of the unauthorized status of the chalet had proceeded to construct the same in ignorance of warning letters issued to them in anticipation of the traffic hazard and therefore could not seek protection under the clout of the Fortune case. The Court observed that a decision emanating from a Circuit Court appeal as occurred in the Fortune case was not an appropriate forum to formulate new legal principles as there existed no further appeal from that decision.

1 JUDGMENT of Kearns P. delivered on the 17th day of April, 2015

2 In these proceedings the applicants seek an order under s. 160(1) of the Planning and Development Act 2000 as amended, restraining the respondents and each of them from continuing with an unauthorised development of lands on folio 8726 in the County of Wicklow where a timber chalet has been erected for residential purposes without planning permission. The applicants also seek an order pursuant to s. 160 (2) of the Planning and Development Act 2000 as amended, directing the respondents to remove the said chalet, its concrete base and associated site works.

THE PLANNING AND DEVELOPMENT ACT 2000

3 The Planning and Development Act 2000 represents a consolidation of the law relating to planning and development which repeals and re-enacts with amendments various provisions of the Local Government (Planning and Development) Acts 1963- 1999. The stated purpose of the Act is:-

"To provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing ..."

4 Part VIII of the Act deals with enforcement, the aspect of planning laws with which the Court is concerned in the present case.

5 Section 151 of the Act provides that a person who carries out unauthorised development is guilty of an offence - a provision which, having regard to the severity of the sentences which may be imposed by virtue of s. 156, may be taken as reflecting the importance attached by the Oireachtas to the serious implications of unauthorised development and the need for effective enforcement measures.

6 Section 152 provides for the issue of a warning letter by a planning authority to a person carrying out an unauthorised development. It permits a planning authority to ignore a development which is of a trivial or minor nature, so that the fact that such a letter does issue is of itself a serious step and may be seen as such.

7 Section 152 (4) sets out the details of what must be contained in a warning letter in such a way as to fully advise the recipient of the matter which has come to the attention of the planning authority and in respect of which the recipient may make submissions or observations in writing to the planning authority.

8 Section 153 permits the planning authority to make an appropriate investigation to determine whether or not to issue an enforcement notice. Before issuing an enforcement notice the planning authority must consider any representations made to it under s. 152 and any other material considerations.

9 The service of an enforcement notice is provided for by s. 154 and the detailed requirements of such a notice are elaborated at section 154(5).

10 Section 156 of the Act provides that a person who is guilty of an offence under, inter alia, ss. 151 or 154 shall be liable on conviction on indictment to a fine not exceeding £10,000,000 or to imprisonment for a term not exceeding two years or to both and on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding six months or both.

11 Section 160 provides for the making of an application to court and in relevant part provides as follows:-

12 2 "(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do as the case may be, anything that the court considers necessary and specifies in the order to ensure, as appropriate, the following:-

13 (a) that the unauthorised development is not carried out or continue;

14 (b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

15 (c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject;

16 (2) In making an order under subs. (1), where appropriate the court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature."

17 The respondents are brother and sister and are the registered owners of folios 8725 and 8726 County Wicklow. While the second named respondent is joint owner of the property the subject matter of this application she has had no part in the development the subject matter of these proceedings. There is on the property an existing uninhabited cottage which, at some time in the future, the second named respondent intends to refurbish and occupy. The first named respondent now resides in the newly erected wooden chalet with his partner and young son and occupies same as their family home.

18 In resisting the application the respondents argue that they are entitled to remain in situ pursuant to two decisions of the High Court delivered by Hogan 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 different constituent elements of an appeal from the Circuit Court. There were two further Fortune rulings which were consequential upon orders and directions made in the earlier cases but do not require consideration in the present case.

19 That particular matter having been decided in the context of an appeal to the High Court - from which no further appeal was possible - the applicants in the present proceedings invite this Court to hold that the Fortune case was erroneously decided insofar as it purported to restrict to the extent it did the powers of a planning authority when dealing with an unauthorised development. There is, of course, a right of appeal from any decision of this Court to the Court of Appeal.

20 In the course of this judgment the Court will review the jurisprudence which outlines the circumstances and jurisprudence which underpin the deference one judge of the High Court should give to another when deciding a similar or identical point and the circumstances which would justify or even require the making of a different decision.

BACKGROUND FACTS

21 The respondents bought the holding comprised in folios 8725 and 8726 County Wicklow in 2003 with the assistance of a loan from EBS Building Society, the same being registered as a charge or burden on both folios. The date of registration of ownership of the properties and the charge is the 18 ^th March, 2003. The property fronts on to the N81 national road which, as will appear later herein, is an extremely busy stretch of roadway with an average daily put through of 8,500 vehicles.

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