Wicklow County Council v Fortune [High Court] (No 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 04 October 2012
• Neutral Citation: [2012] IEHC 406
• Court: High Court
• Date: 04 October 2012

Wicklow Co Council v Fortune

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

BETWEEN/

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

PLAINTIFF

AND

KATIE (OTHERWISE CATHERINE) FORTUNE

DEFENDANT

[2012] IEHC 406

[No. 26 CA/2011]

THE HIGH COURT

Planning - Planning permission - Unauthorised dwelling -- Application for planning permission refused - Demolition - Appeal - Planning and Development Act 2000 s.160(6)(a)(i) - Time limit - Burden of Proof - Inviolability - Constitution

Facts: The defendant had built a chalet in a wooded area at an undetermined point during the last thirteen years without gaining planning permission. The dwelling came to the attention of Wicklow County Council and an application to secure planning permission was accordingly made. Both attempts were refused by the circuit court who ordered that the site should be cleared and that occupation should cease in order to allow demolition and removal to take place.

The appeal against that decision was advanced on two grounds. Firstly, the defendant contended that the application by the Council was statute-barred because it had failed to show the proceedings had commenced within the seven year time limit provided for in s 160(6)(a)(i) of the Planning and Development Act 2000, raising questions for the court as to who was the party who bore the burden of proof. Secondly, the defendant contended that the court should grant an injunction against the removal of dwelling, due to its 'inviolability' under Article 40.5 of the Constitution.

Hogan J concluded that s. 160(6)(a)(i) did not impose a jurisdictional bar on a statutory injunction for proceedings that had been commenced after seven years, instead the seven year time limit was a matter of defence, the burden of proof therefore lay with the party asserting it, in this case the defendant. Further, based on the peculiar knowledge doctrine, the onus rested on the landowner. South Dublin City Council v Fallowvale Ltd [2005] IEHC 408 applied.

In regard to the second ground, it did not suffice for the council to show that the structure had been built without authorisation. It was necessary to go further and illustrate that the continued occupation and retention of the dwelling would contravene important policy objectives to the extent that demolition was the only fair, realistic and proportional response. The parties were invited to make further submissions on this question and the matter was accordingly adjourned.

PLANNING & DEVELOPMENT ACT 2000 S160(6)(A)(I)

CONSTITUTION ART 40.5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(1)

PLANNING & DEVELOPMENT ACT 2000 S152

PLANNING & DEVELOPMENT ACT 2000 S160(6)(A)

STATUTE OF LIMITATIONS 1957 S11

O DOMHNAILL v MERRICK 1984 IR 151

PLANNING & DEVELOPMENT ACT 2000 S156(6)

PLANNING & DEVELOPMENT ACT 2000 S162(1)

PLANNING & DEVELOPMENT ACT 2000 S160(6)

PLANNING & DEVELOPMENT ACT 2000 S151

PLANNING & DEVELOPMENT ACT 2000 S154

SOUTH DUBLIN CITY COUNCIL v FALLOWVALE LTD UNREP 28.4.2005 2005/55/11532 2005 IEHC 408

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

WESTPORT URBAN DISTRICT COUNCIL v GOLDEN & ORS 2002 1 ILRM 439

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

WICKLOW CO COUNCIL v JESSUP & SMITH UNREP EDWARDS 8.3.2011 2011/49/13975 2011 IEHC 81

LAMBERT v LEWIS & KIELY UNREP GANNON 24.11.82 1983/3/611

FINGAL CO COUNCIL v CREAN & SIGNWAYS HOLDINGS LTD UNREP O CAOIMH 19.10.2001 2001/9/2449

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(G)

DILLON v IRISH CEMENT LTD UNREP FINLAY 26.11.1986 2004/13/2866

O'SULLIVAN & SHEPHERD IRISH PLANNING LAW & PRACTICE PARA 2.654

LENNON v KINGDOM PLANT HIRE LTD UNREP MORRIS 13.12.1991 (EX TEMPORE)[TRANSCRIPT NOT AVAILABLE]

PIERSON & ORS v KEEGAN QUARRIES LTD UNREP IRVINE 7.10.2010 2010/43/10890 2010 IEHC 404

GENERAL ACCIDENT FIRE & LIFE ASSURANCE v ROBERTSON 1909 AC 404

PLANNING & DEVELOPMENT ACT 2000 S3

STAFFORD v ROADSTONE LTD 1980 ILRM 1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27(1)

MORRIS v GARVEY 1983 IR 319

WICKLOW CO COUNCIL v FOREST FENCING LTD (T/A ABWOOD HOMES) & SMULLEN 2008 1 ILRM 357 2007/60/12933 2007 IEHC 242

LANIGAN & ORS v BARRY & ORS UNREP CHARLETON 15.2.2008 2008/34/7462 2008 IEHC 29

MEATH CO COUNCIL v MURRAY UNREP EDWARDS 29.6.2010 2010/35/8872 2010 IEHC 254

CONSTITUTION ART 40.5

ALTARA DEVELOPMENTS LTD & CROSSAN v VENTOLA LTD 6.10.2005 2005/2/219 2005 IEHC 312

DAMACHE v DPP & ORS UNREP SUPREME 23.2.2012 2012 IESC 11

DPP v CUNNINGHAM UNREP CCA 19.10.2011 2011/16/3778 2011 IECCA 64

A (E) & A (P) v MIN FOR JUSTICE UNREP HOGAN 7.9.2012 2012 IEHC 371

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

CHAPMAN v UK 2011 ECHR 43

HORIE v UK 2011 ECHR 289

VIENNA CONVENTION ON DIPLOMATIC RELATIONS ART 22(1)

DIPLOMATIC RELATIONS & IMMUNITIES ACT 1967 S5(1)

GOODWIN v UK 1996 2 EHRR 123

1 1. This appeal from a decision of the Circuit Court raises difficult and, in some respects, novel issues concerning the application of the Planning and Development Act 2000 ("the Act of 2000"). The first issue concerns the nature of the seven year limitation period provided for in s. 160(6)(a)(i) of the Act of 2000. Does this section represent a jurisdictional bar to proceedings commenced after the seven year period or is it in the nature of a defence available to a respondent? Moreover, on whom does the burden of proof lie? The second issue relates to the nature of the "inviolability" of the dwelling as provided for in Article 40.5 of the Constitution (and for that matter the "respect" for the family home provided for in Article 8(1) ECHR). To what extent, if at all, can this constitutional provision be invoked by the home owner by way of defence to an application for an injunction which would seek to compel him or her to remove the dwelling for want of planning permission?

2 2. These important issues arise in the following circumstances. The defendant, Ms. Fortune, has at some stage within the last thirteen years or so constructed a small timber framed chalet approximately 70 sq. m. in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. Wooden decking in the form of a patio has been laid around two sides of the chalet. While it seems clear from the photographs supplied to the Court that the chalet has been sensitively constructed and is not immediately visible from the adjoining road, the stark fact remains that this chalet was built without planning permission.

3 3. This matter appears to have first come to the attention of the planning section of Wicklow County Council sometime in December, 2006. Officials from the Council visited the site on a number of occasions, noting that other parts of the site and immediately adjacent sites were used by other family members for such purposes as the storage of mobile homes and motor vehicles. A warning letter was duly sent pursuant to s. 152 of the Act of 2000 on 18 ^th April, 2007.

4 4. The Council decided to postpone making an application to the Circuit Court for a statutory injunction under s. 160 pending an application by Ms. Fortune for retention planning permission. Two separate applications for retention were made on Ms. Fortune's behalf. The process culminated in the decision of An Bord Pleanála to refuse to grant permission by decision of 18 ^th November, 2008. The reasons which were given by the Board for this refusal for this refusal are of some importance:

2 "1. The site of the proposed development is at an elevated location designated in the Wicklow County Development Plan 2004-2010 as an "area of outstanding beauty". According to Policy SS9 of the Settlement Strategy is the policy of the planning authority not to allow development of dwellings within areas so designated, unless it can be satisfactorily demonstrated that the applicant has a permanent note of residence of the immediate vicinity or has resided at the location for a minimum of ten years. This policy is considered reasonable. It is considered on the basis of the submissions made in accordance with the application of the appeal that it has not been demonstrated that the applicant comes under the scope of the criteria set out under this policy. The proposed development would, therefore, contravene this policy and would be contrary to the proper planning and sustainable development of the area.

2 The site of the proposed development is located off a lane that is substandard in horizontal and vertical alignment and in poor condition. The Board is not satisfied on the basis of the information provided in connection with the application of the appeal that the lane can be upgraded and maintained to a satisfactory standard to serve the development. The proposed development would, therefore, endanger public safety by reason of traffic hazard and obstruction of road users."

Ms. Fortune herself has explained the circumstances in which the chalet was constructed. She has explained that in 1999 she found herself separated with two young children, then aged seven and nine. She had nowhere to live because she had previously lived with her husband in accommodation which was associated with his work. In those circumstances she was effectively destitute and her mother (who is sadly deceased since the date of the Circuit Court hearing) allowed her to place a mobile home on this site. She goes on to explain that with the assistance of her family:-

"I was able to fund the erection of a wooden chalet on the lands to provide a home for my children and I. The alternative was for me to seek social housing and I felt that I would be able to provide a better home for my children amongst their extended family than relying on the assistance of the State and living far removed from them. The...