Wicklow County Council v Beattie

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 15 January 2019
• Neutral Citation: [2019] IEHC 18
• Docket Number: [2017/233 C.A.]
• Court: High Court
• Date: 15 January 2019

BETWEEN

WICKLOW COUNTY COUNCIL

APPLICANT

AND

ROY BEATTIE

RESPONDENT

[2019] IEHC 18

[2017/233 C.A.]

THE HIGH COURT

CIRCUIT APPEAL

Planning permission – Conditions – Compliance – Applicant seeking an order compelling the respondent to comply with conditions attached to planning permission – Whether the applicant had established, on the balance of probabilities, that unauthorised development had taken place

Facts: The applicant, Wicklow County Council, applied to the High Court seeking an order pursuant to s. 160 of the Planning and Development Act 2000 compelling the respondent, Mr Beattie, to comply with certain conditions attached to planning permission 07/1080 which relates to the lands comprised in Folio 5759F County Wicklow. One of the central issues in this case was whether the entrance onto the R759 was authorised under permission 06/5174 or alternatively, 07/1080. The Council argued that permission 07/1080 clearly on its face provided for access for the retained and new developments from the R759 and the failure to construct the new entrance meant that Mr Beattie was in breach of condition 13. Mr Beattie contended that the new entrance to the R759 was neither applied for nor granted by permission 07/1080, but was in fact both applied for and granted by permission 06/5174 which had expired and could not therefore be implemented, the Council having refused an extension. Mr Beattie said that condition 13 could only ever apply if and when the new entrance was constructed and as that could not now happen, condition 13 could never be complied with and was accordingly unenforceable. The Council countered this with the argument that the plans submitted by Mr Taylor in respect of application 07/1080 clearly showed the new entrance and the development must be carried out in accordance with those plans and particulars. In response, Mr Beattie said that it was of course appropriate and necessary to show what had already been granted on foot of permission 06/5174 when applying for the new permission. He argued that the plans submitted in support of application 07/1080 not only showed the new entrance but also the new house but it could not seriously be suggested that permission for the house was re-granted by 07/1080.

Held by Noonan J that, in an application for a s. 160 injunction, as in any other injunction application, the onus rests upon the moving party to establish, on the balance of probabilities, that unauthorised development has taken, or is taking, place. As that proposition, in the context of condition 13 at any rate, hanged on establishing that the new entrance was permitted under 07/1080 and not 06/5174, the Council must, in Noonan J’s opinion, be viewed as having failed to discharge that onus; it must equally follow that the Council had failed to establish that there had been a breach of condition 13 because there was no requirement to comply with it unless and until the entrance onto the N81 is closed and the new entrance is brought into use, an event which could not occur by virtue of permission 06/5174 being now spent. Noonan J thought the Council’s argument that the 07/1080 permission granted permission for the new entrance must also be viewed in the light of the fact that if it did, it was not applied for and this would prima facie render it ultra vires the Council; since the permission must be assumed to have been granted intra vires, this was a further reason for concluding that the later permission did not grant the new entrance. Noonan J noted that although the Council did not abandon alleged breaches of conditions other than condition 13, the latter was very much the focus of this case; there was no realistic suggestion of a failure to otherwise carry out the development in accordance with the permission and in particular, in the context of the tree planting requirements, it appeared to be conceded by the Council that Mr Beattie had planted trees very extensively and far in excess of what was required of him under the terms of the permission. To that extent, insofar as conditions 2 and 3 were concerned, which required security deposits, Noonan J was satisfied no ongoing necessity for the lodging of such deposits had been established by the Council and any failure in that regard had to be viewed as trivial or merely technical; the same considerations applied to conditions 15, 16 and 17. Condition 14 relates to sight lines for the new entrance but in view of the conclusions Noonan J had arrived at, this was no longer material.

Noonan J held that he would allow Mr Beattie’s appeal and dismiss the Council’s application.

Application dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 15th day of January, 2019

1 In this application, the applicant (‘the Council’) seeks an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, compelling the respondent (‘Mr. Beattie’) to comply with certain conditions attached to planning permission 07/1080 which relates to the lands comprised in Folio 5759F County Wicklow.

2 The lands in question are part of the Beattie farm situated at Tinode, Kilbride, Blessington, County Wicklow. The farm has been in the possession of the Beattie family since approximately 1912. The farm in total contains 73.9 hectares of which 20.8 are the subject matter of the relevant planning application. Access to the farm is gained via an entrance off the N81 which is the main Tallaght to Blessington Road. This entrance has been in existence for many decades and certainly prior to 1st October, 1964.

3 In 2006, Mr. Beattie applied to the Council for planning permission for a new dwelling house on the land. There was then, and still is, no dwelling house on the land. On 26th April, 2007, planning permission reference no. 06/5174 was granted to Mr. Beattie for the development of a two storey house with a new entrance to the site and a new wastewater treatment plant. A number of the conditions attached to this planning permission related to the new entrance. Condition 5 required 120 metre sight lines, condition 6 related to the surface material of the new entrance and condition 8 provided that surface water runoff from, inter alia, the entrance, should be collected on site and not permitted to flow onto the public roadway.

4 Planning permission 06/5174 was subject to the normal five-year lifespan so that it would, if not implemented, expire on 26th April, 2012. Although it was Mr. Beattie's intention to construct the house, events overtook that plan in the shape of the economic collapse and thereafter he was no longer financially in a position to commence the construction. The entrance provided for by the 06/5174 permission was onto the R759 rural road which also bounded the Beattie farm but importantly carries a lower volume of traffic than the N81. The Council previously refused to grant Mr. Beattie permission for a development that utilised the existing N81 entrance on traffic hazard grounds.

5 The architect that represented Mr. Beattie in his various planning applications was John M. Taylor of...