Judgment Title: County Council of Wicklow -v- Fortune
Neutral Citation: 2012 IEHC 406
High Court Record Number: 2011 26 CA
Date of Delivery: 04/10/2012
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation 2012 [IEHC] 406
THE HIGH COURT
IN THE MATTER OF AN APPLICATION UNDER SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000
[2011 No. 26 CA]
THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
KATIE (OTHERWISE CATHERINE) FORTUNE
JUDGMENT of Mr. Justice Hogan delivered the 4th day of October, 2012
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. 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. 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 18th April, 2007.
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 18th November, 2008. The reasons which were given by the Board for this refusal for this refusal are of some importance:
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."
6. By decision dated 8th February, 2011, Her Honour Judge Flanagan found for the applicant Council. In effect, the Circuit Court ordered that the site should be cleared and in particular that the occupation of the chalet should cease as a prelude to its demolition and removal. Ms. Fortune now appeals to this Court against the making of these orders.
Section 160(6)(a)(i) of the Act of 2000 and the seven year limitation period
"An application to the High Court or Circuit Court for an order under this section shall not be made:
9. Second, it is true that as Mr. Bradley S.C. pointed out, s. 156(6) of the Act of2000 expressly provides that:-
11. Third, it is true in all the s. 160 cases to date (including the cases dealing with its statutory predecessor, s. 27 of the Local Government (Planning and Development) Act 1976) this Court has stressed that the general onus of proof in such cases rests with the applicant: see, e.g., Westport UDC v. Golden Ltd.  1 I.L.R.M. 439 per Morris P., Fingal County Council v. Dowling  IEHC 258 per de Valera J. and Wicklow County Council v. Jessup  IEHC 81 per Edwards J. This case-law can be traced back to the statement of Finlay P. in Dublin Corporation v. Sullivan, High Court 21st December, 1984, where he stated that:-
13. It is also true that in Fallowvale McKechnie J. rejected the argument that s. 160 created any reverse-onus types provisions:-
"The onus of proof issue, which was keenly contested in this case, arises by virtue of the respondents' reliance on s. 4(1)(h) of the Act of 2000 and on Class 32 and Class 39 of the Regulations. It is no part of their argument on the facts of this case that any of the development in question has the benefit of a pre-1964 user. Therefore, the views which I express on this point are confined to the statutory provisions as identified and do not purport to cover circumstances, which by virtue of their existence prior to the 1st October, 1964, are in effect excluded in their entirety from the provisions of the Act of 2000
In Lambert v. Lewis (Unreported, High Court, Gannon J., 24th November, 1984) the issue before the court required in the judge's opinion "no more than an interpretation of the exemption regulations in S.I. No. 65 of 1977 ...."These regulations can be considered as predecessors to the 2001 Regulations and on the point at issue are indistinguishable from them. In that case, it was submitted to the court that the activities complained of fell within the class of "light industrial use" and that the premises in question had a history of such use prior to 1st October, 1964, or alternatively prior to 15th March, 1977, the date upon which these regulations came into force. Having found that the defendant's premises did not have the benefit of any such use on either of the dates mentioned and having concluded that the use complained of constituted a material change of use, the learned judge, at pp. 10-11 of the judgment continued:-
From a further consideration of the judgment as to the manner in which the hearing proceeded, it is clear that the defendant assumed the responsibility of bringing the use of his premises within the exempted Regulations. Furthermore, in addition to the passage above quoted the learned trial judge at p. 14 of the judgment reaffirmed his opinion by saying "In my view any change of use from use for such purposes is an unauthorised use unless coming within the provisions for exempted development in either the 1963 Act or the Regulations of Statutory Instrument 65 of 1977. The onus of establishing exemption falls on the Respondents.'"
"The decision of Finlay P., as he then was, in Dublin Corporation v. Sullivan, supports in my view, the limited proposition which can be deduced from Lambert v. Lewis. In Sullivan's case it was admitted that a change of use from a single dwelling unit to a multiple dwelling unit had occurred after the material date. Both parties contended that the other party had the responsibility of establishing that this change of use had occurred after 1st October, 1964. Having expressly agreed with the views of Gannon J. in Lambert v. Lewis, the then President distinguished Sullivan from that case by saying at p. 3 that "... the unauthorised development relied upon by the applicants is an unauthorised change of use and the issue which arises is as to whether it is a prohibited unauthorised change of use not as to whether being a prohibited unauthorised change of use it is the subject matter of the statutory exemption". In those particular circumstances he was satisfied that the onus rested upon the applicants to prove that the suggested material change of use had occurred after 1st October, 1964. It is therefore clear that Dublin Corporation v. Sullivan was not dealing with an exemption claimed on foot of a statutory provision or on the basis of exempted developments under the Regulations, but rather was concerned solely with the date upon which the admitted change of use had occurred. I therefore do not feel that this decision is on the point at issue in this case, but in any event by the express wording of his judgment, Finlay P., as he then was, agreed with Lambert v. Lewis. See also the decision of O'Caoimh J. in Fingal County Council v. Crean, (Unreported, High Court, 19 October, 2001) in which the learned judge concluded that the onus of proof rested upon the respondents to satisfy the court that the exemption relied upon, being that contained ins. 4(1)(g) of the Act of 1963 applied to the circumstances of that case.
Further support for this position is to be found in the decision of the Supreme Court in Philip Dillon v. Irish Cement Limited, (Unreported, Supreme Court, 26 November, 1986: see para. 2.654 in O'Sullivan and Shepherd, Irish Planning Law and Practice) In that case the net issue was whether the activities of the respondent were exempted under the 1977 Regulations and in particular under Class 34 thereof. Finlay C.J. speaking for the court said:-
Westport UDC v. Golden  1 I.L.R.M. 439 is the case most heavily relied upon by the respondents and in their submission is the preferred line of authority on the point at issue. [The relevant passage from the judgment of Morris P. reads] as follows:-
I do not accept that Dillon v. Irish Cement Ltd. is authority for the proposition that where the respondent seeks to establish an immunity on the grounds that a development is an exempted development under s. 4 of the 1963 Act that he must bring himself within the exemption. Dillon v. Irish Cement was a case in which Finlay C.J. considered that in the particular circumstances of that case and by reason of the unique exemption claimed there was such an onus on the respondent. However in the present case none of these considerations apply.'
16. McKechnie J. then summed up thus:-
18. In the present case the respondent contends that the application is time-barred. It is specifically contended that the Council cannot show that the application was commenced within seven years of the commencement of the development. The present proceedings were commenced on 22nd September, 2009, and the Council can simply show that on diverse dates from 2006 onwards the chalet had been constructed and that mobile homes were on the site. The Council freely admits that it is simply not in a position to prove affirmatively the date on which the development commenced.
19. Here it may be recalled that the seven year time limit is, as we have already seen, simply a matter of defence, not jurisdiction. This means that the application will be regarded as statute-barred only if the respondent elects to raise this defence. In my view, in the light of Fallowvale the onus in this regard rests with her who asserts that this is so, namely, Ms. Fortune. This, however, she has signally failed to do. In particular, she has failed to tell the Court even the approximate dates on which the development commenced, even though this is a matter which of necessity is peculiarly within her own knowledge.
20. Indeed, it could be said that a more general principle of the law of evidence bearing on peculiar knowledge really underlies and explains decisions such as Lambert v. Lewis, Dillon v. Irish Cement and Fallowvale. This is perhaps especially true of matters such as the date of commencement of a particular development as distinct, for example, from the question of whether the development was unauthorised. The latter question lends itself to objective determination by reference to a public register to which the public have access. It is, therefore, not considered unfair or unreasonable that the onus of proof in this regard should - at least in general - rest with the applicant.
21. It is otherwise in the case of the date of commencement of a development. Take, for example, the present case where the chalet was constructed in a wooded area which was not readily visible from a public road or path. How could a planning authority (or, for that matter, a member of the public who sought s. 160 relief) be expected to prove the date on which the development was commenced so that the seven year period might be nicely calculated for the purposes of a limitation period? The chalet might well have been constructed for months or even years before its planning status came into question or matters came to the attention of a body such as the Council. An applicant seeking a s. 160 order would, for example, have no right in advance of the proceedings to demand details of matters such as architects' drawings or invoices from builders so that the date of completion of the works might perhaps be objectively ascertained, even though, of course, such material might be obtained on discovery.
22. The fact remains, however, that it would be unreal and unduly burdensome on an applicant for relief under s. 160 if he or she were to be expected to carry this burden. This, after all, is the rationale for the peculiar knowledge rule. It represents a practical recognition of life's realities that certain matters lie almost beyond the beyond the effective capacity of an outsider to prove where they relate to events which are largely personal and private to the other party. An old example is supplied here by the decision of the House of Lords in General Accident Fire and Life Assurance v. Robertson  AC 404. Here the question was when a particular application form for life insurance had been received and registered by an insurance company. This date assumed importance because the insurance company had repudiated liability on the ground that the insured had not died within the twelve months of the registration of the policy and the policy had provided for such a limitation clause. Lord Lorebum L.C. held ( AC 404, 413) that as the specific date on which the company had received and registered "was peculiarly and solely within their knowledge", the burden of proof lay with them.
23. The precise date on which the development "commenced" is of necessity one such example. "Development" is defined by s. 3 of the Act of 2000 as the "carrying out of any works" on or over land or the "making of any material change in the use of the any structures or other land." Who but the landowner could be expected to know or prove these facts? A landowner may endeavour to conceal the fact that unauthorised development has taken place or that there has been a change of use on the lands. Is it be said that an applicant for s. 160 relief is effectively to be denied the right to come to court because he or she cannot establish ex ante the precise date on which such a development commenced?
Conclusions on the seven year limitation period issue
25. It follows, accordingly, that as Ms. Fortune has not informed the Court of the date even in approximate terms - on which the building was commenced, she has not established that this application is time-barred by reason of s. 160(6)(a)(i) of the Act of 2000.
The grant of a s. 160 injunction, discretionary factors and Article 40.5
27. This was recognised by Henchy J. in Morris v. Garvey  I.R. 319,324 where stressing the community's interests in preserving communal environmental and ecological rights, he went on to observe that:-
In all the circumstances of the case the Court must accede to the application and grant the relief sought by the applicants. However, the Court is prepared on a humanitarian basis to put a stay on its order of24 months from today's date in the light of the particularly difficult economic times in which we are living which the Court recognises may make compliance with the Court's order all the more difficult for the respondents. However, the order must be complied with in full on or before the expiry of the stay."
33. Other factors which might affect the exercise of discretion was whether the developer had relied in good faith on professional advisers (see, e.g., Pierson v. Keegan Quarries Ltd., Altara Developments Ltd. v. Ventola Ltd.  IEHC 312); whether demolition might involve hardship to third parties (Pierson v. Keegan Quarries) or, indeed, hardship to the developer himself or herself. Normally, however, as the decisions of Henchy J. in Morris, Irvine J. in Pierson and that of Edwards J. in Murray all illustrate, courts are generally unsympathetic to the hardship which was eminently foreseeable and which results from the culpable behaviour of the developer and landowner in question.
34. If one applied the existing case-law to the present case, however, it may be observed that unlike the circumstances disclosed in cases such as Forest Fencing, Lanigan and Murray, Ms. Fortune has not engaged in a large scale construction project which manifestly violated proper planning and development considerations. Nor does the dwelling impact on the rights and amenities of her neighbours, unlike the situation disclosed in cases such as Lanigan and Pierson. At the same time, while it is true that there were extenuating circumstances- after all Ms. Fortune found herself with young children (and few resources) who she considered might best be raised in an extended family environment in a rural setting - it must be concluded that, objectively speaking, the development was not bona fide. After all, Ms. Fortune elected to build a dwelling in an area of high amenity in circumstances where she must have known that planning permission was required. Were it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Murray, i.e., grant the injunction, albeit subject to a two year stay.
35. We may now turn to examine the constitutional argument. A key feature of Mr. Bradley's argument was that no injunction could or should be granted as this would infringe the guarantee of inviolability attaching to the dwelling as provided for in Article 40.5 of the Constitution. While this argument may well have been prompted by the fresh emphasis given to Article 40.5 by recent decisions such as Damache v. Director of Public Prosecution  IESC 11 and The People (Director of Public Prosecutions) v. Cunningham  IECCA 64, there is nevertheless no basis at all for the suggestion that Article 40.5 should be confined in its application to the sphere of criminal law and criminal procedure. As is highlighted by the judgment which I am also giving today in the quite separate and different case of Sullivan v. Boylan, the guarantee of "inviolability" of the dwelling in Article 40.5 is a free standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike.
36. It is also true that, as counsel for the planning authority, Mr. Sheridan readily acknowledged, in this respect Article 40.5 goes further than the parallel guarantee in Article 8(1) ECHR (which provides that everyone has the right "to respect for. ...his home and correspondence..."). It follows that some weight must be accorded to the more emphatic language used by the constitutional provision. As I observed in EA v. Minister for Justice and Equality  IEHC371 when contrasting the language of Article 41 on the one hand with Article 8 ECHR on the other:-
38. It is also true that there are some legal contexts in which the word "inviolable" might bear the interpretation which Mr. Bradley S.C. has urged upon me. Thus, for example, Article 22(1) of the Vienna Convention on Diplomatic Relations (which is given the force of law by s. 5(1) of the Diplomatic Relations and Immunities Act 1967) provides that:-
40. Yet the Constitution cannot be interpreted in such a desiccated fashion, divorced entirely from the context and object of the constitutional provision in question. If Mr. Bradley S.C.'s argument were correct, it would effectively mean that residential planning control would be virtually meaningless. It would mean, for example, that a residence which was unlawfully erected in defiance of the planning authorities was immune (or, at least, virtually immune) from the s. 160 procedure, even though, for example, the dwelling might constitute a fire hazard or pose a danger to road users or that it might occupy a prominent position in a region of great natural beauty to the detriment of that beauty spot. If, moreover, this construction of Article 40.5 were to be admitted, what would there be to stop the deliberate and unlawful construction of a dwelling on another's land? Is it to be said that in such circumstances the rightful landowner could not secure an injunction compelling the removal of the dwelling on the ground that it was "inviolable"? 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 and appropriate enforcement by invoking Article 40.5.
41. At the same time, Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as the 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 (as Hardiman J. pointed out in Cunningham) 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 modem society. In the 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 so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom (1996) 22 EHRR 123, the case for such a drastic step is convincingly established.
Conclusions on the s. 160 and Article 40.5 issues
43. Given the novelty of the point and, in particular, the fact that the critical Article 40.5 issue was highlighted only in the wake of the Supreme Court's decision in Damache (which decision long post-dated the commencement of these proceedings), I propose to adjourn the question of whether this particular unauthorised dwelling should be demolished for further argument in the light of this judgment. I will, if necessary, allow both sides to adduce further evidence on the question of whether the necessity for a demolition order pursuant to s. 160(1) has, in fact, been convincingly established.