Judgment Title: The County Council of The County of Wicklow & Katie (Otherwise Katherine) Fortune (No.3) & County Council of The County of Wicklow v Johnny Fortune & Anor
Neutral Citation:  IEHC 397
High Court Record Number: 2011 26 CA & 25 CA
Date of Delivery: 05/09/2013
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 397
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 KATHERINE) FORTUNE (NO. 3)
[2011 No. 25CA]
IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000
COUNTY COUNCIL OF THE COUNTY OF WICKLOW
JOHNNY FORTUNE AND KATIE FORTUNE
JUDGMENT of Mr. Justice Hogan delivered on the 5th day of September 2013
1. This is now the third judgment dealing with aspects of the planning status of certain structures onlands owned by members of the Fortune family at Carrigeenshinnagh, Lough Dan, Roundwood, Co. Wicklow. The first two judgments dealt with the question of whether a statutory injunction should be granted pursuant to s. 160 of the Planning and Development Act 2000 (“the 2000 Act”)(as amended) requiring Ms. Kate Fortune to demolish a small chalet constructed by her without planning permission which she uses as her principal private dwelling. In Wicklow County Council v. Fortune (No.1)  IEHC 406, I articulated the test which a planning authority would be required to satisfy in those s. 160 cases where the demolition of a private dwelling was sought and in Wicklow County Council v. Fortune (No.2)  IEHC 255, I applied that test in the course of rejecting the Council’s argument that Ms. Fortune’s chalet should be demolished.
PART 1 - INTRODUCTION
2. As will shortly be seen, it will prove necessary to re-visit aspects of that latter judgment in the course of this judgment. It must also be recalled that in Fortune (No.1) I ruled that the onus of proof rested with any defendant asserting that a planning authority’s entitlement to seek a s. 160 order was statute-barred by reason of the lapse of the statutory seven-year period. This is an issue which also arises in the case involving Johnny Fortune and Katie Fortune (2011, No. 25 CA).
3. The principal relief sought against Mr. Fortune and Ms. Fortune (who are siblings) in the proceedings bearing Record No. 2011 No. 25CA are orders restraining the use of certain lands for the keeping of certain vehicles and the parking of a caravan on the site as well as an order providing for the demolition and removal of two wooden timber shed structures. For the sake of convenience, I will describe the larger shed as “the large shed” and the other shed as “the garden shed”. There is some dispute as to the exact location of the large shed and it seems to straddle lands owned by Ms. Fortune (Folio No. 22766F) as well as lands which are beneficially owned by her brother, Mr. Fortune (Folio No. 32316F). I will proceed for present purposes on the basis that the vehicles and structures in question are situate wholly on Mr. Fortune’s lands and that he will take responsibility in this regard. Should this prove not to be the case, it is a matter which can be addressed at a later stage following the delivery of this judgment. Subject to this proviso, therefore, the question of making any order against Ms. Fortune in proceedings bearing record number 2011 No. 25CA does not arise.
PART 2: THE PROCEEDINGS INVOLVING
JOHNNY FORTUNE AND KATE FORTUNE
The storage of vehicles on the lands
5. Mr.Brophy next visited the site in late August 2006. Apart from a van parked in one of the sheds, the caravan had been removed and there were two cars parked on the site. The remains of a lorry was situate in the north-eastern portion of the lands. By this stage, there had been intermittent correspondence with Mr. Fortune and he made an application for retention permission in January 2007, seeking permission to construct a two-car garage on the site. A request for further information was made by the Council on 13th March 2007, but this request was not responded to. The Council then deemed this application to have been withdrawn.
6. In the wake of these developments, a third inspection took place on 27th November 2007. Mr.Brophy found seven vehicles: five cars, a mini-van and one van in various states of repair. This prompted a further warning notice which was sent on 11th December 2007. While Mr. Fortune indicated to the Council that he intended to apply for full planning permission for the construction of a house at the site, it appears that no such application ever materialised. A further inspection of the lands was then conducted by Mr.Brophy on 31st January 2008. This showed that the unauthorised user was still continuing. The Council then issued an enforcement notice on 20th February 2008. This notice required Mr. Fortune to cease the use of the site for the storage of vehicles and to demolish and remove the timber garage.
7. While there was further correspondence and discussions between the parties in relation to the sheds (a topic to which I shall later revert), the present proceedings were ultimately commenced in September 2009. Mr. Fortune has explained that the accumulation of vehicles came about by reason of his son’s interest in the restoration of old vehicles. Shortly after Mr. Fortune constructed this shed, his son began to use it in order to restore these vehicles. It should be said that the son has a real aptitude in this regard and won an award in a British television series in recognition of this talent. Nevertheless, as the vehicles accumulated, Mr. Fortune became concerned that this activity was unsightly and directed his son to stop which he did.
8. Critically, therefore, by the date of the commencement of these proceedings, this user had ceased. Mr. Fortune does not dispute but that this particular user involving the storage of these vehicles was unauthorised. Yet it appears to be common case that the user has been discontinued. In these circumstances, I will merely grant a declaration that the use of the lands for the purposes of the storage of vehicles would represent an unauthorised user and there does not appear to be any necessity for an injunction at the present time. Of course, if this situation were ever to change, then the Council would be free to apply to re-enter the proceedings before the Circuit Court.
The large shed
10. Mr. Fortune did, however, make an application for certificate of exemption in respect of the large shed on the basis that it was to be used for horses and livestock. This was refused by decision of the Council’s decision dated 23rd April 2008, and the validity of this decision was never challenged in judicial review proceedings. Several reasons were given for this conclusion which were expressed as follows:
Part 2, Article 9 of the Planning and Development Regulations 2001-2006
Schedule 2 , Part 3, Class 6 of the Planning and Development Regulations 2001-2006 “limitations and conditions”
Planning History (PPR 07/83)
Lack of information relating to the agricultural holding to be served by the proposed building
The existing use of land surrounding the structure observed during site visit
The location of the development in an area of outstanding natural beauty and interference with a listed prospect as indicated in the Wicklow Development Plan.”
The decision of the House of Lords in Pyx Granite Company Ltd. v. Minister of Housing and Local Government is, in my view, distinguishable from the present case. That was a case in which a company engaged in quarrying claimed to be entitled to carry it out under the provisions of a private and local Act of Parliament, i.e. the Malvern Hills Act, 1924. Since the relevant legislation in England provided that planning permission was not required for development authorised by local or private Acts, the company further claimed that they were not obliged to invoke the procedure under the planning legislation whereby the Minister of Housing and Local Government could determine whether planning permission was required. The Minister raised a preliminary objection to the court determining the company's claim, on the ground that its jurisdiction had been ousted by the provisions of the planning legislation entitling the Minister to decide whether planning permission was required. That submission was rejected by the House of Lords on the ground that the right of a person to have recourse to the courts for a determination of his rights was not to be excluded except by clear words.
That, however, was a case in which the company claimed that they were not in any way affected by the provisions of the planning code, having regard to the provisions of the local and private Act of Parliament authorising their operations. One could well understand why that was thought to be an issue which could be resolved only by the courts. No such considerations arise in this case, where the plaintiffs are admittedly required to obtain planning permission for any operations which constitute "development" within the meaning of the 2000 Act and are not exempted development.
In the present case, the trial judge, quite understandably, was concerned to resolve issues which had been brought before the High Court in a manner which was fair to both the planning authority and the public interest which it represents on the one hand and the legitimate interests of the plaintiffs on the other hand. This resulted, however, in the granting of a declaration in a form which had not been sought by either party and which clearly creates further difficulties. Can it be said that the prohibition on "weddings"(presumably intended to exclude the social function which normally takes place in a hotel or restaurant following the wedding itself) extends to other social functions and, if so, how are they to be defined? Does the prohibition on "non-cultural activities" extend to every form of pop or rock concert? What precisely is meant by "use as a nightclub"?
Some responsibility may be attributed to the planning authority for the difficulties that have arisen in determining to what uses the premises may be put without a further planning permission: they might well have been avoided by the use of more precise language when the permission was being granted. I am satisfied, however, that the High Court cannot resolve these difficulties by acting, in effect, as a form of planning tribunal. As I have already indicated, if enforcement proceedings were brought in the High Court, that court might find itself having to determine whether particular operations constituted a "development" which required permission and the same issue could arise in other circumstances, e.g. where a commercial or conveyancing document containing a particular term dealing with compliance with planning requirements was the subject of litigation. But in every such case, however it came before the court, the court would resolve the issue by determining whether or not there had been or would be a development within the meaning of the planning code. The only circumstance in which the court could find itself making a declaration of the kind ultimately granted in this case would be where it had been drawn into a role analogous to that of a planning authority granting a permission.”
13. Here it must be recalled that a s. 5 refusal forms part of the formal planning history and the details of the refusal are entered on a public register: see s. 5(3) of the 2000 Act. If this Court could grant a form of declaration in enforcement proceedings that the development was exempt, there would be in existence two contradictory official determinations of this question, with the real potential for confusion and uncertainty of the very kind which so exercised the Supreme Court in Grianán an Aileach.
14. It follows, therefore, that I must conclude that I have no jurisdiction to determine the question of exempted development in these precise circumstances in the course of this appeal from the Circuit Court. In strictness, therefore, the Council should be entitled to the appropriate s. 160 order. I have nevertheless concluded that in the particular circumstances of this case it would be unfair to allow the matter to rest there having regard to the reasons given by the Council for that refusal.
15. While it is true that the actual validity of the decision is not under challenge, yet one cannot help thinking that the reasons given for the decision are not altogether satisfactory. Thus, for example, the decision-maker refers generally to Article 9 of the Planning and Development Regulations 2001, and the “restrictions on exemption” as if this was all self-evident. But no information is given at all as to which restrictions on the exemption are relevant to Mr. Fortune’s application and why. One factor which might be highly relevant is whether it was accepted that the shed was being put to agricultural use – a factual matter on which the Council officials and Mr. Fortune differed in affidavits filed in the course of these proceedings – yet no views are offered on this topic by the decision-maker. One might also observe that the specific application of Article 9 to given fact situations is by no means straightforward, as my own judgment in Cunningham v. An Bord Pleanála  IEHC 234 illustrates.
16. There is, likewise, a most general reference to the limitations and conditions contained in Part 3, Class 6 of the 2001 Regulations. Class 6 contains no less than seven separate limitations and conditions. The addressee of the decision is surely entitled to know at a minimum which of these limitations and conditions are engaged in the present case and why. Yet the relevant limitations and conditions are not even specified in the decision, still less is it explained why these limitations and conditions require the application to be refused.
17. In Grianán an Aileach, the Supreme Court identified the difficulties caused by the planning authorities through the use of imprecise language in their administrative decisions. Clarity of language and the giving of reasons which are readily understandable is not only central to the planning process, but it is a central feature of any fair system of administrative decision-making: see here the comments of Fennelly J. in Mallak v. Minister for Justice and Equality  IESC 59. It is, perhaps, all too easy to be critical of hard-pressed decision makers, but, unfortunately, in the present case the basis for the s. 5 decision to refuse to grant exempted status cannot readily be followed or understood by reason of its resort to vague generalities of language.
18. This, of course, is not to suggest that the Council were wrong to refuse to grant the s. 5 declaration, as I express no view at all on this topic. It is rather to say that it would be quite unfair to shut out Mr. Fortune at this stage on the basis of a decision which on its face plainly fails to meet the requirements of administrative fairness specified in Mallak and the basis of which decision cannot easily be ascertained, even if that decision was never challenged at the relevant time by way of judicial review.
19. In these special circumstances I propose to adjourn the making of any order under s. 160 to enable Mr. Fortune to make a fresh application for exemption under s. 5 should be minded to do so. I stress that the making of any such application is entirely a matter for him. When the Council has ruled on the new s.5 application (should one be made), then the finalisation of any possible orders under s. 160 can be reviewed at that point. I will discuss with counsel the timetable (which would have to be measured in weeks) for the making of any such application.
The garden shed
21. As the garden shed was not the subject of any s. 5 application, it is clear from Grianán an Aileach that this Court is free to determine the exempted development issue de novo in the course of these enforcement proceedings.
22. Class 3 of Schedule 2 of the Planning and Development Act Regulations 2001 provides for the prima facie exemption of a garden shed of this nature. This, however, is subject to the following conditions being satisfied:
2. The total area of such structures constructed, erected or placed within the curtilage of a house shall not, taken together with any other such structures previously constructed, erected or placed within the said curtilage, exceed 25 square metres.
3. The construction, erection or placing within the curtilage of a house of any such structure shall not reduce the amount of private open space reserved exclusively for the use of the occupants of the house to the rear or to the side of the house to less than 25 square metres.
4. The external finishes of any garage or other structure constructed, erected or placed to the side of a house, and the roof covering where any such structure has a tiled or slated roof, shall conform with those of the house.
5. The height of any such structure shall not exceed, in the case of a building with a tiled or slated pitched roof, 4 metres or, in any other case, 3 metres.
6. The structure shall not be used for human habitation or for the keeping of pigs, poultry, pigeons, ponies or horses, or for any other purpose other than a purpose incidental to the enjoyment of the house as such.”
24. In these circumstances, I have concluded that the fairest thing to do is to adjourn a final conclusion on this question in order to enable Mr. Fortune to have an affidavit prepared by a planning consultant who would address the question of whether the exemption conditions are satisfied. The Council will, of course, be given an opportunity to reply and make submissions before any final decision is taken.
25. Before leaving this issue, I cannot help thinking as a result of the issues disclosed in this case that the Oireachtas might wish to reflect again on who the appropriate decision-maker in the case of exempted development should be and, specifically, whether much should turn on whether the issue arises in enforcement proceedings or otherwise. Both Grianán an Aileach and this case have illustrated the potential for overlap and confusion in the manner of the s. 5 jurisdiction.
26. This case has also illustrated that other considerations also arise in this context. Should, for example, the role of this Court vary depending on the happenstance of whether a s. 5 application has been made? If, moreover, this Court enjoys – as it appears to do – a free standing jurisdiction to rule on questions of exempted development in enforcement proceedings where no s. 5 application has been made, is this consistent with the general philosophy of the planning system where it involves the courts ruling not simply on pure questions of law or mixed questions of law and fact relating to whether there has been a material change of use, but also on what effectively are pure questions of planning policy and appraisal? Even if I had the appropriate evidential basis for such a ruling on the existing affidavits, would it have been appropriate for me to rule in the context of a s. 160 application on some free standing basis whether a particular development satisfied the conditions and the limitations specified in respect of the various classes of developments set out in the Schedule of the 2001 Regulations?
27. But beyond observing that these are issues which the Oireachtas may wish to address in the fullness of time, we may now pass on to deal with the case involving Ms. Fortune alone, 2011 No. 26CA.
28. At the resumed hearing, counsel for the Council, Mr. Connolly SC initially expressed concern lest my judgment in both Fortune (No.1) and Fortune (No.2) be construed as amounting to a development consent. This would, he submitted, have implications under EU law having regard to the State’s obligations under the Habitats Directive (Directive 92/43/EEC) given the existence of a special area of conservation in the immediate vicinity of Ms. Fortune’s chalet. However, as the argument developed, Mr. Connolly’s concerns were, I think, assuaged.
PART III: THE PROCEEDINGS INVOLVING
MS. KATE FORTUNE
29. For the avoidance of any possible doubt, it should be made clear that I did not accept that Ms. Fortune’s actions in constructing the chalet were within the law or that I was somehow authorising this development. As I was at pains to make clear throughout both judgments, the chalet was wholly unauthorised and, indeed, I granted a declaration to this effect. All that the two judgments decided was that having regard to the established fact that Ms. Fortune had been living in the chalet for some time and that it was her only home, the guarantee of the inviolability of the dwelling in Article 40.5 of the dwelling was plainly engaged. As I pointed out in Fortune (No.1):
32. In the course of my judgment in Fortune (No.2) I drew attention to the fact that the effluent treatment system which was in operation did not satisfy EPA Guidelines and that the Council was entitled to an order under s. 160 requiring Ms. Fortune to operate the effluent system in a manner compatible with existing EPA guidelines and I invited the parties to address the form of order best appropriate to achieving this objective. As it happens, agreement has been reached regarding the installation of an improved effluent disposals system and the final order will reflect this.
33. There was, however, one issue on which the parties could not agree, namely, whether Ms. Fortune’s entitlement to reside in the dwelling ought to be made expressly conditional on the existence of a satisfactory effluent disposal system which met acceptable legal standards. It is, I think, unnecessary to express any view as to whether there would be a jurisdiction to make such an order under s. 160. It suffices perhaps merely to say that there might well be circumstances in respect of which the steadfast refusal of the occupier of an unauthorised dwelling such as Ms. Fortune to have in place a satisfactory effluent disposal system would be a relevant factor in deciding whether to grant an order under s. 160. After all, the habitation of a dwelling without such a satisfactory effluent system might over time pose unacceptable public health or even environmental pollution problems. Certainly, where it was shown in a given case that the habitation of a particular unauthorised dwelling posed significant problems of this nature, then the applicant local authority might well have met the high threshold necessary for Article 40.5 purposes to show that the demolition of the dwelling was objectively justified and that there was no other realistic response.
34. While I have declined to make an order under s. 160 in the present case, as I pointed out at paras. 23-26 of my judgment in Fortune (No.2), the Council was entitled to an order requiring the installation of a satisfactory effluent system. I have no doubt but that any order requiring this to be will be fully complied with. In the unlikely event, however, that it were not, I will provide the Council with an additional safeguard whereby, in addition to its standard remedies for non-compliance with any court order, it will also have liberty to apply afresh for a s. 160 order with respect to the habitation of the dwelling without the benefit of such an acceptable effluent system.
The mobile homes and caravans situate on Ms. Fortune’s lands
36. It is accepted that there is no planning permission for these developments. There is no doubt at all but that, as has happened in the present case, the placing of the mobile homes and the caravans on the site on a permanent or quasi-permanent basis constitutes “development” within the meaning of s. 3 of the 2000 Act. Section 3(1) provides:
(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or
(b) where land becomes used for any of the following purposes-
(ii) the storage of caravans or tents, or
(iii) the deposit of vehicles whether or not usable for the purpose for which they were constructed or last used, old metal, mining or industrial waste, builders’ waste, rubbish or debris
39. A warning letter was first sent by the Council pursuant to s. 152 of the 2000 Act in April 2007. The Council originally allowed Ms. Fortune to apply for retention permission, but no less than three separate retention permissions were refused between 2007 and 2008. The last of the retention applications was refused by An Bord Pleanála in November 2008. These s. 160 proceedings were then commenced in the Circuit Court on 22nd September 2009. On 21st February 2011 the Circuit Court (Her Honour Judge Flanagan) made an order requiring Ms. Fortune and any other member of her family to cease occupation of the two mobile homes and the caravans and to ensure the removal of the mobile homes and the caravans from the site.
40. Given that it is admitted that the structures constitute unauthorised development, one may proceed on the working assumption that the Council would, in principle, at least, be entitled to the s. 160 order which has been sought. What, then, are the possible defences?
The application of Article 40.5 to the mobile home
The lapse of time argument
(i) in respect of a development where no permission has been granted after the expiration of seven years from the date of the commencement of the development." (italics supplied)
44. Before doing it is should be noted that in Martin the father of the present home owner had placed a mobile home on a particular site in 1974 and had not sought planning permission to do so. The present owner then replaced the old mobile home by a newer (and slightly bigger) mobile home on the same site in 2000. No action was taken at the time in 1974 by the planning authority and the home owner claimed that he was entitled to the benefit of the seven year immunity as a result.
45. O’Neill J. held, however, that the erection of the new mobile home amounted to a fresh act of development for the purposes of s. 3(1) with the result that any pre-existing immunity was lost:
47. Can, therefore, Ms. Fortune meet this test? I fear that she cannot. It is true that she avers that her late mother allowed her to place a mobile home on the site sometime after her separation in 1999 when she found herself having to care for two young children with no permanent place of residence. She can also point to the existence of telephone and electricity bills dating from 2001 in respect of the site at Carrigeenshinnagh, but these bills in themselves saying nothing about whether they were in respect of any mobile home or any of the caravans. In any event, as O’Neill J. pointed out in Martin, mere general user of a mobile home or a caravan on a particular site is not enough: one must also show that it has remained in the same location on the site in question.
48. In this context, one may observe that Ms. Fortune does not say – even in approximate terms – when the user of the mobile homes and caravans commenced and nor does she assert that the both the mobile homes and the caravans remained in the same location on the lands for the seven years prior to the commencement of the proceedings in September 2009. She can at most show that a mobile home was placed on the site sometime after 1999. It follows, therefore, that the Council is entitled to the requisite orders requiring Ms. Fortune to remove the remaining mobile homes and caravan from the lands.
50. It remains only to summarise my conclusions in respect of the two cases:
PART IV: CONCLUSIONS
A. This Court has no jurisdiction to grant a free standing declaration in relation to exempted development where (as in the case of Mr. Johnny Fortune) an application for a certificate of exemption under s. 5 of the 2000 Act has been applied for and has been refused.
B. It follows, therefore, that the Council are in principle entitled to orders under s. 160 in respect of the large shed. Given, however, that the reasons proffered by the Council for the refusal of the certificate in 2008 cannot be said to be satisfactory, I will adjourn the making of any order in respect of the large shed to enable Mr. Fortune to make a fresh application for a certificate under s. 5 should he be minded to do so.
C. So far as the garden shed is concerned, this would seem at first blush to satisfy the conditions for exemption specified in Class 3 of Schedule 2 of the Planning and Development Regulations 2001. I will, however, adjourn the making of any order in this respect pending the filing of an affidavit on behalf of Mr. Fortune from a planning consultant dealing with this matter. The Council will, of course, be entitled to be heard prior to the making of any final decision on this point.
D. So far as Ms. Fortune’s case is concerned, I reiterate again that there was no question that either the decision in Fortune (No. 1) or Fortune (No.2) had in some sense legitimated the construction of the chalet. As I made absolutely clear in both judgments, the chalet remains an unauthorised development and no question of any development consent for the purposes of the Habitats Directive could possibly arise. All that I decided in Fortune (No.2) was that the Council had not established an overriding public interest on these facts which would justify the Court overriding the Article 40.5 right to the inviolability of the dwelling, again having regard to the particular facts set out in both judgments.
E. It is plain that the placing of a caravan or mobile home on the lands constitutes development requiring planning permission: see s. 3(1) and s. 3(2)(b)(i) and (ii) of the 2000 Act. It is accepted that there is no such permission in existence in respect of either mobile home or the caravan.
F. Having regard in particular to the analysis to be found in the judgment of O’Neill J. in Martin, a party wishing to assert that the seven year limitation period found in s. 160(6)(a)(i) has expired in the case of either a mobile home or caravan must demonstrate that the mobile home or caravan has rested on the same location for the last seven years immediately proceeding the commencement of these proceeding, save where any movement of the caravan or mobile home was either purely de minimis or for the purposes of temporary repair and alteration.
G. Ms. Fortune cannot satisfy this test in the present case. She can at most show that a mobile home was located on the site some point after 1999. But this in itself is not enough: she would also have to show that mobile home in question was located at the same point on the site for the last seven years prior to the commencement of the proceedings. It follows that the Council are entitled to orders under s. 160 requiring her to remove the mobile homes and the caravan from the site.