British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McArdle & ors v Carroll [2019] IEHC 850 (03 December 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC850.html
Cite as: [2019] IEHC 850
[New search] [Printable PDF version] [Help]
Page 1 ⇓
THE HIGH COURT
[2019] IEHC 850
[2018 No. 234 MCA]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING
AND DEVELOPMENT ACT, 2000 (AS AMENDED)
BETWEEN
SHARON MCARDLE, SHIRLEY MCARDLE AND OLIVIA MCARDLE
APPLICANTS
AND
DONAL CARROLL
RESPONDENT
JUDGMENT of Mr.Justice MacGrath delivered on the 3rd day of December, 2019.
1. These proceedings were commenced by way of notice of motion dated the 8th June,
2018. The applicants, inter alia, sought an order pursuant to s. 160(1) of the Planning
and Development Act 2000 as amended (“the Act of 2000”) to restrain the respondent
from carrying out an unauthorised development on his lands, being a boundary wall. It
was contended that the wall was of such a height as required planning permission in
accordance with the provisions the Act of 2000 and Regulations made thereunder. An
order was also sought for inspection of the respondents’ property. In circumstances
outlined hereunder, it is accepted that proceedings have now become moot and the sole
remaining issue requiring the court’s determination is in relation to costs.
2. The applicants and the respondent are neighbours and reside at Rock Road, Blackrock,
Co. Louth. Before the emergence of this dispute in April, 2018, there is nothing to suggest
that they were on anything but good terms. The respondent has described his family’s
relationship with the applicants as cordial and friendly. This situation pertained before the
respondent decided to build a boundary wall. The wall was constructed to the rear of the
applicant’s dwelling house and behind an existing boundary wall thereon. The lands of the
respondent are zoned for residential use. The respondent, in an affidavit sworn in
opposition avers that he built the wall to improve and secure his own boundary. The
applicants objected.
3. In circumstances outlined hereunder, the respondent applied to the local planning
authority for permission to retain the wall and in the events which have transpired, An
Bord Pleanála confirmed the local authority’s decision to grant retention permission. The
decision of the Board was made on 17th December, 2018. Thus, it is agreed that the
proceedings became moot at this time.
4. The application for retention was lodged with the planning authority on 12th June, 2018.
Some days prior to that, a site notice was erected. On the evidence, this occurred on the
morning of the 7th June, 2018, being the day on which the first applicant swore her
affidavit grounding the proceedings and one day prior to the institution of these
proceedings. It appears, nevertheless, that the preparation of the proceedings was in
train prior to the 7th June, 2018. This is evident from the supporting affidavit of Mr. J.P.
Murphy, engineer, which was sworn on 6th June, 2018. He deposed to having inspected
the planning register and he addressed the planning status of the property in his affidavit.
He confirmed that the lands are zoned residential, that no applications had been
Page 2 ⇓
submitted for planning permission and that a warning letter had been issued to the
respondent by the local planning authority.
5. In her affidavit, the first named applicant also complained that the wall had been erected
over pipes servicing the dwelling house of the second and third named applicants and that
a gap had been left between the two walls which was considered by the applicants to be
dangerous and hazardous, particularly to children. The court was informed that separate
proceedings had been commenced in respect of an alleged trespass. These also issued on
8th June, 2018. Apart from being served on the respondent, they have not been
progressed to date.
6. The applicants maintain that the wall was built at such a pace that it was substantially
completed by the morning of the 9th April, 2018, despite conversations which had taken
place on site and the sending of a letter written on the 5th April, 2018 in which the
applicant had expressed concerns. They maintain that they sought to avoid proceedings.
7. On the evidence, I am satisfied that the works commenced without prior consultation by
the respondent with the applicants. I accept, on the evidence, that Mr. Carroll engaged a
contractor on Wednesday 4th April, who in turn commenced excavation and poured the
foundations for the wall.
8. I am also satisfied that there was communication on that day when the third applicant,
Ms. Olivia McArdle, who leaned over the rear wall of her home and queried what was
happening. She maintains that certain assurances were given to her as to the pace at
which the works might take place. In his affidavit, para. 10, the respondent avers that
she enquired of him as to when he proposed to construct a wall and he responded that it
would probably be Monday or the following week. Ms. McArdle queried why he had not
informed her that he was building a wall and Mr. Carroll states that he had intended to
inform her sister, Ms. Shirley McArdle, in short course. On enquiry as to the height of the
wall, Mr. Carroll avers that he confirmed that the wall would be the same height as the
wall to the east, which bounded the property of another neighbour, approximately 1.8m
above her garden level but that it would not be as high as a wooden partition fence
dividing the applicant’s garden into two sections. He also states that Ms. Olivia McArdle
said to him “[w]hat about my view?”. She inquired about the sewage pipe passing from
her property to a council sewer running under and through her own property and he
confirmed that he was aware of the council pipe and that he would not be encountering
any pipe work in the course of excavating the foundation for the wall. This was because
the pipe was approximately 2.6m underneath the ground.
9. Mr. Carroll also accepts that on the 5th April, at approximately 8:30a.m., Ms. Olivia
McArdle once again leaned over the wall and requested that he cease all works
immediately. A discussion ensued about the height of the wall and the respondent avers
that he informed her that he understood that it was permissible to build a wall up to 2m
in height without planning permission and that the finished wall would be less than 2m
above ground level on her side. He states that Ms. McArdle informed him that she wished
to have her engineer inspect the works to which he replied that he had no difficulty with
Page 3 ⇓
such course of action. Ms. McArdle also expressed concerns regarding the foundation of
her boundary wall and Mr. Carroll states that he put her mind at ease about this.
However, Mr. Carroll maintains that Ms. McArdle again demanded, in what he described
as a very pointed and aggressive fashion that all works cease immediately, to which he
responded that the works were in progress with men and all materials on site and advised
her that he had a delivery of concrete arriving to fill the foundations which was “arriving
imminently”.
10. Mr. Carroll also confirms at para. 13 of his affidavit that the construction of the wall
commenced on the 7th April, 2018 and that he was approached at approximately
lunchtime by Ms. Sharon McArdle and Ms. Olivia McArdle who he says were quite
aggressive towards the blocklayers and who demanded that they immediately cease
laying blocks otherwise they would call the Gardaí. Mr. Carroll states that he believes the
import of this communication to the workers in question was that they were in some way
committing a criminal offence. Later that afternoon, Saturday 7th April, Ms. Olivia McArdle
called to his front door. He was not there and his daughter informed Ms. McArdle that she
was unaware of his whereabouts. Once again Mr. Carroll complains about the demeanour,
tone and what he describes as the aggressive and oppressive nature of that demeanour,
which made his daughter feel uncomfortable.
11. Mr. Carroll avers that on Sunday 8th April, 2018, he was present in the garden with a
number of blocklayers and was confronted again. He informed Ms. Sharon McArdle that
this was not a party wall, it was built entirely on his property, that the blocklayers were
independent contractors who started on Saturday as they had another job waiting and
because the weather was forecast to deteriorate. However, he confirmed that engineers
retained by the applicants were welcome to inspect the works and could liaise with his
engineer, Mr. McMahon, of Messrs. Padraig Herr and Associates who, he states, had
already inspected the works the previous day and found that there was nothing wrong
with either the wall or the foundations. He forwarded a copy of the engineer’s report to
them on Monday, 9th April, 2018. However, he states that Ms. Sharon McArdle dismissed
this immediately and indicated that the report would not stand up in court. He
acknowledges that Ms. Olivia McArdle accused him of deliberately misleading her because
the workers had started on site on Saturday and not on the following Monday. That
apparently was the last verbal communication between the parties.
12. I am satisfied that while there may have been no legal obligation to do so, the actions of
the respondent in not communicating with the applicants in advance and the haste with
which the wall was thereafter constructed significantly contributed to the colouring of the
attitude of the applicants and to what subsequently transpired.
13. On Monday 9th April, 2018, Mr. Padraig Herr called on the respondent with Mr. J.P.
Murphy, an engineer representing the applicants. It is evident that the primary concern at
that time was the safety of the wall. Mr. Carroll confirms that at that time the wall was
substantially completed by Wednesday the 11th April, 2018. He also avers that certain
other work was put on hold because of the correspondence between the parties.
Page 4 ⇓
14. On the 17th April, 2018 the respondent received a warning letter issued by the local
authority pursuant to s. 152 of the Act of 2000, advising that the wall was or may be
unauthorised. This issued on foot of a complaint made by the applicants to the local
authority on the 13th April, 2018.
15. In early May, 2018, the respondent advised the local authority that he intended to make
an application for retention permission. This appears to have been in response to the
warning letter and on the advice of his engineer. On the 2nd May, 2018, Ms. Sharon
McArdle made a formal complaint to the local authority that the wall was a dangerous
structure. This was not accepted by the local authority and on the 2nd May, 2018 Mr.
Fergus Fox, council engineer who inspected the wall, recommended that the file be
closed.
16. It would also seem that on the same day, Mr. Herr wrote to the local authority, informing
them that he had been instructed by Mr. Carroll to prepare and submit a planning
application for retention of the wall. In the meantime, communications were taking place
between the parties regarding inspection facilities and an issue arose concerning whether
such inspection facilities would be permitted in the absence of an indemnity (presumably
to indemnify the respondent in respect of anything that might happen while the plaintiff’s
engineer was on the property). Mr. Carroll makes the complaint that this was not
progressed before the proceedings issued on the 8th June, 2018. He also points to the
fact that in the letter of 10th May, 2018, prior to the institution of proceedings, the
solicitors on behalf of the plaintiff stated that they wished to have confirmation that not
alone would the wall be removed but trees recently planted would also be removed and
that there no reference request was made that the planning status of the wall be
regularised by way of a grant of permission. The demand was one for removal of the wall.
17. Mr. Carroll also says that on the 7th June, 2018 being the date on which Ms. McArdle
swore her affidavit, at approximately 8:30 a.m., a site notice was placed directly at his
entrance gate (the main access road of Rock Road where all of the parties live) stating
that the respondent was applying for retention permission for the wall. It is submitted
that this site notice was clearly visible to all passers-by but that despite this, the
applicants nevertheless went ahead with this application. The site notice stated:-
“LOUTH COUNTY COUNCIL
SITE NOTICE
WE DONAL & CAROLINE CARROLL
INTEND TO APPLY FOR:-
RETENTION PERMISSION
FOR DEVELOPMENT AT THIS SITE:-
THE ROCK ROAD, HAGGARDSTOWN, BLACKROCK, DUNDALK, COUNTY LOUTH.
Page 5 ⇓
THE DEVELOPMENT WILL CONSIST OF:-
RETENTION OF A BOUNDARY WALL BETWEEN ACGRICULTURAL LANDS AND
NEIGHBOURING DWELLINGS AND ASSOCIATED SITE DEVELOPMENT WORKS.
The planning application may be inspected, or purchased at a fee not exceeding the
reasonable costs of making a copy, at the offices of the planning authority during
its public opening hours.
A submission or observation in relation to the application may be made in writing to
the planning authority on payment of the prescribed fee, €20, within the period of 5
weeks beginning on the date of receipt by the authority of the application, and such
submissions or observations will be considered by the planning authority in making
a decision on the application. The planning authority may grant permission subject
to or without conditions, or may refuse to grant permission.
SIGNED:- (agent) Padraig Herr
DATE OF ERECTION OF SITE NOTICE:- 07TH JUNE 2018.”
18. The application for retention was made on the 12th June, 2018 and the applicants and
others objected. A report was prepared by representatives of the local authority’s
planning department. This was based on a site visit which occurred on 28th June, 2018.
The authors described the height of wall as ranging between 2.4 m and 2.8 m. They
observed that while:-
“…no application for residential has been submitted, the provision of such a wall of
this nature would not be an uncommon feature/requirement as part of a planning
application and is a requirement under s.6.7.13.[of the development plan].”
The principle of the development was considered acceptable and it was recommended
that retention permission be granted.
19. On the 26th July, 2018, the planning authority issued a decision to grant retention
permission. A number of conditions were attached, including that the development
comply with certain requirements of Irish Water. An appeal was lodged to An Bord
Pleanála by the applicants and the Board of Management of the local school. On the 17th
December, 2018, the Board granted retention permission on terms in accord with those
specified by the planning authority on the 26th July, 2018.
20. By letter of the 7th August, 2018 the respondent’s solicitors wrote to the applicants
proposing that in order to avoid further legal costs, the proceedings should be adjourned
pending the issue of a grant of planning permission or a final determination. This and a
further letter of reminder were not responded to at that time. The applicants changed
their solicitor at that time. While complaint is made that these letters were not responded
to, nevertheless, it appears that no further substantial step was taken by the applicants.
The respondent filed a replying affidavit. The respondent also filed and delivered an
Page 6 ⇓
affidavit sworn by a chartered engineer, Mr. Roger Cagney. This followed a number of
inspections of the wall, including a joint inspection which occurred on 19th July, 2018 and
which concerned the structure and the safety of the wall. In the affidavit he responded to
a letter which had been sent by the applicants dated 4th May, 2018, in which concerns
regarding the design, safety and structure of the wall were expressed. He refuted those
concerns.
21. Mr. Connolly S.C., on behalf of the respondent points out that a court order was extant
requiring the filing of a replying affidavit within a specified time and that in the absence of
agreement to defer further proceedings pending the outcome of the appeal to An Bord
Pleanála, the respondent was obliged to file that affidavit, thereby incurring costs.
22. Thereafter, it may be said that little occurred until after the application for retention was
granted by An Bord Pleanala and before the issue of costs became a significant matter
between the parties. It appears that the proceedings were adjourned on at least one
occasion while the appeal was pending before the Board. No further affidavits were
exchanged until early 2019. These included a supplemental affidavit sworn by the
respondent on 17th January, 2019 in which he updated the situation regarding the
granting of retention permission. A further affidavit was sworn by the first applicant on
10th April, 2019 to respond to and refute the contentions outlined in the respondent’s
first affidavit. She denied that the applicants were being unreasonable and reiterated her
concern about the safety of the wall. She refuted any suggestion that the applicants were
themselves in breach of the planning laws. She expressed her belief that the construction
of the wall was in anticipation of an application for planning permission for a housing
development and raised doubts as to the respondent’s belief that the development was
exempt. Reference was made to the fact that the respondent, in response to another
warning letter under s. 152 in respect of another wall, had made application for retention
permission for that wall which was also granted; and an issue was raised regarding
compliance with the condition attached to the retention permission. She also stated her
belief that the open market value of the lands exceeded €3,000,000 and that they had
been acquired in 2006 for in excess of €5,000,000.
23. Mr Kavanagh, engineer, swore an affidavit on 29th April 2019. This was submitted on
behalf of the applicants. He refuted certain assertions contained in Mr. Cagney’s affidavit
and reiterated his concern that the design of the wall was fundamentally flawed.
24. Mr. Gunne, auctioneer, in an affidavit sworn in support of the land valuation, stated that
his valuation of the property was based on a valuation of €300,000 per acre, giving a
gross value of €3,111,000. He avers that the residence was valued at €425,000 and given
that it may be necessary to sacrifice the residence or to pay a premium for access, the
net value of the land was, in his opinion, just over €3 million. Mr. Gunne avers that since
the date of his first valuation, he learned that the respondents also have additional
adjoining landholding which was not included in his initial evaluation. Reference is also
made to a right of way which the respondent benefits over adjoining property. In
conclusion, Mr. Gunne confirmed his valuation of €3,111,000.
Page 7 ⇓
25. These affidavits led to a further extensive affidavit in reply from Mr. Carroll. He referred
to the meeting of engineers on 9th April, 2018. He rejected the suggestion that the
application for retention was provoked by the institution of these proceedings. He
exhibited a report from valuers, Sherry Fitzgerald Carroll, in relation to the valuation of
his lands. It is fair to observe that this is more detailed than Mr. Gunne’s.
26. The provisions of O. 99 of the Rules of the Superior Courts provide that, although
ultimately it is a matter for the discretion of the court, an award of costs follow the event.
If the court is minded to dis-apply this rule then, in accordance with dicta in Godsil v.
Ireland [2015] 4 IR 535, it can only do so on a reasoned basis and one which is
rationally connected to the facts of the case to include the conduct of the participants.
The court has also been referred to a passage from Delaney and McGrath on Civil
Procedure, (4th ed., 2018) that it enjoys a wide discretion not to award costs or to reduce
the costs awarded where it disapproves of how the proceedings were conducted by the
successful party.
27. The parties now essentially agree that the proceedings have become moot, and that the
only issue which is now outstanding is that of costs. Both parties seek their costs.
28. Mr. O’Donnell B.L, counsel for the applicant, in reliance on the decision of Clarke J. (as he
then was) in Telefonica O2 Ireland Ltd v. Commission for Communications Regulation
and Others [2011] IEHC 380, a decision which shall be discussed in more detail below,
submits that the generally accepted principle that where proceedings become moot as a
result of an external event that the parties should bear their own costs does not apply
because these proceedings were rendered moot by the actions of the respondent in
applying for retention permission. The decision of An Bord Pleanála, which had the effect
of rendering the proceedings moot, therefore, was not an event which was truly
independent of the actions of the parties. It is submitted, that the court should exercise
its discretion to award costs in favour of the applicants. To this end, significant emphasis
was placed by counsel on the conduct of the respondent in constructing a wall at a height
which attracted the requirement for permission under the Act of 2000, without prior
notification to the applicants and which, despite their concerns and objections, he
completed in a hasty manner. Emphasis is placed on certain assurances or
representations made by respondent when the matter first arose on 4th April, 2018, that
the wall would not be constructed until the following Monday but that the work was
substantially completed earlier, over the weekend, and in spite of correspondence
between the parties. It is submitted that the wall was built at a height which was
considerably in excess of that for which permission is required under the Planning and
Development Regulations. On 17th April, 2018 the planning authority issued a warning
letter which indicated that unauthorised development may have been carried out and the
applicants were unaware that the respondent intended to apply for retention permission
before these proceedings were instituted. It is contended that the application for retention
was made in response to the proceedings. Mr. O’Donnell B.L. submitted but for the
proceedings being brought, the unauthorised structure would have remained in situ and
Page 8 ⇓
that it was only the subsequent decision of the Board that the structure obtain the benefit
of planning permission that render that which was unauthorised, authorised.
29. Significant emphasis is placed on s. 162(3) of the Act of 2000 which provides that no
enforcement action, including an application under s. 160 shall be stayed or withdrawn by
reason of an application for permission or retention of unauthorised development under s.
34(12) or the grant of that permission. Counsel submits that this provision applies in a
situation such as this, and that it was designed to avoid the type of scenario which is
relied upon by the respondent and for which the provisions of s. 162(3) were enacted. It
is submitted that the respondent waited for a considerable time before taking action
despite having been notified of the applicants’ concerns both verbally and in writing.
Further, it is submitted that the respondent refused to allow inspection notwithstanding
concerns raised about the structural stability of the wall.
30. The respondent’s position is that he did not make the application for retention in response
to the institution of these proceedings. It was made in consequence of the warning letter
and on the basis of the advice which he received from his engineer. He believed that he
did not require planning permission, as the construction of the wall to the height intended
was exempt from the requirement to obtain planning permission. He states that his
approach has been to limit the cost of the proceedings at an early stage, but that the
applicants have added to the costs by the submission of further affidavits in April, 2019.
This had the effect of significantly enlarging the case subsequent to the granting of the
retention permission. The respondent also maintains that the filing of the affidavits must
be viewed in the context of the respondent having made proposals to avoid escalating
legal costs with particular regard to the letter of the 7th August, 2018, which went
unanswered.
31. Mr. Connolly S.C., counsel for the respondent, submits that s. 162(3) of the Act of 2000
does not preclude the court from exercising its discretion in relation to costs in favour of
the respondent. He points to several matters which, he submits, had the case gone to a
full hearing, in accordance with the principles in Morris v. Garvey [1983] I.R. 319, as
applied in Meath County Council v. Murray [2018] 1 I.R. 189, may have resulted in the
court, in the exercise of its discretion, refraining from making the order. Counsel
confirmed that it was not being suggested that, if deciding the case, the court might take
another view i.e. that it was at all times an exempted development. Nevertheless, he
advanced these matters such that the court may take into account in concluding that
there was a plausible view that the respondent, or any other person might take, that this
was an exempted development; and that his mistaken belief in that regard is also
plausible.
32. In Murray, Mc Kechnie J. stated:-
“90. What, then, are the factors which play into the exercise of the Court’s discretion?
From a consideration of the case law, one can readily identify, inter alia, the
following considerations:
Page 9 ⇓
(i) The nature of the breach: ranging from minor, technical, and inconsequential
up to material, significant and gross;
(ii) The conduct of the infringer: his attitude to planning control and his
engagement or lack thereof with that process:
• Acting in good faith, whilst important, will not necessarily excuse him
from a s. 160 order,
• Acting mala fides may presumptively subject him to such an order;
(iii) The reason for the infringement: this may range from general mistake,
through to indifference, and up to culpable disregard;
(iv) The attitude of planning authority: whilst important, this factor will not
necessarily be decisive;
(v) The public interest in upholding the integrity of the planning and
development system;
(vi) The public interest, such as:
•
Employment for those beyond the individual transgressors, or
•
The importance of the underlying structure/activity, for example,
infrastructural facilities or services.
(vii) The conduct and, if appropriate, personal circumstances of the applicant;
(viii) The issue of delay, even within the statutory period, and of acquiescence;
(ix) The personal circumstances of the respondent; and
(x) The consequences of any such order, including the hardship and financial
impact on the respondent and third parties,
91. The weight to be attributed to each factor will be determined by the circumstances
of a given case. Some, because of their importance, may influence whether an
order is or is not in fact made: others, the scope, nature or effect of that order.
This list is not in any way intended to be exhaustive, and it may well be that other
matters might require consideration in an appropriate case. For example, in Pierson
v. Keegan Quarries Ltd. [2010] IEHC 404, Irvine J took account of the hardship
which demolition might cause to third parties, and referred also to the possible
effect of the developer having relied in good faith on professional advisers. The jobs
of non-related members of the public, mentioned at para. 90(iv), above, featured in
Stafford v. Roadstone Ltd and Dublin County Council v. Sellwood Quarries Ltd
[1981] I.L.R.M. 23. There are many other examples. However, the above list is
generally representative of the type of factors which the judge will normally be
called upon to consider. It is thus an appropriate framework within which to analyse
the High Court’s exercise of discretion in this case, conducted, as it only could be,
by reference to the traditional or customary approach (see paras. 134-139, infra)…”
Page 10 ⇓
33. Adopting the above approach, Mr. Connolly S.C. points to the following factors:
a. The reasonable belief of the respondent, objectively verified, that the construction
of the wall was an exempt development, or that he held a plausible view that the
development was exempt. Particular emphasis is placed on his belief that it was
permissible to measure the height of the wall from the perspective of the lands
whose amenities were said to be affected;
b. The concern about the hazard allegedly created by the wall brought a sense of
urgency into the proceedings was nihil ad rem and unrelated to planning matters;
c. The failure of the applicants to bring to the court’s attention in the grounding
affidavit the events and communications which occurred between the time of the
construction of the wall and the date of the application before the court, particularly
those in relation to the safety of the wall. The correspondence and a report on the
safety of the wall which had been commissioned by the respondent and furnished
to the applicant in April, 2018 was not exhibited or referred to in the grounding
affidavit. The report of the engineer which had been furnished to the applicants on
9th April, 2018 was not exhibited in the grounding affidavit of Ms. McArdle,
something which is described as significant omission particularly where it was Mr.
McMahon’s opinion that the wall would not adversely impact any existing drains or
other services. In passing, it is to be noted however, that this letter did not address
the planning status of the wall or whether permission was required for a
development of such a nature and height. It is contended that by failing to refer to
the available information unfairly coloured the urgency of the case from a safety
perspective. Further, an application to the local authority under the dangerous
structure legislation was not notified;
d. The absence of concern by other neighbours;
e. That the respondent applied for retention in response to the warning letter, rather
than the proceedings and that in so doing he acted on the advice of his engineer;
f. At the time of the institution of the proceedings, the applicants were aware that the
council had been investigating the issue, because they had made the complaint and
a s. 152 warning letter had issued;
g. The applicants must be presumed to have been on notice of the making by the
respondent of the application for retention, something which had been triggered by
the Council’s planning enforcement process but nevertheless, these proceedings
were brought. Emphasis is placed on the site notice and the planning officers report
on the 28th June, 2018 that the site notice was displayed and was in accordance
with regulations and therefore, it was submitted that notices were validly in place
and that the applicants ought to have been on notice of them. The respondent
relies on what it describes as the presumption that the public notification
Page 11 ⇓
requirement in relation to the making of their retention application was complied
with;
h. The applicant’s initial demand for the removal of the wall, rather than its
regularisation;
i. The unreasonable failure on the part of the applicant to furnish the respondent an
engineering report and the exchange between the parties in relation to the engineer
and the basis upon which an inspection might take place. It is emphasised in this
regard that the applicants’ engineer was not refused inspection facilities;
j. The respondent also maintains that the applicants’ purported structural concerns in
relation to the wall are unsustainable given the expert evidence which has been
adduced. While the respondent maintains that this was a matter of agreement
between the engineers, Mr. Murphy in his affidavit disputes this. The wall is
structurally sound and has been built within the respondent’s private property and
within the curtilage of his dwelling.
k. It is suggested that the breach of the planning code in this case was undoubtedly
“minor, technical and inconsequential”, as discussed in Murray and that it was
therefore wholly inappropriate for the applicants to seek to invoke the jurisdiction
of the court under s. 160 in pursuit of what is described as a personal advantage,
being the preservation of a view to the rear of their property, and a view which is
beyond the rear garden boundary wall. No such general right exists;
l. The attitude of the planning authority - reliance was placed on the fact that no
enforcement notice was ever issued.
m. It is also submitted it cannot be plausibly be argued that the public interest in
upholding the integrity of the planning and development system necessitated the
bringing of the proceedings.
34. The court has been referred to a number of authorities including the decision of Simons
is to be taken of factors such as:-
“whether the proceedings were seeking a private personal advantage, and whether
the legal issues raised were of special and general public importance and potentially
relevant but not necessarily determinative.”
35. Reference is made to the conduct of the applicants, that they have constructed out office
buildings on a common boundary and that they have been in breach of the planning laws.
The respondent also makes the point that following this a number of affidavits which were
delivered on behalf of the applicants, including a supplemental affidavit from Ms. Sharon
McArdle of the 29th April, 2019, Mr. Stephen Gunne, auctioneer, of 26th April, 2019 and
Mr. Kavanagh, chartered engineer on the 29th April, 2019, that this necessitated the filing
of further affidavits by both the respondent and by an engineer on his behalf.
Page 12 ⇓
36. In so far as the respondent’s application for costs is concerned, the court has also been
addressed in relation to the provisions of the Environment (Miscellaneous Provisions) Act
2011 (“the Act of 2011”). In North East Pylon Pressure Campaign Limited v. An Bord
Pleanála No. 5 [2016] IEHC 490, Humphreys J. observed at para. 32:-
“The upshot is that the not-prohibitively-expensive rule applies (to the fullest
extent that it is possible to read national law to that effect) to challenges based on
national environmental law within the field of EU environmental law even if the
challenges do not relate to the public participation rules. Thus there is no need to
get unduly caught up in classifying challenges as relating to public participation only
as opposed to national environmental law within the EU law field more generally
because ultimately both come to the same thing. As regards the rider that national
law should be read to this effect ‘to the fullest extent possible’, this is not a problem
for Ireland as the discretion arising from O. 99 is sufficiently flexible that it can
always be read in an EU law-compatible manner.”
37. In essence, the respondent maintains that if the court should determine that s. 3 of the
Act of 2011 applies, the respondent is entitled to seek its costs pursuant to s. 3(3)(b) of
the Act of 2011.
38. In response to these particular submissions, Mr. O’Donnell B.L. emphasises the statutory
basis for an application under s.160 of the Act. He submits that the wall was built at a
height which ought not to be regarded as a minor and technical or inconsequential
breach, given that the height to which it was constructed was well in excess of that in
respect of which permission is required. There was no acquiescence over a long period
nor has there been shown gross and disproportionate hardship such as might have
influenced the court to exercise its discretion to refuse any relief. Counsel relies on the
decision of Morris v. Garvey in this regard. There, Henchy J. stated:-
“When s. 27(2) is invoked, the Court becomes the guardian and supervisor of the
carrying out of the permitted development according to its limitations, and in
carrying out that function it must balance the duty and benefit of the developer
under the permission as granted against the environmental and ecological rights
and amenities of the public, present and future, particularly those closely or
immediately affected by the contravention of the permission. It would require
exceptional circumstances (such as genuine mistake, acquiescence over a long
period, the triviality or mere technicality of the infraction, gross or disproportionate
hardship, or such like extenuating or excusing factors) before the Court should
refrain from making whatever order (including an order of attachment for contempt
in default of compliance) as is "necessary to ensure that the development is carried
out in conformity with the permission". An order merely restraining the developer
from proceeding with the unpermitted work would not alone fail to achieve that aim
but would often make matters worse by producing a part completed structure which
would be offensive to the eye as well as having the effect of devaluing neighbouring
property.”
Page 13 ⇓
Further, he submits that the respondent has displayed in his affidavits a knowledge of
planning laws and that if he was confident that it was an exempted development, he
should have had no difficulty in approaching his neighbours in advance. He submits that
the making of the retention application was, in effect, an acceptance that planning
permission was required and that at the when the application was lodged, the wall was
an unauthorised structure and the proceedings were in being. If a genuine mistake was
made by the respondent, Mr O’Donnell B.L. observes that no remorse for such a mistake
was expressed in the replying affidavit.
39. I have taken into account the above submissions and the responses thereto, all of which I
have considered in balancing how the discretion of the court ought to be exercised.
40. These proceedings were instituted on the 8th June, 2018 seeking an order pursuant to s.
160 of the Act of 2000 to restrain the unauthorised development being the boundary wall
which as it transpires and despite the respondent’s belief, was one to which the planning
inspector, Mr. Niall Haverty, concluded that because of its height dimensions, required
permission.
41. It must also be considered, nevertheless, that certainly in the initial stages, the
applicants’ concerns centred on the safety and stability of the wall. Letters were issued by
and on behalf of the applicants on 5th April, 2018 and 11th April, 2018. The letter of 5th
April was sent by the third named applicant who requested that he refrain from taking
any further steps to construct any wall, foundation or other structure next to or near the
wall at the rear of their property:-
“so as to allow us the opportunity to be appraised of the extent of the proposed
works and ascertain whether or not they would affect the structure, stability,
amenity, or otherwise of our property and/or the connection small property to and
from the public main services.”
She felt that the request was reasonable in circumstances where the applicants had no
prior notification of the proposed works such as would have afforded them an opportunity
to ascertain the position. The letter concluded: “we trust you will appreciate our concerns
herein and would hope that this matter might be resolved amicably in due course”.
42. Unfortunately the response of the respondent was to persist with the works and while it
may be that engineers were retained to look at the structure and stability of the wall, the
fact remains that the wall was constructed despite the request of the applicants that it not
be. In his replying affidavit, Mr. Carroll states that he built the wall to improve the
security zone boundary because the boundary arrangements in place at that time
consisted of a broken down concrete post and chain link fence. In the same affidavit, he
avers that he had a number of concerns with respect to the applicants’ low level garden
wall. He states that these did not meet the appropriate standards for a wall retaining so
many cubic tonnes of soil, it had no piers or expansion joints and was built with a single
course of block laid on its edge. He also expressed concern about the lack of privacy and
security. Nowhere is it suggested, that prior to his decision to construct this wall had he
Page 14 ⇓
raised any such concerns with the applicants. It is also evident from the respondent’s
affidavit, that he accepts that the third named applicant, Ms. Olivia McArdle, when she
approached him on 4th April, enquired as to when he proposed to construct the wall and
that he responded to her that it would probably be Monday of the following week. The
works continued. He accepts that on 5th April, Ms Olivia McArdle once again leaned over
the wall and requested that he cease all works. She queried the height of the wall
because she thought the wall should only be six foot high. The respondent avers that he
indicated to Ms. McArdle that it was his understanding that it was permissible to build the
wall of up to 2m in height without planning permission, and that such measurement be
taken from the ground level point on his side of the boundary line. This was above her
foundation level before the pre-existing soil was stripped away. He informed her that the
finished wall would be less than 2m above ground level on her side. It is clear, therefore,
on the respondent’s own evidence that the issue of the requirement for planning
permission, or the lack of such requirement, was discussed as early as 5th April, 2018. It
is also clear that when the wall was being constructed over the weekend, despite the
protestations of the applicants, the respondent continued with the work and it is also of
note that in his affidavit sworn on 6th September, 2018, he accepts that on Sunday, 8th
April, 2018, Ms Olivia McArdle stated “… that I had deliberately misled her because the
workers had started on site on Saturday and not on Monday.” Mr. Carroll does not, in this
affidavit, suggest that he made any response to this.
43. While the applicants maintain that the works were substantially completed by Sunday, 8th
April, the respondent maintains that it was not until the 11th April that works were
substantially completed, but other works including backfilling, repointing, drainage weep
installation and closing of cavities were put on hold because of the threats in
correspondence “and the present proceedings which issued from the applicants’ solicitor.”
It is also evident from the respondent’s affidavit and in particular para. 19, that he gave
some consideration to planning requirements. He avers that he interpreted the
regulations to mean that the wall was an exempted development up to 2m in height
measured from the pre-existing ground level before any foundation excavation took
place. This corresponds with the averment regarding the discussion which he says that he
had with Ms. McArdle on site on 5th April, 2018.
44. It appears that the focus of the meeting which occurred between the parties’ engineers on
Monday 9th April 2018 was on the structural integrity and safety of the wall, rather than
on planning considerations. This is also evident from the letter of 11th April, 2018,
written on notepaper of Messrs. McArdle and Co., a firm of solicitors in which the names
two of the three applicants appear on the letterhead, in which the principal expressed
concern relating to the structural impact of the works on the applicants’ property.
Proceedings were threatened. A request was also made for all planning permissions
relating to the subject works together with the engineer’s certificate of compliance in
respect of same. Thus, it appears to me to be evident that planning issues were under
consideration. Further, it emerges from para. 6 of the respondent’s affidavit sworn on
11th June, 2019, that the respondent was aware that the warning letter had issued in
response to a complaint to the planning enforcement section of the local authority, by
Page 15 ⇓
way of submission of an enforcement complaints form dated 13th April, 2018, on behalf
of the applicants. He also avers that an official in the council planning enforcement
section confirmed to him on 22nd May, 2018, in advance of the institution of these
proceedings, that:-
“whilst rightly respecting the anonymity of the complainant, that receipt of the
complaint… was officially acknowledged in writing to the complainant, together with
confirmation that the council were investigating the matter”.
The respondent further accepts that the issuing of the warning letter was a matter which
he considered to be of the utmost seriousness.
45. The letter of 4th May, 2018 from the applicants’ solicitors, while heavily emphasising the
issue of trespass and safety, advised that the applicants reserved the right to apply for
any necessary orders to ensure that the danger was removed.
46. In all the circumstances, I am satisfied that prior to the institution of the proceedings,
while the principal focus was on the safety of the structure and issues relating to
trespass, the respondent ought to have been aware that the applicants were concerned,
inter alia, about the planning status of the wall. There is no evidence of an attempt being
made prior to the proceedings to expressly or directly communicate with the applicants or
otherwise inform them that an application for retention was in contemplation or was in
the process of being made, save for the erection of a site notice which I address below .
47. While the respondent maintains that he was of the belief that he did not require planning
permission, nevertheless, he does not appear to have made appropriate inquires either
before construction or when objection was raised.
48. With regard to issues relating to engineering inspection prior to proceedings, any dispute
between the parties as to the basis on which such inspection might take place or the
requirement for an indemnity, was removed when the parties consented to an order for
inspection on 2nd July, 2018. It also seems to me that the issue of the planning status of
the applicants’ premises was unlikely to have been raised but for these proceedings.
49. It seems to me that in balancing all matters to which Mr. Connolly S.C. and Mr. O’Donnell
B.L. have referred and which, had this case gone to a conclusion, a court might have had
regard to in determining whether to exercise its discretion to grant the relief claimed
under s. 160, significant weight must be attached to the actions of the respondent from
the outset, without which this dispute might never have arisen. While prior consultation
with the applicants may not have been required as a matter of law, one would have
thought that in order to maintain good neighbourly relations, matters ought to have been
approached differently by the respondent, particularly when objection was raised. Perhaps
had that been done, matters may have turned out differently.
Decision
50. Having considered the applicable legislation and the authorities, I am satisfied that it
remains the position, in a planning law context, but with particular regard to the facts of
Page 16 ⇓
this case, that this Court retains a discretion in relation to costs as specified in O. 99 of
the Rules of the Superior Court. Therefore, had there been an event, on the basis of the
rules and on the authorities, costs ought to follow that event unless there is good,
expressed and stated reason to the contrary. Where proceedings become moot, different
considerations may apply to the exercise by the court of its discretion. Cunningham v.
that the default position is that there should be no order as to costs where the
proceedings have been rendered moot by the happening of an external and independent
event or occurrence, over which the parties have no control. This was addressed by
Clarke J. (as he then was) in Telefonica O2 Ireland Ltd at para 2.6.1 of his judgement
where he observed:-
“2 6.1A question can become moot for a whole range of reasons. It is impossible to be
overly prescriptive as to the proper approach which the court should adopt for the
range of factors that may be relevant are wide, However, it seems to me that a
factor which is at least of some significance is an analysis of how it came about that
proceedings had become moot. Sometimes (as was the case in Eircom), external
factors over which the parties have no control render proceedings moot. In many
such cases there may at least be an argument for the court making no order as to
costs. It clearly would, at least in the vast majority of cases, be an unacceptable
use of scarce court resources for a hearing to have to go ahead to decide a moot
issue simply for the purposes of deciding who should pay the costs. Indeed, given
that all that will be at issue are the costs up to the time when the proceedings
become moot, it would seem particularly foolish for parties to have to incur much
more costs solely for the purposes of deciding who should bear the costs up to the
point when the case became moot.” (emphasis added).
Having analysed the position of both parties in such a situation, he continued:-
“That analysis seems to me to lead to a view that a court should favour making no
order as to costs in proceedings which became moot in the absence of other
significant countervailing factors. However, that analysis is based on a situation
where the case becomes moot by reason of factors entirely outside the control of
the parties. It seems to me that somewhat different considerations apply where the
reason (or at least a significant contributory reason) to the proceedings becoming
moot derives from the actions of some but not all of the parties to the case.”
(emphasis added)
Referring to the decision of the Supreme Court in Murray & Anor v. Commission to Inquire
into Child Abuse [2004] 2 I.R. 222, he observed at para 6.6.5:-
“It seems to me, therefore, that a significant factor to be taken into account in the
exercise of the court's discretion as to costs in proceedings which have become
moot is to analyse whether it can reasonably be said that the actions of any
relevant party have rendered the proceedings moot. If that be so, then that is a
significant factor to be taken into account in the award of costs. The situation with
Page 17 ⇓
which the court is then faced remains one where, in the absence of trying a moot
case, the court will not know who would have won. However, the situation of any
party who was not involved in rendering the issue moot, in not being able to
establish that their side of the case was right, has resulted not from any action
which that party took or, indeed, from some entirely external event over which no
one had any control, but rather from actions taken by their opponent. That is a
factor which ought weigh significantly in favour of the grant of costs to the party
who was not involved in the action which led to the proceedings being moot. This
remains the case even where, as here, there were entirely understandable reasons
why the parties took the actions - settling the case - which they did.”
51. On the facts, I am satisfied that a decision was made by the respondent to seek retention
some weeks prior to the institution of these proceedings. This is evident from the letter
written by Mr. Herr on the 2nd May, 2018 which confirmed that the application for
retention would be made within two weeks. Nevertheless, while that decision may not
have been made in response to the institution of proceedings, it was significantly
prompted by what had occurred up to that time. There is no evidence, however, that the
intention of the respondent to apply for retention was expressly communicated to the
applicant in advance of the institution of the proceedings. The respondent maintains,
however, that the applicant ought to have been aware of the application because it was
made in response to a warning letter which he had received from the local authority and
which warning letter had been precipitated by the applicant’s complaint. In essence, the
claim of the respondent in this regard is that the applicant was precipitous in seeking the
relief sought in these proceedings.
52. In consideration of why the proceedings became moot, the applicants submit that the
decision of the Board is not a truly independent event, but one to which the respondent
contributed. The respondent maintains that it does not follow that by engaging in the
statutory process that one has or assumes control over the outcome of that process or
that it is or becomes a unilateral act; and that the process of application and granting
retention is one in which an independent decision is made by an independent body.
53. It is difficult to accept that where a person a) who is subject to enforcement proceedings,
or where he or she has been in receipt of a warning letter; and b) where at the time of
the institution of the proceedings he or she may have been in default of his or her
planning obligations; and c) is subsequently successful in his or her application for a
retention permission thus thereby bringing the proceedings to a stage of mootness, that
he or she can thereafter maintain that this is a truly independent event over which he or
she has no control. Here the granting of the retention permission could not have come
about without the application by, and participation of, the respondent in that process. The
respondent contributed significantly to that process.
54. While each case must be considered on its merits and within its own factual and legal
context, it seems to me that the court’s conclusion in this regard is reinforced in the
particular context of planning enforcement legislation. In my view the proposition
Page 18 ⇓
advanced by the respondent is difficult to reconcile with the provisions of s. 162 (3) of
the Act of 2000, which expressly provides that no enforcement action, including an
application under s.160, shall be stayed or withdrawn by reason of an application for
retention of permission under s. 34(12) or the grant of that permission (emphasis added).
To hold that the granting of permission in respect of the subject matter of the
enforcement action thereby renders those proceedings moot would appear to be
inconsistent with the express provisions of that subsection. I am therefore not satisfied
that it has been established that, as a matter of principle, because the proceedings are
now moot that the generally stated proposition that there should be no order as to costs
applies. Thus, I am not satisfied that the circumstances which arise in this case require
the application of any general principle that each party should be required to bear its own
costs on the grounds of mootness of proceedings.
55. Nevertheless, there continues to remain the issue of the manner in which the court ought
to exercise its discretion in the light of the necessity, timing or circumstances surrounding
the commencement of proceedings. On this issue, it appears to me that, on the
authorities, the court is required to assess the overall circumstances including the conduct
of the parties. Further, it is also relevant to consider the criteria to which this Court has
been referred and as outlined in Morris v. Garvey and as discussed in Murray in the
context of planning injunctions.
56. In my view, the failure of the respondent to engage with the applicants in advance of the
works, and the expedition with which such works took place contrary to certain
representations made as to when they might commence, contributed significantly to the
subsequent course of events and to the institution of these proceedings. While it may
have been, and on the facts I am satisfied that it was, decided that an application for
retention was to be made considerably in advance of the institution of the proceedings, it
is clear that this intention was not communicated to the applicants. The fact that a site
notice may have been in place at 8a.m. on the morning on which the grounding affidavit
was sworn does not appear to me to be of great significance. Such notices are required to
be put in place for particular periods of time to give the public a reasonable opportunity to
be aware of the application in respect of a proposed development. That someone does not
see that notice immediately when it is erected is not, in my view, a matter for which he or
she ought to be criticised, and this is particularly so when a letter in advance of action
had been served. Again, a simple communication would have removed any mystery about
what was intended. Further, placing the site notice in position did not alter the planning
status of the wall or render authorised that which may have been unauthorised.
57. In all the circumstance, I am satisfied that in so far as the timing of the proceedings is
concerned, the applicant is not to be criticised, particularly in the light of the threat of
proceedings, the conduct of the respondent in the hasty construction of the structure,
which on all the evidence, was unauthorised because of its height and in the absence of
communication in advance that retention would be sought. That the respondent may have
harboured a subjective belief that planning permission was not required must be viewed
in the context of the immediate objection by the applicants to what was taking place.
Page 19 ⇓
58. The respondent, however, also raises issues concerning the failure of the applicants to
disclose the course of dealings between the parties and communications with the local
authority, together with that authority’s response, relating to the safety of the wall. Mr.
O’Donnell B.L., counsel for the applicants, submits that the applicants could not to be
criticised for their failure to inform the court about these matters. He submits that this is
particularly so where no interim or interlocutory relief is sought and where it is anticipated
that after the commencement of proceedings a further exchange of affidavits, and the
joining of the issues between the parties, is to be anticipated.
59. In applications under s. 160 it is accepted that even where a prima facie case for relief is
established, the court retains a discretion to refuse relief, to be exercised in accordance
with principle. In my view, if a position is stated on affidavit which does not provide a
complete and fair picture of the circumstances leading up to and surrounding the
application, this may be taken into consideration by the court in determining how it might
exercise its discretion. The weight to be attached to this must relate to the nature of the
application and the relief, statutory or non-statutory which is sought. Here, the matters
that were not fully expressed to the court concerned issues relating to the safety of a
structure, rather than its planning status, nevertheless it is a factor which in the particular
circumstances of the case I ought to take into consideration.
60. It also appears to me that I should consider, and take into account, the conduct of the
parties while the proceedings were ongoing including, in this case, the lack of response to
the respondent’s invitation in August, 2018 that matters might be stayed pending the
decision of An Bord Pleanála on appeal. In view of the provisions of s. 162(3), it may be
said that there was no obligation on the applicants to desist from pursuing the
proceedings, and further, it may also be contended that had the respondent applied for a
stay on the proceedings it is likely to have been refused in the light of the express
wording of s. 162(3). Nevertheless, I do not believe it is appropriate, when considering
the question of costs, that the reply to communications or the failure to do so should be
ignored by the court.
61. The contents of the affidavits which followed subsequent to August, 2018, on both sides,
far from lowering the temperature served only to increase the tension with allegations of
a hate campaign, breach of the Act of 2000 by the applicants - a matter which appeared
not to concern the respondent up to this time - and the introduction of matters regarding
other planning issues concerning the respondent, and his regularisation thereof; again
something which does not appear to have exercised the minds of the applicants before
now.
62. The parties are neighbours and may continue to be long after these proceedings have
concluded. Taking everything into account, in my view, any inclination of the court to
award costs of the application, up to the time of the proceedings becoming moot, must be
considered in the light of the absence of constructive communication thereafter, to which
both parties have contributed.
Page 20 ⇓
63. I have come to the conclusion that in all the circumstances and weighing all matters in
the balance including the respective conduct of the parties, the applicant should be
entitled to their costs up to the date on which an event occurred which rendered the
proceedings moot, namely the 12th December, 2018 and that the court should make no
order as to costs incurred by the parties arising thereafter. It seems to me that the
primary precipitating factor giving rise to the dispute between the parties and the
subsequent institution of the proceedings was the conduct of the respondent in erecting a
wall of a height, which was shown in the events which transpired, required planning
permission and which was constructed in a hasty fashion without prior consultation and
communication with the respondents, his near neighbours.
64. As to the level of those costs, I have considered the affidavits of the parties including the
supporting affidavit of Mr. Gunne and in particular the reports of Sherry Fitzgerald Carroll
which have been exhibited to the respondent’s affidavits. There is no issue but that this
court has jurisdiction to entertain this application. Rather the issue is whether, given the
jurisdictional limits, the proceedings ought to have been brought in the Circuit Court. In
my view, the onus of proof lies on the applicants to establish that which was alleged in
the initiating grounding affidavit, that the value of the respondent’s lands on the open
market was in excess of €3 million. On the basis of the affidavits and evidence before the
court, I am not satisfied that the applicants have discharged the onus of proof on this
issue. In view of the description of the property outlined in the application and grounding
affidavit, and the evidence and contents of the reports of the valuers, I am not, and
cannot, be satisfied that it is more likely than not that the lands the subject matter of
these proceedings exceed €3 million in value. I find the report of Sherry Fitzgerald
Carroll, dated 21st May, 2019, which is detailed in its description of the lands and has had
regard to comparators, more convincing in this regard. Some emphasis was placed during
the course of argument on the description of the land outlined in the grounding affidavit,
which were confined to the property comprising one folio of land owned by the
respondent. In my view, on the basis of the analysis conducted in each of the reports and
in the affidavit of Mr. Gunne, even if one were to consider the land as comprising those
contained in four rather than one folio and extending to 13.08 acres, rather than 4.27, I
remain more convinced of the respondent’s valuation.
65. For similar reasons as outlined above I am not satisfied that the respondent is entitled to
a costs order. Thus, issues which may have arisen pursuant to the Act of 2011, do not
require to be considered.
66. Therefore the applicants are entitled to their costs up to the time of the decision of An
Bord Pleanála on 12th December, 2018, but not thereafter, costs to be adjudicated on the
Circuit Court scale. Each party must bear the costs incurred by them after that date.
Result: Costs to the applicant up to 12th December, 2018, but not thereafter, costs to be adjudicated on the Circuit Court scale.