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THE HIGH COURT

CIRCUIT COURT APPEAL

[2020] IEHC 15

[RECORD NO. 2018 368 CA]

CORK CIRCUIT, COUNTY OF CORK

[RECORD NO 2017 01140]

BETWEEN

BARRY HAYES, MAIREAD KEOHANE, ASSUMPTA O’KANE AND FERGAL LENNON

APPLICANTS/APPELLANTS

AND

NICHOLAS O’DONOGHUE

RESPONDENT

JUDGMENT of Mr. Justice QUINN delivered on the 21st day of January, 2020

1. The first and second named applicants reside at Cladach, the Demesne, Monkstown, Co.

Cork.

2. The third and fourth named applicants reside at Glencairn, the Demesne, Monkstown, Co.

Cork.

The respondent is the owner of a site, circa 0.44 acres, located between Cladach and

Glencairn which he purchased in 2008. Cladach is to the south west of the site and

Glencairn is to its north east. The site is boarded at the north west by remaining lands in

the Demesne estate, and at the south east by a cul-de-sac known as Alta Terrace.

4. The site was originally owned by Anglo Eire Property Company, (“Anglo Eire”), the

developer of the Demesne. Although the site now has an entrance directly on to Alta

Terrace – about which there is controversy in this case – houses in the Demesne do not

have entrances on Alta Terrace, and are accessed by an estate road to the north of the

site.

5. The respondent’s family home is Thorncliffe, on Alta Terrace, and is located directly

across Alta Terrace from the site.

6. The gradient of the site is from the north west towards the south east. Therefore, Alta

Terrace, Thorncliffe and other houses on Alta Terrace are all at a lower level of the hillside

facing south east towards the sea.

June 2017

7. Between 26 and 29 June 2017, Mr Aengus Canty, a contractor retained by the respondent

undertook certain works on the site.

8. On 27 June 2017, the applicants’ solicitors, Messrs Hickey Dorney wrote to the

respondent and complained that the respondent was engaging in “unauthorised works”.

The essence of the complaint made in that letter was that “natural forestry and a well

have been removed from the site and that diggers are currently on the site carrying out

excavation works altering the site levels up to 6 metres … that drainage works were being

carried out diverting the natural stream on the site which we are advised will affect

drainage on our clients’ properties and could result in flooding of same.”

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9. The applicant’s solicitors warned the respondent that the works were being brought to the

attention of the “Planning Authority Enforcement Section” and that unless they received

an undertaking to cease the works they would apply to the Circuit Court for an injunction

preventing the works continuing.

10. The respondent telephoned Hickey Dorney and stated that he was not doing works on the

site and that he was “simply clearing the site”.

11. There was some controversy as to what else was said in this conversation. The applicants’

solicitor, Carol Hickey, swore an affidavit to the effect that the respondent informed her

that he had three offers from people interested in buying the site. That averment has not

been contradicted.

12. The first named applicant, Mr. Hayes, also spoke to workmen on the site, and in particular

Mr. Canty. Mr. Hayes says that Mr. Canty informed him that he had been instructed by

the respondent to continue his work.

13. On 28 June 2017, these proceedings were commenced and the applicants made an ex

parte application to the judge in the Circuit Court at Cork on that day. The Court granted

leave to issue and serve a notice of motion seeking orders under s. 160 of the Planning

and Development Act, 2000, as amended, (“the Act”), returnable for Friday 30 June 2017.

14. When the matter came before the Circuit Court on Friday 30 June, it was adjourned to

enable the parties exchange further affidavits, including engineering evidence, and the

respondent gave an undertaking to desist from any further works on the site pending the

determination of the proceedings.

15. After further adjournments and exchanges of affidavits, the matter was ultimately heard

before the Circuit Court on 10 October 2018 when the court dismissed the claim. The

applicants appealed to this Court.

16. The matter was heard on the basis of affidavits sworn by two of the applicants, the

Respondent, their respective engineers and others. The Respondent and the engineers for

each side were cross-examined.

Planning and other history of the site

17. During the hearing there was extensive debate as to the exact relevance of the planning

history of the site. The respondent submitted that the only matter with which this Court

should be concerned is a determination of whether the works performed by him in June

2017 constituted “works” within the meaning of that term in s.2 of the Act which in the

absence of a planning permission or exemption could be the subject of any orders under

s. 160.

18. I have concluded that the planning history of the site is relevant at the very least to

understand the character and features of the site and to put a proper context on the

complaints now made in these proceedings.

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19. The Demesne is an estate which now comprises of 25 houses constructed on individual

sites within the estate pursuant to planning permission originally applied for by Anglo Eire

in 1989. That planning permission is referred to in this judgment as “S/589/1710”.

20. A number of the conditions attached to the Cork County Council Notification of the

Decision (“NOD”) to grant S/589/1710 are relevant to an understanding of the site and its

planning status. They include the following: -

(i) A condition (3) that open space/woodland areas and access roads within the estate

be retained in private ownership, and requiring the establishment of a management

company to maintain these areas.

(ii) That the recommendations contained in a tree surgeons’ report submitted to the

planning authority be carried out in full and that certain fencing be erected around

identified trees so that they could be retained and protected (Condition 5).

(iii) That woodland areas in the estate be retained as public amenity areas (Condition

15).

21. The NOD dated 21/5/1990 required that the development be carried out in accordance

with certain plans and particulars which were lodged with the planning authority on 8

June, 1989 “as amended on 13/7/89 and 22/3/90”. The drawings originally submitted on

8 June, 1989, are referred to as Drawing Numbers 1589/201, 202, 203 and 204. On

Drawing 1589/201, the area comprising the site the subject matter of these proceedings

is designated “open space”. There was some debate as to whether this description

extended to the entire of the site but in the absence of separate delineation, it is clear

from the drawing presented to the court that this designation applies to the entire of the

site the subject of these proceedings.

22. A later version of the drawings submitted in response to a request for further information

by Cork County Council does not show the words “open space” on this part of the

drawing. However, there is no record of any deviation from or waiver of Condition No. 3

requiring the retention of open space or woodland within the estate, or that the first set of

drawings could be disregarded or treated as withdrawn.

The 2002 Refusal

23. In 2002 an application was made by the then owner of the site for outline permission for

construction of a dwelling house. The application was refused and the following reasons

were given by the planning authority, Cork County Council: -

1) “The development would contravene materially a development objective indicated

in the development plan for the use of the area as low density individual sites in

woodland setting, by eroding the woodland setting for the individual housing sites

already permitted under S/89/1710.

2) The proposed development would be contrary to the proper planning and

development of the area because it would contravene materially existing planning

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permission register number S/89/1710 which regulates the development of the

overall lands of which the site forms part, and which provides for the continued use

of the site of this application as wooded public open space.

3) The site is a wet, wooded one containing extensive rushy areas and a number of

small streams, and is not suitable for development. The planning authority is not

satisfied that these conditions could be rectified so as to make the site capable of

development, without increasing the risk of flooding on this site and adjoining

properties in wet weather. The proposed development is already in an area which is

at a risk of flooding, and the proposed development would increase this risk.

4) The planning authority is not satisfied that the site can command the public sewer,

or (having regard to the unsuitability of the site for on – site disposal) that the

sewerage arising from the development can otherwise be satisfactorily disposed of”.

24. A full reference to the content of the report of the then senior planner Mr. Mansergh, on

13 June 2002, is instructive: -

“Site visited 12 June 2002. Site is a wet wood, heavily overgrown, with numerous

small streams in addition to the main one on the SW boundary, and much of its

area growing luxuriant rushes. The trees on site are sparse and in various states of

health. The wood may have become wetter as a result of development to the west,

as conditions now seem wet relative to the species present – mostly sycamore and

horse chestnut – while wet adopted species like alder are absent.

Ground conditions are totally unsuitable for development of any sort at present,

and for development to take place, large scale clearance, and drainage works and

filling would be necessary. Drainage would raise the question of where the surplus

water would go. The application refers to soak ways on site, in relation to the runoff

generation by his own development. Phelim O’Neill notes that some of the site acts

as a flood plain at present in wet weather. A resident of the existing Victorian house

on the opposite (lower) side of the road has written in, complaining that the

development and tree felling which has already taken place in Monkstown Demesne

has increased runoff and caused flooding, that the council has laid drainage pipes

under the road without his permission to alleviate the flooding, and that has

resulted in flooding in his garden as well. Two new looking 14 – inch plastic pipes

are in place, carrying the stream under the road.

It seems clear that permitting this development would increase runoff and diminish

water storage on site and that the application does not include proposals for dealing

with the consequences. (emphasis added)

The Area Engineer, the Housing Estates Engineer and the objector (who is also an

engineer) all question whether the proposed house would in fact command the

sewer as the northern end of the road, as proposed in the application. The site

would not be suitable for a septic tank.

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This application forms part of a site (the Monkstown Castle Demesne Lands) on

which permission for 25 houses was granted under S/89/1710. It (sic) shown in

that application as wooded public open space. Condition 15 of that permission

requires that the woodland area be retained as public open space, and condition 3

provides that open space/woodland areas shall be retained in private ownership

and that a management company should be set up to maintain these areas. There

is no evidence of management activity on the site to which this application applies.

This application therefore breaches the overall permission for these lands. The

quality of the woodland is fairly poor at present, and incapable of use as open

space, but this is partly due to a failure to manage the woodland in accordance with

the permission granted. Retention of the area in its wild state is nevertheless

important. The Monkstown Demesne development is clearly intended to work on

the basis of houses set in woodland, and it is zoned as such in the 1996 plan.

Narrowing the woodland belt between Alta Terrace and the main access road into

the demesne development would seriously erode the sense of that development

being set in woodland.

Having regard also to the major practical problems in developing this site, refusal of

permission is recommended”.

25. The objector referred to in the report of the planner was the respondent’s late father,

then owner of Thorncliffe.

26. The Respondent claimed that when purchasing the property in 2008, he had no

knowledge of the detail of the planning history either in terms of the conditions attached

to the S/89/1710 or the reasons for the refusal in 2002. Whether the respondent had

actual knowledge of the detailed conditions of the permission S/89/1710 or of the reasons

for the 2002 refusal is not determinative of the case. However, as emerges from events

referred to below, it is difficult for the court to accept that before 2017 he was not

actually aware of those matters or ought to have been aware of them, through a

combination of planning and other inquiries made in the conveyancing process at the time

of purchase of the site, and having regard to certain pre-planning consultations which he

undertook with Cork County Council on a series of dates in or around 2009.

2009 Clearance Works

27. The respondent gave evidence that after purchasing the site he set about cleaning it up

and making it safe. He says that during 2009 in the course of cleaning the site he

removed seven truckloads of rubbish, opened drains, removed dead trees, planted

additional hedgerows and trees, and cleaned the existing stream of fallen trees and

vegetation. He says also that he fenced off the site from its entrance at the Demesne and

gated the entrance from the Alta Terrace side.

28. He also says that the stone wall which marked the boundary of the site against Alta

Terrace had fallen over a period of many years and was rebuilt by him at that time.

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29. In 2009 when this work was undertaken a number of residents of the Demesne made

complaints to Cork County Council in respect of the clearing of the site. This led to the

issue of a warning letter by Cork County Council in March 2009. Ultimately, following

submissions made by the respondent to the Council, the Council determined that no

action should be taken in respect of the clearing of the site at that time.

30. The Council also acknowledged at that time that the subject site is in private ownership,

and although initially the applicants in these proceedings suggested that the site ought to

remain, consistent with the original planning permission, a “public open space” it has

been accepted that the site was validly transferred to the respondent in 2008 and that it

is no longer publicly accessible.

31. It appears that a number of “pre planning” meetings also took place during 2009 between

the respondent and Cork County Council.

32. On 3 October 2009, the respondent wrote to Cork County Council submitting “some

ideas” which he had in order to further investigate with the County Council “as to the

possibility of securing planning permission for a dwelling on the site across the road from

Thorncliffe – my family home”.

33. At this stage the respondent indicated that he and previously his late father had been

concerned over a long period of time as to the flooding effects of the site on Thorncliffe.

He said that for many years prior to his acquisition of the site, the site had not been

properly maintained and had been used by many locals as an infill site and had been

subjected to regular dumping. He said that the cumulative effect of these issues was to

cause flooding at Thorncliffe and re-routing of a stream on the site. He indicated that the

principal purpose of the clearing works which he had undertaken in 2009 was to resolve

the flooding issue at Thorncliffe.

34. With the letter of 3 October 2009, the respondent submitted drawings and illustrations

and a proposed site layout and certain house designs. No application for planning

permission was made at this time.

2013

35. The respondent gave evidence that for a limited period during 2013 he had facilitated the

Cork County Council by enabling the site to be used as a form of “staging post” in

connection with works which the County Council were undertaking on the lower

Monkstown Road, closer to the seashore. He said that as part of this work some hardcore

surfacing had been laid inside the gate to the site at Alta Terrace to facilitate the

movement of trucks and diggers. This is relevant to one of the complaints in these

proceedings.

June 2017

36. In the grounding affidavit for the purpose of the ex parte application, the first applicant

referred to the following activities: -

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1. He said that the respondent had caused excavators to go on to his site with diggers

and workmen and that he had engaged in considerable unauthorised work on the

site without any planning permission.

2. That the level of the respondent’s site had been changed by “up to approximately

six metres”.

3. That the respondent had caused a considerable amount of trees to be removed.

4. That the respondent had interfered with a stream running through the site.

5. That the general removal of the site works and drainage works were a cause of

concern for flooding in the Demesne and that this violated the planning restrictions

deriving from the original planning permission S/89/1710.

37. This initial description of the works was very general, made as it was in the context of an

ex parte application for injunctive relief. The description of the works was later expanded

by the applicants’ engineer, Mr. O’Kennedy.

38. In the replying affidavits the scale and extent of the works is contested and it has been

submitted by the respondent that none of the works constituted development such as

would require a planning permission. It is also submitted by the respondent as follows

that: -

1. The felling of any trees amounted to no more than the removal of two dead trees

and that there was no further felling of trees or significant removal of vegetation.

2. That any alteration in site levels was limited to a decrease in the level rather than

an increase and did not exceed one metre. He also said that his instructions to the

contractor carrying out any works was always that the site levels at the end of the

activity should be restored to the same level as at the outset of the work. He

therefore submits that such activity does not constitute unauthorised works or

change of use and in any event would not justify the making of an order pursuant

to s. 160.

3. The respondent contends that the Alta Terrace entrance is the same as it was in

2013 except that the metal gate had been moved into the site temporarily from its

original position and that it was his intention that the gate be restored to its original

position closer to the road.

4. A number of complaints arise in relation to the treatment of streams and drains, to

which I shall refer later.

39. In relation to the allegation that the conditions of S/89/1710 stipulate the site to be a

“public open space” the respondent asserts that nothing in the works undertaken by him

would constitute a breach of that condition. He also submits that these proceedings can

only concern works undertaken between 26 and 29 June 2017. There was extensive

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disagreement between the deponents, particularly the engineers, as to how much of the

works complained of by the applicants were undertaken in the period 26 to 29 June 2017

or were the result of earlier activities at the site.

40. The respondent in his replying affidavit stated that in June 2017 he engaged the

contractor Aengus Canty to “clean up the site” and carry out the following: -

1. Stream – cleaning of silt from stream and banks at either side.

2. Dead tree stumps – removal of three dead tree stumps and to bury them on site.

3. Drains – clean drains which had been opened in 2009 of vegetation ensuring falls to

stream were correct and close back drains using correct materials which included a

600mm land drainage pipe, 2 – inch graded stone and cover with topsoil and grade

surface to match existing. No soil was removed from the site.

4. Concrete posts – replace wooden posts at each corner of the site with concrete

posts. The respondent says that this work was not completed due to the

undertaking given to the court on 30 June 2017.

5. Grading raking of soil and seeding site. The respondent says that he instructed the

contractor that on completion of the works referred to above the site should be

returned to its original levels and reseeded with grass. Again, he says that this was

not completed as a result of the undertaken given on 30 June 2017.

6. Tree planting – the respondent said that he had approximately 200 potted trees

and shrubs on the site that were waiting to be transplanted to the site. This

apparently has not been completed due to the undertaken given on 30 June 2017.

41. The respondent’s evidence was that further to these instructions, the contractor entered

the site on 26 June 2017 and cleaned the silt from the stream, removed the dead tree

stumps and cleaned and “closed back the drains”. He says that the contractor ceased all

activities on the site on the 29 June, 2017, and that no further activities have taken place

there since the undertaking was given to the court on 30 June, 2017.

42. I shall return later to the detail of the evidence in relation to each of the headings of

complaint.

Section 160 of the Planning and Development Act 2000

43. Section 160 of the 200 Act provides as follows: -

“(1) Where an unauthorised development has been, is being or is likely to be carried out

or continued, the High Court or the Circuit Court may, on the application of a

planning authority or any other person, whether or not the person has an interest

in the land, by order require any person to do or not to do, or to cease to do, as the

case may be, anything that the Court considers necessary and specifies in the order

to ensure, as appropriate, the following:

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(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to

the commencement of any unauthorised development;

pertaining to that development or any condition to which the permission is

subject.

(2) In making an order under subsection (1), where appropriate, the Court may order

the carrying out of any works, including the restoration, reconstruction, removal,

demolition or alteration of any structure or other feature”.

Unauthorised works

44. Section 2(1) of the 2000 Act defines “unauthorised works” as follows: -

“. . . any works on, in, over or under land commenced on or after 1 October 1964,

being development other than—

(a) exempted development (within the meaning of section 4 of the Act of 1963 or

section 4 of this Act), or

(b) development which is the subject of a permission granted …”

Works

45. The term “works” is defined by s. 2(1) as follows: -

“Works includes any act or operation of construction, excavation, demolition,

extension, alteration, repair or renewal …”. (emphasis added)

Discretion

46. The extent of the court’s discretion in a matter of this nature was considered in detail by

the Supreme Court in Meath County Council v. Murray [2017] IESC 25. In that case there

had been some debate as to the extent to which equitable principles influence the

operation of the discretion to make an order pursuant to s. 160 of the Act.

47. The starting point is that the use of the word “may” in the Section forms the basis for the

discretionary nature of the jurisdiction. McKechnie J. said as follows: -

“It is not difficult to understand why this is so, nor is it difficult to identify the

features inherent in equitable injunctive relief which are notably absent on the

statutory side. To name but a few: neither interest nor harm is a requirement; the

sequential approach governing interlocutory injunctions on the equity side, namely,

whether there is a fair question to be tried, whether damages will be an adequate

remedy, and where the convenience lies, does not feature; no undertaking as to

damages is required; the ultimate relief is always an injunction in permanent form;

there is a limitation period expressly provided; and, of course, the section serves a

public law function. The court therefore cannot approach an application in the same

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manner as it would were equitable principles in a private law context at issue.

Consequently, at the level of principle, whilst the court has power to make both

interim and interlocutory orders, that power is not intended to absorb within the

section general equitable principles.(”)

Later, McKechnie J. continued as follows: -

“…the jurisdiction to grant injunctive relief, or to withhold it either conditionally or

unconditionally, is to be found within the section, whose construction is to be

informed by the 2000 Act as a whole. Whilst undoubtedly a discretion exists, the

parameters within which that must be exercised must likewise be statutorily based.

Accordingly, equitable principles cannot be used to expand the discretionary aspect

of the section unless such are found within it. This view is primarily intended to

identify the jurisdictional basis of the courts' power to issue a section 160 order. It

is not stated for the purpose of disapplying any of the established jurisprudence

which is statutorily based, nor is it intended to trim back the exercise of the courts'

discretion, provided that the basis for same is properly understood”.

48. McKechnie J. also cited the following relevant passage from the judgment of Henchy J. in

Morris v. Garvey [1983] IR 319: -

“This Court has judicial notice, from what it knows to have happened in other

cases, that (for motives which may be put down to expediency, avarice,

thoughtlessness or disregard of the rights or amenities of neighbours or of the

public generally) developers who have contravened the conditions of a development

permission have knowingly proceeded with unauthorised development at such a

speed and to such an extent as would (they hoped) enable them to submit

successfully that the court's discretion should not be exercised against them under

sub-s. 2 of s. 27 because the undoing of the work already done would cause them

undue expense or trouble. For my part, I would wish to make it clear that such

conduct is not a good reason for not making an order requiring work carried out in

such circumstances to be pulled down”.

49. Finally, McKechnie J. identified a number of considerations which he considered would

inform the court in the exercise of its discretion as follows: -

“(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;

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(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”.

50. McKechnie J. concluded by stating that the weight to be attributed to each of these

factors would be determined by the circumstances of a given case and that the list is not

intended to be exhaustive.

51. I shall return later to the factors which inform the court in this case in the exercise of its

discretion under Section 160 of the 2000 Act. Before doing so, and because the evidence

was characterised by a lack of clarity on both sides regarding much of the detail and a

number of the issues were intermingled, it is necessary to separate the factual issues into

the following six: -

1) The north west drain.

2) The south west drain.

3) The stream through centre of site.

4) The gate to Alta Terrace.

5) Tree felling.

6) Site levels.

North west drain

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52. Prior to 26 June, 2017, on the north west boundary of the site there was an open stream

or drain flowing from the north point of the site in a south westerly direction.

53. The respondent says that this drain only became open in 2009 when he initially cleared

the site.

54. Photographs were exhibited which show that the works to this drain comprised excavation

of the drain of sufficient scale to enable the installation of an engineered “French” drain,

surrounded by what was described as geo textile membrane, and then supported by

crushed stones surrounding the drain. At the time of the photographs the piping had been

laid but the drain was not covered. The exhibited photographs show a person, who the

court understands to be the first named applicant, standing in the excavated area such

that his head and shoulders were below the bank of earth created by the excavation with

only his raised hand reaching higher than the earth bank.

55. Mr. O’Kennedy says that this photograph illustrates excavation at one location of at least

2.5 metres from the original ground level to the top of the stone covering the newly laid

pipe. What had previously been an open water course was now an engineered French

drain, to be covered over with crushed stones and later with topsoil.

56. The respondent’s engineer, Mr. Waterman, himself described the work as the laying of a

pipe and the drain being backfilled using geotextile membrane surrounded by 2 inches of

crushed stone, which would then be covered in topsoil. He says that no soil was removed

from the site during the course of this exercise.

57. It has not been denied by the respondent that this stream was an open drain before these

works and that earth was extracted for the purpose of laying a pipe or a French drain to

be protected with the geotextile membrane and then the 2 inch crushed stone. Nor could

it be denied that the photograph of a man standing in the excavated drain illustrated

excavation of at least 2.5 metres.

58. Mr. Waterman acknowledged in his evidence under cross – examination that the

photograph of Mr. Hayes taken on 26 June 2017 shows the excavation of a trench which

could only have been affected by the use of the mechanical digger as shown in the

photographs. He acknowledged also that this must constitute “works” within the meaning

of the Act. Mr. Waterman sought to suggest in his evidence that the term “excavation”

used in the Act could only refer to permanent excavation and that as it was the

respondent’s stated intention to cover the newly laid piped drain by restoring the topsoil,

that this entire exercise would not require authorisation under the Act.

59. The respondent acknowledged that the effect of inserting the engineered French drain

would be to channel water across the north west boundary so that it would continue into

the drain running on the south west boundary and onwards towards Alta Terrace. This

had the effect that whereas previously water would seep or soak through to the centre of

the site, it would now be channelled across to the boundary of the site and flow onwards

towards Alta Terrace without seeping through the centre of the site.

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60. Both the respondent and his engineer acknowledged under cross-examination that the

effect of these works is to reduce or even eliminate the general leakage of water from the

north west boundary into the centre of the site. Clearly this would have the most radical

effect of reducing the water saturation of the site as a whole.

61. Even if one of the effects of this was to reduce flooding from the site to Thorncliffe, there

seems to be no doubt that the first effect of this excavation and laying of a new

engineered French drain was to prevent water from seeping from the original open drain

through to the centre of the site, thereby radically altering the character of the site as a

wet woodland. Even if, as the respondent contends, the use of the phrase “wet woodland”

in S/89/1710 were not to have binding effect on an owner of the site today, it is

inescapable that these excavation works effect an alteration of the lands, within the

definition of “works” in s.2 of the 2000 Act.

62. To a casual observer, it might be said that this is an objectively sensible improvement of

the lands which will reduce the flooding effect not only on Thorncliffe but also on the

route of Alta Terrace itself. Whilst that may be correct, the excavation work and the

laying of new piping and protection surrounds are clearly works within the meaning of s. 2

of the Act for which the respondent had not obtained any prior planning permission or

authorisation.

South west drain

63. The open drain running along the south west boundary of the site, which adjoins the

property occupied by the first and second named applicants appears to be a continuation

of the “north west” drain. There was put into evidence photographs showing that a

volume of stones had been laid where this drain meets Alta Terrace. The applicants say

that these have the potential effect of blocking the flow of water from this drain into the

pipes which run under Alta Terrace. And therefore, that a likely result is flooding of Alta

Terrace itself.

64. As regards the allegation that loose stones have been laid which conceal the entrance to

the piping which runs under Alta Terrace and that this has the potential to cause flooding

at that location, I cannot find that this constitutes “works” within the meaning of s.2 and

therefore can make no order under s.160 of the Act. If this aspect were to actually cause

a nuisance or otherwise give rise to a separate cause of action, this finding by me does

not preclude an aggrieved party from a remedy, but it would not be appropriate for this

court to speculate on potential effects of the loose stones in the absence of evidence of

such effects.

65. It appears that water has been flowing from the first and second applicants’ site into the

open drain on the respondent’s site along this boundary, and the photographs exhibited

illustrate piping to control that flow running into the stream on this boundary. The

evidence was that piping to manage the control of this flow was installed by the

respondent himself to protect from any flooding which might otherwise arise from this

flow.

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66. The applicant claims that there has been a redirection of this drain.

67. There is a lack of clarity in the evidence on both sides as to whether there was any

diversion of this stream. In the affidavit of Mr. O’Kennedy, sworn on 22 December 2017

he states as follows: -

“I do not accept that there was no diversion of a stream. I further do not accept

that this was addressed adequately by any submissions submitted by or on behalf

of the respondent [to the Council] I say that the exhibits to the respondent’s

affidavits are [sic] the submissions made by or on behalf of the respondent do not

show any detailed information on where the stream on site was, or where the

stream on site is now. It does not provide any detailed information as to where the

streams were worked on. I say that the photographs exhibited to your deponents

earlier affidavit show that significant areas and streams were worked on and in

some cases piped and closed over. These details are not shown on the submission

from the respondent to the local authority”.

68. The allegation of diversion of this drain has been made in the most general of terms and

the applicant has not exhibited photographs or maps to evidence diversion caused by

unauthorised works undertaken in June 2017. Even the applicants’ engineer

acknowledges the vagueness of this complaint. Accordingly, there is no form of order

which I can make regarding diversion of this drain.

Stream through centre of site

69. It is alleged by the applicants that photographs predating June 2017 show a meandering

stream running diagonally across the centre of the site and that this has been completely

covered up or diverted away from the centre. Some of the earlier Ordnance Survey maps

produced to the court appeared to show the existence of a stream running diagonally

across the centre of the site, and the applicants have put before the court a photograph

from April 2011 which shows the meandering stream running through the centre of the

site. Later or more recent photographs show the centre without this stream. However, the

evidence does not include any form of proof that the works undertaken by the respondent

in June 2017 were the occasion for the covering over of this stream. The court is then

faced with speculating as to whether the covering of this stream formed part of the work

in 2017 or occurred earlier.

70. Certain photographs exhibited display the state of the site in 2015. They appear to show

the central area of the site laid out as a maintained lawn without the appearance of any

stream meandering through the centre.

71. In his evidence, the respondent swore that he had closed up the central stream in or

about 2011/2012. He acknowledged that the effect of this would be to assist in any future

application which might be made for permission for the construction of a house on the

site. This admission is relevant to an issue to which I shall return, but in the absence of

any evidence that diversion or closure of this stream occurred as part of the works in June

2017, this court cannot now make an order under s.160 of the Act.

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Entrance gateway

72. The applicants exhibit photographs which show a gated access to the public roadway at

Alta Terrace. They say that S/89/1710 shows a stone wall running the full length of the

boundary along Alta Terrace and that the opening of an entrance and construction of a

gateway clearly is in breach of that permission and has not been the subject of any

permission or authorisation.

73. The respondent admits that a gateway has been erected and an opening made from Alta

Terrace into the site. The photographs also show that an area inside the boundary now

comprises a hard core. The respondent says that this arose when he permitted the site to

be used as a staging area in 2013 by the Council. He says that stone and materials were

drawn from the site to be used in the rebuilding of the retaining wall at Lower Monkstown,

below Thorncliffe. He says that the site had to be prepared for trucks going onto the site

so hardcore was laid inside the perimeter of the fence, thereby facilitating trucks and

diggers entering and leaving the site.

74. The evidence of Mr. O’Kennedy which has not been disputed on this point, is that prior to

June 2017, the gate had been “flush with the fencing and at the edge of the road” and

that it is now set back some three metres, which has the effect of widening the entrance

to Alta Terrace.

75. The photographic evidence illustrates conclusively that in addition to the establishment of

a new hardcore base within the perimeter, some of which is attributable to the events of

2013, the gate now stands relocated several meters inside the perimeter, supported by

hard core – albeit that the hard core was necessitated by the 2013 works in collaboration

with Cork County Council – thereby creating or at least facilitating a larger entrance to

the site.

76. Two observations can be made in relation to this aspect of the matter: -

1) No planning permission of any kind exists for the opening of an entrance of this

scale onto Alta Terrace.

2) There is evidence that in the course of facilitating certain works in 2013 by the

Council this entrance was used and therefore there is doubt as to whether the

current state of the entrance was due to the activities of June 2017. However, it

was acknowledged by the respondent that in the course of the June 2017 works,

the gate was moved inwards into the site. The effect of this is to widen the

entrance in a manner which was not authorised. I shall direct that the gate itself be

restored to the perimeter and that the boundary wall be reconstructed up to meet

the gate at each side.

Removal of trees

77. The applicants claim that the respondent undertook a “wholesale removal of trees”. The

height of the applicants’ evidence is to exhibit a number of photographs which show the

site on various dates preceding 2017 as a wooded site. These include a photograph taken

as of 2009 which shows the site to be heavily wooded, and then what is referred to as a

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“recent” aerial photograph showing the site still to be heavily wooded. Also exhibited are

a number of photographs alleged to have been taken in June 2017 showing the site to be

much more sparsely populated as regards trees.

78. Apart from the very general statements by the first applicant and his engineer, there is a

dearth of evidence of particular trees having been felled by the respondent during the

works of June 2017.

79. It is alleged by the applicants also that the S/89/1710 identified thirteen particular trees,

and that on an inspection of the site now it is evident that those trees have been

removed.

80. The respondents’ evidence is that he removed certain dead trees from the site and

arranged for other tree stumps to be buried. It is also submitted that the mere felling of

trees would fall within the exemption provisions of Section 4 of the Act. This element of

the application is resolved by the absence of direct evidence of the removal of trees in

June 2017. Accordingly, there is no form of order which can be made by this Court in

relation to trees.

Site levels

81. In the applicant’s grounding affidavit sworn 28 June 2017 he alleged that the level of the

respondent’s site had been changed by up to approximately six metres. In the affidavit of

Mr. O’Kennedy sworn on 19 July 2017 it was alleged that various materials had been

“imported into the site”, including both stone and soil and that this material had been

placed around the site. It is also alleged that “the soil has been graded off to provide a

level central area to the site”. Photographs were exhibited showing a generally level

central aspect to the site after the works complained of.

82. The affidavits exchanged on this subject and the cross-examination included references to

differing surveys purporting to identify alterations in site levels at various parts of the

site. The affidavits, and the evidence under cross-examination, reflects fundamental

disagreement between the parties as to the accuracy of each other’s respective surveys

including disputes as to such matters as what base levels were taken for comparison with

earlier ground levels. More importantly, it is also clear that the respective engineers

concentrated their surveys on different parts of the site. For example, it is alleged by the

applicant that the respondent’s engineer concentrated his measurements in the lower

areas of the site where, on any account, less site levelling occurred than in the more

northerly parts of the site.

83. Even under cross-examination of the respective engineers, which was largely

argumentative in nature as opposed to probative, this lack of clarity prevailed. However,

an inspection was undertaken by a firm called Precise Control on behalf of the applicants

in April 2018 and which is referred to in Exhibits A and B to the affidavit of Mr. O’Kennedy

sworn on 21 May 2018. The clearest of all of these illustrations is the survey exhibited by

Mr. O’Kennedy which is dated 1 May 2018 and which identifies contours in April 2018 and

differences in level at these points in the site from 2009. For the most part, these

Page 17 ⇓

differences appear to concentrate on the north and north easterly parts of the site and

show a range of differences from between 200mm and 1000mm.

84. Having considered the evidence of the engineers and the surveys produced to the court, I

have concluded that the only survey which is sufficiently clear is the survey at Exhibit B to

the affidavit of Mr. O’Kennedy sworn 21 May 2018. This shows in red a series of

deviations from 2009 levels, principally at the north and north eastern points of the site. I

am satisfied that these alterations of levels constitute alterations to the property which

were not the subject of any permission and accordingly should be reversed.

The discretionary matters

85. In this case, I have had regard to the following aspects of the evidence;

1. The general conduct of the respondent and his stated intentions,

2. The engagement of the respondent with the planning authority

3. The scale of the works, which range from minor to very substantial, and,

4. The conduct of the applicants.

86. The respondent insisted originally that everything which he had done at the site both in

2009 and 2017 has been firstly for the purposes of cleaning up the site following dumping

of rubbish by other parties and secondly to prevent the flooding of his family home,

Thorncliffe.

87. The applicant says that the respondent intends to develop the site and ultimately to erect

a dwelling house or at least to bring the site to a condition that it will be suitable for such

a development, either by him or by a purchaser from him. In this regard, the applicants

say that the works are demonstrably directed to addressing the reasons which were given

by the planning authority for the refusal for the outline of planning permission for the

construction of a house in 2002.

88. The respondent says that if ever another application is made for permission to erect a

dwelling house, the applicants and others will all have their right to make observations

and to object. In response to this the applicants say the respondent’s actions were aimed

at gradually rendering the site suitable for development and construction of a house,

principally by improving the drainage of the site, levelling the site and general clearance

of trees, thereby depriving it of the wet woodland character it enjoyed when S/89/1710

was originally granted for the Demesne as a whole and, more directly, to overcome the

reasons given for the 2002 refusal.

89. The applicants’ solicitor has given evidence to the effect that when she served the

warning letter, the respondent stated in a conversation to her that he had had three

offers for the site. This evidence has not been contradicted.

90. The respondent also sought initially to claim that he had not been aware of the planning

history of the site. This appeared to be a suggestion that he was not aware of either the

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conditions of S/89/1710 or of the reasons for the 2002 refusal. He went so far at one

point as to suggest that he had only very recently, possibly even in the context of these

proceedings, become aware of those matters. He also said that when he was engaged in

communications with the planning authority in 2009 they never drew to his attention the

existence of the conditions attached to S/89/1710.

91. Under cross-examination the respondent acknowledged that he knew generally that this

site had a certain planning history. He said that the planning files searched on his behalf

did not reveal the detail now known to him, but agreed that he had retained solicitors to

act in the purchase of the site and that both the solicitor and he would have known how

to undertake planning searches.

92. It is noteworthy that the respondent’s late father was one of the objectors to the

application which had been refused in 2002. The respondent confirmed that from time to

time he had discussed the site with late father but not at a sufficient level of detail

regarding its planning history.

93. The respondent also agreed under cross – examination that he accepted that the site was

within the lands referred to in S/89/1710 although it is accepted by all parties that the

respondent acquired good title to the site when he purchased it in 2008.

94. The respondent also acknowledged that in the course of his consultations with Cork

County Council in 2009 he said to the planning authority that if he could put a house on

the site he would do so. It would be a suitable house compatible with the general

character of the locale.

95. The respondent agreed that condition of the site prior to any works which he had

undertaken was such that it would be an “uphill battle” to secure permission to build a

house having regard to the reasons given for the 2002 refusal. He acknowledged also that

the altered state of the site in terms of drainage, clearance and levelling generally would

improve the prospects in that regard.

96. The respondents’ engineer, Mr. Waterman, sought to insist that no part of any of the

works the subject of the activity in 2017 were such as would require any form of

permission. He said that apart from preparing the site for a house there could be other

reasons for the works being done by the respondent, most notably, the protection of

Thorncliffe from flooding. However, Mr. Waterman agreed that the works which were done

in 2017 would render the site more suitable for development.

97. I have concluded from the affidavit evidence and from the cross-examination of the

witnesses that the principal object and effect of the works undertaken by the respondent

in June 2017 was to render the site more suitable for the construction of a house and in

particular to ameliorate the characteristics of the site which gave rise to the 2002 refusal,

as part of a plan to improve the prospect of a successful planning permission application,

either by himself or purchaser of the site.

Page 19 ⇓

Conduct of the applicants

98. The respondent submitted that the first applicant has from time to time undertaken

certain works at its own site, including raising of levels and the diversion of a stream, the

effect of which was to cause a flow of water into the respondents’ site. In so far as there

is evidence of this activity it is matched by evidence is that the respondent took his own

measures to ameliorate the effect of this outflow by installing pipes which would control

the effect of that flow. Therefore, the respondent took his own protection measures on

the boundary with Cladach, albeit that I have not found sufficient evidence to make an

order under s.160 in relation to that aspect. Reference was also made to certain tree

felling and level alterations at Glencairn by the third and fourth named respondents.

99. Each of these aspects has been the subject of separate correspondence and from time to

time complaints to Cork County Council and at one stage certain proceedings were

threatened or issued. It is not for this Court on the hearing of these proceedings to

determine conclusively the merits of those complaints. On balance I have come to the

conclusion that in light of the disregard by the respondent of the requirement to obtain

planning permission for certain of the works which he has undertaken on the site, the

alleged infringements referred to by the respondent do not form the basis of an answer to

this application under s. 160.

Communications with Cork County Council

100. When the respondent undertook certain works in 2009 complaints were made by a

number of residents to Cork County Council. The respondent engaged with Cork County

Council both in correspondence and in meetings and ultimately Cork County Council

determined that there was no requirement for any enforcement proceedings and closed

its file.

101. Complaints were made also to Cork County Council in relation to the activities of the

respondent on the site in June 2017 and Cork County Council issued a warning letter to

the respondent. The evidence is that the respondent addressed the matters raised in the

letter from Cork County Council and that they ultimately took no enforcement

proceedings. The respondent engaged with the planning authority and produced to them

certain reports by his engineer at the time, Gabor Molnar. No evidence has been given by

Mr. Molnar in these proceedings. It appears from that correspondence that further

information was requested by the authority and provided by Gabor Molnar. The

submission of the respondent is that the authority was satisfied and therefore concluded

that it should take no enforcement proceedings. In fact a closer view of the

correspondence reveals only that the queries raised by the authority were responded to.

There is no evidence that the authority expressed itself to be definitively satisfied with

these responses. No enforcement proceedings were taken by Cork County Council at the

time but this does not amount to conclusive evidence that there were no grounds for such

enforcement proceedings. It was a mischaracterisation of that correspondence to rely on

it as evidence that the authority had determined that no breach of planning laws or

regulations had occurred.

Scale of works

Page 20 ⇓

102. The respondent submitted that if there were any unauthorised development it was minor

and de minimis. The most blatant of the activities of the respondent in June 2017 was the

excavation of the drain on the north west boundary by the use of a Komatsu excavator

and the installation of an engineered French drain the effect of which was to confine the

flow of water along the boundary of the site, diverting it to another channel to Alta

Terrace, thereby preventing the general leakage of water from that channel into the

centre of the site. To describe such an excavation and alteration as de minimis is not

credible. Further, by adapting this position the respondent compromised the credibility of

submissions made regarding certain of the less clear aspects of the case. It is only

because of the doubt regarding the evidence concerning the trees, the south west drain

and the central stream that the respondent escapes having orders made in relation to

those aspects.

Conclusion

103. I find that the following works constituted unauthorised development and shall make

orders that the respondent restore the relevant portions of the site to their condition prior

to 26 June 2017, namely:-

1. The excavation of the drain on the north west boundary and the laying of the

engineered French drain and associated stonework and related materials

(paragraphs 52 – 62),

2. The moving of the gate opening to Alta Terrace (paragraphs 72 – 76),

3. The alteration of ground levels as illustrated in red on the survey at Exhibit B to the

affidavit of Mr. O’Kennedy sworn on 21 May 2018. (paragraphs 81 – 83)

104. I shall hear counsel as to the precise form of the order to be made in relation to each of

the matters referred to above.

Result: Appeal of Circuit Court order allowed.