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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Fingal County Council -v- Kennedy [2015] IESC 72 (31 July 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S72.html
Cite as: [2015] IESC 72
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Judgment
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THE SUPREME COURT [Appeal No. 322/13] Hardiman J.McKechnie J. Clarke J. Laffoy J. Dunne J. IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) ON APPLICATION OF FINGAL COUNTY COUNCIL FINGAL COUNTY COUNCIL RESPONDENT AND
SHANE KENNEDY APPELLANT Judgment of Ms. Justice Laffoy delivered on the 31st day of July, 2015
Background to Appeal 2. Prior to the initiation of the proceedings in the High Court the subject of this appeal on 2nd November, 2012, the Council had to deal with complaints from various bodies and individuals in relation to the presence of the vessel in Balbriggan Harbour. The Council obtained various expert reports in relation to, inter alia, the seaworthiness of the vessel, the implications of its mooring as regards the structural integrity of the pier, as well as from a health and safety perspective, and its suitability for human habitation. There was considerable interaction between the officials of the Council and Mr. Kennedy with a view to securing the removal of “Portisham” from Balbriggan Harbour. The Council’s approach from December 2011 was to try to accommodate Mr. Kennedy by providing him with alternative living accommodation through the Council’s Housing Department resources and later also to tow “Portisham” to an alternative destination of Mr. Kennedy’s choice, subject to there being formal approval from the relevant authority to berthing at the chosen destination. Although the interaction between Mr. Kennedy and the Council continued in relation to the Council’s proposal, as, ultimately, Mr. Kennedy did not take up the Council’s offers, the Council initiated the application to the High Court. Unfortunately further approaches by the Council to Mr. Kennedy while the appeal was pending did not result in a resolution of the problem. The application to the High Court
(ii) an order directing Mr. Kennedy to restore the land at Balbriggan Harbour by removing the vessel; and (iii) an order authorising the Council to carry out the removal of the vessel from Balbriggan Harbour and her subsequent demolition. 4. The application was grounded on an affidavit sworn on 31st October, 2012 by Paul Smyth, a senior executive officer of the Council. The affidavit outlined facts and exhibited reports which gave a broad picture of the consequences, both factual and legal, of the presence of “Portisham” in Balbriggan Harbour. However, most of those matters averred to were not material to the core issue before the High Court, namely, whether the presence of the vessel in Balbriggan Harbour was an unauthorised development within the meaning of the Act of 2000. For instance, the fact that, with effect from 30th June, 2004, the date on which s. 88(4) of the Harbours Act 1996 was commenced by virtue of Harbours Act 1996 (s. 88(4)) (Commencement) Order 2004 (S.I. 409 of 2004), Balbriggan Harbour together with all property, rights and liabilities connected with it had become vested in the Council is immaterial to the Council’s application under s. 160. As counsel for the Council made clear on the hearing of the appeal, the case is not based on trespass. Similarly, the fact that the presence of the vessel in Balbriggan Harbour contravenes s. 1 of the Fingal County Council Harbour Bye-Laws 2010, which were adopted by the Council on 13th December, 2010, approximately two months after the arrival of “Portisham” into the harbour, which restricts the use of the harbour to “seaworthy vessels which are less than 18 metres in overall length or otherwise licensed by the Council” is immaterial to the core issue, and, consequently, to whether the Court has jurisdiction under s. 160 of the Act of 2000 to grant the reliefs sought by the Council. 5. In his affidavit Mr. Smyth averred that the use of Balbriggan Harbour of which the Council is complaining in the proceedings is the use by Mr. Kennedy of the harbour for keeping “Portisham”, which he uses for his habitation as a floating home, which use the Council considers is a material change of use from that which the harbour has been used previously and for the purpose for which the harbour is maintained. It was also averred that there are two further components to the Council’s complaint, the first being founded upon the size of the vessel compared to the size of the harbour, and the second being the fact that the structure of the harbour, including the quay where “Portisham” is moored, is a protected structure under s. 55(5) of the Act of 2000. On the hearing of the appeal, counsel for the Council identified the unauthorised use asserted as being based on the size of the vessel in a working harbour, although it was made clear that the Council is not relying on breach of the bye-laws introduced in December 2010, coupled with the use of “Portisham” continuously as a home. As regards the second component, that is to say, the manner in which “Portisham” is connected, to use a non-technical expression, to the pier, while it may be conceivable that such action could constitute unauthorised “works” within the meaning of the Act of 2000, so as to constitute an unauthorised development, my understanding of the case made on behalf of the Council, from a planning perspective, and, in particular, from the planning report referred to below, is that the focus of the Council was on establishing unauthorised use of the harbour, as distinct from the carrying out unauthorised work on it. This understanding is consistent with the relief sought by the Council, as quoted earlier. 6. The basis on which it is contended that the presence of the vessel is an unauthorised development is set out in paragraph 21 of Mr. Smyth’s affidavit, in which he exhibited a planning report prepared by Peter Byrne, Senior Planner of the Council, which appears to be dated June 2012. In his report Mr. Byrne stated as follows:
Under Part XV of the [Act of 2000], developments (other than exempted development) on the foreshore require planning permission in addition to a Foreshore Lease/Licence/Permission. All Foreshore Leases, Licences, and Permissions are without prejudice to the powers of the local planning authority. The Foreshore under Part XV is defined as having the meaning assigned to it under the Foreshore Act 1933, which is the bed and shore below the line of high water of ordinary or medium tides . . . but also includes the land between the line of high water of ordinary or medium tides and land within the functional area of the planning authority concerned. The Portisham minesweeper has been illegally moored and occupied as a residence, in Balbriggan Harbour since October 2010. The use of the boat as a residence is an unauthorised development under the Planning Acts.”
7. In his affidavit, Mr. Smyth recorded the contents of the last sentence in the quotation from Mr. Byrne’s report. He also recorded that Mr. Byrne noted that the vessel was situated on the foreshore, moored to the quay wall, and that under Part XV of the Act of 2000 developments on the foreshore (other than exempted development) on the foreshore require planning permission. Mr. Smyth then averred that “the only exemption from planning permission for living on a boat is contained in Class 1 of Exempted Rural Developments in the Planning and Development Regulations 2001 (S.I. No. 600 of 2001)” (the 2001 Regulations). He then demonstrated that Mr. Kennedy’s vessel did not come within the Class referred to, the terms of which will be outlined later. 8. There was also before the High Court an affidavit sworn on 4th January, 2013 by Eugene Curry, a marine consultant. The purpose of that affidavit was to identify precisely where in Balbriggan Harbour “Portisham” was berthed. Mr. Curry exhibited a plan of the harbour on which he had drawn “a plan view of an outline of the hull of the ‘Portisham’ to the same scale of the plan of the Harbour on which it is drawn”. The plan of the harbour he utilised was a plan prepared by a firm of Consulting Engineers and dated September 2012. It was entitled “Site Location Plan Balbriggan Harbour”. There is nothing to suggest that it was prepared in connection with the Council’s application the subject of this appeal. Mr. Curry depicted the outline of the hull and described it as “approx position of vessel” in manuscript. While it is very surprising that the Council did not specifically prove by reference to an ordinance survey map the actual line of the high water mark for the purpose of depicting the location of the foreshore, as defined in the Act of 2000, within Balbriggan Harbour, nevertheless, the site plan appears to have been based on the relevant ordinance survey map and it appears that it was utilised under an Ordinance Survey licence, details of which appear on the site plan. On the site plan the line of the high water mark throughout the harbour area shown thereon, including the pier at which the vessel is moored, is depicted as “HWM”. That pier is one of two piers which extend into Balbriggan Harbour and it is located to the east of the other pier and extends out into the harbour in a north-easterly direction. A notation on the site plan indicates that what the line marked “HWM” depicts is the “Highest point to which medium tides flow”. 9. From the commencement of the proceedings Mr. Kennedy has been a litigant in person and the Court is conscious that he did not have the benefit of legal advice on the difficult legal issues which arise on the Council’s application. An affidavit sworn by him on 5th December, 2012 was filed in response to Mr. Smyth’s affidavit. Mr. Kennedy set out his “critique” of the averments in Mr. Smyth’s affidavit. As regards paragraph 21, which referred to some of the contents of Mr. Byrne’s planning report and the planning issues, he merely queried whether the term “land” applies to “tidal zones”. For the reasons outlined later, that query, I surmise, reveals his misunderstanding of the meaning of “foreshore” in Irish law and, in particular, in the context of an application under s. 160 of the Act of 2000. Mr. Kennedy understandably then went on to set out what he considered to be the then current position in relation to the range of matters which were addressed in Mr. Smyth’s affidavit but which are not material to the issues on the application, for example, the application of the 2010 Bye-Laws. None of the matters he averred to were relevant to the question whether the Council is correct in its contention that the presence of “Portisham” in Balbriggan Harbour constitutes an unauthorised development within the meaning of the Act of 2000. In particular, none of the matters questioned the jurisdiction of the Council as planning authority to bring an application under s. 160. The judgment and order of the High Court 11. Accordingly, in the order of the Court, which was dated 18th February, 2013 (not 18th February, 2012 as appears on its face), it was ordered that -
(b) the Council is authorised to carry out the removal of “Portisham” from Balbriggan Harbour and her subsequent demolition. 12. Mr. Kennedy appealed in person against the order of the High Court. The operative notice of appeal was dated 14th August, 2013. Mr. Kennedy set out eight grounds on which he was relying in support of his case that the whole of the judgment and order of the High Court should be set aside. Two of the grounds address the Council’s case that the presence of “Portisham” in Balbriggan Harbour is an unauthorised use within the meaning of the Act of 2000. First, ground 6, which again points to his misunderstanding of the meaning of foreshore in Irish law, states:
(b) whether the presence of “Portisham” at that location and its use for habitation constitutes an unlawful development within the meaning of the Act of 2000, as the Council contends. 14. While it is true that, by virtue of the provisions of the Foreshore and Dumping at Sea (Amendment) Act 2009 (the Act of 2009) to which Mr. Kennedy refers in ground 6, certain functions relating to the foreshore were transferred from the Minister for Agriculture, Fisheries and Food to the Minister for the Environment, Heritage and Local Government, none of those functions relate to or regulate the planning and development of the foreshore, which is governed by the Act of 2000. Accordingly, the Act of 2009 is of no relevance to the issues raised on this appeal. Relevant legislative and regulatory provisions
(b) in the case of development which is unauthorised, for the retention of that unauthorised development. 16. An application for permission under Part III of the Act of 2000 is made to the relevant planning authority. In s. 2 of the Act of 2000, the expression “planning authority” is defined as meaning, in the case of a county, the council of the county. In other words, the Council is the planning authority for Fingal County. The “functional area” of the Council as planning authority is its administrative county. 17. Part XV of the Act of 2000 (ss. 224 to 228), which has been part of the planning code since 11th March, 2002 by virtue of the Planning and Development Act 2000 (Commencement) (No. 3) Order 2001 (S.I. 599/2001), deals with development of the foreshore. Section 225(1) provides that, subject to the provisions of the Act of 2000, permission shall be required under Part III in respect of development on the foreshore not being exempted development, in circumstances where, were such development carried out, it would adjoin the functional area of the planning authority. That sub-section goes on to provide that -
19. The word “development” is defined in s. 3 of the Act of 2000. In subs. (1) of s. 3 it is defined, except where the context otherwise requires, as meaning -
(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or habitation or the sale of goods, (ii) . . ., or (iii) . . . the use of the land shall be taken as having materially changed.” 21. Mr. Smyth in his affidavit has drawn attention to the 2001 Regulations and, in particular, to one class of exempted development provided for therein. That class, Class 1 (headed “Limited Use for Camping”) is contained in Part 3 (headed “Exempted Development - Rural”) of Schedule 2, which relates back to Article 6 of the 2001 Regulations. Article 6 provides, inter alia, that a class specified in column 1 of Part 3 shall be an exempt development for the purposes of the Act of 2000, provided the development complies with the conditions and limitations specified in column 2 of that schedule. The class pointed to by Mr. Smyth is in the following terms:
Meaning of foreshore in Irish law
Application of the legislative/regulatory provisions to the facts 24. First, the onus is on the Council to prove that “Portisham” is situated on the foreshore. The evidence, by reference to the site plan exhibited by Mr. Curry, is that “Portisham” is moored along the south western side of the easterly/north-easterly pier which extends into Balbriggan Harbour. The site plan indicates that the pier is within the functional area of the Council, because, by virtue of s. 227 of the Local Government Act 2001, the maritime boundary of Fingal County is deemed to coincide with the ordinary high watermark for the time being and land, for the purposes of illustration only, is read as including, inter alia, piers. The site plan, which appears to be based on the ordinance survey map for the area, although there is no formal proof of that, depicts the high water mark in the area in which “Portisham” is located as being on the south westerly edge of the pier. Therefore, assuming the site plan does in fact accurately replicate the ordinance survey map, “Portisham” is located on what is foreshore as defined in both the Act of 1933 and in the s. 224 of the Act of 2000, being located just below the high water mark. On the basis of that assumption, which also underlies the findings in the three succeeding paragraphs, insofar as the presence and use of “Portisham” on the foreshore is a development and not an exempted development, as it in fact adjoins the functional area of the Council, which includes the pier, planning permission was required for any development on the foreshore and for the purposes of making an application for such permission it was deemed to be within the functional area of the Council by virtue of Part XV of the Act of 2000. 25. Secondly, the use of the foreshore for the placing thereon of the vessel, which obviously comes within the meaning of the expression “other objects” in s. 3(2)(b)(i) of the Act of 2000, for the purpose of habitation was a material change of use on the application of s. 3(2). Therefore, it was a development within the meaning of s. 3(1). 26. Thirdly, not being an exempted development, permission was required under Part III in respect of the development by virtue of s. 225(1). It was not an exempted development by reason of failing to comply with the limitation on the duration of the vessel remaining on the land, that is to say, on the foreshore, as prescribed in Condition 2 in respect of Class 1 in Part 3 of Schedule 2 of the 2001 Regulations quoted in para. 21 above. As a matter of fact, “Portisham” has been moored at the same location within Balbriggan Harbour constantly since October 2010 and, as it was put at the hearing, there has been no “come and go”. 27. Fourthly, Mr. Kennedy not having applied for and obtained planning permission for the development, it is an “unauthorised use” of the foreshore within the meaning of s. 2 of the Act of 2000. Consequently, it is an “unauthorised development” within the meaning of s. 2 of the Act of 2000, in that it is the making of an unauthorised use of the foreshore. 28. Finally, that leaves the question whether it is open to the Court to make the assumption which underlies the findings made in paras. 24 to 27 above, having regard to Mr. Curry’s affidavit and the site plan exhibited by him, but without further evidence, that “Portisham” is moored to and floating over the foreshore, that is to say, that it is below the line of high water of medium tides. In other words, the question which must be addressed is whether the Council has discharged the onus of proof in that regard. Admissible evidence of location of foreshore
Jurisdiction conferred by s. 160 of the Act of 2000
(a) that the unauthorised development is not . . . continued; (b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development; (c) . . .” 32. As has been recorded earlier, on the application to the High Court, the Council merely sought relief under s. 160 of the Act of 2000 on the basis that the presence of “Portisham” in Balbriggan Harbour and its use by Mr. Kennedy as a habitation is an unauthorised development within the meaning of the Act of 2000. While the range of matters addressed by Mr. Smyth in his grounding affidavit and, in particular, in the various expert reports exhibited by him, may have, as the saying goes, “muddied the waters” and created confusion as to the sole basis of the Council’s claim for relief from Mr. Kennedy’s perspective, nonetheless, on the appeal, he did address the core issue and he did argue that the presence and use of “Portisham” did not constitute a development and that the Council’s jurisdiction in relation to planning matters did not extend to “Portisham”. However, he did not argue in the High Court that the Council had not discharged the onus of proving that “Portisham” is located on the foreshore and, consequently, no finding was made on this point by the trial judge. 33. If the Council had discharged the onus of proving that “Portisham” is moored on and floating over the foreshore, Mr. Kennedy would, in any event, have been unsuccessful on the arguments he advanced in the High Court. Further, he would be unsuccessful in this Court on all his grounds of appeal, as the other arguments advanced by him are misconceived. If the Council had discharged that onus, it would have established that an unauthorised development has been carried out by Mr. Kennedy by having moored “Portisham” at Balbriggan Harbour over two years prior to the commencement of the application to the High Court and having used the vessel for habitation constantly over that period. Mr. Kennedy having refused to discontinue the unauthorised use, although requested by the Council, as planning authority, to do so, the High Court would have had jurisdiction in February 2013 to make an order to ensure that the unauthorised use would be discontinued and that the foreshore would be returned to its condition prior to the arrival of “Portisham” in October 2010. Decision of the Court | ||||||||||||||||||||||||||||||||||||||