THE SUPREME COURT
[Appeal No. 127/2011]
Denham C.J.
O’Donnell J.
McKechnie J.
Laffoy J.
Dunne J.
IN THE MATTER OF SECTION 160 OF THE PLANNING & DEVELOPMENT ACT 2000, AS AMENDED
THE COUNTY COUNCIL OF THE COUNTY OF MEATH
Applicant/Respondent
-and-
MICHAEL MURRAY and ROSE MURRAY
Respondents/Appellants
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 19th day of May, 2017
Introduction:
1. This is an appeal from a decision of Edwards J., dated the 29th June, 2010, given on an application for a statutory injunction under section 160 of the Planning and Development Act 2000, as amended (“the 2000 Act”), whereby he granted the reliefs prayed for by Meath County Council as the Planning Authority for the area in question. The resulting order, which reflected his judgment, has the effect of prohibiting the respondents (the appellants on this appeal) from carrying out any unauthorised development on the subject lands, and of requiring them to remove the dwelling house as constructed thereon and to restore the lands to their pre-development condition, which was one fit for agricultural use only. A stay of 24 months was placed on the execution of the order. The order so made can readily be positioned by a further word as to the circumstances.
2. In 2006, the appellants purchased a land holding at Faughan Hill, Bohermeen, Navan, on which they proposed to build a family home for themselves and their three children. A planning application for such a construction was refused in June of that year. Within the following six months, the Murrays constructed a dwelling house of double the size of that for which permission had been refused. They moved into the house in December, 2006. Having become aware of this development, the respondent to this appeal (“the Council” or “the Planning Authority”) threatened enforcement proceedings unless demolition took place. An application for retention was refused by both the Planning Authority and An Bord Pleanála in 2007. A further application for a slimmed down version of the construction was also refused by both bodies: the Planning Authority in October, 2008, and the Board in June, 2009. Even allowing for the appellants’ “frustration” with the actions of Meath County Council, and notwithstanding their personal circumstances, the trial judge, having described the breach as “flagrant” and stating that the appellants had “sought to drive a coach and four through the planning laws”, felt that the only appropriate order was that as above described. For the reasons which follow, the appellants have submitted that as a matter of law he was wrong to so do.
Background:
Land Ownership:
3. The subject site is part of a larger holding of about 25 acres comprised in Folio 14049, Register of Freeholders, Co. Meath, whose registered owners, at the date of the institution of these proceedings in June, 2007 were Michael Murtagh, John Murtagh and one Nora Drain. It would appear that either Mrs. Murray, or both she and her husband, acquired these lands sometime in 2006; this uncertainty flows from the fact that both situations are averred to in the affidavits. In any event, nothing turns of the formality of ownership. It is accepted by all that the Murrays have a sufficient interest in the lands to justify any and all planning applications as made by them.
Planning History - Murtaghs:
4. On the 7th July, 2005, notification of a grant of planning permission, under reference KA/40653, issued to one Orla Murtagh and one Karl Brady for the construction of a house on part of the original holding. A similar permission was granted on the 18th August, 2005, under reference KA/40669, to one Aoife Murtagh and one David Reilly, evidently on a different parcel of land but also from that holding.
5. Both permissions contained a common Condition, numbered 3 in each, which read as follows:-
“Prior to commencement of the development the owner of the land holding of which the site forms part as shown outlined in blue on the location map submitted on [(in the case of KA/40653, the 22nd December, 2004, and in the case of KA/40669, the 23rd December, 2005)] shall have entered into a legal agreement with the planning authority under the provisions of Section 47 of the Local Government (Planning and Development) Act 2000, providing for the sterilisation from any housing or non-agricultural development on the entire remainder of this land holding.”
The location map by reference to which the sterilised lands were identified was identical for both permissions.
6. By letter dated the 20th April, 2005, Mr. John Murtagh, presumably on behalf of the then registered owners, wrote to the planning authority as follows:-
A letter of the same date and in identical terms, save the necessary variation to reflect the different applicants, site and reference number, was sent by Mr. Murtagh in respect of Reference No. KA/40669. Evidently both letters were sent in the knowledge that such would be required should the permissions otherwise be granted.
7. For some reason, which has not been explained, formal agreements under section 47 of the 2000 Act were never entered into in respect of either planning permission. However, it would appear that the Planning Authority was satisfied with such letters, particularly having received Commencement Notices in respect of both developments, and in the knowledge that each has been completed.
Planning History - Murrays:
8. Prior to having carried out any development on the subject lands, the appellants, at least one of whom had a historical connection with the locality (see paras. 12 and 134, infra) applied to Meath County Council, as the planning authority, seeking permission to construct a dormer type dwelling house measuring in total 283 sq. metres (3,045 sq. ft) and to carry out associated works on an overall site of 0.7811 hectares. That application (Reference No. KA/60180) was refused by decision dated the 29th June, 2006, from which no appeal was taken.
9. Within a very narrow timeframe, the Murrays, having been notified of the above refusal, commenced and thereafter completely finished the construction of a dwelling house, with associated works, of about 588 sq. metres (6,329 sq. ft.) on a subject site of 1.675 hectares (4.139 acres). This structure, which Mr. and Mrs. Murray first occupied in December, 2006, was first discovered by the planning authority in February, 2007, as a result of a complaint by a member of the public. Following an inspection by its officials, Mr. Jimmy Young, a senior staff officer, wrote to the appellants on the 2nd March, 2007, referring to what he described as an unauthorised development and requesting its removal. Proposals to that end were sought within seven days; otherwise, enforcement proceedings were threatened. That prompted the making of an application to retain the unauthorised development on the 12th March, 2007, which was refused by the planning authority on the 3rd May of that year. These proceedings were then commenced by motion dated the 29th June, 2007. Before detailing such proceedings however, it is important to note the following steps taken by Mr. and Mrs. Murray in terms of their interaction with the Planning Authority.
10. The appellants appealed to An Bord Pleanála from the decision to refuse the application to retain, as built, the structure above described. The Board, by decision dated the 12th December, 2007, rejected that appeal. A third application was then made on the 8th September, 2008, under Reference No. KA/802674, seeking permission to demolish the two wings of the dwelling house, but to retain the rest of the structure. That application was refused by the planning authority on the 30th October, 2008, and by An Bord Pleanála on the 5th June, 2009.
11. Although there was no further movement on the planning side, it is important at this juncture to set out the reasons, virtually common to all decisions, for the initial refusal of permission by the Planning Authority, for that Authority’s refusal of both retention applications, and subsequently for the rejection of all appeals by the Board. Such can be done by reference to the Board’s decision of the 5th June, 2009, upholding the refusal of permission/retention permission. This reads as follows:-
“Reasons and Considerations
(1) Taken in conjunction with existing development in the vicinity, which is an area under strong urban influence, the development proposed to be retained would give rise to an excessive density of development in a rural area lacking certain public services and community facilities, would contravene the policy of the planning authority as expressed in the current Meath County Development Plan to direct residential development to serviced areas, which policy is considered to be reasonable, and would establish an undesirable precedent for further development of this type. The development would, therefore, be contrary to the proper planning and sustainable development of the area.
(2) It is considered that, taken in conjunction with the existing development in the vicinity, the development proposed to be retained would result in an excessive waste water concentration of development serviced by wastewater treatment systems in the area. The development would, therefore, be prejudicial to public health.
(3) It is considered that the two-storey dwelling which is proposed to be retained is out of character, by reason of scale, height and design, with existing dwellings in the area notwithstanding the proposed alterations. It represents an unduly prominent and incongruous feature in the local landscape, is seriously injurious to visual amenity and would establish an undeserved precedent for future development of this kind. The development is, therefore, contrary to the proper planning and sustainable development of the area.
(4) The development contravenes materially conditions attached to existing permissions for development, namely, condition number 3 attached to the permission granted by Meath County Council under planning register reference number KA/40669 and condition number 3, attached to the permission granted by Meath County Council under planning register reference number KA/40653.”
In substance, these were precisely the same reasons advanced by the Board for its rejection of the first appeal.
High Court Judgment:
12. The learned judge, in delivering judgment on the 29th June, 2010 ([2010] IEHC 254), recounted the Murrays’ affidavit evidence in considerable detail, indicating that Michael Murray was a native of the parish and had been born and reared in the family home, which remains immediately adjacent to where the Murrays now live. Both he and his wife had always wanted to return to the area and to raise their own family in the locality. The learned judge also referred to the Murrays’ frustrations with the refusal of various planning applications on different lands, including the fact that in their view the reasons for such refusals made no sense in the context of the development proposed. Worse was to follow, they said, in that a two-storey house was subsequently built on one site for which they had earlier been refused planning permission.
13. Edwards J. also quoted extensively from the affidavit of Ms. Rose Murray of the 25th November, 2009. Therein she outlined the reasons for the building of the house and detailed the very serious consequences and hardship which would inure if the family home was to be demolished. In this respect she stressed the trauma which her children would suffer if the Court acceded to the application, pointing in particular to the fact that they would need to leave the local area and change school and football team. Ms. Murray indicated that if the Court were to grant the Order sought, it may be necessary for the family to leave the country in order to try to obtain work in the United Kingdom. She also said that the family’s desire was to be allowed to remain in occupation of the site at any level. She stated that she and her husband were willing to alter or modify the house but that a demolition order would be disproportionate in light of the devastating consequences it would have for the family.
14. Edwards J. noted that although the Murrays had complained about the grounds on which they were refused planning permission, such issues were not justiciable in the context of the proceedings before the Court (section 50(2) of the 2000 Act). He described as “manifestly unfounded” the suggestion that the dwelling house in question did not require planning permission on the basis that it is an “agricultural building” and is therefore an exempt development. Having viewed photographs of the development in question, the learned judge stated that it was “frankly preposterous to suggest that this is an agriculture structure.”
15. As regards the substance of the Murrays’ case, Edwards J first addressed the argument that the resort by the planning authority to section 160 of the 2000 Act was inappropriate in the circumstances of the case as that provision is a “fire brigade section” intended to deal with urgent situations only. The learned judge found that while this may have been true of section 27 of the Local Government (Planning and Development) Act 1976 (“the 1976 Act”) (see Dublin Corporation v McGowan [1993] 1 I.R. 405 at p. 411), section 160 of the 2000 Act is much wider in its scope than section 27 of the 1976 Act and accordingly may be invoked in circumstances other than those of great urgency. He also rejected the contention that the County Council should be denied relief on the grounds of delay or laches. Whilst there is some reference to the issue of delay in the appellants’ Notice of Appeal, very little - if anything - is said about it in their written submissions. In any event, as the timeline of the case shows, it would be impossible to sustain any such argument.
16. The learned judge quoted at length from the judgments of Smyth J in Sweetman v. Shell E & P Ireland Limited & Ors [2007] 3 IR 13 and Henchy J in Morris v. Garvey [1983] I.R. 319. He accepted “without hesitation” the contention that the relief sought by the County Council is of a discretionary nature, that the discretion is very wide and that it must be exercised judicially. He stated that he had had regard to all matters urged upon the Court on behalf of the Murrays, particularly the contention that an order for demolition would be disproportionate and unduly harsh in the circumstances. As against this the judge considered the local authority’s submission that the breach of the planning laws in this case was “particularly flagrant and completely unjustified on any basis.” In reaching his decision, the learned judge held as follows:
“44. With very great regret this Court finds itself in agreement with the applicants in this case. This is not a case of a minor infraction, or of accidental non-compliance, or of non-compliance with some technicality. The unauthorised development carried by the respondents was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and that cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute an enormous hardship to the respondents to have to demolish their dwelling house, particularly in circumstances where the first named respondent is now a victim of the general downturn in the construction industry and has little work, nevertheless the law must be upheld. Though it gives me absolutely no pleasure to say it, and it is stating the obvious, they have brought this on themselves.
45. In all the circumstances of the case the Court must accede to the application and grant the relief sought by the applicants. However, the Court is prepared on a humanitarian basis to put a stay on its order of 24 months from today's date in the light of the particularly difficult economic times in which we are living which the Court recognises may make compliance with the Court's order all the more difficult for the respondents. However, the Order must be complied with in full on or before the expiry of the stay.”
Appeal:
17. The grounds of appeal, set out in a Notice to that effect dated the 24th March, 2011, are eight in number but can be narrowed somewhat as follows:-
(i) that the use of the summary process under section 160 of the Planning & Development Act 2000, as amended (“the 2000 Act”), was inappropriate, as no element of urgency existed and as the structure was and is the dwelling house of the family;
(ii) that the making of the prohibitory order was not permitted as, firstly, there was no prospective development planned or carried out on the subject land and, secondly, the house was fully constructed before the institution of the within proceedings;
(iii) that the orders ‘to remove and restore’ were incompatible with:
(a) Article 40.3, Article, 40.5, Article 41, Article 42 and Article 43 of the Constitution, and
(b) Article 8(1) of the European Convention of Human Rights and Article 1 of the First Protocol of that Convention; this failure and omission was in breach of section 2 of the European Convention on Human Rights Act 2003;
(iv) that such orders were internally inconsistent and self-contradictory in that the structure could, without infringing the provisions of the planning Acts, be used for agricultural purposes; and
(v) that the trial judge erred in the exercise of discretion in failing to give adequate weight to the disproportionate harm that will be caused to the appellants by the demolition order and in failing to consider what other reliefs short of demolition might be applied to produce a less harsh result.
In essence, the points made under the Constitution and the Convention rested on a proportionality argument which, with due respect to the able submissions of counsel, was heavily dependent on Wicklow County Council v. Fortune (No.1) & (No.2) (see paras. 93-102, infra). On the basis of what was said by Hogan J. in both cases, it is submitted that the order of the learned High Court judge cannot be allowed to stand and should be discharged.
18. It will be noted that neither the Convention nor the constitutional arguments are addressed in the High Court judgment, this for the simple reason that such arguments were not asserted before the learned judge. In addition, a number of further matters have been raised for the first time in the appellants’ written submissions; these matters are discussed below (para. 31 et seq).
Appellants’ Submissions to this Court:
19. The appellants submit that the institution of section 160 proceedings does not automatically follow as a consequence of an opinion expressed by an official that a development may be unauthorised; a further statutory and discretionary decision is required to be formally taken by the Council prior to making such an application. The appellants suggest that the proper procedure was not followed in the instant case.
20. Central to the appellants’ submissions is that the High Court judge erred in not considering the constitutional rights of the appellants and their children, such as the assurance of the dignity of the individual (per the Preamble to the Constitution), the protection of the person (Article 40.3), the inviolability of the dwelling (Article 40.5), the protection of family life (Article 41), the education and protection of children (Article 42) and the protection of private property (Article 43). The appellants refer in particular to the constitutional protection of the dwelling (DPP v. Damache [2012] 2 I.R. 266).
21. It is submitted that Edwards J erred in failing to recalibrate the tests previously set down in the case law on section 160 applications in light of these constitutional provisions and similar considerations under the European Convention on Human Rights. Primarily, the appellants submit that the trial judge failed to apply the correct proportionality test in exercising his discretion under section 160 of the 2000 Act. This involves proportionality not just in a narrow sense, but also in the broader sense of whether the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with the aforementioned constitutional rights (Heaney v. Ireland [1994] 3 I.R. 593; Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701). In this regard it is submitted that the trial judge did not consider (or adequately consider) whether the continued occupation and existence of the dwelling would be so manifestly at odds with public policy objectives that demolition was the only fair, realistic and proportionate response.
22. The appellants furthermore make a number of submissions regarding the refusal of their planning applications by Meath County Council and the Council’s bringing of the section 160 application; in the latter context, it is submitted that the Council did not consider the consequences which an order for demolition would have on the appellants and their family. It is also submitted that the respondent had predetermined the entire matter and thereby fettered the exercise of its statutory powers. The appellants contend that none of the reasons for the refusal of the planning application given by either the Council or An Bord Pleanála warrant the demolition of the family home. It is submitted that the upholding of the law does not require the demolition of the appellants’ dwelling house. The appellants emphasise the disproportionate nature of the High Court order and the disruptive and devastating consequences which it will have for them and their children.
23. In a separate submission, the appellants take issue with the use by the respondent of a summary application in the within proceedings; they submit that a plenary summons would have been more appropriate. It is submitted that the case involves complex questions concerning the family home that were not appropriately resolved by the issuing of summary proceedings. The appellants further maintain that the dwelling as built is capable of agricultural use.
24. The appellants refer to a number of cases in which the potential hardship involved in ordering relief under section 160 or its statutory predecessors was considered as a relevant factor in the exercise of the Court’s discretion. For example. in Avenue Properties Ltd v. Farrell Homes Ltd [1982] I.L.R.M. 21, Barrington J declined to grant an order where it would have been “unduly harsh and burdensome to grant an injunction notwithstanding the fact that the respondents are formally in the wrong.” The appellants also cite the decision of this Court in Sweetman v. Shell E & P Ireland Ltd [2016] IESC 2 (“Sweetman v. Shell”) in support of the discretionary nature of orders under section 160. It is submitted that the judgment of the High Court judge in the instant case is not consistent with Sweetman v. Shell: for example, that case confirmed that section 27 of the 1976 Act is a “fire brigade” section for use in urgent circumstances only, which is at odds with the trial judge’s interpretation of section 160 of the 2000 Act in the instant case.
25. Finally, the appellants rely on Article 8 of the ECHR and on the European Convention on Human Rights Act 2003. They refer, inter alia, to the application of Article 8 of the ECHR to a person’s home by this Court in Donegan v. Dublin City Council [2012] 2 I.L.R.M. 233. Moreover it is submitted that, per South Buckinghamshire DC v. Porter (No. 1) [2003] 2 AC 558, it was incumbent on the Council to consider the appellants’ personal circumstances, including their rights under Article 8 of the ECHR, in determining the section 160 application in the instant case. The appellants submit that this was not done.
Respondent’s Submissions to this Court:
26. The respondent takes issue with the introduction of new grounds of appeal which were not introduced before the trial court and ought to be excluded from consideration on appeal. It is submitted that there are no exceptional circumstances such as would permit the appellants to rely before this Court on arguments which were not argued in the court of first instance. The respondent accordingly objects to the appellants’ reliance on arguments founded on the Irish Constitution and/or the European Convention on Human Rights.
27. The respondent submits that the Council at all times complied with the enforcement procedure provided for under Part VIII of the 2000 Act and that it was fully entitled to pursue the within proceedings in response to the appellants’ unauthorised development. It is submitted that the appellants cannot rely on their application for retention permission as a defence to their actions or as a prohibition on the Council from pursuing enforcement under the Act.
28. As noted above, the respondent objects to the raising at this stage of arguments based on the Constitution. Nonetheless, the respondent submits that the test in Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 (“Fortune”) whereby the planning authority must ‘objectively justify’ its decision to seek demolition irrespective of the conduct of the developer was subsequently rejected by Kearns P in Kinsella v. Wicklow County Council [2015] IEHC 229 (“Kinsella”). The respondent submits that citizens who flout planning legislation cannot claim immunity under Article 40.5 of the Constitution as acceding to such conduct would lead to the erection of haphazard and dangerous developments, undermine the scheme of the 2000 Act and give rise to a free-for-all development culture. It is submitted that the approach in Kinsella is to be favoured over that adopted by Hogan J in Fortune. It is submitted that one cannot assert a right to maintain one’s dwelling as inviolable when that dwelling exists unlawfully.
29. The respondent submits that while the appellants criticise the trial judge for failing to consider Articles 40.3, 40.5, 41, 42 and 43 of the Constitution, they themselves did not rely on those provisions during the course of the hearing. Moreover it is submitted that it is clear that Edwards J did have regard to the submissions made by counsel for the appellants. As regards the argument based on proportionality, the respondents submit that the 2000 Act envisages that there must be good reasons why section 160 relief should not be granted in any case where there is substantial non-compliance with planning obligations (Wicklow County Council v. Forest Fencing Limited [2007] IEHC 242). It is submitted that the trial judge, in exercising his discretion, correctly analysed an array of breaches and their level of seriousness in considering the proportionality of the decision, and that he properly took account of the appellants’ behaviour.
30. In relation to the appellants’ argument that the use of a summary application was an inappropriate procedure to determine complex issues of fact and law, the respondent submits that this argument was not relied upon before the High Court but that in any event the within proceedings are quite straightforward within the context of section 160 applications. It is further submitted that any parallel that can be drawn between the decision in Sweetman v. Shell and the instant case is a tenuous one, which can be distinguished on a number of bases.
Discussion/Decision:
Additional Appeal Points:
31. Although the major issue on this appeal is the Fortune/Kinsella Article 40.5 debate (see paras. 92 to 133, infra), the appellants have raised a number of further matters which neither featured in the Court below, nor were they raised in the Notice of Appeal. Although by virtue of O. 58, r. 6 of the Rules of the Superior Courts a Notice of Appeal may be amended at any time, no such application was made in this case. As a result, the well-settled jurisprudence of this Court states that such grounds will be entertained only where the appellant shows exceptional circumstances (Movie News Ltd v. Galway County Council (Unreported, Supreme Court, 15th July, 1977); Blenheim v. Murphy [2000] 2 IR 231). No attempt has been made to do so here, nor is it apparent to this Court how any such circumstances might be said to exist. It is thus extremely difficult to see how the appellants should be allowed to rely on such matters. However, I have considered the points that were urged (para. 32-64, infra), albeit with reluctance, lest a failure to do so might lend credence to their validity. Having done so, I am satisfied, for the reasons which follow, that there is no substance to any of the points so advanced.
Section 160: Summary Nature of Process:
32. It is asserted on behalf of the appellants that the High Court should have declined to entertain the application, as intrinsic to the section 160 process is its summary nature; it remains unclear whether alternatively it is being asserted that the matter should have been remitted for plenary hearing. The objection is so made because of the complex issues of fact and law which it is said arise in the presenting circumstances. Dublin County Council v. Kirby [1985] I.L.R.M. 325 (“Kirby”) and Waterford County Council v. John A. Woods Ltd [1999] 1 IR 556 (“John A. Woods Ltd”) were amongst a number of cases cited to support this proposition.
33. It is undoubtedly correct to say that both the High Court and the Supreme Court have in the past indicated that the injunctive provision was intended as a type of “fire brigade” section to deal with urgent situations requiring immediate action, so as to stop or prevent an unauthorised development; however, virtually all such expressions were made in relation to the form of the section which predated section 160, which in its terms is much more expansive than either version of its precursor. In addition, it has also been said that, by reason of its summary nature, the procedure may not be suitable where a more thorough exploration, particularly of the facts but also of intricate issues of law, may be necessary in order to determine the outcome (Dublin Corporation v. McGowan [1993] 1 I.R. 405, Mahon v. Butler [1997] 3 I.R. 369 at 378-379, Kirby and John A. Woods Ltd). Whilst I accept that in some cases of major conflict, recourse to some of the more elaborate steps readily available via the plenary process may be necessary, I am also satisfied that where such is required, the same can be availed of. However, given the multitude of applications moved in this form, the vast majority of which have created no difficulty, it seems clear that it will be only in very rare circumstances indeed that the stipulated statutory procedure should not be utilised.
34. It should be recalled that one of the major objectives behind this legislative process is the desire that issues of planning control should be dealt with effectively and efficiently and in the most expeditious way possible. If every alleged infringement, or even a majority thereof, could not be litigated in this way, that objective would be stood down. That should not happen, nor is there any necessity for it.
35. I can see no reason in principle why the factual scaffolding of most cases cannot be adequately accommodated within the contours of the affidavit framework. Therefrom it should be readily apparent to all what area(s) of conflict, dispute or disagreement exist between the parties. Indeed, if uncertainty should be left standing at the close of the evidence or at any antecedent point in the proceedings, that situation should become self-evident. If any such controversy touches upon issues of importance as to outcome, then the same can be explored by way of a viva voce examination. Indeed, if necessary, as the court has a constitutional obligation to ensure fairness and fair procedures, and as the superior courts have an inherent right to regulate their own procedures, they can be asked at any point to put in place a regime by which those objectives can best be served (see O. 103, r. 6(a) of the Rules of the Superior Courts, and O. 56, r. 3(7)(a) of the Circuit Court Rules). Subject to that, however, I do not see any overriding impediment or reason as to why section 160 cannot be moved in all, or virtually all, cases where the infringement is alleged to be non-planning compliant.
36. It might be thought that the court is inhibited by what steps it can take in this context, as normally it is only the Attorney General who is entitled to seek a civil injunction in aid of a breach of a criminal law (The Attorney-General (at the relation of O’Duffy) v. Mr. Appleton, Surgeon-Dentist, Limited, and ors [1907] 1 I.R. 252; Attorney General v. Paperlink [1984] ILRM 373; Mahon v. Butler at p. 378). As a result it is suggested that persons, including a planning authority, are prevented from having recourse to plenary proceedings when seeking statutory relief under the section. I do not accept that this is the situation, as in the first instance section 160 itself is an exception to that rule; even more so, however, the section in substantive terms expressly overrides its application when planning compliance is the issue. In addition, I do not read John A. Woods Ltd or Mahon v. Butler in this way. In fact, in Kirby, Gannon J. expressly identified the plenary route as being available. The Supreme Court in John A. Woods Ltd, when making the observation relied upon, was referring to the background complexity of the case and in any event was dealing with a case stated from the Circuit Court, whilst the comments by Denham J. in Mahon v. Butler were made in the context of dealing with a submission that the statutory injunction is a jurisdiction distinct from that vested in the High Court by the former Courts of Equity. In addition, judicial review proceedings were also in existence at the relevant time, within which all issues of planning could be addressed.
37. Furthermore, it would seem an extraordinary situation, at the level of principle, if in those rare cases where the summary procedure was not suitable, there was no method on the civil side by which injunctive relief could be either sought or obtained. It would be as if a form of immunity could be obtained by reason of some procedural paralysis, and even more readily so as the scale of conflict escalated. That cannot be so.
38. Where serious complexity arises, it seems to me that whether section 160 is triggered by the issue of a motion and the procedure then suitably adapted so that the full ventilation of all issues can take place, or if a plenary summons should issue in the first instance, is purely a technical matter of procedural significance only. Accordingly, I believe that there is jurisdiction in all courts vested with authority to deal with section 160 applications to regulate their own procedures - in the case of the Circuit Court within the relevant statutory provisions and the rules of court - so as to render that procedure compliant with constitutional norms.
39. In addition, it is difficult to see, in such circumstances, how any issue of law, no matter how complex, far reaching or significant it might be, cannot be adequately dealt with by way of submissions, written and oral, and determined by the judge. Whether the commencement process is summary in nature or plenary in nature should have no bearing on how issues of law are presented, argued, addressed and adjudicated upon.
40. In any event, this type of issue does not even arise in this case. Apart from the suggestion by the Murrays of their frustration with Meath County Council, there is no issue whatever on the facts. These are not in controversy. Whilst there are rival submissions as to whether the traditional approach to section 160 should be applied, or whether in its place there should now stand the “Fortune test”, both are entirely capable of being fully articulated within the statutory regime, a point I do not see in any way contested in the submissions.
41. As a result, I cannot identify in this case a single strand of the process which could be said to have rendered the section 160 procedure inappropriate. As stated, the facts, insofar as relevant, are entirely agreed. As is evident, all issues of law, whether described as complex or otherwise, were raised and ventilated before the learned judge, and determined by him. This Court at appellate level has not been hindered in its consideration of the legal issues involved. It cannot thus be alleged that any infirmity has resulted from the use of section 160: the legal process has not in any way been diminished by the adoption of this procedure. Accordingly, I do not accept the argument under this heading of complaint.
Ancillary Point:
42. Although out of context in the sense that the following point appears in the Notice of Appeal, it is convenient at this juncture (in light of the argument addressed at paras. 32 and 33, supra) to say, first, that the injunctive provision, in its section 160 form (para. 70, infra), expressly covers an unauthorised development which has been completed and, second, that its utility is in no way dependent on there being ongoing activity at the relevant time.
County Manager’s Order:
43. It is not altogether clear whether the point I am about to discuss is one based on an alleged pre-determination, or is one suggesting that the authorisation for the commencement of these proceedings is defective. Whichever it may be, in my view neither has any validity to it.
44. Having received a complaint from a member of the public regarding this development, the planning authority immediately reacted, first by a site visit on the 6th February, 2007, which was followed by an inspection from Ms. Wendy Moffett, a senior planner, on the 1st March, 2007. Based on the resulting reports, Mr. Young, a senior staff officer in planning, wrote to the appellants in the following terms a day later:-
“Re: Unauthorised Development at Faughan Hill, Bohermeen, Navan
Dear Sir,
I refer to the decision of this Planning Authority to refuse you planning permission for the construction of a 283 sq. mt. dormer bungalow on lands at … A recent site inspection has established that you have constructed a large dwelling house on the land holding without the benefit of planning permission.
Meath County Council hereby puts you on notice that we require the immediate demolition of the structure and that you return the site to its original condition prior to the commencement of the development.
Failing receipt of a commitment from you within seven days, outlining your proposals to remove the structure, Meath County Council will initiate legal proceedings seeking an order for the removal/demolition of the structure.
Your proposal should be submitted to the undersigned on or before 5.00pm on Monday, 12th March, 2007.
Yours faithfully
….”
45. It is claimed that by virtue of its contents, the sending of this letter is evidence of a decision having been taken by the planning authority to issue enforcement proceedings at a time which pre-dated the Manager’s Order to that effect. Accordingly, it is said that the issue of the Motion lacked the critical authorisation of such an Order and is therefore without legal effect.
46. The evidence shows that there were three Executive Orders made which may be relevant. These are:-
(1) Manager’s Order, dated the 13th day of March, 2007, and signed by Mr. Kevin Stewart, County Manager, authorising the institution of the proceedings,
(2) Manager’s Order, dated the 3rd day of July, 2006, appointing Kevin Stewart Deputy Manager for the period 1st July, 2006 to 31st June, 2007, pursuant to section 148 of the Local Government Act 2001, and
(3) Manager’s Order appointing Kevin Stewart Deputy Manager “from 10th March, 2007 to 20th March, 2007, during the manager’s absence on Annual Leave.” (Emphasis added)
47. It is not suggested that if the decision to institute these proceedings was one taken during the ten day period last mentioned, that the manager’s order of the 13th March, 2007, was not a valid authority in that regard. Rather what seems to be the point is that Mr. Young’s letter is said to have been the effective decision to that end, rather than the order in question. This is a submission which cannot be entertained.
48. A Manager’s Order is required for certain executive functions. These are set out in various sections of the Local Government Code (see, for example, Chapters 2 and 3 of Part 14 of the Local Government Act 2001, as well as Schedule 15 to that Act). Included amongst the requirements is a reference to the institution of proceedings. What the appellant is attempting to do is to equate the sending of a letter threatening enforcement proceedings with the actual decision to institute such proceedings. I know of no authority for such a proposition, which, if valid, would paralyse the administrative systems of every local authority in this country, and indeed also many other state and public institutions. There are a great number of daily administrative responsibilities which can be carried out within either the express or implied authority of an individual employee without any necessity to seek specific authorisation in each case. Such could only be justified if mandated, which it is not in the present case: thus such authorisation is not legally required.
Usurping Court’s Function:
49. A submission associated with, if not flowing from, the Manager’s Order point, and certainly one overlapping with it, is that it is not for Meath County Council to determine whether any particular development is an unauthorised one: rather such is the sole function of the courts. A number of cases were cited to support this proposition. The criticism made in this regard stems from a claim that either Mr. Young made such a determination, as evidenced by his letter of 2nd March, 2010 (paras. 9 and 44, supra), or else the Council itself did so, as evidenced by the institution of these proceedings; or, indeed, perhaps even both did. Quite where this point leads is somewhat unclear, but nonetheless, in the manner in which I understand it, it should be addressed.
50. This submission in my view is ill-founded, as neither the issue of a warning letter nor the institution of section 160 proceedings can in any way be regarded as the making of a determination, with direct legal consequences, that a development is one which requires but has not obtained permission, and as a result is unauthorised. As the issue of a letter which simply threatened enforcement proceedings could never be so considered, it might be thought that the more serious aspect of this submission relates to the institution of the section 160 proceedings themselves. It therefore becomes necessary to consider what this step entails and what the local authority is doing by so acting.
51. The moving of an injunctive application can only be contemplated if, by reference to the works, structure, use etc. which are under scrutiny, a view is formed that the circumstances in question come within the scope of the intended process by which enforcement of the planning laws is sought. If such an opinion is not formed, recourse should not be had to the taking of any step under legal authority, because such, if undertaken, would not be legitimate and almost certainly would be abusive, as it equally would be unless there was some credible or plausible evidential basis to it. However, once a bona fide intention is arrived at in that regard, recourse may be had to that particular enforcement mechanism if the underlying statutory provision so allows. How does this therefore feed into section 160 of the 2000 Act?
52. As its provisions make clear, the core focus of the section is an “unauthorised development”. The section has no application unless such “has been, is being, or is likely to be carried out or continued”. It is therefore essential that before invoking this provision, the moving party forms a view that the development with which he is concerned falls foul of what is prescribed. Without that the entire foundation of such a step would be gravely undermined.
53. However, the formation of such opinion is simply that; even if made by a planning authority, and made in such demonstrably self-establishing circumstances as those in this case, where, no matter how novel or ingenious the submission may be, it would be next to impossible to challenge the unauthorised status of the development in question, the opinion remains but an opinion.
54. Where proceedings are taken, the moving party, in this case the Council, undertakes the onus of establishing its stated position to the necessary evidential and legal threshold required to obtain an order under section 160 of the 2000 Act. It is only in this regard that its antecedent view has any relevance. When so acting, it is like any other public body seeking to enforce one of the functions assigned to it by the underlying legislation. The ultimate decision of ‘authorised’ or ‘unauthorised’ in the enforcement context is that of the court. No presumption whatsoever arises in any way. No additional credence or value is added to the authority’s case simply by having made a decision to issue proceedings.
55. By engaging the enforcement mechanism of, say, section 160, there is no question of the Council making any planning determination that the structure is unauthorised: even that power is not conferred on either a planning authority or An Bord Pleanála by section 5 of the 2000 Act (Roadstone Provinces Ltd v. An Bord Pleanála [2008] IEHC 210), nor is the situation in any way analogous to that arising in Grianán An Aileach Interpretive Centre Company Ltd v. Donegal County Council (No.2) [2004] 2 IR 625. Likewise, it seems to bear no real relationship to the other cases quoted, including Heatons Ltd v. Offaly County Council [2013] IEHC 261 and The State (Fitzgerald) v. An Bord Pleanála [1985] I.L.R.M. 117.
56. A further word about section 5 of the 2000 Act: the power given to both planning bodies under that section relates to what is a ‘development’ or what is an ‘exempted development’. Even though a decision on either issue may have significant consequential effect, it is not an end in itself. Without more, and simply on that basis, a section 160 order could not be made: one must go further and establish the ‘unauthorised’ nature of the underlying development. Thankfully, the difficult question of the courts’ review power where a declaration one way or the other has been made on a section 5 reference does not arise on this appeal (see the judgment of the Court of Appeal (per Hogan J) in Bailey v. Kilvinane Wind Farm Ltd [2016] IECA 92, which judgment is under appeal to this Court).
57. Consequently, if there is a point lurking somewhere behind this submission, it is not well-founded at the level of principle and neither is it supported by authority.
Secondary Decision Required at that Point:
58. When one comes to the issue of how the court’s discretion under section 160 of the 2000 Act should be exercised, the appellants have submitted that proportionality is a significant element in any decision so reached. That is a point later addressed in this judgment. In addition, however, the submission has also been made that in deciding whether or not to institute section 160 proceedings, the Council at that point is likewise obliged to engage in and to conduct a similar or at least an analogous exercise before arriving at that decision.
59. It is claimed that even if the planning authority should have a view that a particular development is unauthorised, it is not axiomatic that section 160 proceedings follow. There is no legislative prescription to that end. Thus, even when a prima facie infringement appears, a decision must still be made whether to institute or not. As part thereof it is asserted that the various factors which feed into the proportionality test which must be conducted by the High Court should also form an integral part of that consideration. Because there is no evidence that this occurred in this case, it is suggested that the issue of the grounding Notice of Motion is unlawful, although on what precise basis remains unclear.
60. The planning authority has a unique role in the planning process. Part of that role unquestionably lies in the enforcement of the code. Whilst any individual, with or without an interest in the “development” and whether damnified or not, can invoke section 160, the overarching supervisory guardian of planning control at executive level must be the statutory body established to that end and vested with the powers to that effect.
61. In my view, this submission is to over characterise what the institution of these proceedings actually means, what the step entails and what relationship that has with the principles of constitutional justice. Save for the obvious consequences of putting in train a course of action which might possibly lead to a court hearing, such a move, of itself, does not impact on any of the rights of the individuals concerned. Such rights remain entirely intact and no decision with any legal consequences has been taken in that regard. It is but the commencement of a process which itself might never go much further. In this case the application was left standing, as it happened, until the Council and An Bord Pleanála between them had made a number of decisions to refuse permission, none of which were legally challenged. Even then the order which has consequences for the Murrays was not one made by the local authority, but rather by the court itself.
62. Further, to impose a requirement such as that agitated for would create major problems if one was to analyse the practical difficulties which would inevitably arise. Would a moving party be obliged to search and seek out the intended respondent and afford him or her an opportunity to make what would in effect be submissions? Would there be a right to make an oral presentation, even to give evidence? Would there have to be some form of appeal mechanism? These are but some of the obvious difficulties which it might be said could debilitate the system, at least in its current structure. I therefore reject this submission.
63. It follows from what I have said that I cannot accept that the institution of these proceedings in and of itself is an example of “…proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas” as that phrase is used in East Donegal Co-op v. Attorney General [1970] I.R. 317 at 341. Consequently, apart from the major practical issues which such a submission would give rise to, I cannot accept that there is any obligation on the Planning Authority to engage in this elaborate process with intended respondents to a section 160 application.
64. The present case, by reason of these facts alone, is illustrative of why this submission is ill-founded. It is not disputed:-
(i) that there exists on the subject site a very significant dwelling house of over 6,000 sq. ft;
(ii) that the construction of such a building constitutes a development within the meaning of that term as defined in section 3 of the 2000 Act;
(iii) that unless some lawful exception exists in respect of such a property, planning permission for its existence and use is required;
(iv) that it did not appear there was any possibility of the development being exempt under the Regulations;
(v) that planning permission for a structure approximately half the size of what is built was refused by the Council, and that no appeal was taken from that decision;
(vi) that an application for its retention as built and for a modified version of what is there have been refused at both levels of the decision making process; and
(vii) that, as a result, no permission exists either for its construction or use.
Therefore, even without referring to the planning history which unfolded after June 2007, the situation on its face gave rise to a justifiable concern on the part of the Council. In such circumstances it was an entirely legitimate exercise of its powers to move a section 160 application.
The Legislative Regime:
65. Even though some measure of legislative interest over the development of land and its use is evident from statutes as far back as the Town and Regional Planning Acts 1934 and 1939, and indeed even from certain provisions of the Public Health (Ireland) Act 1878, the same by and large were ineffectual either in their terms or their application; probably in both. There were of course multiple strands of influence in this regard: some very understandable, some quite evident, others less so, and some more amenable to softening than others. 1963 may seem like the distant past in light of the highly regulated regime we have today, but the first serious attempt to impose some guidance, parameters and directional focus in this area took courage and fortitude, and should be acknowledged.
66. The influences of which I speak include Articles 40.3.1°, 40.3.2° and 43 of the Constitution, then much less explored or explained than now; the parochial mindset of vested interests; and the dominance of local level in the political landscape. In fairness, it must also be pointed out that the 1950s did not give rise to a hive of industrial, commercial or residential activity, or the creation or expansion of major infrastructural facilities, and thus the necessity for an overview, at national level, was not imminently pressing. Moreover, a period of observation to monitor how a new code might grow its legs was obviously sensible. It is therefore no surprise to note that injunctive remedies were not included in the Local Government (Planning and Development) Act 1963, which only contained somewhat cumbersome and rather circuitous models on the enforcement side (sections 31, 32, 33, 35, 36 and 37). Such remedies first appeared in the 1976 Act. Since then the section has been amended by substitution on one occasion, and then replaced by section 160 of the 2000 Act; it is of interest to note the changes which have been made to the original provision.
67. Section 27 of the Local Government (Planning & Development) Act 1976 made a distinction between, on the one hand, the making of an ‘unauthorised use’ of land or ‘a development’ which ‘is being’ carried out without permission, and, on the other, situations where a permission exists but its terms have or are not being complied with. Subsection (1), dealing with the former, authorised the making of prohibitory orders only, whereas subs (2), dealing with the latter, was broader in scope and included the making by the High Court of any order “to do or not to do, or to cease to do” anything considered necessary so as to ensure that the development, when finalised, conformed with the permission (emphasis added). That wording was considered sufficient by the Supreme Court to ground a demolition order in Morris v. Garvey.
68. The first substitution of the original provision was effected by s. 19(4)(g) of the Local Government (Planning and Development) Act 1992 (“the 1992 Act”). There were only two changes of note. The first was to the effect that the emphasised wording above quoted was also applied to a situation where no permission existed and to an unauthorised use situation. The second change of interest was the express power to make a restoration order, where practicable, in respect of the affected lands.
69. In Mahon v. Butler [1997] 3 I.R. 369, this Court held that the then provision could not be invoked so as to prohibit a future development: rather, its terms were confined to what was current at the time of the application or what was historical. It had no anticipatory effect. Moreover, as the wording shows, the section, though broader than the 1976 version, was still less explicit, by enumeration, as to how the court could deal with miscreant developers. Both of these matters were subsequently addressed in section 160 of the 2000 Act.
70. That section (as of November, 2016), reads 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:
(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;
…
(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.”
71. Accordingly, where successfully invoked, that provision now empowers inter alia the High Court, and obviously this Court, to make any order which it deems is necessary so that what “has been, is being or is likely” to be done is not only planning compliant, but also that the affected land is restored to the condition it was in prior to the unauthorised development being commenced, insofar as that can feasibly be done. Furthermore, for the avoidance of doubt, the section makes it clear that “restoration, reconstruction, removal, demolition, or alteration of any structure or other feature” is within the competence of the Court to so order. It is thus evident that even as between the 1992 substitution of the original section 27 and the current section 160 provision, the latter is much more extensive, far-reaching and wide-ranging as to the powers vested in the High Court to ensure planning compliance in a full sense, which include the re-establishment of the status quo ante where practicable.
72. Although the section does not, as such, adumbrate the factors which fall to be considered by the court when called upon to make an order thereunder, that does not mean that the provision is empty of either guidance or direction, in particular relative to the discretionary aspect of its application. Apart altogether from the case law, it is instructive to consider the objectives behind the enforcement regime put in place by the Act, the importance of which is underpinned by the criminalisation of carrying out an unauthorised development and by the extensive range of powers conferred on the High Court to protect, enforce and influence the attainment of these objectives.
73. From the Act as a whole, which includes the enforcement provisions from sections 151 to 163, inclusive, it seems clear that the policy aspiration is one of legislative compliance so that orderly development takes place in a regulated and coherent manner, consistent with an adopted Development Plan, either at area or local level, or both, and having regard to any coordinated policies with neighbours, all under the general direction of national policies. In effect, the armoury as given is to ensure that the environmental and ecological rights/amenities of the public are preserved and enhanced and that the integrity and efficacy of planning control is maintained. In addition, at the individual level, as Morris v. Garvey shows, no person should have to suffer a diminution of his rights, including the enjoyment of his property rights, unless such interference can lawfully be justified.
Section 160 of the 2000 Act:
Statutory Based/Equitably Controlled:
74. At the outset there is one specific matter which should be addressed, namely, how and in what way, if any, equitable principles influence the operation of the discretion contained within section 160. In the first case of note, Stafford v. Roadstone [1980] I.L.R.M. 1, Barrington J. was faced with a submission that once a breach occurred, the High Court had no option but to issue an enforcement order. In other words, subject to that pre-condition the section was mandatory. Quite correctly, in my view, the learned judge rejected that submission, as indeed all other judges have done virtually from the start (White v. McInerney Construction [1995] 1 I.L.R.M. 374 at pp. 380-381). The learned judge pointed out that such an application could be moved by any individual, even by a person who had no interest in and who otherwise was unaffected in any personal sense by the activity in question. Therefore, as neither interest nor impact was required for locus standi, it was essential for the court to establish and develop a discretion, particularly as a breach might be highly technical, notoriously trivial, or obviously inconsequential. Therefore, by reference to the use of the word “may” in the section, and also by regarding the orders as in effect being the equivalent of injunctions, the basis for such a discretionary jurisdiction was founded.
75. Shortly after Stafford, the same learned judge in Avenue Properties Limited v. Farrell Homes Limited [1982] I.L.R.M. 21, went on to say that:-
“It seems to me therefore that the High Court in exercising its discretion under s. 27 should be influenced, in some measure, by the factors which would influence a Court of Equity in deciding to grant or withhold an injunction.”
That proposition, if correctly understood, is unobjectionable and, in large measure, is true. That statement, however, so often quoted in isolation, does not support the proposition that equitable principles control, dominate, or have supremacy within or over the statutory provision. Factors such as delay, acquiescence, conduct, motive etc. are common features in the exercise of equitable jurisdiction. They also feed into section 160, and rightly so.
76. However, in several cases that base view, as expressed in Stafford and subsequently much built upon, became regarded in some judgments as in effect equating section 160 with the exercise of an equitable jurisdiction. I do not believe that such is a correct description of how the current section, or for that matter its precursors, is intended to operate. In fact, if one reads further the judgment in Avenue Properties, one will see that even though the building was standing at five stories in height at the time of application, the judge refused an injunction but only pro temp, warning very definitively that if the intended retention application was unsuccessful the situation would be quite different. Such representational concern would not have been expressed if the essential focus had not been on planning compliance. In addition, it should be pointed out that as early as Stafford, Barrington J. emphasised the importance of the public interest in this regard, which evidently distinguishes the operational nature of the section from general equitable principles. I therefore believe that whilst some of these principles have a role to play, the separate and distinctive nature of the section must be maintained. Costello J., in Patterson v. Murphy [1978] I.L.R.M. 85, said of the then new section 27 of the 1976 Act that its provisions conferred a completely new jurisdiction on the High Court, a statement endorsed in Stafford and repeated on multiple occasions since.
77. This very point, namely that the statutory injunction had a basis distinct from the general equitable jurisdiction of the High Court, was made and accepted in Mahon v. Butler [1997] 3 I.R. 369. Denham J., in giving judgment for this Court, held that the learned trial judge fell into error in construing the section so as to empower the court “to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts”. She went on to acknowledge the existence of a discretion, but pointed out that such could only be found within the parameters of the section itself. In other words, external considerations, based on a general equitable jurisdiction, could not be used to extend, alter or modify what the section, correctly construed, gave rise to. I respectfully agree with that decision.
78. 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 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.
79. There are two decisions, both given in Sweetman v. Shell, which might be thought to be inconsistent with this. In fact, neither is, as any reference to equitable principles was based on Avenue Properties and was made in the context of delay which had serious consequences for the respondent, a factor always recognised by the traditional jurisprudence on section 160.
80. In the High Court ([2007] 3 IR 13), Smyth J., at paras. 53-61 of his judgment, dealt with the case law as relevant to the issue under discussion. Having highlighted the availability of section 27 to an indeterminate class and having looked at a number of authorities, including Leen v. Aer Rianta c.p.t. [2003] 4 IR 394, the learned judge at para. 55 identified the factors (para. 90, infra) which persuaded him that no order should be made in that case. Of those, one directly pertinent and of recurring concern was the repeated delay on the part of the applicant at several key junctures of the process, which significantly added to the developer’s cost base. The resulting dismissal of the application was in the first instance on the basis that there had been no breach, as such, of the 2004 permission, but the learned judge went on to note that even if there had been, the same result would also have followed on discretionary grounds.
81. On appeal, Dunne J., who gave this Court’s judgment ([2016] IESC 2), said that:-
“It must be remembered that injunctive relief is discretionary. The granting of an injunction does not inevitably follow the finding by a court that there has been a legal wrong. Injunctive relief is dependent on an analysis of where equity lies in the case.”
This, however, was said in the overall context of delay, which as noted featured prominently in the case. The observations so made should therefore be seen in this context.
82. In conclusion on this point, 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 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.
The Conventional Approach: (In General):
83. It is to state the obvious that the formal requirements of section 160 must be satisfied in the first instance: unless the moving party has discharged the onus of proof in this regard, the application must fail (Dublin Corporation v. Sullivan (Unreported, High Court, Finlay P, 21st December, 1984). Those requirements can of course give rise to difficult issues, such as the quia timet point in Mahon v. Butler, and others might touch on whether the activity in question is unauthorised or is exempt or the like. However, it is only once a case is made out that the issue of what order should be made arises, which of course in turn immediately brings into play the discretionary element of the section. It is how that discretion should be exercised which is the focus of this judgment.
84. In addition to what one can deduce from section 160 of the 2000 Act itself, there has been a considerable body of jurisprudence built up over several decades, both in relation to that provision and its statutory predecessors, regarding what type of factors may influence the ultimate court order once a breach has been established. Whilst several cases have attempted to further add to or to more particularise the ‘exceptional circumstances’ set out in Morris v. Garvey [1983] I.R. 319, it is still instructive to quote the relevant passage from that case, as the same remains highly influential in this area.
85. Although that case concerned circumstances where planning permission had been granted but the conditions thereof had been exceeded, the following observations of Henchy J. apply with equal force in respect of developments or uses which are entirely unauthorised; the learned judge stated at pp. 323-324:-
“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.
When sub-s. 2 of s. 27 is invoked, the High Court becomes the guardian and supervisor of the carrying out of the permitted development according to its limitations. In carrying out that function, the court 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 suchlike 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.’” (emphasis added)
86. A more recent judicial expression of the public interest point, which I am about to address in a moment, can be found in Wicklow County Council v. Forest Fencing Ltd [2007] IEHC 242 (“Forest Fencing”), where Charleton J., having referred to the discretionary aspect of the section stated:-
“49. … A similar principle [that a declaration should be made if a default permission arises] … should apply in the opposite circumstances, such as here, where the Court has found that there is no default permission: where the developer has, on the contrary, developed the site entirely in accordance with his own wishes and with little or no reference even to the plans in respect of which he once sought permission. The discretion of the Court, in this context, is very limited. The balancing of that discretion must start with the duty of the court to uphold the principle of proper planning for developments under clear statutory rules. Then, the Court should ask what might allow the consideration of the exercise of its discretion in favour of not granting injunctive relief.
50. To fail to grant injunctive relief in these circumstances, on these facts, would be to cause a situation to occur where the Court is effectively taking the place of the planning authority. The Court should not do that. This is a major development, for which there is no planning permission. It is in material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraint. I am obliged to decide in favour of the injunctive relief sought.” (Emphasis added)
87. The point adverted to is this: where does the public interest fit in this analysis? In this respect the public interest may have different strands to it, as, for example, where an order would impact on employment beyond the individual transgressors, or on important services, infrastructure or facilities which the public avail of. These and many other like matters, if present, will be accounted for in the decision as taken. It is, however, a different aspect of public concern which I speak of, namely, the interest in planning enforcement and where that should be positioned in the exercise facing the court.
88. In the first instance, the principal starting point on planning control is that no development can lawfully be commenced without the cover of an appropriate permission; this subject to certain specific exemptions which are not to the fore of this discussion. Failure to apply, even where an application might be favourably looked upon, is in itself a serious breach where works are carried out or uses made of the subject lands. The legislative view is to criminalise such unauthorised conduct, with both terms of imprisonment and fines on indictment up to over €12m. This is a significant expression of the high level of public concern there is in regulating orderly and sustainable development. The fact that one can apply for retention permission impacts very little, if at all, on this point: such an application would not of itself prevent the bringing of a criminal prosecution, nor should any enforcement proceedings, including a section 160 order, normally be stayed simply because of such a step (section 162(3)). Consequently, this demonstration of intent must always be given its justifiable position in the court’s evaluation of the section 160 exercise.
89. In addition, it must be borne in mind that a breach of planning law will previously have been established and that the defaulter is seeking the indulgence of the court as to what resulting consequences he should face. As such, it must be that the interests of the public will be ever present on the enforcing side. Whilst the importance of that interest and the weight which it must be given, having regard to what is previously stated, will vary on a vertical scale by reference to a number of influencing factors, nonetheless it will always exist and most likely will stand first in the queue for consideration. Such was expressly acknowledged in the passage above quoted from Morris v. Garvey, as is evidenced by the lead-in requirement that any excusing factors must be found within “exceptional circumstances”. Equally so with Forest Fencing Ltd. Such is and has been recognised as an important factor.
Factors to be Considered:
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:
(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:
(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:
(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).
The Constitutional Argument:
92. Particular attention must now be paid to two High Court cases, one of which comprises a number of judgments, which have been decided since the decision of the High Court in the instant case. In the former, the string of judgments delivered in Wicklow County Council v. Fortune, the High Court, per Hogan J, appeared to reformulate the test to be applied in section 160 applications where the unauthorised development in question is a dwelling. However, in Wicklow County Council v. Kinsella [2015] IEHC 229, Kearns P was critical of this new departure, finding instead that such cases, like all others, should be decided on the basis of the existing jurisprudence. Both viewpoints therefore require careful consideration and, as such, must be addressed at some level of detail.
The Fortune Series of Cases:
93. A point of curiosity to start with: while the Fortune cases have been cited by the appellants, they feature peripherally, appearing only in the footnotes of the written submission, and are not as central to their case as one might expect. However, the essence of those judgments, namely, the protection afforded to dwelling places under Article 40.5 of the Constitution and the weight to be ascribed to that consideration when assessing whether to make a demolition order in respect of a family home, is a central theme running through the major feature of their appeal.
94. There were four judgments in all in Fortune, though only the first two need detain us here. Briefly stated, the facts in those cases were as follows. In December, 2006, it came to the attention of Wicklow County Council that Ms. Fortune had constructed a small timber framed chalet in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. She resided there with her two children. This chalet was built without planning permission. The Council sent a formal warning letter, but deferred proceedings pending an application for retention. In fact, two such applications were made, with the ultimate rejection being that of An Bord Pleanála in November, 2008. As a result the Council applied to the Circuit Court seeking, inter alia, the demolition and removal of the chalet. By decision dated the 8th February, 2011, Her Honour Judge Flanagan found for the applicant. Ms. Fortune appealed to the High Court.
95. In Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 (“Fortune (No. 1)”), Hogan J first considered a submission that the County Council’s application was statute barred; the learned judge was satisfied that section 160(6)(a)(i) of the 2000 Act is not a jurisdictional provision, but rather is a matter of defence, and on the evidence held that the respondent had failed to meet the onus of establishing when the development commenced. As a result, one could not know from what date the seven year period as specified in the section began to run. Next he addressed the exercise of discretion under section 160. He referred to much the same case law as is cited above, and also to the finding of the High Court in the instant case, noting at paragraph 32 of his judgment that:
“It may be observed in passing that no argument based on Article 40.5 of the Constitution was advanced in that case. By contrast, this question is central to the present case and this appears to be the first time in which such an argument has been advanced by way of defence in a s. 160 application.”
96. Hogan J went on to state that “[w]ere it not for the constitutional argument, I would have been inclined to adopt the same approach as did Edwards J. in Murray, i.e., grant the injunction, albeit subject to a two year stay” (para. 34). In his view, however, the “constitutional argument” was a potential outcome changer. Drawing on the then very recently delivered decisions in Damache v. DPP [2012] 2 I.R. 266 (“Damache”) and The People (DPP) v Cunningham [2013] 2 I.R. 631, Hogan J stated that Article 40.5 of the Constitution should not be confined to the sphere of criminal law and criminal procedure. Rather he characterised the guarantee of inviolability of the dwelling as “a free standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike” (para. 35).
97. The learned judge noted that the protection of the dwelling under the Constitution goes further than the near equivalent provisions of Article 8 of the ECHR. Whilst acknowledging that the Constitution was not intended to allow someone to profit from their own deliberate and conscious wrongful actions by invoking Article 40.5 to assert immunity from legal action and enforcement, nevertheless he went on to state that:
“41. At the same time, Article 40.5 affords a real protection which the courts must safeguard by word and deed. Insofar as the Article 40.5 speaks of ‘inviolability’, the drafters must be taken to have intended to convey through the use of rhetorical and philosophically inspired language drawn (as Hardiman J. pointed out in Cunningham) from the European constitutional tradition so that the dwelling should enjoy the highest possible level of legal protection which might realistically be afforded in a modem society. In the planning context, this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is ‘inviolable’. It rather means that the courts should not exercise the s. 160 jurisdiction in such a manner so as to require the demolition of such a dwelling unless the necessity for this step is objectively justified and, adapting the language of the European Court of Human Rights (in an admittedly different context) in Goodwin v. United Kingdom (1996) 22 EHRR 123, the case for such a drastic step is convincingly established.” (Emphasis added)
98. The judgment continued by concluding as follows on the s. 160 and Article 40.5 issues:-
“42. In this regard, it is not simply enough for the applicant Council to show - as, indeed, it already has - that the structure is unauthorised or that the householder has drawn these difficulties upon herself by proceeding to construct the dwelling without planning permission. It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response. This might be especially so if, for example, the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.” (Emphasis added)
In light of these matters, Hogan J adjourned the decision and invited both sides to adduce further evidence “on the question of whether the necessity for a demolition order pursuant to s. 160(1) has, in fact, been convincingly established.”
99. The determination of this point is to be found in Fortune (No. 2) [2013] IEHC 255. There Hogan J., having said that the test in Morris v. Garvey required to be recalibrated in light of Damache, described at para. 5, his understanding of the proportionality test which henceforth should be applied by the Court prior to making a demolition order in respect of one’s dwelling:
“Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J. in Morris v. Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.”
100. In applying this test, Hogan J. addressed in turn each of the three arguments made by the County Council as to why it would be inappropriate not to grant the order sought. These arguments related to the undermining of the effective protection of the environment, the precedential status of the unauthorised dwelling (in respect of which see paras. 131-132, infra), and the special conservation status of the area in which the chalet was built. He was not convinced that any of these matters warranted the demolition of the chalet, and summarised his responses thereto at para. 31 of his judgment:
“31. As, moreover, I have already indicated, the Council's argument based on moral hazard and rewarding those who take the law into their own hands is diluted by the fact that I have already declared the structure to be unauthorised. This, in itself, should act as a deterrent to those who might otherwise take the law into their own hands. Nor is the argument based on precedent compelling, since as I have pointed out, the planning authorities could not be obliged to take account of unauthorised structures in assessing whether to grant planning permission to third parties seeking to develop in the locality. Nor has any compelling evidence been advanced that the site would compromise the protection of the Natura 2000 site.”
As a result, the development in question did not satisfy the test posed at paras. 41 and 42 of Fortune (No. 1).
101. In summary, therefore, the test proposed by Hogan J was that the moving party, in light of the inviolability of the dwelling, must by evidence convincingly establish that a demolition order is objectively justified on the basis of policy objectives, such as planning control/compliance and environmental welfare, and is the only proportionate response to the violation complained of. Unless the onus can be discharged to this threshold, the order should not be made.
102. The learned judge concluded as follows:
“32. None of this is to suggest that the arguments advanced by the Council are not important and weighty. In other cases, arguments of this kind might well prevail. But in the end I cannot ignore the solemn words of Article 40.5 which this Court is committed to uphold. The making of a s. 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and with Ms. Fortune’s property rights. If I may re-echo that which I already said in Fortune (No.1), such an order could only be justified if compelling evidence requiring such a step had been advanced by the Council. As, for the reasons I have ventured to set out, I am not satisfied that such compelling evidence has been advanced, I will refuse to make the order requiring the demolition of the chalet.”
Wicklow County Council v. Kinsella [2015] IEHC 229 (“Kinsella”):
103. The test to be applied in applications under section 160 of the 2000 Act was again central in Kinsella. The applicants sought, inter alia, an order under section 160(2) directing the respondents to remove a timber chalet and associated works which had been erected for residential purposes without planning permission. An application for retention was refused at both first instance and on appeal. The respondents argued that, in light of the decisions in Fortune (No.1) and (No.2), their dwelling should be afforded sufficient constitutional protection such that the order sought should not be granted. In light of the arguments as advanced, the Court (Kearns P.) was required to revisit the test set down in these cases.
104. It is fair to say that the learned President took issue with much of what Hogan J. espoused in those cases. Although observing that the High Court will not lightly contradict or depart from its previous case law (Irish Trust Bank Ltd v. Central Bank of Ireland [1976-7] I.L.R.M. 50), Kearns P was satisfied that the circumstances were such that a dissonant view should be expressed. He set out at length the relevant sections of the Fortune judgments, and addressed also much of the other case law referred to earlier in this judgment. Noting that the respondents in both Fortune and Kinsella had not acted bona fide, he went on to state that:
“[H]ow - in such circumstances - some free standing application of Article 40.5, in the case of an unlawful development, could be applied to vindicate or reward the respondents in this or the Fortune case is beyond this Court’s comprehension, particularly having regard to the huge public and community interest in protecting the environment and the integrity and efficacy of planning law enforcement.”
105. Kearns P was unconvinced by the reliance which Fortune placed on Damache, observing that the case “had absolutely nothing to do with planning laws or the enforcement of same.” As to the new test suggested by Hogan J, the learned President held that:
“I see no basis at all for adapting or transposing observations made in the context of Damache into the completely different legal and factual matrix of unauthorised planning developments. Still less do I see any basis for introducing a new test, based on some ‘free-standing’ obligation under Article 40.5, to effectively set aside the considerable body of jurisprudence which already exists in relation to the discretionary application by the courts of enforcement procedures under Part VIII of the Act.”
106. The President was further critical of other elements of the Fortune decisions:
“To the extent that the judgment of Hogan J. in Fortune (No. 1) may be seen as holding or implying that the conduct of the respondent is a matter of little importance in determining the exercise of discretion, this Court would demur from any such view because it flies in the face of all the historic jurisprudence which holds that the conduct of a respondent is one of the most compelling factors in the list of discretionary factors. …
Further, the requirement that there be ‘objective justification’ for the planning authority’s decision to bring enforcement procedures, which demands that a case be ‘convincingly established’ to the extent that it meets a ‘necessity test’, effectively rewrites and amends Part VIII of the Act in a manner impermissible under our Constitutional framework of separation of powers. Nor can the Court take over the role of the planning authority in this arena. The portions of Fortune (No. 2) cited above demonstrate that portions of the decision of Hogan J may be seen as performing the function of the planning authority, something out ruled by Finlay P. in Dublin Corporation v. Garland [1982] I.L.R.M. 104 …”
107. Finally, the judge made three further observations: that the making of a Declaration may not be available under the section and certainly is not within the competence of the Circuit Court and, as would follow, the High Court on any appeal therefrom; that a circuit appeal is not an appropriate forum in which to set down “novel legal principles”; and that section 160 is a special statutory original jurisdiction and is not a subsidiary aspect of some equitable jurisdiction to enforce public law (see paras. 74-82, supra)
108. The Court accordingly held that full enforcement under section 160 was appropriate and proportionate. Kearns P was satisfied that the Court ought to give practical effect to the enforcement of decisions based on conclusions which are within the exclusive remit of the relevant planning authorities.
The Correct Approach:
109. Although I do not share the views of Hogan J. in the Fortune cases above discussed, I wish to acknowledge at the outset the legal and constitutional ingenuity that led him to the conclusion which he reached. Whilst I do not accept that in a case such as this Article 40.5 can have the preeminent influence, if not dominance, which the learned judge accorded to its provisions, nonetheless those judgments may well refocus attention on and reinvigorate the journey which Article 40.5 has still to undertake. I would therefore very much resile from the rather strident language used in some parts of the Kinsella judgment.
110. Article 40.5 of the Constitution reads:-
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” (Emphasis added)
Article 8 of the Convention states:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The building as constructed by the Murrays can undoubtedly be regarded as both a dwelling and a home within the provisions as outlined. The question is what effect such provisions should have on the legal and factual situation as presented in this case. As Hogan J pointed out, it is probable that the Convention does not add to what Article 40.5 of the Constitution ordains and therefore, apart from a limited reference to it, an in-depth analysis of the Convention is not required.
111. It is, I think, correct to say that the key driver behind the Fortune test was Hogan J.’s view of this Court’s decision in Damache, which he described as having:-
“… potentially far-reaching consequences in areas of civil law far removed from the criminal sphere, such as planning law. Yet perhaps it required a decision of this magnitude to illustrate that which in itself ought to have been obvious over the last 75 years or so, namely, that Article 40.5 of the Constitution ensures that the dwelling must be safeguarded in an extensive manner as befits a free and democratic society.” (para. 1 of Fortune (No.2))
The subsequent references to The People (DPP) v. Cunningham [2013] 2 I.R. 631, and The People v. O’Brien [2012] IECCA 68 were more in the nature of supporting decisions rather than as having an added significance independent of Damache. With the utmost respect, I do not believe that Damache can or should be read in this way.
112. Whilst undoubtedly a dwelling house was involved in the Damache case, and whilst important in its own right, that fact however was not at the heart of the pivotal issue which faced the Court. Indeed, the Court’s reference to the home and to the protection afforded to a dwelling under both the common law and the Constitution was, if I may say, unremarkable, in that it recited and relied only upon well-established and well understood case law such as The People (Attorney General) v. O’Brien [1965] I.R. 142, The People (Attorney General) v. Michael Hogan [1972] 1 Frewen 360, and The DPP v. Dunne [1994] 2 I.R. 537. This was all totally understandable, as it was quite unnecessary for the Court to go any further than simply establish and identify the location of the search as being of the applicant’s dwelling.
113. The key argument made in Damache was that the issuing of a search warrant must be undertaken by an independent and impartial person who has no material interest in the decision to be made. Whilst normally that supervisory role is exercised by a District Judge, or by a Peace Commissioner, the real concern was how that requirement could be said to be satisfied when warrants under section 29(1) of the Offences Against the State Act 1939 were issued by a member of An Garda Síochána who headed the investigation in question, or who otherwise was central to the garda inquiries.
114. The rationale of the Court’s decision can be seen from para. 47 of the judgment, where Denham C.J. said:-
“The procedure for obtaining a search warrant should adhere to fundamental principles encapsulating an independent decision maker, in a process which may be reviewed. The process should achieve the proportionate balance between the requirements of the common good and the protection of an individual’s rights. To these fundamental principles as to the process there may be exceptions, for example where there is an urgent matter.”
As the circumstances of that case failed to demonstrate any factor which might justify by-passing this process, the section in question was incompatible with the fundamental norms guaranteed by the Constitution, and thus violated its provisions.
115. Mr. Cunningham, at the time of the Damache decision, was incarcerated as a convicted person whose appeal was awaiting determination by the Court of Criminal Appeal. He sought to amend his grounds of appeal so as to rely on Damache and submitted that evidence procured as a result of the use of a section 29 warrant should have been excluded at his trial. Inherent to his argument was the fact that the premises searched was his dwelling house. The same issue, albeit in different circumstances, was raised in The People (DPP) v. O’Brien. Once more, the crucial link to Damache was that the search of the dwelling was carried out pursuant to a section 29 warrant.
116. The judgments of the Court, which were delivered in both cases by Hardiman J., could not be said to have added in any material, significant or novel way to the long established jurisprudence regarding Article 40.5 of the Constitution. Again, for much the same reasons as in Damache, it was unnecessary to do so. Whilst it is undoubtedly the case that in O’Brien the learned judge made the observations as are quoted by Hogan J. in para. 2 of Fortune (No.2), it is very difficult to see how such observations and those in Damache could have formed the springboard for the type of expansive utility assigned to the constitutional provision in question by Hogan J. in the Fortune cases. Quite apart altogether from the section 29 cases being in the criminal sphere, I do not read the judgments as forming a legitimate basis for absorbing the constitutional provision into planning law in the manner in which the learned judge saw fit to do.
117. I am not aware of the extent to which the entire terms of Article 40.5 fed into the Fortune decisions, as there seems little reference to what follows after the word “inviolable” in the provision. It is of course well-established that this section of the Article is not confined to preventing forcible entry only; any entry other than such as is in accordance with law is prohibited (Walsh J. in O’Brien [1965] I.R. 142 at 169; The People (Attorney General) v. Hogan [1972] 1 Frewen 360). However, the reference to forcible entry must have some significance, indicating perhaps that the focus of the guarantee is primarily on the “entry and search” power of investigating authorities. In saying this, I am not suggesting that the ambit of the Article is so confined. Rather, I mention the point as explaining why I am reluctant to specifically endorse the generalised description of it by Hogan J. as being “a freestanding, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike”. Such a statement, in non-qualified and unconditional language, is of immense reach, with potential capacity to travel to destinations quite unknown. I would be concerned as to the consequences of such a step. It is not the fear of far reach that concerns me; rather it is, first, the creation of that potential from a base which I do not think justifies it, and, secondly, from the factual context of the instant appeal, where the provision cannot possibly prevail over the countervailing factors which are present. As a result, I think the preferable course would be that any widespread expansion from the Article’s traditional sphere of influence should be case driven and individually worked out.
118. Despite this caveat, I am readily prepared to accept that Article 40.5 of the Constitution is not confined to criminal law or its procedural surrounds. It must, at the level of principle, have an application in civil law. Accordingly, my following observations on both Fortune (No.1) and (No.2) are based on an acceptance that the Article undoubtedly confers protection at a constitutional level on one’s dwelling house, whether that be where Ms. Fortune resides with her family or Mr. and Ms. Murray with theirs.
119. On my reading of the judgments in Fortune (No. 1) and Fortune (No. 2), Hogan J elevated the constitutional protections afforded by Article 40.5 to too high a position of prominence in the context of section 160 applications. The learned judge required that demolition should not be ordered unless the necessity for such step is objectively justified and convincingly established. Thus he held that before ordering demolition, it was not sufficient that the house be unauthorised, no matter how egregious that step might be, but rather that the authority would have to “go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response.” Hogan J also understood ‘proportionality’ in this context in a broad sense, meaning whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection could be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling.
120. In so doing, not only did the learned judge stand down what I have described as the traditional approach, but in addition he seems to have:-
(i) discounted the possibility that the integrity of the planning system could of itself be justification for a demolition order;
(ii) refocused the emphasis on the moving party having to establish reasons, specific to the particular development, as to why such a demolition order would be justified; and
(iii) assumed the responsibility to interrogate those reasons, as it happens to a conclusion which disagreed with and in effect set aside the reasons advanced by both the Planning Authority and An Bord Pleanála for refusing the retention application made by Ms. Fortune.
For the reasons following, I do not believe that this approach was the appropriate one.
121. Earlier in this judgment, I have examined the public interest imperative in upholding and maintaining planning control, planning regulation, orderly and sustainable development and the rule of law. As adapted to suit that branch of public concern, the courts have frequently accepted that the integrity of the asylum system, of itself, may be a sufficient justification for refusing entry, the making of a deportation order, or the Minister’s refusal to allow individuals to remain on humanitarian grounds. I cannot see why, at the level of principle, if the circumstances are so compelling, a similar approach should not be available for consideration in a planning context.
122. With the utmost respect to the learned trial judge, in shaping the decision in the manner in which he did, he placed undue influence on why a demolition order should be made. Given the public interest elements which I have previously identified, I very much doubt that this approach is correct. In addition, in the particular circumstances of the case, having regard to the development plan, the decision of the planning authority and ultimately that of An Bord Pleanála, and the reasons given therefor, the focus of the inquiry should have been on what basis and why such an order should not follow from the established evidence. That error inevitably led to many of the significant factors in favour of such an order not being given the due weight which they should have.
123. It will be recalled that in Fortune the retention application was rejected by the Board, inter alia, because:-
The question arises as to how far a judge, on a section 160 application, can review the merits of a retention refusal given by either the Planning Authority or An Bord Pleanála.
124. It is not an easy task to try and articulate a visible boundary line beyond which a judge should not go when applying the proportionality test. Some engagement with the facts is obviously required. However, he is not permitted to reach his own independent view on the planning merits of a case. That is the function of the planning process. The courts must not act as a surrogate for the nominated bodies. They have no role in performing such function through some process of reviewing the merits of a decision reached by either of them within their remit. Still less, do they have the expertise to carry out such a function.
125. In Dublin Corporation v. Garland [1982] I.L.R.M. 104 at 106, Finlay P. made this very point:
“There can, in my view, be no function in the court on the making of an application under [section 27] in any way to review, alter or set aside a decision of the Planning Authority with regard to the granting or withholding of permission. The entire scheme of the Planning Acts is that, subject to the limited exceptions for the determination by the High Court of questions of law specifically referred to it, decisions as to the proper planning and development of any area are peculiarly the function of the Planning Authority in the first instance and of An Bord Pleanála on appeal from them.”
Very much the same was said by Kearns P. in Kinsella.
126. I am not suggesting that this passage from Garland is necessarily the last word on the point, as the concept of proportionality has evolved very considerably in the past 30 years. However, even considering that development, I am satisfied that the Court should not embark on what might in effect be a further review of matters the determination of which is committed by legislative policy and statutory provision to stipulated bodies. Although in a somewhat different context, Denham J., as she then was, in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, emphasised that the courts should be reluctant to interfere with the decisions of expert bodies, such as An Bord Pleanála. See also South Buckinghamshire DC v. Porter [2003] 2 AC 558.
127. As part of his examination of the reasons which prompted the Board to refuse Ms. Fortune’s retention application, the learned judge concluded that the unauthorised development did not as such “jeopardise or threaten the rights or amenities of other parties”, and came to a like conclusion regarding the substandard condition of the access laneway: in his view it did not present a “real and imminent traffic hazard”. Such an examination and conclusion seems perilously close to conducting a further review of the merits of that rejection.
128. With the greatest of respect to Hogan J., in holding as he did, he effectively discounted the wilful and deliberate decision by Ms. Fortune to erect her chalet and the nature and extent of the planning violation at issue. These important considerations have virtually always been given great weight in the case law: I see little reason to change that. Such authorities also show that where the planning breach in question is a gross and intentional one, a removal or demolition order is certainly within the range of available remedies; the exercise of discretion in this manner in Kinsella, on the traditional approach, could not be seriously challenged.
129. While Fortune was justifiably entitled to highlight the constitutional importance of the dwelling in the context of section 160 applications, I do not believe that it was appropriate to go further and effectively reformulate the test in a way some distance removed from all the previous jurisprudence in this area. That the structure is a home remains but one of the factors which a Court will consider in exercising its discretion under that section but it should not be given undue weight vis-à-vis the other considerations above described. Perhaps most pertinently, the fact of the unauthorised development being a family home will not of itself, in my view, be sufficient to persuade a Court to exercise its discretion against demolition: important to that decision will be where the building has been constructed in such a deliberate and flagrant breach of the planning laws, as in both Fortune and here. This is the situation even in the absence of such factors as those mentioned at para. 42 of Fortune (No. 1). I believe that Article 40.5 of the Constitution does not compel me to reach any different result, and that the conclusion so reached is consistent with the ECHR and with the jurisprudence of the European Court of Human Rights (para. 139, infra). I accordingly find that the test under section 160 of the 2000 Act does not require to be recalibrated and that it was correctly applied by the trial judge in this case.
130. It may well be that Damache has led to a renewed appreciation of the potency of Article 40.5 of the Constitution. That decision did not, however, add layers of constitutional protection to the dwelling that were not already there, albeit arguably under-utilised. Moreover it is difficult to believe that like considerations were not taken into account by Courts when addressing section 27 or section 160 applications in any event, as the hardship argument would almost inevitably be seriously undermined if the property at issue was not a dwelling house. At the front of many submissions where a demolition order is sought will be that argument, however so framed. Such will self-evidently carry greater weight where the development in question is a dwelling and where the consequences of its demolition might be to render the inhabitant homeless. Such an argument, however forceful it might be, does not preclude a demolition order, nor can some ‘free-standing’ application of Article 40.5 tip the balance so wholly against that relief. It is not necessary to dwell on that argument, as it is simply to point out the obvious to state that Article 40.5 does not entitle a person to erect a dwelling on someone else’s property, then rely on that provision as a shield to prevent its demolition. Hogan J. did not intend that nor is it a logical corollary of his Fortune judgments. He did, however, attempt to recalibrate the test in such a way as to give undue weight to the fact of the development being a dwelling. For the reasons above stated, I do not think that this was the correct approach.
131. There are two further matters arising out of Fortune (No.2) which require comment. Hogan J held, at para. 13, that the Declaration of the chalet as an unauthorised structure was sufficient to deter others from flouting planning laws and erecting unauthorised structures. The basis for this was that such a property is “effectively unsaleable” and cannot be used as security for lending purposes. Such reasoning overlooks, however, the fact that many people may have no desire to sell their property or to use it as security. As the facts of the instant case show, the developer will often want no more than a place to call their home, particularly if they have ties to the area. The inability to sell-on or mortgage such a property will be of no deterrent value in such circumstances, and little in others.
132. Secondly, Hogan J. held that permitting Ms. Fortune to remain in the chalet would not have any value from a precedential perspective because only lawful developments can be considered in subsequent planning applications. However, in so doing he overlooked the real essence of the argument based on precedent. The point rather is that if the fact of the unauthorised development being a dwelling is so powerful a consideration that it threatens to overbear all countervailing factors, the taking of the law into one’s own hands becomes an altogether more attractive proposition. Whilst one would not wish to overstate the position, it could indeed quickly become a grave state of affairs if there was a reasonable chance of using Article 40.5 to successfully defeat an application for a demolition order of an unauthorised development; such would be entirely contrary to our planning laws and all of the important policy objectives that they aim to achieve.
133. Finally, as to the appropriateness of deciding a novel point of law in a Circuit Appeal, I would say only this: it is both the legal and constitutional duty of each judge to determine all relevant issues raised before him, in whatever form they appear, once he has jurisdiction to do so. Hogan J. was therefore not only entitled but was obliged to deal with the points articulated on behalf of Ms. Fortune, however novel, complex or difficult they may have been.
The Conventional Approach: (This Case):
134. I do not accept the appellants’ submission that the learned judge failed to consider, or did not accord proper weight to, the personal consequences and individual hardship to the appellants of the demolition order so made. In recounting the evidence offered, Edwards J. set out the basis for the appellants’ desire to live in the parish in question, and the reasons why they proceeded to build the home notwithstanding the refusal of planning permission. The learned judge then set out at considerable length almost the entirety of the affidavit of Rose Murray of the 25th November, 2009, describing it as an “articulate and impassioned plea ad miseriacordiam.” I would not demur from that description. Edwards J. stated that “the Court has had regard to all of the matters urged upon it by Counsel for the [appellants], as well as the matters deposed to by both [appellants] in their respective affidavits” and noted that he had “particularly considered the contention that it would be disproportionate and unduly harsh on the [appellants]” to make the orders sought. In reaching his decision, the learned judge stated that it was “[w]ith very great regret [that] this Court finds itself in agreement with the [planning authority]”. Once again, he recognised that the order made would “undoubtedly constitute an enormous hardship to the [appellants].” Therefore, on several occasions the learned judge expressly acknowledged the hardship which will be caused by demolition of the family home. Accordingly, the submission that he failed to appreciate the consequences of his preferred order cannot be entertained. I accordingly reject any submission that he did not consider the consequences of the order as made.
135. Neither do I accept that the learned judge erred in the weight which he attributed to each and all of the factors, including the personal hardship and family inconvenience that were advanced on behalf of the Murrays. These were very much at the forefront of his mind and evidently weighed heavily on the exercise by him of the court’s discretion under section 160. His conclusion speaks for itself:-
“With very great regret this Court finds itself in agreement with the applicants in this case. This is not a case of minor infraction, or of accidental non-compliance, or of non-compliance with some technicality. The unauthorised development carried out by the [appellants] was indeed a flagrant breach of the planning laws and completely unjustified. They have sought to drive a coach and four through the planning laws and that cannot be permitted no matter how frustrated they may have felt on account of earlier refusals. While it will undoubtedly constitute enormous hardship to the [appellants] to have to demolish their dwelling house, particularly in circumstances where the first named [appellant] is now a victim of the general down turn in the construction industry and there is little work, nevertheless the law must be upheld. Though it gives me absolutely no pleasure to say it, and it is stating the obvious, they have brought this on themselves.”
Disposal of the Appeal:
136. Save perhaps for the allegation that the course of engagement with Meath County Council was a source of frustration for the Murrays, there is otherwise virtually no dispute about the entirety of the background circumstances and factual situation pertaining. That the development had no planning permission is admitted; that the appellants were fully aware of the necessity to obtain planning permission is self-evident, but if verification is required it is obviously provided by the applications/appeals made by professional advisers on their behalf to both the Planning Authority and An Bord Pleanála, in respect of whose decisions no challenge has been mounted, and indeed by the suggestion that they could avail of the agricultural exemption under the Regulations, correctly described by Edwards J. as “frankly preposterous”. Their actions in building nonetheless were cited by the learned judge as being “particularly flagrant and completely unjustified on any basis”, a description one could hardly quarrel with. To have constructed the size and scale of the structure which they did is, in such circumstances, difficult to comprehend. A more reckless disregard for the rule of law is difficult to discern.
137. That both the prohibitory and mandatory orders made by the High Court will cause considerable hardship for the appellants, including financial loss, has been acknowledged, but the same was eminently foreseeable and directly proximate to their culpable behaviour. Their background connection with the area, their own individual family circumstances and those of their wider families, their integration into the local community, and of course the fact that they have three school going children, have all been recognised. Each and any other factor of relevance and materiality was fed into the equation. Having considered all of those personal factors as against the nature of the breach, Edwards J. felt that a restraining order on its own would be an inadequate response and that the same should be supported by a ‘removal and restoral’ order. To permit them to make the necessary arrangements in this regard, a stay of two years was placed on the execution of the order.
138. By the application of conventional principles, which is the correct approach, the decision of the learned judge could not be set aside on any of the grounds argued before this Court.
139. This conclusion is entirely compatible with the Strasbourg jurisprudence, as Chapman v. United Kingdom (Application no. 27238/95, judgment of the 18th January, 2001; (2001) 33 EHRR 18) shows. In that case the Court addressed a situation in which a Gypsy who lived in a caravan on her own land was refused planning permission, after which an enforcement notice was issued. She alleged that the refusal of planning permission and the enforcement measures amounted to breaches of Articles 6, 8 and 14 of the ECHR. In holding that the Convention had not been violated, the Court stated as follows at paragraph 102 of the judgment:
“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection … When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.”
Conclusion
140. For all of the reasons above mentioned, the order of the High Court will be upheld. The Court is mindful of the hardship this will cause for the appellants and the difficulties they may have in complying with the order. However, it cannot lose sight of the fact that the appellants have been living in the unauthorised development, which was deliberately constructed in flagrant breach of the planning laws, for over a decade. In all the circumstances, a stay on the order for a further period of 12 months from the date of this judgment is appropriate. However, it must be understood that the intention of this stay is so that the order of the High Court order can be complied with in full on or before that date.
