In the recent case of Kinsella v Wicklow County Council  IEHC 229, the High Court has adopted a different position from that taken by Mr Justice Hogan in Wicklow County Council v Fortune  IEHC 406. He found that the constitutional status of a dwelling (per Article 40.5 of the Constitution) was an imperative consideration in the context of planning enforcement and could prevent an unauthorised dwelling from having to be demolished.
Legal Background – The Fortune Case
Last year we reported on the decision in Wicklow County Council v Fortune (No.4  IEHC 207. That case concerned a wooden chalet which Ms. Fortune had constructed without planning permission and in which she was then living. The Council successfully applied to the Circuit Court to have the unauthorised structure demolished under Section 160 of the Planning and Development Act 2000, as amended (PDA). That decision was appealed to the High Court.
In the course of four written judgments, Hogan J found that the chalet in question was an unauthorised development, but refused to exercise his discretion to order its demolition. In so refusing, he relied on Article 40.5 of the Constitution. He found that Article 40.5, which declares the inviolability of the dwelling and protects it against forcible entry, protects a dwelling from an order for its demolition pursuant to Section 160 PDA unless its continued "occupation and retention would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response".
Factual Background - Kinsella
The facts of Kinsella were similar to Fortune. The Respondents, a brother and sister, owned a site in County Wicklow. In August 2012, a planning official in Wicklow County Council discovered a wooden chalet had been erected on the site. The County Council took enforcement action, including the service of warning letters and an enforcement notice. Ultimately the Council applied to the High Court for an order pursuant to Section 160 PDA for the removal of the chalet. Once the proceedings were issued, the First Respondent applied for retention permission but was refused, by the County Council in the first instance, and An Bord Pleanála on appeal, on the basis that the introduction of the chalet to the site would intensify the use of an entrance onto a busy national road, creating a traffic hazard.
One important element in common between Kinsella and Fortune was the lack of bona fides on the part of the Respondents in both cases. There was convincing evidence, including prior abortive applications for planning permission, that the Respondents in Kinsella knew that the chalet required planning permission. This is ordinarily an important factor militating in favour of the grant of a Section 160 injunction, but one considered by Hogan J, in Fortune, not to outweigh the constitutional interest.
Judgment of Justice Kearns
Kearns P noted the factual similarities to the Fortune case. He further noted that, as in Fortune, there was strong evidence of a lack of bona fides on the part of the Respondent in building the structure. He stressed however that this had not prevented Hogan J from finding that the dwelling was protected under Article 40.5. A high threshold had been set in the Fortune case which suggested it is not sufficient to show the development was unauthorised, but it must be proven that the continued occupation was manifestly at odds with important public policy objectives.
The Court considered whether it was bound to follow the previous decision of Hogan J. Having reviewed the case law, Kearns P concluded that there are limited circumstances in which the High Court could depart from its previous decisions, and they applied here.
He noted the importance of effective planning enforcement to prevent "a free for all development culture from running riot" and the specific provision in Section 160 for a demolition order in an appropriate case. As a result he found that the discretion of the Court to grant or refuse to grant an injunction was, in the event of a gross breach of planning law, necessarily limited. This was particularly the case where a developer was not acting bona fide.
The court further noted that the European Court of Human Rights had rejected the contention that a right to establish a home in a particular place outweighed the community interest in the protection of the environment and efficiency of planning law enforcement.
The Court then considered the Damache v DPP  IESC 11, which had been heavily relied in Hogan J's judgment. Kearns P stressed that the Damache decision had nothing to do with planning laws or their enforcement. That case concerned a consideration of the conditions required by the Constitution for the lawful issue of a search warrant in respect of a dwelling. In so far as it had any relevance to planning law, it was in its enunciation of the principle that the forcible entry of a dwelling could not involve "stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution." In the Court's opinion, the enforcement provisions of the PDA, replete with opportunities for the person in breach of planning law to regularise his position, were "as far removed from any notion of "forcible entry" as could be imagined".
Kearns P also found that the test adopted by Hogan J, requiring that the necessity for demolition of a dwelling be objectively justified to the Court before it could order that demolition, was not supported by the text of the PDA and, moreover, involved an impermissible assessment by the Court of the planning merits of the development.
Having regard to all the above considerations, the Court ordered the demolition of the chalet. In concluding, the Court expressed the view that a Circuit Court appeal to the High Court, which was the nature of the proceedings in the Fortune case, was not an appropriate forum to introduce or lay down novel legal principles with far reaching effects and consequences, such as occurred in Fortune. At a subsequent hearing, on 24 April 2015, the Court gave the Respondents until 31 January 2016 to arrange for the demolition of the chalet.
This does not change the existence of the Courts discretion in Section 160 cases – but it does help clarify the extent of it by references to Constitutional considerations.
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