The Supreme Court allowed Shane Kennedy’s appeal and discharged a High Court order in proceedings brought by Fingal County Council over the vessel Portisham, which was used as a habitation at Balbriggan harbour. The court stressed that the case failed for lack of technical proof; it did not decide that the vessel’s location or use was lawful.
The judgment, delivered by Mr Justice Clarke on 25 May 2017, followed a further hearing after an earlier Supreme Court judgment in July 2015 found that Fingal had not proved that Portisham was moored to and floated over the foreshore. The parties were given a further opportunity to address that proof issue.
Fingal argued that evidence already before the court, together with several statutes, established on the balance of probabilities that Portisham was within Balbriggan harbour, including the foreshore. The court was prepared to accept for the purpose of argument that the pier itself might be shown to fall within Fingal’s functional area. But Portisham was beside the pier, not on it, and the vessel’s use as a habitation took place over adjacent land or water whose status had not been proved.
The court said Fingal had not supplied additional evidence, such as certified ordnance survey maps, to establish the foreshore boundary. It concluded that the technical failure of proof identified in the earlier judgment remained: Fingal had not shown that Portisham as a habitation was on the foreshore or otherwise within the council’s functional area.
Clarke said the appeal proceedings concerned an alleged unauthorised development under section 160 of the Planning and Development Act 2000. He observed that if a significant breach had been established, the fact that the vessel was a home would not by itself prevent an order requiring its removal. But the court did not determine whether a planning breach had occurred. It also said the outcome should not be taken as establishing that Portisham’s location or use was lawful under planning law or on any other basis.