The High Court has dismissed an appeal by Liam Lee and Jean Tompkins against a Circuit Court order concerning an unauthorised shed/workshop and screen wall on their property at Kilmurry Lower, Baltinglass, Co Wicklow.
Mr Justice Noonan ruled on 15 January 2019 that the respondents had not proved the unauthorised development began more than seven years before Wicklow County Council issued proceedings. He dismissed the appeal and affirmed the Circuit Court order. The appeal concerned only the order relating to the shed/workshop and screen wall; the High Court did not revisit the other relief granted in the original proceedings.
The Council began proceedings on 14 May 2014 under section 160 of the Planning and Development Act 2000. The respondents accepted that both structures had been built without planning permission, but argued that the Council’s case was out of time because construction had begun more than seven years earlier.
Lee said work on the shed/workshop began around 22 April 2004 and the screen wall foundations were laid in February 2005. A groundworks contractor supported his account of work on foundations. But the judge said the evidence did not establish what work was done, or when, to bring either structure to the form that made it unauthorised.
The shed/workshop was absent from a March 2009 street view image and appeared fully or substantially complete in images from 2011. Lee said it was finished in late 2010 or early 2011. The judge said the evidence indicated some preliminary concrete work in 2004, followed by about six years without substantial work. Sporadic, piecemeal work with significant periods of inactivity could not, in his view, establish commencement for the statutory time limit.
For the wall, the court had no evidence showing when it reached the height at which it became unauthorised. The laying of foundations alone did not establish when the unauthorised development began.
The judge held that the respondents bore the burden of proving the time-bar defence and had not discharged it. He therefore did not decide whether a longer 12-year limit could apply. The Circuit Court’s order requiring the respondents to cease the unauthorised development remains affirmed.