The Supreme Court has postponed final orders on Fingal County Council’s appeal concerning a former minesweeper used as a home in Balbriggan Harbour, saying the Council had not technically proved that the vessel was moored on the foreshore.
In a judgment delivered on 31 July 2015, Ms Justice Laffoy said the Court would hear further submissions from both parties, strictly limited to proof of the vessel’s present location. The Court had not yet made a determinative order on the appeal.
The Council brought proceedings under section 160 of the Planning and Development Act 2000, seeking to stop Shane Kennedy keeping the vessel, “Portisham”, in the harbour and to authorise its removal and demolition. The High Court granted those orders in February 2013. Kennedy appealed in person.
The Council’s case was that keeping the vessel in the harbour and using it continuously for habitation amounted to an unauthorised development. It argued that the vessel’s size in a working harbour, together with its use as a home, supported that claim. The Supreme Court said the case was not based on trespass or breach of harbour bye-laws adopted after the vessel arrived.
The Council relied on a site plan showing the vessel near the high-water mark. But the plan was not established as a certified copy of the relevant Ordnance Survey map. Justice Laffoy held that, on the evidence before it, the Council had not discharged its burden of proving that the vessel was moored to and floating over the foreshore.
The judgment explained that, if the vessel’s location on the foreshore were proved, its placement and continuous use as a home would constitute a material change of use requiring planning permission. The Court also said the temporary-use exemption for mooring a vessel for camping was unavailable because the vessel had remained at the same location since October 2010, beyond the exemption’s 10-day limit. Kennedy had not applied for planning permission.
Justice Laffoy said Kennedy’s other arguments about the Council’s planning jurisdiction and whether the vessel’s presence amounted to development were misconceived. But those conclusions were conditional on proof of the foreshore location. The judgment noted that the High Court had made no finding on that point, which Kennedy had not contested there. The Supreme Court therefore directed further submissions on that issue before deciding the appeal.