The High Court declared a timber chalet built by Katie (otherwise Catherine) Fortune at Carrigeenshinnagh, Lough Dan, Roundwood, County Wicklow, to be an unauthorised development. The declaration did not require the chalet to be demolished.
In a judgment delivered on 6 May 2014, Mr Justice Hogan considered whether the court could make that declaration in separate proceedings brought by Wicklow County Council under section 160 of the Planning and Development Act 2000. The Council sought the declaration; counsel for Ms Fortune argued that the court had no jurisdiction to grant it in those proceedings.
The chalet issue had been considered in three earlier judgments. The court had found that the chalet was constructed without planning permission and was unlawful, but refused the Council’s request for an order requiring its demolition. The earlier decisions took account of the established fact that Ms Fortune had lived there for some time and that it was her only home. The court held that the constitutional protection for the inviolability of the dwelling was engaged, and that the Council had not shown demolition was the only fair, realistic and proportionate response.
Justice Hogan said section 160 did not expressly provide for a declaration that development was unauthorised. He held, however, that the court had an independent power to grant declarations, grounded in its general jurisdiction and the constitutional requirement to determine legal questions and provide effective remedies.
The judgment said the declaration would record the chalet’s unlawful planning status and help prevent confusion for the planning authority, other public bodies and private parties. The parties had also reached substantial agreement on remaining issues, including conditions for the treatment of wastewater and effluent. The judgment said those conditions should be included in the order, while recognising that demolition had previously been refused.
The court granted the declaration sought by the Council: that the timber chalet constructed by Ms Fortune at Carrigeenshinnagh, Lough Dan, Roundwood, County Wicklow, was an unauthorised development.