The High Court adjourned decisions on two sheds on lands at Carrigeenshinnagh, Lough Dan, after finding shortcomings in the council’s reasons for refusing an exemption certificate for one shed and seeking further evidence about the other. In separate proceedings, it held that Wicklow County Council was entitled to orders requiring Kate Fortune to remove two mobile homes and a remaining caravan from her lands; the judgment records that the structures had been removed before it was delivered.
The judgment, delivered by Mr Justice Hogan on 5 September 2013, concerns two sets of proceedings under section 160 of the Planning and Development Act 2000. In the case involving Johnny and Katie Fortune, the court said it had no jurisdiction in those proceedings to declare the large shed exempt from planning permission after the council had refused a section 5 exemption application that had not been overturned.
The judge said the council’s 2008 refusal gave only general reasons and did not explain which restrictions or conditions applied. He adjourned any section 160 order concerning the large shed to allow Johnny Fortune, if he wished, to make a fresh exemption application. The judgment does not decide whether the shed qualifies for exemption.
The garden shed had not been the subject of a section 5 application. The judge said photographs suggested it might meet the applicable size and height conditions, but neither side had supplied precise measurements. He adjourned a final decision and directed that Johnny Fortune could file an affidavit from a planning consultant addressing whether the exemption conditions were met. The council would have an opportunity to reply and make submissions.
The court also declared that using Johnny Fortune’s land to store vehicles was unauthorised. It did not grant an injunction because that use had stopped before the proceedings began. The council could seek to re-enter the proceedings if the use resumed.
In the separate case concerning Kate Fortune, the judgment reaffirmed that an earlier refusal to order demolition of her chalet did not make its construction lawful. The court had previously found the chalet unauthorised but rejected demolition on the facts then before it, applying constitutional protection for the home. The parties had agreed on installation of an improved effluent disposal system, and the judge said the order would reflect that agreement. The council would also have liberty to apply for a fresh section 160 order if the system were not provided and the dwelling were inhabited without an acceptable system.
The court held that the mobile homes and caravans constituted development requiring permission. Kate Fortune had not established that any of them had remained in the same location for the seven years before proceedings began in September 2009, as required for her limitation argument. The court therefore held that the council was entitled to removal orders. Counsel told the judge shortly before delivery that the mobile homes and caravans had already been removed.