The High Court has adjourned a decision on whether a chalet built without planning permission in a wooded area of Lough Dan, Co Wicklow, should be demolished, directing that the necessity for demolition be argued further.
In a judgment delivered on 4 October 2012, Mr Justice Hogan dismissed Katie (otherwise Catherine) Fortune’s claim that Wicklow County Council’s enforcement application was out of time. He held that the seven-year limit under section 160 of the Planning and Development Act 2000 was a defence, not a bar to the court’s jurisdiction. The burden of establishing that defence lay with Ms Fortune, including because the commencement date was peculiarly within the landowner’s knowledge. She had not given even an approximate date when construction began.
The proceedings concerned a timber-framed chalet of about 70 square metres, with decking around two sides. The Council said it could not prove when construction began, but established that the chalet existed on various dates from 2006. It began proceedings on 22 September 2009. The court said there was no real dispute that the chalet was unauthorised and lacked planning permission.
The Council had postponed seeking an injunction while Ms Fortune applied for retention permission. An Bord Pleanála refused permission on 18 November 2008, citing the site’s designation as an area of outstanding beauty, the failure to show that she met the relevant local-residence criteria, and concerns about the lane’s condition and safety. The Circuit Court ruled for the Council in February 2011 and ordered the site cleared, occupation to cease and the chalet to be demolished and removed. Ms Fortune appealed.
Ms Fortune had explained that she built the chalet after separating from her husband in 1999, when she had two young children and nowhere to live. She said her mother allowed her to place a mobile home on the site and that family helped fund the chalet as a home near her extended family.
Justice Hogan said the Constitution’s protection for the inviolability of the dwelling applied in civil as well as criminal proceedings, but did not make an unauthorised home immune from planning enforcement. A demolition order would require convincing proof that it was objectively justified and proportionate. The Council would need to show, for example, that retaining the dwelling was manifestly inconsistent with important public objectives and demolition was the only fair, realistic and proportionate response.
The judge noted that the chalet was not a large development and did not affect neighbours’ rights or amenities. He said that, absent the constitutional issue, he would have been inclined to grant an injunction with a two-year stay. Because the Article 40.5 issue was novel, he adjourned whether this chalet should be demolished for further argument and said the parties could, if necessary, present further evidence. The judgment did not finally decide whether a demolition order would issue.