The High Court declared that Samuel Jessup and Fiona Smith had carried out unauthorised development at their Wicklow property, but declined to make orders under section 160 of the Planning and Development Act 2000, including the demolition and restoration sought by Wicklow County Council.
In a judgment delivered on 8 March 2011, Mr Justice John Edwards found that works to a cottage, replacement of its septic tank and associated site works required planning permission. The court held that the cottage refurbishment was not exempt because the changes materially altered the building’s character. It also found the septic tank replacement was non-exempt development and that associated site works were non-exempt under the planning regulations.
The Council had appealed a Circuit Court decision that refused its application for orders to restrain the development. By the time of the High Court appeal, it was no longer pursuing complaints about an upgraded entrance, a roadside boundary wall or a garden shed. The Council had sought, among other measures, demolition of the building and restoration of the land.
The respondents argued that the works were exempt maintenance and improvement, and that residential use had continued from before planning controls took effect. The court accepted that the Council had not proved, on the balance of probabilities, that the cottage’s earlier residential use had been abandoned. It therefore did not find the current residential use unauthorised. The unauthorised development declaration concerned the works and associated development.
The court said it had a discretion over the section 160 remedy. It accepted that Mr Jessup genuinely, though mistakenly, believed the work was exempt, while criticising his dismissive conduct towards the Council’s planner and his continuation of works after a warning letter and enforcement notice. The judge concluded that demolition would have severe financial and family consequences and would be disproportionate in the circumstances. The court also said it had not dismissed the Council’s concern about the precedent effect of withholding orders, and noted that costs could still be awarded against the respondents.
The court declared that both respondents had engaged in unauthorised and non-exempt development on the property at Aghfarrell, Brittas, County Wicklow. It reserved the costs decision and made no order under section 160.