The Court of Appeal has ordered remediation in a planning enforcement case involving tree-felling at the woodlands of Claremont House, after agreeing that the respondents had not established they were covered by a planning exemption.
In a judgment delivered on 21 January 2022, Ní Raifeartaigh J. said the respondents bore the burden of proving that the tree-felling qualified for the relevant exemption under the Planning and Development Act 2000 and related regulations. The court also agreed that the first-instance judge had stated the general burden correctly but had erred in applying it to parts of the evidence, effectively treating the appellant as having failed to meet the onus.
The court said the appellant had established that tree-felling had taken place without planning permission. The respondents then had to show, on the balance of probabilities, that the work was not carried out to convert the land to another use with a significant environmental effect. Ní Raifeartaigh J. described their evidence as “extremely thin” and said it had significant gaps, including the extent of the work, who decided to carry it out, the reasons for it and the future intentions of those involved.
The judgment also criticised the respondents’ reliance on hearsay evidence about future replanting. It said information within their knowledge had not been disclosed, including the connection between them and a person identified as Mr Garry, whom the judgment said appeared to have authorised and been closely connected with the felling. The court concluded that the evidence did not prove, on the balance of probabilities, that the respondents qualified for the exemption.
The Court of Appeal further agreed that the woodlands constituted a special feature within the attendant grounds of a protected structure under section 57. The respondents therefore had to establish that the felling did not materially affect the structure’s character; the court said they had not discharged that burden.
The judgment records that the court considered remediation appropriate and that the terms proposed by Humphreys J. were suitable. This judgment does not set out those terms. Ní Raifeartaigh J. concurred with Humphreys J.’s judgment, and Pilkington J. also agreed. The source does not specify the precise remediation order in this judgment.