The High Court dismissed Fingal County Council’s application under section 160 of the Planning and Development Act 2000 after finding that PVC window and door manufacturing at a Baldongan site had probably begun around July 1997.
Mr Justice de Valera delivered judgment on 26 July 2007 in an appeal by way of rehearing from a Circuit Court decision made on 9 November 2005. The issue left for the High Court was the use of an agricultural structure that remained at the site in Baldongan, Skerries, County Dublin.
The Council had sought orders to stop development and the use of the structures for a PVC window and door factory, and to require their removal. The Circuit Court had made orders restricting factory use of the original agricultural structure and a rear extension by 1 February 2006, and requiring removal of the extension and a separate steel-framed structure. It also awarded application costs against the second and third defendants. The judgment says certain structures were removed following that order, leaving the original agricultural structure at issue.
The defendants submitted that work at the site began around July 1997. Their supporting material included affidavits sworn after the Circuit Court hearing, which that court had not considered. The Council relied on two affidavits sworn in July 2005. The High Court noted that neither addressed when PVC door and window manufacturing began, and that the Council had filed no affidavits in reply to the defendants’ evidence.
Accepting the defendants’ submission on the burden of proof, the judge said the Council had to prove that manufacturing at the site began after 7 July 1998. He found the defendants’ assertions, particularly those made before the Circuit Court hearing, “not entirely satisfactory”. However, later affidavits, especially one from Mr Hennessy, persuaded him on the balance of probabilities that the operation began around July 1997. The judgment records that no attempt had been made to contradict or correct the contents of those affidavits.
The judge concluded that the Council’s application was statute barred under section 160(6)(a)(i) of the Act and dismissed it. The judgment does not state any further order on costs in the High Court appeal.