The High Court has ruled that Wicklow County Council was entitled to reopen a planning enforcement issue concerning timber manufacturing at two buildings east of the realigned N11, after the court found that the council and the court had been deliberately misled during an earlier appeal.
Mr Justice Herbert’s judgment, delivered on 4 February 2011, concerned an appeal by Forest Fencing Limited, trading as Abwood Homes, and George Smullen. The council had sought an order restraining them from manufacturing timber products at buildings numbered 2 and 3, marked in pink on a map, at Timmore, Newcastle, without planning permission.
The dispute followed a 2004 Circuit Court order restraining the plaintiffs from operating an unauthorised manufacturing plant. On appeal, Mr Justice Charleton in 2007 varied that order after the council stopped pursuing relief concerning the two buildings. The council had understood that manufacturing had moved west of the N11 and that the buildings were being used only for storage. Storage was acceptable to the planning authority; manufacturing was not.
In 2009, the council applied to revive the claim, citing evidence that manufacturing had resumed at the buildings. The plaintiffs objected that the 2007 decision was final and that the issue could not be reopened. Mr Justice Charleton rejected that objection in February 2010 and directed that manufacturing cease immediately, while permitting storage. His order was made on 9 March 2010.
Mr Justice Herbert considered whether Mr Justice Charleton had jurisdiction to revisit the issue. He concluded that the earlier appeal decision was ordinarily final, but that Mr Justice Charleton had found exceptional circumstances: deliberate and conscious deception on a material issue. The 2010 judge had found the plaintiffs’ affidavits and correspondence misleading about whether the business had moved from the eastern buildings. Mr Justice Herbert held that this finding justified reopening the severable issue and meant the council was not barred from raising it by res judicata or the rule against relitigating matters that could have been raised earlier.
The judgment did not rehear whether the buildings were in fact being used for unauthorised manufacturing. Mr Justice Herbert held that Mr Justice Charleton’s February 2010 judgment and resulting order were final and conclusive under section 39 of the Courts of Justice Act 1936. He said he had no jurisdiction, and no other court had jurisdiction, to hear an appeal from them.