The High Court has upheld Wicklow County Council’s decision to pursue planning enforcement against a crane and machinery hire business near Blessington, while finding fundamental defects in the enforcement notice issued to the company.
Flynn Machine & Crane Hire Ltd bought commercial lands at Ashleaf House, Crosscoolharbour, in August 2005. It argued that a longstanding commercial use of the site dated from about 1985 and had become immune from planning enforcement through the passage of time.
The council took a different view. It maintained that Flynn’s arrival involved the creation of a second commercial planning unit, subdivision of the former site and an intensified use of an entrance onto the N81. It issued an enforcement notice on February 8, 2006 requiring the crane hire operation to cease, machinery and a portacabin to be removed and a boundary wall demolished.
Mr Justice O’Keeffe rejected most of Flynn’s challenge to the council’s underlying Manager’s Order. He found the council had enough material before it to decide that enforcement action should be taken and had sufficiently identified the alleged unauthorised development and the land concerned.
The notice itself presented a separate problem. Planning legislation provided that an enforcement notice took effect when served, but the notice measured four- and six-week compliance periods from its own date. The Manager’s Order was also internally inconsistent about whether specified steps had to be completed within four or six weeks.
Because failure to comply could lead to criminal prosecution, the judge held that the compliance period had to be stated with clarity and precision. He found those defects fundamental.
The court also ruled that the notice could not require Flynn to desist from “any other commercial operation” when no such other use had been identified in the warning process. After further submissions on June 24, 2009, the judge held that this provision was separate from the remaining requirements and ordered it severed from the notice.