The High Court has directed Pierre and Catherine Damiens to remove a breakwater from State foreshore at Blind Harbour, Co Cork, and restore the foreshore to its pre-works condition. The court said it would hear further submissions on the time allowed for the work, which should take place when storms are less likely.
The judgment, delivered by Ms Justice Faherty on 24 October 2018, concerned proceedings brought by the Minister for the Environment, Community and Local Government, Ireland and the Attorney General. The State sought injunctive and declaratory relief and/or damages over works on foreshore beside the defendants’ property at Blind Harbour, Reen, Union Hall.
By the time of the hearing, the dispute had narrowed largely to the breakwater. The defendants had adjusted their swimming pool and slipway so they no longer protruded onto State foreshore. The court noted that the greater part of the breakwater remained on State foreshore, largely below the mean high water mark, a position accepted by all parties.
The breakwater was built in 1990 by a predecessor in title, after a storm damaged the house. The defendants acquired the property in 2000. The court found they had asserted possession of the structure through, among other things, correspondence claiming it was within their property, repairs, and use of it to protect their home and pool. It held that these acts were sufficient to establish continuing trespass, while finding that the State had not established continuation or adoption of a nuisance.
The defendants argued that the State should have pursued the original builder, that delay had prejudiced their defence, and that the breakwater should remain because it protected their home. The court rejected those arguments as grounds to deny relief. It accepted that the State’s case had been delayed and that the delay probably contributed to the defendants losing a third-party claim against the engineers who surveyed the property before purchase. But the court found this did not outweigh the public interest in protecting State foreshore.
The court also considered conflicting expert evidence on the breakwater’s safety and on alternative coastal protection. It preferred the State engineer’s evidence that the structure did not meet relevant standards and that a replacement revetment could be built entirely on the defendants’ land. It found reasonable and safe public access to the beach required removal of the breakwater. The order requires removal and restoration; the judgment does not set a deadline, pending further submissions.