High Court Revisits Application Of Section 160 Of The Planning And Development Act 2000 To Private Dwellings

In the recent case of Kinsella v Wicklow County Council [2015] IEHC 229, the High Court has adopted a different position from that taken by Mr Justice Hogan in Wicklow County Council v Fortune [2012] IEHC 406. He found that the constitutional status of a dwelling (per Article 40.5 of the Constitution) was an imperative consideration in the context of planning enforcement and could prevent an unauthorised dwelling from having to be demolished.

Legal Background - The Fortune Case

Last year we reported on the decision in Wicklow County Council v Fortune (No.4 [2014] IEHC 207. That case concerned a wooden chalet which Ms. Fortune had constructed without planning permission and in which she was then living. The Council successfully applied to the Circuit Court to have the unauthorised structure demolished under Section 160 of the Planning and Development Act 2000, as amended (PDA). That decision was appealed to the High Court.

In the course of four written judgments, Hogan J found that the chalet in question was an unauthorised development, but refused to exercise his discretion to order its demolition. In so refusing, he relied on Article 40.5 of the Constitution. He found that Article 40.5, which declares the inviolability of the dwelling and protects it against forcible entry, protects a dwelling from an order for its demolition pursuant to Section 160 PDA unless its continued "occupation and retention would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response".

Factual Background - Kinsella

The facts of Kinsella were similar to Fortune. The Respondents, a brother and sister, owned a site in County Wicklow. In August 2012, a planning official in Wicklow County Council discovered a wooden chalet had been erected on the site. The County Council took enforcement action, including the service of warning letters and an enforcement notice. Ultimately the Council applied to the High Court for an order pursuant to Section 160 PDA for the removal of the chalet. Once the proceedings were issued, the First Respondent applied for retention permission but was refused, by the County Council in the first instance, and An Bord Pleanála on appeal, on the basis that the introduction of the chalet to the site would intensify the use of an entrance onto a busy national road, creating a traffic hazard.

One important element in common between Kinsella and Fortune was the lack of...