Late last week a little reported and relatively innocuous sounding High Court Judgement was issued which has the potential to have profound implications for the Irish planning system – and the planning profession, for that matter. The case concerned the construction of a small timber dwelling and private waste water treatment system in an Area of Outstanding Natural Beauty without planning permission near Lough Dan, County Wicklow. Following a lengthy enforcement process Mr. Justice Hogan quashed an order to have the house demolished ruling that the landowner had an inviolable constitutional right to her home under Section 40.5 of the Constitution.
There has been a longstanding set of principles in the Irish legal system whereby the judiciary only involve themselves in matters of procedural legality and not the substantive matters of individual planning cases. In this instance the house had previously being refused planning permission by both Wicklow County Council and An Bord Pleanála on the grounds that the applicant had no need for a dwelling in this highly-sensitive location and that road access was substandard, endangering public safety. Mr. Justice Hogan decided to overrule these concerns ostensibly on the grounds that the house could not be seen from the public road and declaring that “… one does not need to be a planning or traffic specialist to see that the site does not present a real and immediate traffic hazard..”
This bizarre judgement has huge ramifications for the Irish planning system and the planning profession. While Mr. Justice Hogan is at pains to stress that the ruling does not set a precedent, it is hard not to come to the conclusion that, based on this judgement, any person could purchase a piece of land, construct a dwelling without planning permission and then claim constitutional protection under Section 40.5. Rural libertarians are doubtlessly rejoicing. However, the all-pervasive, but flawed, logic that people should have an automatic right to build a dwelling on their family land must be met head on. While a single dwelling may appear harmless, the cumulative impact of 450,000 such dwellings has profound implications for the delivery of public policy. Currently, 60% of all houses granted planning permission in the State are dispersed ‘one-off’ dwellings and serious questions must be asked as to how we are going to be able to afford to provide adequate services (schools, hospitals, broadband, Gardai, postal services etc) to these dwellings. Interestingly, Mr. Justice Hogan does not grapple with these fundamental planning questions and as to why the applicant had been previously refused planning permission on the grounds of an absence of ‘local need’. Planning is much more than issues of local amenity, visual impact and traffic hazard and this judgement highlights why balancing individual rights with those of society is a job not best suited to the courts. An appeal to the Supreme Court is imperative.
Gavin Daly
Update: Subsequent legal advice provided that the case could not be appealed to the Supreme Court and the Department is considering bringing forward legislation.
Update: “Judge orders demolition of unauthorised Co Wicklow home” Irish Times 17 April 2015
Ireland after NAMA 
June 18, 2013 at 10:11 am
Reblogged this on big mac and whys.
June 18, 2013 at 2:44 pm
“Balancing individual rights with those of society is a job not best suited to the courts”….And just who do you suggest should have that role in a representative democratic state?
June 18, 2013 at 3:16 pm
your representative democratic policymakers!
June 18, 2013 at 4:16 pm
Fine! Abolish the judiciary then. Leave us all to the tender mercies of the likes of Shatter, Kenny, Gilmore, Rabbitte, Reilly ….a return to the traditional ‘Rule of Solomon’. Except that our legislators are not all that clever when it comes to framing our basic laws, so what makes you think they would be any better in adjudicating on them? Would you really want to live in a society in which a bunch of political ayatollahs not alone framed the rules but also denied any recourse by the citizen to an independent forum to protect his/her civil rights? I haven’t read the court judgement, but from your description of this particular case it would appear that, if there is a problem, it lies in an article of the Constitution not in the judge’s interpretation of the rights or wrongs of the issue, which, of course, can be tested by appeal to the Supreme Court if that is warranted or by the government of the day seeking the consent of the people in a referendum to revise that particular constitutional provision..
June 18, 2013 at 4:55 pm
Nobody mentioned abolishing the judiciary. I recommended an appeal to the Supreme Court
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/08c425b3d45c739f80257b89004d5d35?OpenDocument
June 18, 2013 at 3:40 pm
It is no more bizarre than any of the other myriad planning decisions that were granted. The rezonings all the “land mark” buildings. Have we forgotten about all the decisions identified under the millionaire, deliberately toothless tribunals. It is no more bizarre than Dick Roche tearing up and binning his own DOE officials report into a site on the Liffey and replacing the “conservation architects” assessment with a hand scribbled, I am a politician, I think this is beautiful Board Pleanala subsequently agreed to what was a catastrophic error of judgement. It appears that it is fine and dandy to make disgraceful decisions as long as you go through the proper legal channels? It is not okay if it is a cottage in the trees but if it is a “flying saucer building” being built by a celebrity rock star (there out in Dalkey again today) in Dalkey then that is different.
The only thing that is wrong here is the erosion of power from institutions that have been proved to be corrupt. Good luck to them and I hope this sets a precedent.
We cannot be feigning shock, horror when we know that we have some of the most corrupt planning and legal systems (populated by political appointments) in place, and that nothing has changed save the Irish people have been put on the chopping block for all the developer/bank sponsored madness. The planning permissions on NAMA sites were extended at the drop of a hat what was wrong with that? NAMA will stump up the developer contributions sure it is only borrowed money being swished around.
June 19, 2013 at 5:25 am
Gavin,
My argument is solely with your statement regarding the role of the courts in adjudicating on the rights of the individual versus the rules of society, specifically in determining the fault lines that may arise in the balance between the two. Individual judges may get things ‘right’ or ‘wrong’ in any particular case, and access to the courts may be far from equal for all citizens because of the financial costs involved in taking court action but the principle of an independent judiciary as a forum through which citizens’ rights may be protected is sacrosanct and a cornerstone of democracy.
June 19, 2013 at 9:57 am
I don’t disagree and have not argued that..but you took the statement out of context. The full text above states “Planning is much more than issues of local amenity, visual impact and traffic hazard and this judgement highlights why balancing individual rights with those of society is a job not best suited to the courts. An appeal to the Supreme Court is imperative.”
June 19, 2013 at 6:54 pm
Gavin, while I applaud you for bringing this matter to the Court of Public Opinion, I cannot agree with your determination.
If a land owner feels it necessary to construct a dwelling, domestic specifically, then the State should support and enable that. Tax will be paid, like any other dwelling.
The fact that the landowner was denied permission twice, smacks of Planning Officers who have forgotten the purpose of their role, “Civil Service.”
Like the Judge in this case, I am not suggesting a blanket precedent be applied, but a common sense approach.
Reading your summary of the facts, it was clear that you would much prefer the State to construct (and I shudder at the thought) densely populated living zones, where the costs of servicing and maintenance are the lowest possible.
As your 60% quotation shows, the majority of home owners do not want to live in tower blocks, estates, or in cities.
I applaud the Court for its ruling and encourage others landowners to follow suit.
June 21, 2013 at 8:42 am
Hi Thuron. As I said ‘rural libertarians rejoice!’. We will have to respectfully disagree (completely!). Firstly, it is not at all clear to me how you made the jump that I “would much prefer the State to construct densely populated living zones”. This is not my view and I did not state it to be so. There are very significant diseconomies of scale associated with large cities.’Civil Service’ is about how to we make sure people receive the services from the State that they should be entitled to at affordable cost.
Here is a good report you may wish to read http://www.epa.ie/pubs/reports/research/econ/strivereport44.html
June 22, 2013 at 10:40 pm
Reblogged this on European Energy Geographies.
June 23, 2013 at 10:58 am
After the ‘Damned Lies’ come the ‘Statistics.’
“Rural libertarians are doubtlessly rejoicing…” If the purpose of this article is contribute to a debate on policy then surely any such debate should be founded on objective fact and not on statistics which have been massaged to support a partisan position.
The embedded statistical hyperlink connects to a table from which one may calculate that in 2012, sixty percent of houses – not dwellings mind you! – were categorized as ‘one-off’. But this simple computation ignores several other pieces of information which are needed for objective interpretation.
First, while citing the fact that ‘one-off’ houses account for sixty percent of all ‘houses’ the article ignores the fact of the complete collapse of ‘multi-development’ or ‘spec’ house market over the period from 2001. The percentage composition of all ’houses’ accounted for by the category ‘one-off’ is thus artificially boosted by this collapse.
Second, the total number of permissions for ‘one-off’ houses over the eleven years from 2001 to 2012 is 172, 454 and not 450,000 as implied in the article. There may be another source for this figure of 450,000 but it is not cited.
Third, ‘one-off’ houses comprise only twenty-four percent of all dwellings permitted over the same period when apartments are included in the total as indeed they should have been.
Fourth, the article fails to mention that 10,600 of these 172,454 ‘one-off’ houses were actually permitted inside urban areas.
Fifth, the article fails to mention that while ‘multi-development’ housing is built ‘on-spec’, the ‘one-off’ house is most often built for occupation by person building the house and is not built for speculative sale. In choosing where to live in such a clear and definite manner the owner of the ‘one-off’ house might be expected to have calculated all of the costs and benefits and thus opted for a balance.
Sixth, these statistics are based on planning permissions granted. They are not based on dwellings built. Whilst one might presume that every permission results in a house, this is not necessarily the case. The statistics of ‘permissions granted’ are an indicator of intent but they are not a measure of construction activity.
Finally the author rhetorically asks “… how we are going to be able to afford to provide adequate services (schools, hospitals, broadband, Gardai, postal services etc) to these dwellings?” I would answer thus. Given the parlous state of such services being already provided within urban areas, the marginal diseconomies being experienced by existing rural dwellers are more than compensated by the considerably better living conditions.
June 24, 2013 at 2:43 pm
Hi Richard
I think that Mark Twain quote should come with health warnings! Evidence and statistics are also important – the lack of them has led in no small part to our current economic predicament. I mention just two statistics to make the point that consideration of a planning permission cannot be reduced to site specific issues and don’t imply anything else!. Granting permission for 4,000 dwellings (whether in an urban or rural context) has obvious implications for public policy delivery, particularly in times of austerity. Discussion on the issues you raised above were, to be fair, beyond the scope of the blog post but there is an interesting discussion in the EPA STRIVE Report link I included above and I would concur with the conclusions of that report. I might blog about this issue again as it always creates such polarised viewpoints and interesting debates!
My 450,000 figure uses this as a baseline http://www.cso.ie/en/census/census2011reports/census2011profile4theroofoverourheads-housinginireland/. Interestingly, you will see that 52% of vacant dwellings are in ‘rural’ areas (there is an interesting map on page 36). I think the controversy over the ‘septic tank charges’ demonstrates that people (or the State for the matter) are not always aware of the internalised/externalised costs (again interesting discussion in STRIVE Report). However, the simple ‘urban’/’rural’ classifications are, I would argue, no longer relevant – there are numerous types of ‘rural’ areas. I am not sure “the considerably better living conditions” is an objective statement? As the vast majority of ‘rural dwellers’ live within 5km of a designated urban settlement – there is an obvious symbiotic relationship – meaning that bolstering urban areas (particularly smaller rural towns and villages) is equally important for rural development/life quality.
I will blog about this again after the submission deadline for the Commisison for Economic Developent in Rural Areas http://www.ruralireland.ie
June 25, 2013 at 1:55 pm
Hi Gavin,
interesting post and follow-up discussion. What you highlight here is one of the most important factors for the future of Irish society and is something in need of open and on-going debate. I also feel, as you alluded to in both your post and your follow-up comments, that the debate needs to be quite nuanced in nature (i.e., the relationship between urban, suburban, rural, peri-urban areas etc). It is hard to know the form that such discussions might take though. Perhaps this is something worth posting about in the future.
Philip
June 26, 2013 at 8:54 am
Thanks Philip – As you can see that having a nuanced debate on this issue is no easy task!
July 3, 2013 at 5:27 am
[…] from apartments to houses. However, and not withstanding the importance of wider debates about one-off housing etc., within the larger urban areas, a key challenge lies in dealing with issues such as suburban […]
April 23, 2015 at 12:38 pm
Update 23.04.15
Judge orders demolition of unauthorised Co Wicklow home
Ruling on family’s Blessington chalet seen as endorsing strict planning law enforcement
An order for demolition of the wooden chalet home of a young family in Blessington, Co Wicklow built in “gross” breach of planning laws has been granted by the High Court.
In an important judgment endorsing strict enforcement of such laws, president of the High Court Mr Justice Nicholas Kearns made the order in a judgment strongly disagreeing with a previous High Court ruling.
In this judgment from 2013 a judge refused to order the demolition of a different wooden chalet home near Lough Dan in Co Wicklow.
The order made on Friday permits demolition of the home at Tinode, Blessington, on the busy N81 road between Tallaght and Blessington, of Gary Kinsella, his partner and their young child, at a date time to be agreed between the sides.
If they cannot agree, the judge will fix a date for demolition when the case returns to him next week.
In his decision, Mr Justice Kearns said planning control is “an essential environmental necessity in a properly ordered society” without which there would be nothing to stop “a free for all development culture from running riot”.
There would be levels of “absurdity” if property rights of a person acting unlawfully were in every instance to be permitted trump those of a democratic society, he said.
An “extreme” example was a person might create overnight a structure outside Dublin’s GPO with sleeping and cooking facilities and then claim it was “inviolable” due to the constitutional protection afforded to the family home.
While the courts can take many considerations into account in enforcement applications, including personal circumstances and the nature of the unauthorised structure, the “bottom line” is Section 160 of the Planning and Development Act 2000 (which permits demolition of unauthorised structures) was intended by the Oireachtas to provide an “effective tool” in planning enforcement.
When a development is not built bona fide, the court’s discretion was necessarily limited.
Mr Justice Kearns said he had difficulties with the June 2013 decision of Mr Justice Gerard Hogan in the case of Wicklow County Council v Fortune, which the council argued rendered “ineffective” the enforcement procedures, including demolition, of Section 160 of the Planning and Development Act 2000.
His difficulties included that Mr Justice Hogan appeared to have reviewed the planning assessment of the Council, the statutory planning authority, when various legal decisions said such a review was not within the courts’ remit and the Oireachtas had enacted that decisions on the issue of permissions are made by statutory specialist bodies and not by the courts.
Mr Justice Hogan’s decision also went against case law holding that a person’s conduct is one of the most compelling factors to be taken into account when a court is exercising discretion.
The council expressed serious concern about the “far reaching consequences” of the Fortune decision where Mr Justice Hogan refused to order demolition of an unauthorised wooden chalet home built by Katie Fortune in a scenic area near Lough Dan.
Mr Justice Hogan refused demolition on grounds including protection of property rights and inviolability of a dwelling under Article 40.5 of the Constitution.
He found that while the chalet was not built bona fide, the council had failed to show the retention of the dwelling was manifestly at odds with important public policy objectives.
In his judgment, Mr Justice Kearns said the council believed the Fortune case created “carte blanche” for individuals to build family homes where and how they wanted with “perceived immunity” from demolition due to the constitutional protection of the home.
The council was also particularly concerned the Fortune decision was made on a Circuit Court appeal which cannot be further appealed, he said.
Without wishing to offend Mr Justice Hogan, “perhaps the outstanding constitutional legal expert of this generation”, Mr Justice Kearns said he believed a Circuit Court appeal, because it cannot be appealed further, is not an appropriate forum to lay down “novel legal principles” which may have far-reaching effect and consequences such as in the Fortune case.
It was also “beyond the court’s comprehension” how some “free-standing” application of Article 40.5 could be applied to reward the Kinsellas or Ms Fortune when both developments were not bona fide, particularly having regard to the “huge public and community interest in protecting the environment and the integrity and efficacy of planning law enforcement”.
The council raised its concerns about the implications of the Fortune decision in proceedings brought against siblings Gregory and Gillian Kinsella over the construction by Mr Kinsella of a wooden chalet dwelling without planning permission on lands bought by the siblings in 2003 which front onto the busy N81 road.
When a warning letter about that structure was issued by the council in September 2012, Mr Kinsella said he was unaware he needed permission because there was a structure on the site previously but said he would seek retention permission.
He failed to lodge the retention application within the eight week period stipulated.
When a December 2012 inspection showed works continuing on the chalet, an enforcement notice issued.
A further inspection in April 2013 found the chalet was occupied and the council told the Kinsellas in June 2013 it had initiated proceedings for removal of the unauthorised development.
They took no steps concerning compliance and the High Court proceedings were instituted in October 2013.
Three days before the High Court return date, an application for retention permission was made which was later refused.
On Friday Mr Justice Kearns said full enforcement of Section 160, which permits removal of unauthorised development, was appropriate and proportionate in this case where the development was “unauthorised and deliberate”.
Traffic hazards from the proximity of the chalet to the busy N81 road were identified as the reason for refusal of retention permission and there was no realistic prospect that hazard would abate in the short term, he said.
The council had argued the dwelling was only established because Mr Kinsella “stole a march” on the enforcement process.
He had built and completed the dwelling and occupied it without any planning permission and in full knowledge the Council regarded it as unauthorised and illegal.
Any protection for a dwelling given by the Constitution under Article 40.5 “may be modified by law in a proportionate way and may sometimes yield to competing rights and also to duties owed to the citizen”, the judge said.
“Article 40.5 does not confer on any citizen a right to establish a dwelling of his choosing at the place of his choosing.”
The Planning Act modifies property rights and rights which might otherwise be enjoyed to establish dwellings in the interests of proper planning control by removing the right to establish or alter dwellings except in accordance with planning permission.
Effective planning control “depends on public compliance and acceptance of the rules” and having effective measures to ensure compliance, he added.