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.

imageThere 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