About this case:

• Citation:
  [2023] IEHC 574
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael Twomey

Delivering judgment for the High Court, Mr Justice Michael Twomey stated: “While there will be hardship to Mr Hogan… when a planning injunction is sought by a party, other than a housing authority, the application is generally unanswerable, notwithstanding any hardship which might result, and so it is unanswerable in this case.”

Background

An unauthorised development was built in Co Cork on lands owned by the first respondent. The applicant, his neighbour, obtained an injunction in the Circuit Court under s.160 of the Planning and Development Act 2000 to restore the property to its original condition.

The first respondent accepted that he is the legal and beneficial owner of the lands, and that he is in breach of planning laws in relation to the development complained of. The first respondent applied to Cork County Council for the works which he had undertaken on an agricultural shed to be deemed exempted the development under s.5 of the 2008 but this was refused. No evidence was tendered to show that he made any attempt to rectify this situation.

The first respondent’s defence to the injunction was that some of the authorised development was constructed over seven years ago, and so under s.160(6)(a)(i) of the 2000 Act, the applicant’s application for an injunction was outside the time limit.

In relation to the remainder of the unauthorised development, the first respondent stated that he is living on the property in a caravan and his son living in a mobile home, and that he should not be subject to a planning injunction pursuant to his inviolability of dwelling rights under Article 40.5 of the Constitution.

The first respondent appealed to the High Court.

The High Court

The High Court considered that following from the Supreme Court decision in Clare County Council v. McDonagh & Anor & Irish Human Rights and Equality Commission [2022] IESC 2, it is clear that where a local authority seeks a planning injunction to remove a person from an unauthorised development, it is necessary to consider whether the injunction is proportionate in light of the prospects of that person getting accommodation elsewhere.

Accordingly Mr Justice Twomey found that the issue to be determined is whether the same considerations arise where is a private party seeks a planning injunction, or whether the key question is whether planning and environmental laws have been breached or not, as is usually the determinative factor when private parties are involved.

Although the first respondent sought to rely on McDonagh, the High Court found that McDonagh was not applicable to the case before it, since the key issue in that case was that the party seeking the planning and junction had a statutory obligation to house the same people, in its role as landowner and planning authority.

Citing Mr Justice Gerard Hogan in McDonagh, Mr Justice Twomey highlighted that in the case of a private party seeking a planning injunction, the case would be “almost unanswerable”.

Noting that the reason for this very starkly different approach is due to the importance of ensuring compliance with planning regulation on the rule of law, the court commented that “if it were otherwise, then our countryside might be filled with homes built in flagrant breach of planning and environmental protections, with the owners claiming that they cannot be removed from them because of their constitutional right”.

Remarking that “a person cannot ignore planning laws on the basis that their housing needs trumps compliance with the rule of law”, Mr Justice Twomey observed that “if this were the case, it might lead to chaos and the integrity of a planning system would be compromised”.

The first respondent attempted to argue that whilst the council did not seek an injunction, the content of the warning letters essentially encouraged the applicant to apply for an injunction, placing the applicant in the shoes of the council. The court remarked that this was “a considerable stretch”.

Further, the court considered that the applicant had a right to protect his own property interests and his personal rights — his house was in an area zoned as agricultural land, and the first respondent breached the applicable planning regulations to a significant degree, and additionally, the applicant claimed that the first respondent’s son subjected him to racial slurs and made a threat to his life, for which he was being prosecuted.

The court could see no reason for applying the McDonagh principles to the case before it, and considered its discretion to grant a planning injunction where there was a prima facie breach of planning laws, as in the case before it.

The court decided that the factors concerning the exercise of this discretion as enunciated in Meath County Council v Murray [2018] 1 IR 189 applied to the case before it — including the nature of the breach, the conduct of the infringer, whether the infringer was acting in good faith, whether mala fides or delay was present, the public interest, the reason for the infringement and personal circumstances of the applicant and respondent.

Conclusion

Finding it already established that the applicant had delayed in its application in respect of part of the development, the High Court decided that in respect of the major part of the development, it would affirm the order of the Circuit Court and granted the injunction sought.

Verwey v Hogan & Ors [2023] IEHC 574