Arrow left dark
Newsletter icon SUBSCRIBE

Supreme Court: Navan couple must demolish house built without planning permission

Clock icon Reading time: 5 minutes

A couple who built their house in 2006, despite their application for planning permission being refused by Meath County Council, have been ordered by the Supreme Court to remove their dwelling and restore the lands to their pre-development condition.

Image

About this case:

Describing the couple as having a “reckless disregard for the rule of law”, Mr Justice William McKechnie rejected all grounds of appeal and upheld the order of the High Court – giving the couple 12 months to satisfy the order.

Background

In 2006, Mr Michael Murray and Mrs Rose Murray purchased a land holding in Navan, on which they proposed to build a family home for themselves and their three children.

A planning application for a dormer bungalow was refused by Meath County Council in June 2006, however by December 2006, the Murrays constructed and moved into a dwelling house of double the size of that for which permission had been refused.

Having become aware of this development upon a complaint by a member of the public, the Council threatened enforcement proceedings unless demolition took place.

An application for retention was refused by both the Planning Authority and An Bord Pleanála in 2007; and further applications for a slimmed down version of the construction were refused the Council in October 2008, and An Bord Pleanála in June 2009.

High Court

In June 2010, Justice Edwards heard an application for a statutory injunction under section 160 of the Planning and Development Act 2000, as amended – sought by Meath County Council as the Planning Authority for the area in question.

Justice Edwards described as “manifestly unfounded” the suggestion that the dwelling house in question did not require planning permission on the basis that it was an “agricultural building” and therefore an exempt development.

Having viewed photographs of the development in question, Justice Edwards stated that it was “frankly preposterous” to suggest that this was an agriculture structure.

The Council were granted an order prohibiting Mr and Mrs Murray from carrying out any unauthorised development on the subject lands, requiring them to remove the dwelling house as constructed thereon and to restore the lands to their pre-development condition, which was one fit for agricultural use only.

A stay of 24 months was placed on the execution of the order.

Supreme Court

Delivering the Judgment of the five-judge Supreme Court, Justice McKechnie stated that ‘even allowing for the appellants’ “frustration” with the actions of Meath County Council, and notwithstanding their personal circumstances, the trial judge, having described the breach as “flagrant” and stating that the appellants had “sought to drive a coach and four through the planning laws”, felt that the only appropriate order was that as above described’.

The Murray’s submitted that the High Court judgment was incorrect as a matter of law on several grounds:

  1. The use of the summary process under section 160 of the Planning & Development Act 2000 was inappropriate, as no element of urgency existed and as the structure was and is the dwelling house of the family;

  2. the making of the prohibitory order was not permitted as, firstly, there was no prospective development planned or carried out on the subject land and, secondly, the house was fully constructed before the institution of the within proceedings;

  3. the orders ‘to remove and restore’ were incompatible with:

    1. Article 40.3, Article, 40.5, Article 41, Article 42 and Article 43 of the Constitution, and

    2. Article 8(1) of the European Convention of Human Rights and Article 1 of the First Protocol of that Convention; this failure and omission was in breach of section 2 of the European Convention on Human Rights Act 2003;

    3. such orders were internally inconsistent and self-contradictory in that the structure could, without infringing the provisions of the planning Acts, be used for agricultural purposes; and

    4. the trial judge erred in the exercise of discretion in failing to give adequate weight to the disproportionate harm that will be caused to the appellants by the demolition order and in failing to consider what other reliefs short of demolition might be applied to produce a less harsh result.

      5. Central to the appellants’ submissions was that the High Court judge erred in not considering the constitutional rights of the appellants and their children, particularly the inviolability of the dwelling (Article 40.5), referring to DPP v. Damache 2 I.R. 266.

      Demolition upheld

      Justice McKechnie rejected the Murrays’ submission that the judge failed to consider the personal consequences and individual hardship to the appellants of the demolition order – especially as there was considerable attention paid to the affidavit of Mrs Rose Murray, which he described as an “articulate and impassioned plea ad miseriacordiam.”

      Save for the allegation that the course of engagement with Meath County Council was a source of frustration for the Murrays, Justice McKechnie found that there was otherwise virtually no dispute about the entirety of the background circumstances and factual situation pertaining.

      The Murray’s actions were described as “particularly flagrant and completely unjustified on any basis”, with Justice McKechnie adding that a “more reckless disregard for the rule of law” was difficult to discern.

      As such, the considerable hardship, including financial loss, would be caused by the orders of the High Court; however, this “was eminently foreseeable and directly proximate to their culpable behaviour”.

      Stating that the conclusion of the Court was “entirely compatible with the Strasbourg jurisprudence” (e.g. Chapman v. United Kingdom (2001) 33 E.H.R.R. 18); Justice McKechnie held that the decision of the High Court judge could not be set aside on any of the grounds argued before the Supreme Court.

      • by Seosamh Gráinséir for Irish Legal News

        • Share icon
        Share this article: