JUDGMENT
of Mr. Justice Noonan delivered on the 15th day of January, 2019
1. This appeal is brought by the respondents from an order of the Circuit
Court (Her Honour Judge Reynolds) made on the 30th June, 2015 pursuant to
s.160 of the Planning and Development Act, 2000, as amended, whereby the
respondents were enjoined to cease an unauthorised development on their
property at Kilmurry Lower Baltinglass, County Wicklow being the property
comprised in Folio 25510F County Wicklow. In the original motion before the
Circuit Court, the applicant ("the Council") sought a wide range
of reliefs which were granted but the within appeal is concerned only with
that part of the order that related to an unauthorised dormer structure/dwelling,
to which I will refer as "the shed/workshop", and the
construction of an unauthorised wall, referred to as "the screen
wall".
2. On
the 16th May, 2002, the Council granted planning permission to the first
respondent to build a single storey dwelling on the lands (reference
02/6132). On the 24th April, 2003, the Council issued a further permission
to the first respondent for a change of house type from single storey to
two storey (reference 02/7168). The dwelling house and associated works were
duly completed on the land.
3. In
or about 2013, it came to the Council's attention that a large two storey
dormer structure, independent of the house, had also been constructed on
the lands without permission. Further a large brick wall was constructed
also without permission. It is not in dispute that both of these
structures, the shed/workshop and the screen wall, are unauthorised.
4.
The dispute in this case centres on a single issue, namely whether the Council
are precluded from bringing the within proceedings by virtue of lapse of
time. In that regard the relevant statutory provision is to be found in
s.160 subs. (6) of the 2000 Act which provides as follows:
"(6)
(a) An application to the High Court or Circuit Court for an order under
this section shall not be made—
(i) in respect of a development where no permission has been granted, after
the expiration of a period of 7 years from the date of the commencement of
the development, or
(ii)
in respect of a development for which permission has been granted under
Part III, after the expiration of a period of 7 years beginning on the
expiration, as respects the permission authorising the development, of the
appropriate period (within the meaning of section 40) or, as the case may
be, of the appropriate period as extended under section 42 …"
5. It
can be seen therefore that where the development is one for which no
permission has been granted, a seven-year limitation period applies but in
the case of a development for which permission has been granted, the period
is seven years from the expiry of the permission, which itself has a
lifespan of five years, giving a total limitation period of twelve years.
The affidavits in support of the application were sworn by the Council's
assistant planner, Lucy Roche which detail the planning history of the
matter. The issues that arise in these proceedings were first brought to
Ms. Roche's attention in or about February of 2013 when she reviewed the
file and, on the 21st March, 2013, carried out an inspection of the
property. Although she could not access the site, she was able to observe
that an unauthorised large dormer structure was constructed to the east of
the dwelling enclosed by a large brick wall.
6.
Arising from Ms. Roche's inspection, a warning letter was sent by the
Council to the respondents on the 9th April, 2013. This resulted in the
Council being contacted by a Mr. John O'Hanlon on behalf of the respondents
who indicated that he had been requested to deal with the matters raised in
the warning letter. Nothing further was heard from Mr. O'Hanlon and
accordingly a second warning letter was sent on the 10th July, 2013. A
second inspection was carried out by Ms. Roche on the 1st October, 2013 which
disclosed no change and accordingly on the next day, the 2nd October, 2013
an enforcement notice was served upon the respondents.
7.
This again elicited no response and a third inspection was carried out by
Ms. Roche on the 21st January, 2014 again disclosing no change. In apparent
response to the enforcement notice, on the 15th April, 2014 the first
respondent applied for retention permission to the Council in respect of, inter
alia , the shed/workshop. The Council's solicitors sought an
undertaking from the respondents that they would cease the unauthorised
development by letter of the 24th April, 2014 to which no response was
forthcoming. Accordingly, the within proceedings issued on the 14th May,
2014.
8. A
further retention application was made by the first respondent seeking
retention of the screen wall on the 9th October, 2014. A fourth inspection
was carried out by Ms. Roche on the 15th October, 2014. On the 20th
November, 2014, the Council refused permission for the screen wall and by
further decision of the 21st January, 2015, refused retention of the
shed/workshop.
9.
Following the refusal of the two retention applications, the first
respondent swore a replying affidavit in these proceedings on the 27th
April, 2015, when he raised for the first time the limitation issue on the
basis that since more than seven years had elapsed between the commencement
of the unauthorised development and the commencement of the proceedings,
the Council could not pursue the matter further. Following the making of
the order by the Circuit Court in April 2015, the respondents served notice
of appeal and on the 30th June, 2015, again applied for retention
permission of the existing dwelling house, garage and outbuildings as
constructed. On the 3rd July, 2015, the Council granted permission for the
dwelling house but refused retention of the garage and outbuildings.
10.
In his first replying affidavit, the first respondent accepts that the
shed/workshop and screen wall were built without planning permission. He
claims however that the development commenced more than seven years prior
to the institution of these proceedings. The first respondent's evidence in
this regard is that the construction of the shed/workshop commenced on or
about the 22nd April, 2004 and the foundations of the screen wall were
constructed on the 3rd February, 2005. He refers to certain invoices for
concrete he claims was purchased for this purpose. The first respondent's
evidence in that regard is supported by an affidavit of Donougha O'Brien, a
groundworks contractor who avers that in April 2004, he was engaged to
excavate and lay foundations for the shed/workshop and screen wall, inter
alia .
11.
He further says that as a result of consulting his diary, he is satisfied
that on the 20th April, 2004, he excavated foundations for the entrance
wall and boiler house, neither of which are relevant to these proceedings.
He goes on to say that on the 22nd April, 2004, he returned in order to
pour the concrete floor of the shed/workshop. He does not appear to make
any explicit reference to pouring the foundations for the screen wall.
12.
The respondents rely on a further affidavit of Gerry Nolan, a block layer,
who avers that he attended in early 2005 at the property to build the
screen wall, the foundations of which were already completed. He does not
appear to indicate what actual works were carried out by him or to what
extent the construction of the screen wall was undertaken. In fact, this is
confirmed by the first respondent's second affidavit. In response to an
averment by Ms. Roche that an aerial photograph taken in 2005 does not
appear to detail the garage or screen wall, the first respondent says the
following:
"For
the avoidance of any doubt, the respondents have never claimed that these
structures were completed before 2005. We maintain that these
developments were, however, commenced in 2004 and 2005 respectively. I
worked on those structures on a piecemeal basis after the development
commenced: I purchased materials when I could afford them and I did the
work myself. As a result, although the development commenced in 2004 and
2005, the shed (which was the last structure to be finished) was not
actually completed until late 2010 or early 2011."
13. A
number of Google Earth and Google Street View images are exhibited in the
affidavits of Ms. Roche. A street view image from March 2009 clearly shows
that while the screen wall is present, the shed/workshop is not, certainly
above the level of the wall at any rate. The Google Earth image from 2010
appears to show items such as vehicles and/or containers in the area now
occupied by the shed/workshop. Google Earth and Street View images from
2011 clearly however show the presence of the shed/workshop which appears
to be fully or substantially completed. This appears to be confirmed by the
first respondent in his affidavit above quoted where he says that the
shed/workshop was not actually completed until late 2010 or early 2011.
14.
It is notable however that there is no evidence before the court as to what
precise works were done by the respondents or when they were done, either
in terms of the shed/workshop or the screen wall. All that the evidence
appears to establish is that the concrete for the workshop floor was poured
in April 2004 and foundations for the wall possibly in 2005. It is thus not
known when the screen wall that is to be seen in the 2009 photographs was
actually constructed to the extent seen in those photographs, nor is there
evidence of what degree of construction of the shed/workshop actually
occurred before it was substantially or totally completed in 2010/2011.
15.
The only persons who can establish these facts are the respondents who have
chosen not to do so. In the case of the screen wall for example, the
building of such wall, up to a certain height at any rate, may well have
constituted exempted development under the planning code. It is only when
the permitted height was exceeded, as it was here, that this development
became an unauthorised development. There is no evidence before the court
as to when this occurred.
16. I
am satisfied that the authorities establish that where a time bar defence
is relied upon by a developer in answer to an application under s.160, the
onus rests upon the developer to prove when the development commenced - see
Wicklow County Council v. Fortune [2012] IEHC 406.
In tandem with that issue lies the question of when a development can be
said to have commenced. In that regard, it is important to bear in mind
that the evidence in this case, in relation to the shed/workshop at any
rate, establishes that while some very preliminary work in the nature of
concrete pouring may well have been undertaken in 2004, nothing of
substance appears to have happened subsequently for some six years. In Dublin
County Council South v. Balfe Ltd [1995] WJSC-HC 4391, this court
(Costello J.) considered when a development had commenced for the purposes
of an application under s.27 of the Local Government (Planning and
Development) Act, 1976, the predecessor of s.160. In that case, as here,
there had been a substantial lacuna between what the developer claimed was
the commencement of the unauthorised user and its resumption. In that
regard, the court noted (at p.4408):
"In
my opinion when a use has been abandoned and then recommenced nearly four
years later an occupant cannot rely on an earlier use to support a claim
that the limitation period in the section should run from the earlier date
and not from the date of recommencement. If construed in the way urged by
the respondents it would be a simple matter to drive a coach-and-four
through the section by discontinuing an unauthorised use after a warning
notice had been served and then re-commence it again after several years
when a limitation period based on the discontinued unauthorized user had
expired, and I consider that the section cannot be so construed."
17.
Although that case concerned user as distinct from construction, it seems
to me that this logic must be equally applicable to the facts of the
present case. It would for example clearly be an absurd construction of the
section to suggest that because one block is laid and left in situ for ten
years before a building is constructed that the development commenced with
the laying of the block. In Kildare County Council v. Goode [1999] 2
IR 495, the Supreme Court had to consider whether quarrying activities
carried on by the respondents on their lands required planning permission.
They contended that the extraction of sand and gravel was a "works
development" as defined by the Local Government (Planning and
Development) Act, 1963.
18.
Barron J., with whom the other members of the court agreed, found that the
expression "works" was intended to refer to activity which was
"carried out once and for all and as a means to an end rather than an
end in itself. It was intended to apply to temporary activity involving the
erection of structures or changes to or removal of existing
structures" (at p. 502).
19.
In my view, the concept of "commencement of the development"
involves a reasonably continuous, but temporary, unitary process leading to
a completion of the development in issue. Something which is done
sporadically and piecemeal with intervening significant periods of
inactivity and abandonment, cannot in my opinion amount to a
"commencement of the development" within the meaning of s.160.
Seen in that light, it seems probable that the development here which led
to the completion or substantial completion of the shed/workshop can only
be viewed as having commenced in or around 2010. However, it is not for the
Council to prove that.
20.
In relation to the shed/workshop, I am therefore satisfied that the
respondents have not discharged the onus of establishing that the
commencement of the development happened more than seven years prior to the
institution of these proceedings.
21.
With regard to the screen wall, as I have already indicated there is no
evidence before the court as to when this was constructed, to its present
height at any rate. As noted above, the development would only have become
unauthorised once a certain height was reached and the respondents have chosen
to put no evidence before the court of when this occurred. The pouring of
the foundations, without more, cannot therefore amount to the commencement
of the development, which of course can only refer to the unauthorised
development.
22.
For these reasons therefore, the respondents have failed to discharge the
onus which rests upon them of establishing that the unauthorised
development in issue commenced more than seven years prior to the
institution of these proceedings. It is accordingly unnecessary for me to
consider whether or not the longer twelve-year time limit would in any
event be applicable to this case. I therefore propose to dismiss this
appeal and affirm the order of the Circuit Court.
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