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  • First time Article 40.5 of the Irish Constitution considered as defence against injunction to have house demolished

    A recent judgment delivered by Mr. Justice Hogan in the High Court (4th October 2012) has raised a very interesting issue in terms of the weight that should be placed on Article 40.5 of the Irish Constitution in terms of deciding on an application by a local authority to seeking an order to demolish a dwelling built without the benefit of planning permission.  Article 40.5 states that:

     “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.

    In the case of Wicklow County Council -v- Fortune Justice Hogan was dealing with a situation where the defendant, Ms. Fortune, had constructed a small timber framed chalet approximately 70 sq. m. in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. The Council had postponed enforcement proceedings pending a retention application by Mr. Fortune however when An Bord Pleanala ultimately refused permission for the house the Council made an application to the Circuit Court for an injunction to remove the dwelling.  The Circuit Court found in favour of the Council and ordered that the site should be demolished. The case came before Justice Hogan on appeal to the High Court.

    Justice Hogan noted in his judgement that this appeal from a decision of the Circuit Court raises “difficult and, in some respects, novel issues concerning the application of the Planning and Development Act 2000”.  One of the key issues related to the nature of the “inviolability” of the dwelling as provided for in Article 40.5 of the Constitution and to what extent, if at all, can this constitutional provision be invoked by the home owner by way of defence to an application for an injunction which would seek to compel him or her to remove an unauthorized dwelling.

    As noted by Justice Hogan there was no real dispute but that the construction of the chalet was unauthorised and that the necessary planning permission for this structure is not in existence. The real question, therefore, is whether the court should exercise its discretion to grant an injunction to the Council seeking the removal of the house. In this regard Justice Hogan noted that the Article 40.5 defence appears to be the first time in which such an argument has been advanced in a case where a local authority makes an application to the courts for a house to be demolished.  The importance given to considering this defence is evident from the view expressed by Justice Hogan that were it not for the constitutional argument, he would have been inclined to grant the injunction, albeit subject to a two year stay.

    Ms. Fortune’s argument was that no injunction could or should be granted as this would infringe the guarantee of inviolability (sanctity) attaching to her dwelling as provided for in Article 40.5 of the Constitution.  Justice Hogan noted that if this were to be taken literally it would effectively mean that “residential planning control would be virtually meaningless”. In his view

    “The Constitution was not intended to bring about a situation where someone could profit from their own deliberate and conscious wrongful actions by asserting an immunity from legal action and appropriate enforcement by invoking Article 40.5”.

    However, he acknowledged that Article 40.5 affords a real protection which the courts must safeguard by word and deed. He added that it is not simply enough for the applicant Council to show that the structure is unauthorised or that the householder has drawn these difficulties upon themselves by proceeding to construct the dwelling without planning permission. Rather

    “It would be necessary to go further and show, for example, that the continued occupation and retention of the dwelling would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response”.   

    Justice Hogan gave examples such as where the dwelling jeopardised or threatened the rights or amenities of others or visibly detracted from an area of high natural beauty or presented a real and immediate traffic or fire hazard.

    Given the novelty of the point and, in particular, the fact that the critical Article 40.5 issue was highlighted only in the wake of a recent Supreme Court’s decision, Justice Hogan adjourned the question of whether this particular unauthorised dwelling should be demolished for further argument in the light of this judgment.

    The final decision on this case will be watched with interest.

    Published on November 7, 2012 By:David Mulcahy · Filed under: Court Cases, Planning Legislation, Residentail, Rural Planning; Tagged as: , , , , ,
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