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Further to a previous article on the Council taking enforcement action against a homeowner in Co. Wicklow (see  post from Nov 7th 2012) there is now an update:

The High Court have refused to make a demolition order against Ms. Katie Fortune for building a chalet in Lough Dan, Roundwood, Co. Wicklow.  Ms. Fortune has lived in the chalet for 14 years in an Area of Outstanding Natural Beauty.

Mr Justice Gerard Hogan refused to make a demolition order as the council had not provided any compelling evidence that the house was completely at odds with public policy objectives.  Although the chalet was unauthorised in his view the house did not jeopardise or threaten other parties’ rights.  In relation to the issue of being located in an outstanding area of natural beauty the Judge, having visited the site, considered the chalet was entirely hidden away from view and did not detract from any of the great vistas which are one of the glories of the Wicklow uplands.

Other unauthorised structures on the site are still to be determined in terms of their potential demolition.

A recent judgment delivered by Mr. Justice Hogan in the High Court (4^th 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 Read the rest of this entry »