High Court ruling may prompt law on demolition

Department of the Environment has circulated a letter to planners around the country, outlining the seriousness of the situation

 Katie Fortune’s home at  Carrigeenshinnagh, Roundwood, Co Wicklow. Last month, Mr Justice Gerard Hogan overturned a demolition order on the property which had been constructed without planning permission.  Photograph:  Garry O’Neill

Katie Fortune’s home at Carrigeenshinnagh, Roundwood, Co Wicklow. Last month, Mr Justice Gerard Hogan overturned a demolition order on the property which had been constructed without planning permission. Photograph: Garry O’Neill

Mon, Jul 1, 2013, 01:00

Minister for the Environment Phil Hogan is considering legislation with regard to the demolition of unauthorised developments following a recent landmark High Court judgment.

Last month, Mr Justice Gerard Hogan overturned a demolition order in relation to a Co Wicklow residence that had been constructed without planning permission.

Some planning experts suggested that the ruling, which cannot be appealed, would have serious implications for other local authorities attempting to police such developments.

In response, the Department of the Environment has circulated a letter to planners around the country, outlining the seriousness of the situation.

In the letter, Philip Nugent, the principal planning officer writing on behalf of the Minister, said that any similar future case could be appealed to the Supreme Court to further test the relevant law.

Alternatively, he said, legislation may be introduced in a bid to copper-fasten rules applying to illegal development and related enforcement.


Proportionality issue
Mr Justice Hogan’s ruling against demolition related specifically to the issue of proportionality, and he decided that nobody’s rights had been infringed upon by the property owned by Katie Fortune near Lough Dan, close to Roundwood in Co Wicklow.

The ruling found that the issuance of the relevant order “would represent a drastic interference with the inviolability of the dwelling and with Ms Fortune’s property rights” and that “such an order could only be justified if compelling evidence requiring such a step had been advanced by the council”.

Mr Justice Hogan found this not to be the case. It was the first ruling of its kind under section 40.5 of the Constitution, pertaining to the safeguarding of private property.


Legal precedent
While, as an appeal from the Circuit Court, this decision is not legally binding – or does not set a strict precedent – concerns remain it will ultimately be deferred to in similar cases.

In his letter, Mr Nugent told planners: “Future similar cases brought directly to the High Court could – if necessary – be appealed to the Supreme Court to allow for further exploration of the proportionality principle in relation to criminal offences committed under the Planning Acts.

“In the meantime, planning authorities are requested to continue to vigorously apply all the provisions available under part 8 of the Planning and Development Act to provide for the fullest implementation of the planning enforcement code.

“In addition, the Minister is considering legislative amendments to support enhanced implementation of the planning enforcement code through the next Planning Bill.”