High Court ruling on retention of Wicklow home sets an ‘unhappy precedent’ - planners

Planning experts have warned that a recent High Court ruling with respect to unauthorised developments could undermine the regulatory system.

The finding that a person’s constitutional right to a home supersedes the fact that it was built without planning permission has raised concerns that a legal precedent has been set.

Earlier this month, Mr Justice Gerard Hogan in the High Court ruled in favour of Katie Fortune who had challenged a Wicklow County Council order to have her home demolished. Her small wooden chalet was established in 1999 on a plot of land opposite Lough Dan near Roundwood in Co Wicklow.

The council's decision to refuse two attempts to file for retention was supported by An Bord Pleanála and the Supreme Court also ruled in favour of demolition. But the High Court deferred to Article 40.5 of the Constitution, safeguarding the home.

Mr Justice Hogan travelled to Ms Fortune's property to view issues cited by the council as being in breach of regulations and warranting its removal. He did not accept that his ruling to overturn the order would set a legal precedent.

System undermined
Conversely, Fergal MacCabe, a planning expert and member of the Irish Planning Institute, described it as an "unhappy precedent".

He said there was a danger that a judge’s interpretation of planning regulations could undermine the regulatory role embodied in local authorities and through the appeals entity An Bord Pleanála.

“I would express surprise that the judge would profess to have planning skills superior to those exercised by An Bord Pleanála,” he said. “Even if he has said he doesn’t want to set a precedent, the reality is that it’s there.”

Mr Justice Hogan refused the demolition order because the council had failed to produce evidence the dwelling was completely at odds with public policy objectives.

Although he ruled it as unauthorised, it was hidden from view and did not interfere with the rights of others. An order to demolish it represented “a drastic interference” with property rights.

Ms Fortune had successfully argued that a demolition would compromise the guarantee under Article 40.5 of the inviolability of her home, ensuring that a private dwelling is safeguarded in an extensive manner as befits a free and democratic society.

Hard to fail
Fergal MacCabe said that it would be hard to see how anybody else wishing to establish an unauthorised family home in similar circumstances could fail.

“You wouldn’t know if there are other cases out there who would be similar and who can now bring forward the same arguments but, if they were the same arguments, it would look as if they can succeed,” he said.

A local authority planning source said the ruling held out “massive implications”. “It’s hard to know [the exact outcome] but it means that if you build a house, especially in a forest and no one sees you, well then it’s now your home and it’s inviolable. It’s a fairly drastic sort of judgement.”

The source said the Circuit Court would now likely have to defer to the recent ruling, which cannot be appealed to the Supreme Court, and so the next similar case to test the law would appear before the High Court, which could rule accordingly or differ depending on the case.

But, said the source, at a recent planners’ meeting “most people were incredulous. They figure it’s open season now. People will feel more confident now [believing] that if they do that they will get away with it.”

In his ruling, Mr Justice Hogan said the fact he had found the structure to be unauthorised should act as a deterrent to “those who might take the law into their own hands”.