THE SUPREME COURT
[Appeal No: 322/13]
In the Matter of Section 160 of the Planning and Development 2012 (as amended)
On the Application of Fingal County Council
Fingal County Council
Judgment of Mr. Justice Clarke delivered the 25th May, 2017.
1.1 This is the second judgment in this appeal. It follows on from a previous judgment delivered by Laffoy J., speaking on behalf of the Court, on the 31st July, 2015 (Fingal Co. Council v. Kennedy  IESC 72). It is, therefore, unnecessary to set out the facts or issues in any detail.
1.2 In brief terms the appeal was against an order made by the High Court in unusual proceedings brought by the applicant/respondent (“Fingal”) which were directed towards the removal of a significant vessel, “Portisham”, from the quayside at Balbriggan harbour. As noted by Laffoy J. in her judgment, there might well have been a number of legal bases on which Fingal might have sought orders directed towards the removal of the “Portisham”. However, the route chosen was an application for a so-called planning injunction under s.160 of the Planning and Development Act, 2000 (as amended) (“the 2000 Act”). Thus the only issues raised on behalf of Fingal were ones concerning the contention that the placement and mooring by the respondent/appellant (“Mr. Kennedy”) of “Portisham” and his use of it for habitation amounted to an unauthorised development.
1.3 As is also clear from the judgment of Laffoy J., one of the issues which was canvassed on the appeal was as to whether Fingal had discharged the onus of proof which lay on it to establish that “Portisham” was situated on the foreshore. It is unnecessary to repeat here the analysis which led Laffoy J. to conclude that it was necessary for Fingal to establish that “Portisham” was indeed moored to and, in particular, floats over the foreshore in order for jurisdiction to make the relevant order under s.160 of the 2000 Act to arise. That matter was conclusively determined by this Court through the judgment of Laffoy J.
1.4 For the reasons set out at paras. 29 and 30 of her judgment, Laffoy J. concluded that “the Court must find that technically the Council has not discharged the onus of proving that “Portisham” is moored to and floats over the foreshore”.
1.5 On that basis Laffoy J. concluded, at para. 34, that, while it was highly probable that “Portisham” was in fact moored on the foreshore, that matter had not been established but that the Court was prepared to hear the parties further on the question of proof that “Portisham” was on the foreshore. The matter was put back for further argument and a further oral hearing took place. The purpose of this judgment is to deal with the issues raised at that further hearing. However, before going on to deal with those issues it is appropriate that I make a number of preliminary observations.
2. Preliminary Observations
2.1 The first two observations concern the position adopted by Mr. Kennedy at the resumed hearing. In that context, it should be noted that it was made clear in the judgment of Laffoy J. that submissions at the resumed hearing should be “strictly limited to the issue of proof of the present location of “Portisham” on the foreshore”. Notwithstanding that clear ruling Mr. Kennedy made a significant number of observations both in writing and in his oral submissions which went far beyond that question. At least some of those matters do need to be commented on.
2.2 Mr. Kennedy complained that certain issues, which he had raised at the original appeal, concerning what were said to be an interference with the right to his home (being “Portisham”) under the Constitution or under the European Convention on Human Rights (“ECHR”), were not dealt with. It is important to emphasise why that was so. As already noted the sole basis on which Fingal sought orders from the High Court was under the 2000 Act and the allegation that the “Portisham” being placed where it was amounted to an unauthorised development which had been carried out without any planning permission. Clearly if Fingal were unable to establish a breach of the 2000 Act then no order under s.160 of that Act could be made. For that reason it was, of course, necessary for the Court to address the question of whether a breach of that Act had been proven by Fingal. As already noted the Court was not, at that time, satisfied that Fingal had proven the necessary breach.
2.3 However, in the event that such a breach was established, then it would be clear that Mr. Kennedy would have been shown to have acted in what I think could fairly be described as a flagrant breach of planning law by taking it on to himself, without the necessary planning permission, to establish a habitation in Balbriggan harbour. The undoubted rights guaranteed both by the Constitution and by the ECHR do not go so far as to entitle persons to establish homes in flagrant breach of planning law. Ensuring that there is proper compliance with environmental law (which is, after all, there to protect the environment for the benefit of all) requires that significant breaches are remedied by courts once it is shown that adequate proof of the breach concerned has been provided.
2.4 While it is true that a court, in deciding whether to exercise the jurisdiction conferred by s.160 of the 2000 Act, has a discretion which requires the Court to adjudicate on whether it is appropriate to make an order having regard to a wide range of factors, it nonetheless remains the case that it would require extraordinary circumstances for it to be appropriate for a court to exercise that discretion against requiring the demolition or removal of a structure where there was a flagrant breach of planning laws. The fact that the structure concerned may be a home, which enjoys constitutional protection, would, of course, have to be taken into account but again that fact, in and of itself, could not allow a court to overlook a flagrant breach of planning or environmental law. If the breach were minor and the conduct of the infringer understandable then the consequences, having regard to the personal circumstances and potential hardship for the respondent, of an order which would have the effect of demolishing or removing a family home might lead to a more difficult balancing exercise.
2.5 However, here, if it could be established that the positioning and use of “Portisham” amounted to a breach of planning law, it would follow that Mr. Kennedy had taken the law into his own hands and decided, without seeking any appropriate permission, to establish a habitation in an entirely unauthorised way. Such a breach, if it could be established, would be a very serious matter which could not be overlooked by the courts. Furthermore, in that context, and without addressing the merits, it is clear that Mr. Kennedy was at least offered some form of accommodation by Fingal although he did not find it satisfactory. That too is a factor which would have weighed in favour of an order being made.
2.6 It is also clear that the position under the ECHR is similar to that which applies under the Irish Constitution. In Chapman v. United Kingdom  33 E.H.R.R. 18, the European Court of Human Rights noted that, when considering whether a requirement that an individual leave a home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. The Court went on to note that it would be slow to provide protection in the case of those who establish a home in breach of the prohibitions of environmental law. In that regard the Court noted that “For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community”. It follows that, under the ECHR, it would also require very significant countervailing factors to justify a court in refusing to take appropriate action to remedy a flagrant breach of planning law even where it involved a family home.
2.7 In all the circumstances it is impossible to see how an order under s.160 would not have been appropriate in this case had it been established that the positioning of “Portisham” and its use as a habitation was in significant breach of planning law.
2.8 Second, Mr. Kennedy, during the oral hearing, made the point that many boats are left on the foreshore during, for example, periods when the boat concerned is not in use. He rhetorically asked whether each such event amounted to a breach of planning law. It is, in that context, important to emphasise that the precise breach of the planning laws asserted by Fingal in this case did not involve simply the mooring and positioning of the “Portisham” in Balbriggan harbour but, in addition, its use there as a habitation. As appears from the judgment of Laffoy J., there are specific measures of planning law which apply to the use of certain types of vehicles, vessels or the like as habitation. This case was clearly different to one which simply involved leaving an uninhabited boat in any particular location. The point raised by Mr. Kennedy was not, therefore, relevant to the specific issues which arose in this case.
2.9 Turning then to the position adopted by Fingal at the oral hearing, it is striking that no attempt was made to introduce any additional evidence concerning the precise boundaries of the foreshore. While Laffoy J. in her judgment did not, for obvious reasons, advise Fingal on its proofs, it is striking that she drew attention, at para. 29, to Browne v. Donegal Co. Council  I.R. 132 and the dictum of Henchy J. at p.144 to the effect that delineation on a relevant ordnance map duly certified provides admissible evidence of boundaries. Having regard to those comments it is surprising in the extreme that Fingal did not seek to introduce the relevant certified ordnance survey maps. In her analysis of the evidence which was already before the Court at the previous hearing Laffoy J. drew attention to the fact that the maps which had been produced in evidence might well have been based on ordnance survey maps but that there was no evidence to establish that fact.
2.10 However, rather than attempt to deal with the issue in that relatively straightforward way, Fingal sought to argue, in effect contrary to the finding of Laffoy J. that there was a technical failure of proof, that there was indeed evidence before the Court on the previous hearing which was sufficient to discharge the onus of proof concerning the precise location of the foreshore by reference to the actual position of “Portisham”. It is certainly open to some doubt as to whether it was permissible for Fingal to attempt in substance to seek to reverse the finding of Laffoy J. to the effect that there was a technical failure of proof but notwithstanding that observation I propose to consider the arguments put forward by Fingal to suggest that there is sufficient evidence to enable the Court to conclude that Fingal has discharged the onus of proof which lay upon it in respect of the boundaries of the foreshore at the relevant location. I turn to that question.
3. Fingal’s Case
3.1 In their written submission Fingal submitted that the evidence already adduced before this Court was sufficient to establish, on the balance of probabilities, that the “Portisham” was within Balbriggan harbour including the foreshore thus establishing an entitlement to maintain these proceedings.
3.2 In that context a range of statutory provisions were said to provide support for that proposition. Those were the Pier and Harbours Confirmation Act, 1867, Dublin Port and Docks Act, 1902, Local Government Act, 2001, Local Government (Dublin) Act, 1930, Local Government Provisional Order Confirmation Act, 1963, Local Government (Dublin) Act, 1993, Local Government (Ireland) Act, 1898 and Local Government (Reorganisation) Act, 1985.
3.3 One aspect of the case made by Fingal drew attention to s.227(2)(a) of the Local Government Act, 2001 which provides that reclaimed land or certain constructed works are regarded as part of a relevant local authority area. On that basis it is said that the pier at Balbriggan harbour can be said to form part of the functional area of Fingal.
3.4 Much of the other submissions made under the various statutory measures to which reference has been made were to like effect. Without so deciding I am prepared to accept, for the purposes of the argument, that it might be possible to conclude that there was sufficient evidence to establish that the pier itself forms part of the functional area of Fingal. However, “Portisham” is not on the pier. Rather it is beside the pier in a location which may or may not be on the foreshore . The fact that it is moored to the pier does not mean that it is on the pier. Indeed, given that it is the use of “Portisham” for habitation which gives rise to the potential specific breach of planning law which is relied on in this case, it is important to emphasise that what is used for habitation purposes is “Portisham” itself and not anything connected with the mooring by which it is attached to the pier.
3.5 In those circumstances I am not satisfied that any of the arguments put forward on behalf of Fingal at the resumed hearing establish that the technical failure of proof identified by Laffoy J. in her judgment is not in fact present. Whether or not the pier can be said to have been shown to form part of Fingal’s functional area, the “habitation” which forms a vital part of Fingal’s case, does not happen on the pier but rather over land/water which is adjacent to the pier. That land/water may or may not be part of the foreshore. If it is part of the foreshore then, for the reasons identified by Laffoy J. in the previous judgment, planning permission was required. If it is not part of the foreshore then it did not form part of Fingal’s functional area and no order could be made.
3.6 I am, therefore, satisfied that the position remains as it was when Laffoy J. delivered the previous judgment. There remains a technical failure of proof on the part of Fingal that “Portisham” as a habitation can be found on foreshore or otherwise within the functional area of Fingal.
4.1 For the reasons addressed in this judgment I am, therefore, satisfied that the position has not changed since the original judgment in this matter was delivered by Laffoy J.
4.2 There remains a technical lack of proof that “Portisham”, as a habitation, is within the functional area of Fingal for there was a technical lack of proof as to the precise location of the foreshore by reference to the positioning of “Portisham”.
4.3 In those circumstances, and having regard to the fact that Fingal were afforded a second opportunity to deal with that question of technical proof, I would propose to allow Mr. Kennedy’s appeal and discharge the order made in the High Court. I would emphasise that nothing in this judgment should be taken as necessarily establishing that the current location of the “Portisham” and its use as a habitation is lawful, whether as a matter of planning law or on any other basis. These proceedings have failed simply because of a lack of technical proof.