In Wicklow County Council v Fortune (No.4) [2014] IEHC 267 (Hogan J., 6 May 2014), the High Court, in the fourth judgment concerning the lawfulness of certain structures erected on private lands in County Wicklow without planning permission, granted an order of declaratory relief to the effect that the chalet constructed and operating as a private dwelling is "an unauthorised development".

The Court held that it has a free standing and independent jurisdiction to grant declaratory relief which is distinct from its special jurisdiction under s.160 of the Planning and Development Act 2000.

Background

Prior judgments had stressed that while Ms. Fortune had unlawfully constructed her chalet, the guarantee of the inviolability of the dwelling in Article 40.5 of the Constitution meant that, having regard to the facts of her case, it should not be demolished. The Court found that it was not enough, in s.160 proceedings for the demolition of a private dwelling, for the Council to show that the chalet had been unlawfully constructed. In Wicklow County Council v Fortune (No.1) [2012] IEHC 406 Hogan J. stated:

“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. This might be especially so if, for example, 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 or the structure in question so manifestly violated the appropriate development plan that the homeowner had no realistic prospect of ever securing permission in respect of the dwelling.”

In Wicklow County Council v Fortune (No.2) [2013] IEHC 255, Hogan J. applied this test in the course of rejecting the Council’s argument that Ms. Fortune’s chalet should be demolished.

In Wicklow County Council v. Fortune (No.3) [2013] IEHC 397, Hogan J. re-visited aspects of those earlier judgments in the course of a decision which principally dealt with the planning status of certain caravans and mobile homes which were situated on Ms. Fortune’s lands.

In these proceedings, Council sought a formal declaration to the effect that the chalet had been illegally constructed due to concerns that the earlier judgments might be construed as somehow amounting to a tacit authorisation of the chalet in question.  Counsel for Ms. Fortune argued that the Court had no jurisdiction in s.160 proceedings to grant such a declaration.

Decision

The High Court granted the declaration sought by the Council.  Hogan J. held that the Court has a free standing and independent jurisdiction to grant a declaration which is distinct from the special jurisdiction under s.160 of the 2000 Act.

Hogan J. accepted that s.160(1) of the 2000 Act does not expressly vest the court with a jurisdiction to grant a declaration to the effect that a development was unauthorised, but highlighted that s.160 is simply a lex specialis which gives the court a wider jurisdiction to grant an injunction in respect of unauthorised development in planning cases than might have been the case under the ordinary law.

Hogan J. noted that the statutory power to grant an injunction is found in s.28(8) of the Supreme Court of Judicature (Ireland) Act 1877, and although that sub-section does not expressly empower the court to grant a declaration in lieu of granting an injunction, it has never been doubted that the courts could make such a declaration in such circumstances.

Furthermore, the first general statutory recognition of the power to grant a declaration, which was contained in s.155 of the Chancery (Ireland) Act 1867, acknowledged this remedy as an independent and free standing judicial power. Although this section was subsequently repealed, the actual language of s.155 of the 1867 Act is now reflected in the wording of the present O.19, r. 29 of the Rules of the Superior Courts 1986 and the principle is now one which has been firmly embedded in our legal system for well over a century. Hogan J. stated: "The granting of a declaration in the present case is perhaps especially apt. Not only should the transgression of the law by the defendant be appropriately marked by judicial order, but in truth such an order simply gives effect more completely to the earlier judgments which I delivered".