Monday 23 October 2017

Judge's ruling saves scenic chalet from being demolished

Katie Fortune: did not have planning permission
Katie Fortune: did not have planning permission

Tim Healy and Dearbhail McDonald

A WOMAN who built a chalet in a scenic part of Co Wicklow will not have to demolish it after a judge ruled it would breach the constitutional safeguard to the inviolability of the home.

Katie Fortune, who has lived in the chalet for 14 years with her two children at Carrigeenshinnagh, Lough Dan, Roundwood, did not have planning permission for her home.

But yesterday the High Court ruled that the illegal chalet should not be demolished.

It is the first unauthorised development case to rely on the constitutionally protected "inviolability" of the home.

Wicklow County Council fears that the ruling, which is expected to be appealed, could set a precedent for others who have built homes and buildings without planning permission.

Ms Fortune had asked the High Court to overturn a decision of Wicklow Circuit Court requiring that the structure be demolished or removed.

Mr Justice Gerard Hogan, who visited the chalet, said he was refusing to make a demolition order because the council had failed to produce any compelling evidence that the dwelling was completely at odds with important public policy objectives.

Article 40.4 of the Constitution states that the dwelling of every citizen is inviolable and shall not be forcibly entered, save in accordance with law.

The judge said that a recent Supreme Court case regarding the power of gardai to issue search warrants in respect of private homes compels the courts to conduct a "complete re-appraisal" of even familiar pieces of the legal system – including the operation of planning laws – in so far as they impact on the private dwelling.

The judge had previously ruled it was an unauthorised development but said, "it was plain" the chalet "does not jeopardise or threaten other parties' rights".

VISTAS

While located in "an outstanding area of natural beauty" the judge said 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".

The council claimed if a demolition order was not granted it could set a precedent and compromise the Wicklow Mountains as a special area of conservation.

The judge said the fact he had found the structure to be unauthorised should act as a deterrent. He did not accept that allowing the dwelling to remain would set a precedent.

Proceedings in relation to the other structures on the site will be dealt with at a later date.

Irish Independent

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