Thursday 17 October 2019

Shed built by couple beside their home was unauthorised, High Court rules

The High Court, Dublin
The High Court, Dublin

Tim Healy

A couple who built a shed/workshop next to their Wicklow house without planning permission have failed in a High Court appeal challenging enforcement proceedings against them.

Liam Lee and Jean Tompkins failed to establish the two-storey structure was built more than seven years before the local council brought proceedings against them. No action can be taken, by law, if proceedings are not brought within seven years from the start of the development.

Mr Justice Seamus Noonan rejected an appeal by the couple over the dormer-type structure which is independent of their house at Kilmurry Lower, Baltinglass.

Mr Lee obtained planning permission from Wicklow Co Council for a two storey dwelling on the land in 2003 and built a house there.

Ten years later, in 2013, it came to the council's attention that a shed/workshop had been built without permission. A large brick screen wall was also built without permission.

The council brought enforcement action in May 2014 requiring the cessation of these unauthorised developments. In 2015, the Circuit Court granted the council the order sought.

The couple appealed and Mr Justice Noonan affirmed the Circuit Court order.

The judge said the dispute centred on whether the council was precluded from bringing proceedings by virtue of the expiration of a seven year period from the commencement of the development. Applications for retention of the structures were rejected by the council.

Mr Lee argued he was covered by the seven year time bar because the work on the structures was "commenced" in 2004 and 2005.

He worked on them on a piecemeal basis after that, purchasing materials when he could afford them. He said while the shed/workshop was started back then, it was not completed until 2010/11.

The judge said a Google street street view image from March 2009 clearly showed that while the screen wall was present, the shed/workshop was not or at least was not visible above the height of the wall.

A 2010 Google Earth image showed vehicles and/or containers in the area now occupied by the shed/workshop.

Similar images from 2011 clearly show the presence of the shed/workshop which appears to be fully or substantially completed, the judge said.

It was notable, he said, there was no evidence before the court as to what precise works were done by the respondents or when they were done, either in terms of the shed/workshop or the screen wall.

All that the evidence appears to establish was that the concrete for the workshop floor was poured in April 2004 and foundations for the wall possibly in 2005.

It would be absurd to suggest that development commenced because one block for a structure is laid and left in situ for ten years before the building is constructed that.

In the judge's view "commencement of development" involved a reasonably continuous, but temporary, unitary process leading to completion of a development.  Something done sporadically and piecemeal with intervening significant periods of inactivity cannot amount to commencement of development, he said.

The respondents failed to discharge the onus which rests upon them of establishing the unauthorised development commenced more than seven years prior to the institution of these proceedings.

He rejected their appeal.

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