A couple must demolish a house they built in “flagrant breach of the planning laws”, a five-judge Supreme Court has ruled.
Plumber Michael Murray and his wife Rose have a year to comply with the court’s order.
Meath County Council, which brought the case, said it will not apply for legal costs against them if the house is demolished.
The Murrays built the 588 sq m house in 2006 at Faughan Hill, Bohermeen, Navan, Meath, on land they bought from a farmer. However, the court heard, the previous owners had agreed with the council to sterilise the rest of that land against further development on the basis that one house would be built on the land for a member of the farmer’s family.
Before building their house, the Murrays applied for permission for a 283 sq m dormer bungalow for them and their three children on part of that land. This was refused. They went ahead anyway and built what a judge described as an “imposing” structure nearly double that size.
The council brought enforcement proceedings which resulted in a 2010 High Court order that they should demolish within two years.
They argued in the High Court that the house was part of land which Mr Murray farmed, though the High Court judge said this was “preposterous” and they had “brought this on themselves”. They appealed and yesterday the Supreme Court upheld the High Court decision.
In their appeal, they argued that, among other things, the demolition order was incompatible with their property, family, parental, and private ownership rights under the Constitution and with similar rights under the European Convention on Human Rights.
Giving the Supreme’s decision, Mr Justice William McKechnie said the court was mindful of the hardship it would cause the Murrays, but it could not lose sight of the fact that they have been living in an unauthorised development which was in flagrant breach of the planning laws for over a decade.
One of the main issues which the court focused on was the issue of the inviolability of the family home.
Mr Justice McKechnie referred to a decision of then-High Court judge Gerard Hogan, now on the Court of Appeal, in relation to a chalet built in a scenic part of Wicklow without planning permission.
That case related to Katie Fortune who lived in the chalet at Lough Dan, Roundwood, for 14 years with her two children.
In his 2013 judgment in that case, Mr Justice Hogan refused to grant a demolition order based on the home inviolability provision of the Constitution.
The Supreme Court said Mr Justice Hogan also drew on another Supreme Court decision in relation to the requirement that search warrants must be sworn by an independent person rather than a garda officer close to an investigation.
That case related to Ali Charaf Damache, 50, an Algerian-born Irish citizen living in Waterford, who was wanted in the US for an alleged terrorist conspiracy by an American Muslim, Colleen LaRose, known by her online name as ‘Jihad Jane’.
She was in touch with Damache about her plan to travel to Sweden to kill artist Lars Vilks .
Mr Justice Hogan found the findings in the Damache case meant the constitutional inviolability of a dwelling was “a free-standing, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike”.
Mr Justice McKechnie said he
was reluctant to endorse Judge Hogan’s statement as it was in such non-qualified and unconditional language of “immense reach, with a potential capacity to travel to destinations quite unknown”.
Judge Hogan elevated the constitutional protections afforded by the inviolability provision (Article 40.5) to “too high a position of prominence” in the context of applications to demolish unauthorised buildings.
In this case, Mr Justice McKechnie did not accept their submission that the High Court failed to give proper weight to the personal hardship a demolition order meant.
The Murrays were fully aware of the necessity to obtain permission and the Supreme Court agreed with the High Court’s view what they did was “particularly flagrant and completely unjustified on any basis”.
© Irish Examiner Ltd. All rights reserved