Definition of a tree stumps court in Rocca case

A JUDGE said it might be a case of not being able to see the woods for the trees when lawyers for Michelle Rocca and her neighbours squabbled over the legal definition of what was a shrub or a tree.

Ms Rocca, wife of singer Van Morrison, told the High Court she had “no confidence” in her neighbour’s proposed landscaping scheme to provide privacy for her home in Dalkey, Co Dublin.

She also said she had reluctantly taken proceedings against her local council over its alleged failure to protect her privacy through the planning system because she had “no other means” of protecting the amenity of her property and the privacy of her family.

In affidavits read out in court yesterday, Ms Rocca, Kilross House, Sorrento Road, said she strongly disputed claims by a tree expert retained by her neighbours, Mary and Desmond Kavanagh, that the shrub and tree planting scheme would provide privacy.

The claims came on the third day of proceedings by Ms Rocca against Dun Laoghaire Rathdown County Council, which, she said, failed to protect her privacy when it accepted a notice from the Kavanaghs last September that they were in compliance with a planning permission issued the previous August for the Kavanagh’s 7,500-square-foot home, Mount Alverno.

Talks on Wednesday to try to resolve the dispute failed and the case resumed yesterday.

Ms Rocca is seeking leave to quash that compliance order because there had been unauthorised development of the driveway to Mount Alverno at the time.

She also claims the decision only provided for the planting of shrubs between the properties, when trees had been stipulated as part of three planning permissions issued to the Kavanaghs.

While the council issued enforcement notices against the Kavanaghs, and most of these matters were later rectified by subsequent applications, Ms Rocca said it had been anticipated that the council would bring a prosecution over these matters, but this had not occurred to date.

She did not understand a process whereby her neighbours could obtain a compliance order for a drawing which “clearly indicates unauthorised development”, including the driveway.

She said it is clear that replacement tree-planting cannot take place in accordance with planning permissions until a valid compliance notice is made.

She strongly disputed claims by Mark Boyle, the Kavanaghs’ landscaping expert, that the Kavanagh’s were committed to achieving a high standard of landscaping screening using trees and shrubs.

“I do not have any confidence in these assurances,” she said. She said she regarded them as “disingenuous in the extreme” because they did not even take account of the fact that eight trees have been removed since last September. These trees were “clearly marked for retention” in the original landscape proposals, known as the Murray Plan, which was submitted as part of the planning applications, Ms Rocca said.

During yesterday’s hearing, Eamon Galligan, SC, for Ms Rocca, said she had not opposed the Kavanagh’s planning applications and had entered into discussions with them over their plans. Mr Justice Hanna remarked she was “trying to be a constructive neighbour”.

Counsel read affidavits from tree experts for both sides in which there was considerable dispute over what was required.

Earlier, Mr Justice Hanna asked the parties to provide him with an agreed schedule of which trees were removed and which remained.

He also asked if there was a legal definition of what a tree was.

Mr Galligan said the authority on the matter appeared to be The Law of Trees, Forests and hedgerows, by Charles Mynor, but the judge said he had never read it.

When counsel explained that even he was having difficulty over what the experts were saying in relation to what is a tree or shrub, the judge remarked it may be a case of not being able to see the wood for the trees.

The case continues.

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