Corkman must restore land to condition before unauthorised works, court rules

Judge said the breaches of planning law were 'significant' as the lands near Cobh are zoned for agricultural use but roadways, foundations, works on a shed, hardstanding and other elements had been constructed

Judge said the planning system and rule of law are undermined if flagrant breaches of planning and environmental laws are not subject to strict enforcement.

A man must restore his lands in Cork to the condition they were in before there were unauthorised developments of roadways, foundations and other works, the High Court has ruled.

Michael Hogan accepted there were breaches of planning laws on his lands at Ballymore, Cobh, Co Cork, but argued his neighbour, Jan Verwey, brought an injunction application outside the seven-year time limit.

Mr Verwey obtained a circuit court order, under section 160 of the Planning and Development Act of 2000, against Mr Hogan requiring him to restore the property to its condition prior to unauthorised development.

Mr Hogan appealed to the High Court, which upheld the orders in a judgment published this week.

In his ruling, Mr Justice Michael Twomey said the breaches of planning law were “significant” as the lands are zoned for agricultural use but roadways, foundations, works on a shed, hardstanding and other elements had been constructed.

In 2018, Cork County Council refused Mr Hogan’s request for works on an agricultural shed to be deemed exempt from planning permission.

'Culpable disregard'

The judge said Mr Hogan’s conduct towards the council has been “poor”, having ignored warning letters and enforcement notices from 2019 to 2021 regarding the developments. His actions amount to “culpable disregard”, as there is no evidence of any attempt to rectify planning breaches, the judge added.

Mr Hogan did not dispute that unauthorised development had occurred, but his defence to Mr Verwey’s request for an injunction was that some of it was undertaken more than seven years ago, meaning Mr Verwey’s application was brought outside the applicable time limit, the judge said.

His defence to the remainder of the unauthorised development, the judge added, was that he is living on the property in a caravan and his 40-year-old son is living in a mobile home there. He claimed he should not be subject to a planning injunction because, under article 40.5 of the Constitution, one’s dwelling is inviolable.

Mr Justice Twomey said photomaps provided by Mr Verwey’s legal team show a “very significant intensification” of unauthorised development between 2017 and 2022, thus bringing these within the seven-year limit. This evidence was not disputed by Mr Hogan.

This unauthorised development included a shed under construction, a compound containing steel containers, metal shed and a waste dumping area, and a compound with a mobile home, campervan, old cars and horse boxes, the judge said.

Racial slurs

Mr Justice Twomey pointed to Mr Verwey’s right to protect his own property interests and personal rights. In addition, said the judge, Mr Verwey claims Mr Hogan’s son has subjected him to racial slurs and made a threat to his life.

For various reasons, the court could see no reason for applying the principles outlined in a 2022 Supreme Court judgment that overturned orders granted to Clare County Council requiring people from the Traveller community to vacate local authority lands in Ennis. 

Significantly, he said, Mr Verwey is a private party, not a housing authority with a duty to house the respondents against whom a planning injunction is sought.

Mr Justice Twomey said the planning system and rule of law are undermined if flagrant breaches of planning and environmental laws are not subject to strict enforcement.

He dismissed Mr Hogan’s appeal and affirmed the circuit court orders, save in one minor respect, regarding the requirement to close up all unauthorised entrances.