Chalet built without planning permission not to be demolished

A chalet built in a scenic part of Co Wicklow without planning permission will not have to be demolished after a judge ruled this 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, had asked the High Court to overturn a decision of Wicklow Circuit Court requiring that the structure be demolished or removed.

The council argued the structure was an unauthorised development and should be demolished.

In his judgment yesterday, Mr Justice Gerard Hogan 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.

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.”

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 judge said he had also visited the site himself with the consent of the parties and while this was a subjective view, he found the chalet was “tastefully constructed”.  It did not impinge on the amenities or aspect of any other landowner or local inhabitant, he said.

Any order to demolish the chalet represented “a drastic interference” with Ms Fortune’s property rights and could only be justified if compelling evidence requiring it had been advanced by the council, he said.  This had not been done and he was therefore refusing to grant the council its order.

The case arose after Wicklow Co Council initiated proceedings in 2009 against Ms Fortune, and her brother Johnny Fortune under Section 160 of the Planning and Development Act 2000.

In 2011, Wicklow Circuit Court granted the council various orders requiring the Fortunes to demolish and cease occupation of the chalet and other structures on the lands including a mobile homes, a chicken coop and a caravan on the site.

She appealed to the High Court claiming the demolition of her home would compromise her constitutional guarantee under Article 40.5 of the Constitution safeguarding the inviolability of the dwelling.

The council argued any failure to make a demolition order would undermine the protection for the environment, and would reward Ms Fortune for having build an unauthorised development.

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

Mr Justice Hogan said the fact he had found the structure to be unauthorised should act as a deterrent to “those who might take the law into their own hands.”

He did not accept allowing the dwelling remain would set a precedent.

No compelling evidence was advanced that the dwelling compromised the protection of the site, he added.

While the council had advanced arguments that were “important and weighty” the Judge said the court could not ignore the wording of Article 40.5 which ensures that a private dwelling be safeguarded in an extensive manner as befits a free and democratic society.

The proceedings in relation to the other structures on the site, which are also claimed to lack planning permission, will be dealt with at a later date.