Court of Appeal dismisses appeal against dismissal of frivolous and vexatious planning action. The Murrays' attempt to overturn final planning orders was found to be an abuse of process.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Neutral Citation Number: [2025] IECA 164

Appeal Number: 2025/1

2025/2

Allen J. Butler J. O’Moore J.

BETWEEN/

CHRIS MURRAY AND ROSE MURRAY

PLAINTIFFS/APPELLANTS

- AND –

THE COUNTY COUNCIL OF THE COUNTY OF MEATH

DEFENDANT/RESPONDENT

JUDGMENT of Mr. Justice Allen delivered on the 5th day of August, 2025

Introduction

1. This judgment is delivered on two appeals by Mr. Michael Chris Murray and Mrs. Rose Murray against the judgment of the High Court (Dignam J.) delivered on 20th November, 2024 ([2024] IEHC 658) and consequent orders made on 12th December, 2024 (1) dismissing the Murrays’ action as frivolous and vexatious and an abuse of process, and (2) refusing their application for a variety of interlocutory orders. If – as the judge found – the action was frivolous and vexatious, it followed that there was no serious issue to be tried and so no basis for interlocutory relief.

2. Although the action the subject of these appeals was commenced by plenary summons issued on 22nd September, 2022, it is the latest battle in a war which has been ongoing for nearly twenty years about the fate of an unauthorised development at Faughan Hill, Bohermeen, Navan, County Meath.

3. When I first read the papers, I could see no merit in the appeal. Having carefully considered all that has been written and said on their behalf, my view has not changed. I have taken some time and trouble to fully explain for the benefit of the Murrays why I have concluded their appeal must fail. This judgment is unlikely to be of any interest to anyone else: even, I think, to Meath County Council to whom it was obvious from the outset that the action and the appeal were artifices calculated to postpone the evil day.

Overview

4. On 8th May, 2006 Mr. Murray applied to Meath County Council for planning permission to build a house on lands which he – or perhaps he and his wife, Mrs. Rose Murray – had recently bought – or agreed to buy – at Faughan Hill, Kells, County Meath. On 29th June, 2006 the application was refused.

5. Undaunted, and in flagrant and wilful breach of the planning laws, the Murrays built their house anyway. Not only that, they built a house twice the size of the house for which permission had been refused.

6. By originating notice of motion issued on 4th July, 2007, Meath County Council applied to the High Court for an order pursuant to s. 160 of the Planning and Development Act, 2000 (“PDA”) directing the Murrays to remove the unauthorised development and to restore the lands to a condition suitable for agricultural use. Mr. and Mrs. Murray fought the application tooth and nail. On 27th July, 2010 (for the reasons which had been given in a comprehensive written judgment delivered on 29th June, 2010 ([2010] IEHC 254)) the High Court (Edwards J.) made the orders sought but ad misericordiam stayed execution for two years on the basis that the order would be complied with in full before the expiration of the stay.

7. Mr. and Mrs. Murray appealed to the Supreme Court. For the reasons set out in a comprehensive judgment of McKechnie J. delivered on 19th May, 2017 ([2017] IESC 25) the appeal was dismissed. Again there was a stay on the order – this time for one year – expressly on the basis that it would be complied with in full on or before that date.

8. Mr. and Mrs. Murray did not comply with the High Court order and by notice of motion issued on 4th March, 2019, Meath County Council applied for their attachment and committal. That application was compromised on the terms set out in an order of the High Court (Meenan J.) made on 24th September, 2020 that the stay on the order of 27th July, 2010 was extended for another two years and that Meath County Council would then have possession of the property for the purpose of carrying out the demolition works. The order shows that it was made on Mr. and Mrs. Murray’s undertaking on oath to vacate the property on or before 24th September, 2022 to facilitate the demolition of the premises by the County Council or its agents.

9. By these proceedings, which were commenced by plenary summons issued on 22nd September, 2022, the Murrays sought to set aside the judgments and orders of the High Court and the Supreme Court – including the “settlement on consent” – and to challenge the constitutionality of s. 160 of the Planning and Development Act, 2010. By notice of motion issued on 23rd September, 2022 the Murrays applied for a variety of interlocutory orders to restrain Meath County Council from taking any further steps to enforce the High Court order of 27th July, 2010.

10. Meath County Council countered with a motion issued on 10th February, 2023 to dismiss the action as frivolous and vexatious and bound to fail.

11. In very broad terms, the Murrays’ case is that their 2022 action is based on new evidence which they discovered shortly before they issued their summons. This “new” evidence – they say – should have been but was not disclosed by Meath County Council in the s. 160 proceedings. They go so far as to suggest that the High Court and the Supreme Court were misled.

12. Meath County Council’s case – again in very broad terms – is that the so-called “new” evidence is not new at all. It contends that the issues which the Murrays would now raise variously could and should – if they were to be raised at all – have been raised in the s.

160 proceedings, and that for the most part they were in fact previously raised and dealt with.

13. The case made on behalf the Murrays is unfocussed and, in many respects, contradictory but the dispute in relation to the objective facts is very limited.

The Murrays’ planning application

14. At some stage in 2006 – it was never made clear precisely when – Mr. Murray – or he and Mrs. Murray, it was never made clear which – agreed to purchase an area of agricultural land – variously said to be eighteen acres and twenty-three acres – at Faughan Hill, Bohermeen, Navan, County Meath. The lands comprised part of what had been a larger holding of about twenty-five acres in Folio MH14049, County Meath. The registered owners of the land were Michael Murtagh, John Murtagh and Nora Drain, Murtagh, as was. The lands had been owned by the Murtagh family for many years.

15. Over the years a number of houses had been built on the lands – all bar one for members of the Murtagh family – and on 7th July, 2005 and 18th August, 2005 planning permission had been granted to two of John Murtagh’s daughters – Orla (KA40653) and Aoife (KA40669) – and their respective partners, to build houses. Those permissions were subject to a number of conditions, one of which was that prior to the commencement of any development the owner of the land holding of which the sites formed part should have entered into a legal agreement with the planning authority under the provisions of s. 47 PDA for the sterilisation from any housing or non-agricultural development on the entire remainder of the landholding – as shown outlined in blue on a location map submitted with the planning applications on 23rd December, 2004.

16. According to Orla’s and Aoife’s planning applications – which were prepared and submitted by an architect – the owner of the sites was Mr. John Murtagh and the applicant’s interest in each of the sites was that it “has been given to the applicant by her father.” However, it was clear from a letter of 26th April, 2004 from the Murtagh family solicitors – a copy of which was on each of the planning files, and to which was attached a copy of Folio MH14049 – that the registered owners on the sites were John Murtagh, Michael Murtagh and Nora Drain.

17. Orla and Aoife built their houses, having first filed commencement notices with the Council.

18. In the course of the planning applications, each of Orla and Aoife and their partners were asked – by way of a request for further information – whether the owner of the land was willing to enter into a legal agreement with the planning authority under s. 47 PDA providing for the sterilisation from any housing or non-agricultural development of the entire remainder of the land holding: excluding in Orla’s case, Aoife’s site, and in Aoife’s case, Orla’s site. Apparently in response to those requests for further information, Mr. John Murtagh wrote materially identical letters to the planning department dated 20th April, 2005 in which he stated:- “I refer to the above planning application and hereby state that I am willing to enter into an agreement to sterilize the remainder of the land holding (excluding the site, which relates to a current application by [Aoife/Orla] – Ref. no. KA/…..”

19. While – as I will come to – the condition in Aoife’s permission that the owner of the remaining lands should enter into a sterilisation agreement was relied on by Meath County Council in refusing permission for the development proposed by Mr. and Mrs. Murray, it was common case that no such sterilisation agreement was ever entered. Section 47(5) PDA requires that particulars of any agreement made under that section shall be entered in the planning register. As I will come to, the Murrays complain variously that there was no sterilisation agreement and that no sterilisation agreement was registered. This makes no sense. If there was no sterilisation agreement – which there was not – there was nothing that could have been registered.

20. On 8th May, 2006 Mr. Murray applied for planning permission for a 3,045 ft 2 house on a four-acre site at Faughan Hill, Bohermeen, Navan, County Meath. On 29th June, 2006 that application was refused on three grounds:- “1. Having regard to the limited size of the original landholding from which the application site is taken, the level of existing and permitted development and its location within an area of high development pressure identified under the Meath County Development Plan, 2001 to permit a further dwelling on these lands would result in an excessive density of development in an unserviced rural area and as such would be contrary to the proper planning and sustainable development of the area.

2. Having regard to the limited size of the original landholding from which the application site is taken, the level of existing and permitted development, the proposed development will result in an excessive concentration of wastewater treatment systems in an unserviced rural area. The proposed development will therefore be prejudicial to public health and be contrary to the proper planning and sustainable development of the area.

3. The proposed development would materially contravene condition number 3 of KA/40669 and would be contrary to the proper planning and sustainable development of the area. Condition number 3 of KA/40669 states that ‘Prior to the commencement of any development the owner of the landholding of which the site forms part, and shown outlined in blue on the location map submitted on 23/12/05, shall have entered into a legal agreement with the Planning Authority under the provisions of Section 47 of the Local Government (Planning and Development ) Act 2000 providing for the sterilisation from any housing or non-agricultural development on the entire remainder of this landholding.”

21. On or shortly before 6th February, 2007 a complaint was made to Meath County Council by a member of the public that a large house had been built at Faughan Hill. On 2nd March, 2007 Meath County Council wrote to the Murrays drawing attention to the fact that no planning permission had been obtained for the construction of the house and requiring the demolition of the structure and the restoration of the land to its original condition prior to the commencement of the development. The Council invited proposals within seven days for the removal of the structure. Mr. and Mrs. Murray made no such proposal but on 12th March, 2007 submitted a planning application for retention. That application was refused by the Council on 3rd May, 2007. On 29th May, 2007 Mr. and Mrs. Murray appealed to An Bord Pleanála.

The section 160 application and orders

22. By originating notice of motion issued on 4th July, 2007 Meath County Council applied to the High Court for orders pursuant to s. 160 PDA restraining the Murrays from carrying out unauthorised development on the lands; restraining them from continuing the unauthorised use of the lands; requiring them to remove the unauthorised development; and directing them to restore the lands to a condition suitable for agricultural use.

23. The grounds on which the application was based were straightforward: the Murrays had applied for planning permission for a 3,045 ft 2 house on a four-acre site, which had been refused; and they had almost immediately built a 6,220 ft 2 house without planning permission. The affidavit of Mr. Jimmy Young, on which the application was grounded, acknowledged that no “formal” sterilisation agreement had been executed but referred to the letters of 20th April, 2005 received from Mr. John Murtagh which were described as “indicating an agreement to sterilise the remainder of the landholding.”

24. The papers in the s. 160 application were served on Mr. and Mrs. Murray on 4th July, 2007 and on 11th April, 2008 Mr. Murray swore a replying affidavit on his own behalf and on behalf of Mrs. Murray. In the meantime, the Murrays’ then solicitors had sought voluntary discovery of four categories of documents, including all documentation in relation to all of the planning permissions referred to in the affidavit of Mr. Young – specifically including KA40653 and KA40669 – for the reason that “These are necessary to enable us to respond to the points raised therein.” On 18th March, 2008 an affidavit of discovery of Mr. Michael Griffin, senior executive officer, was filed on behalf of Meath County Council. Mr. Griffin listed 17 planning files identified by reference number – including KA40653 and KA40669 – but objected to “the production of” those files on the grounds that they were documents of public record available for inspection. Otherwise the discovery which had been sought was made. No issue was taken with the Council’s affidavit of discovery.

25. Mr. Murray in his replying affidavit deposed that he had bought the land without getting the necessary legal and architectural – which I understand to mean planning – advice. He said that he had fully expected that his planning application would be successful and was distressed when it was refused. He suggested that the three reasons given for the refusal made no sense. He suggested that the planners had misunderstood the nature of the application which was – he said – an application for a house on 23 acres, which – leaving aside the fact that he had bought only 18 acres – it plainly was not. And he suggested that there was no basis for the Council’s conclusion that the proposed development might have been prejudicial to public health.

26. As to the third reason which had been given for the refusal of his planning application, Mr. Murray deposed that he had no knowledge of any such condition when he bought; that he could find no record of any sterilisation agreement; and that no such agreement was registered on the planning register, as required by law. He suggested that even if there was such an agreement, the house which he had constructed “comes precisely within the nature of a development permitted by such an agreement” i.e. that the house was an exempt agricultural building.

27. Mr. Murray deposed that he had applied for retention permission, which had been refused by Meath County Council and – which by the time the affidavit was filed, it had been

– by An Bord Pleanála on appeal. He said that he had instructed his architects to prepare a further retention application which would address all of the grounds on which his earlier application had been refused. He said that the house was his and Mrs. Murray’s family home and suggested that it would be unfair and disproportionate to require him to demolish the house.

28. In an affidavit sworn by Mrs. Rose Murray on 25th November, 2009 – peculiarly on her own behalf and on behalf of her then infant children but not on behalf of Mr. Murray – it was suggested that at an unspecified time there had been a discussion with an unidentified planning officer from which she understood that there would be no objection in principle to a house on the site. Otherwise, the focus was on the disruption for the children of the demolition of the house.

29. The s. 160 application was eventually heard by the High Court (Edwards J.) on 8th March, 2010 and judgment was reserved.

30. In a written judgment delivered on 29th June, 2010 Edwards J. found that the arguments which Mr. Murray sought to make in relation to the reasons for which the planning application had been refused were not justiciable. He pointed out that s. 50(2) of the PDA provided that a person shall not question the validity of a decision of a planning authority otherwise than by way of an application for judicial review under O. 84 of the Rules of the Superior Courts.

31. Edwards J. rejected as manifestly unfounded and as “frankly preposterous” the proposition that the house was an agricultural building and so exempt development. He characterised Mrs. Murray’s affidavit – which he quoted almost in full – as an articulate and impassioned plea ad misericordiam.

32. Among the legal arguments made on behalf of the Murrays was that s. 160 PDA was a “fire brigade” section, intended to deal with urgent situations requiring immediate action to stop clear future breaches of the Act and could not be invoked to deal with completed unauthorised development. For the reasons given, Edwards J. rejected that argument. He considered and rejected an argument that Meath County Council had delayed unduly in instituting the proceedings. Edwards J. carefully considered the discretionary nature of the relief sought and – with very great regret – acceded to the application. He characterised the unauthorised development as a flagrant breach of the planning laws and as completely unjustified, and the Murrays’ conduct as driving a coach and four through the planning laws.

33. Mr. and Mrs. Murray’s appeal to the Supreme Court was heard by a full court: Denham C.J., O’Donnell, McKechnie, Laffoy and Dunne JJ. On 19th May, 2017 McKechnie

J. delivered a long judgment with which the other members of the Court agreed.

34. It is worth emphasising at this point that there was no appeal against the finding by Edwards J. that any challenge to the validity of the decision of Meath County Council of 29th June, 2006 to refuse the application for planning permission was precluded by s. 50(2) PDA.

35. As I will come to, there are two observations in the judgment of McKechnie J. on which the Murrays now seek to place particular reliance. In setting out the background to the proceedings, under the sub-heading “Planning History – Murtaghs” McKechnie J. suggested (para. 6) that the two letters of 20th April, 2005 which had been written by Mr. John Murtagh had been written “presumably on behalf of the then registered owners.” He noted (para. 6) that for reasons which had not been explained, formal agreements under s. 47 PDA were never entered in respect of either planning permission to the Misses Murtagh and immediately went on to say: “However, it would appear that the Planning Authority was satisfied with such letters, particularly having received Commencement Notices in respect of both developments, and in the knowledge that each has been completed.”

36. McKechnie J. rejected the Murrays’ argument that Meath County Council was not entitled to have invoked the summary s. 160 procedure as opposed to instituting a plenary action. He could not, he said, identify a single strand of the process which could be said to have rendered the s. 160 procedure inappropriate.

37. The judgment of McKechnie J. shows (para. 31) that the Murrays sought to raise on the appeal to the Supreme Court points which had not been raised below and which were not raised in the notice of appeal. It was, he said, extremely difficult – I think he must have meant impossible – to see how they could be allowed to rely on such matters but he dealt with them lest a failure to do so might lend credence to their validity. Those points were a complaint about an absence of authority for Mr. Young’s letter of 2nd March, 2007 requiring the removal of the unauthorised buildings and threatening proceedings if they were not; a suggestion that the Council’s assertion that the development was an unauthorised development somehow usurped the function of the High Court; and a suggestion that the Council was obliged to consider the proportionality of the relief claimed before deciding whether or not to institute s. 160 proceedings.

38. Starting at para. 65, McKechnie J. considered the genesis and evolution of what came to be called the planning injunction in s. 27 of the Local Government (Planning and Development) Act, 1976; the discretionary nature of the jurisdiction conferred by s. 160 PDA; the factors to be considered in the exercise of that discretion; and the weight to be attributed to those factors.

39. In their answer to the s. 160 application the Murrays had emphasised that the house at Faughan Hill was their home. One of their grounds of appeal to the Supreme Court was that Edwards J. had failed to take account of Articles 40.3, 40.5, 41, and 43 of the Constitution and “the extent to which in the circumstances of these proceedings it was appropriate to make the orders.” It is by no means clear to what extent – if at all – this featured in argument before the High Court. However, by the time the appeal came to the Supreme Court there was a new and rich vein of jurisprudence to be mined. The judgment of McKechnie J. rather suggests to me that it was scratched at rather than exploited.

40. In Wicklow County Council v. Fortune [2012] IEHC 406 – the first of what McKechnie J. referred to as a string of judgments in that case – Hogan J. had considered the impact of Article 40.5 of the Constitution on the exercise of the jurisdiction conferred by s.

160 PDA. About two and a half years later, in Wicklow County Council v. Kinsella [2015] IEHC 229, Kearns P. – as McKechnie J. delicately put it – had taken issue with much of what Hogan J. had espoused in Fortune. Starting at para. 92 McKechnie J. examined the two lines of authority before (starting at para. 109) setting out the correct approach.

41. The Supreme Court upheld the order of Edwards J. but further stayed execution for twelve months, emphasising that the intention of the stay was so that the order of the High Court could be complied with in full before then. An order was made directing the Murrays to pay the costs of the appeal but the Court noted that the Council was agreeable to a one year stay on the order for costs and that if the substantive order was complied with, the stay on the costs order would become permanent.

42. If the Murrays ever did anything whatsoever with a view to complying with the High Court order – or even ever contemplated that they might comply with it – there was no evidence of it. Copies of the High Court and Supreme Court orders with penal endorsements were sent to Mr. and Mrs. Murray’s then solicitors and attempts were made to serve them personally. In June, 2018 the Murrays sent an e-mail to the elected members of Meath County Council to the effect that they did not have the money to pay for the estimated €300,000 plus VAT cost of demolition. In response, the Council offered to bear the cost of demolition but, as soon as it was made, this offer was rejected.

43. By notice of motion issued on 4th March, 2019 Meath County Council applied to the High Court for an order for the attachment and committal of Mr. and Mrs. Murray.

44. In a long replying affidavit sworn on 25th March, 2019 Mr. Murray rehearsed the history of the various planning applications and he made a number of points. He suggested, on the one hand, that the Council had neglected to enforce the condition in each of permissions KA4063 and KA40699 that a sterilisation agreement be put in place and, on the other, that had it done so – and registered the existence of an executed sterilisation agreement

– the registration would have alerted their solicitor “when investigating the planning title prior to completion of our purchase.” The suggestion that their solicitor had investigated the “planning title” was not obviously consistent with his previous averment that he – or he and Mrs. Murray – had bought the land without getting the necessary legal and architectural advice.

45. Mr. Murray escalated his assertion that the reasons given for the refusal of his planning application were bad to an assertion that they were spurious. Variously, he recalled the Council’s acceptance that a sterilisation agreement had not been put in place and complained that the Council had not registered any such agreement. He confessed (para. 22) that he and Mrs. Murray built the house which they did in the hope of ultimately rectifying the matter by applying for retention permission. It will be recalled that the Murrays’ previous attempt to challenge the reasons for the refusal had been rejected by Edwards J. as impermissible and that there was no appeal against that finding.

46. It is not useful or necessary to go through it all. One of Mr. Murray’s complaints was that the Council had not applied to the Supreme Court for a priority hearing of his and Mrs. Murray’s appeal; but of course neither had they. Another was that if the Council were to pay the cost of the demolition, it would have to go through a public procurement procedure. Mr. Murray’s peroration was that the High Court order had lapsed due to delay and/or was no longer enforceable.

47. On 13th August, 2019 – in response to a second affidavit of Sean Clarke, filed on behalf of the Council – Mrs. Murray swore a long affidavit in response to the motion to attach. She asserted (para. 5) that a whole range of new issues had arisen which had not been argued, documented or raised in the course of the original proceedings but had “only since come to light as a result of the passage of time.” She had a lot to say about an alleged preplanning meeting at which, it was said, no reference had been made to any sterilisation agreement or any other difficulty that there might be in obtaining planning permission. This was an attempt to revisit the challenge to the validity of the decision of 29th June, 2006 which had been ruled out by Edwards J.

48. Mrs. Murray had a lot to say about the failure of the Council to follow up on the implementation of the planning sterilisation restrictions and the Council’s alleged failure to register the non-existent s. 47 agreement. She suggested that the Council had failed to follow up on the implementation of the planning sterilisation restrictions of the planning applications of “third parties” – presumably Orla and Aoife – and to register that on the planning file. To the extent that this was a challenge to the third reason for which the planning application of 8th May, 2006 had been refused, it was precluded by s. 50(2) PDA. Otherwise, it was either a repeat or reformulation of an argument that had already been made by reference to facts which were obvious from the planning file from no later than the date of the refusal.

49. At para. 12 of her affidavit of 13th August, 2019, Mrs. Murray deposed that:- “12. In relation to paragraph 6 [of Mr. Clarke’s second affidavit, where he had said that it was not open to Mr. and Mrs. Murray to revisit the grounds on which planning permission was refused] as a result of the review by our new solicitor of the entire file, new evidence has come to light which clearly demonstrates that there never was a sterilisation agreement actually put in place and that the entire matter has been misrepresented and misunderstood. The case has been erroneously represented to the court that planning permission could never be granted to us due to the existence of a sterilisation agreement affecting our land. The sterilisation agreement, however, was not enforced and, as will be seen, was unenforceable.”

50. None of this made any sense. In the first place, anything which had been gleaned from a review of the file could not have amounted to “new” evidence. Secondly, the absence of any sterilisation agreement would at all times have been evident from a review of either KA4063 or KA40699. Thirdly, the fact that no sterilisation agreement had been executed in compliance with condition No. 3 of the Misses Murtagh’s planning permissions had been highlighted in the affidavit of Mr. Young, on which the s. 160 application was grounded, and this was noted in the judgments of Edwards J. (para. 8) and McKechnie J. (para. 7). Fourthly

– and most seriously – it was demonstrably wrong to have said that the Council had misrepresented the case to the court. It was never in issue that the building of the house was an unauthorised development. If, for the sake of argument, there was an irregularity in the reasons for the refusal of permission for the construction of a 3,045 ft 2 house, that could never have justified the construction of a 6,220 ft 2 house. I am prepared to contemplate that the entire matter was misunderstood by the Murrays but there was no justification for the assertion that the Council had misrepresented the case.

51. All that apart, any challenge to the validity of reason No. 3 for the refusal of the Murrays’ planning application was by then thirteen years out of time and clearly precluded by s. 50(2) PDA.

52. In due course, it will be necessary to come back to the affidavit of Rose Murray sworn on 13th August, 2019.

53. Altogether there were six affidavits filed on the motion for attachment and committal, three by the Council and three on behalf of the Murrays. It eventually came before Meenan J. on 24th September, 2020 when, as I have said, Mr. and Mrs. Murray each undertook on oath to vacate the property on or before 24th September, 2022 to facilitate the demolition of the property by the Council or its agents and the stay on the High Court order of 27th July, 2010 was extended for a further two years.

The Murrays’ action

54. On 22nd September, 2022 – two days before they were due to give up possession – the Murrays issued a plenary summons seeking a variety of orders setting aside all of the orders made in the s. 160 proceedings; a declaration “that the sterilisation agreement purportedly made under section 47 of the Planning and Development Act, 2000 attached to planning permissions KA/40653 … and … KA/40699 … is null, void and of no effect, ab initio, either formally or informally or by inference or at all”; and “a declaratory order that s. 160 of the Planning and Development Act, 2000 is repugnant to the Constitution and/or contravenes the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (without spelling out precisely what is alleged to be unconstitutional).”

55. The summons was not settled by counsel but was signed by a solicitor. On the following day, the Murrays’ solicitor applied ex parte to the High Court (Heslin J.) for interim orders restraining Meath County Council from taking any further action on foot of the orders made in the s. 160 proceedings. That application was grounded on an affidavit of Mrs. Murray sworn on 22nd September, 2022, in which she deposed that:- “4. I say that new evidence has only in the last six weeks become known for the first time, to my husband and me which, it is alleged, proves that both the High Court and the Supreme Court were consciously misled into believing that certain facts as sworn and purportedly substantiated by exhibits were true, whereas it would appear that they were false and Meath County Council, its servants or agents knew or ought to have known they were false. I say and believe that these facts, in the context of those proceedings, were of crucial and fundamental importance to the determinations and findings made.

5. I say that the facts submitted by the Council were relied upon by them before the High Court and Supreme Court but it now emerges that the averments and submissions made on affidavits referred to below (supported by reference to specific exhibits) were not true, and/or that the Court was misled and otherwise permitted to erroneously believe that a certain state of affairs existed where new facts contradict the Council’s affidavit evidence. The effect of this new evidence renders the entire proceedings fundamentally flawed and unlawfully tainted and the conclusions already drawn to the contrary effect unsustainable.”

56. Heslin J. made an interim order restraining the Council from taking any further action in the s. 160 proceedings until 7th November, 2022 and gave liberty to the Murrays to give short service of a notice of motion returnable to then. It is important to underline that Heslin

J. would not have had time to read and analyse the voluminous documentation relied on or to interrogate the most serious allegation that the Council had knowingly relied on false evidence and that the High Court and Supreme Court had been consciously misled but would have been reliant on the Murrays’ solicitor for a dispassionate account of the issues raised. The order of 23rd September, 2022 shows that Heslin J. gave liberty to the Murrays to take up a transcript of the DAR but it is not evident whether this was done.

57. The supposed new evidence was that in September, 2020 Ms. Louise Murtagh – a daughter of Mr. Michael Murtagh – had applied for planning permission for a site at Faughan Hill that had been transferred to her “by her father” in 2006; had then been – as the Murrays had previously been – refused permission by reference to condition No. 3 attached to KA40669 and KA40653; had appealed that refusal to An Bord Pleanála; had been refused permission by An Bord Pleanála; and had applied for a judicial review of the decision of An Bord Pleanála. Mrs. Murray deposed that she was aware from the contents of the planning inspector’s report on Ms. Louise Murtagh’s appeal to An Bord Pleanála, that as far as the planning inspector was concerned, there was no sterilisation agreement and that this had been confirmed by Meath County Council following a freedom of information request. Ms. Louise Murtagh’s planning application and appeal obviously post-dated the Murrays’ failed planning application but the fact that there was no sterilisation agreement was not new evidence and the suggestion that the absence of such an agreement had only come to light in the course of Louise’s application and appeal was false.

58. In support of the application an affidavit of John Murtagh was filed. It was prepared by Mr. and Mrs. Murray’s solicitor. The typed jurat suggested that it was sworn on 16th September, 2020 but it was later re-sworn on 28th September, 2022. It appears to be a remarkable coincidence that the earlier date was shortly before the motion for attachment and committal was listed for hearing before Meenan J. and that the affidavit was first produced immediately before the further stay was due to expire but the Council was content to acquiesce in the re-swearing of the affidavit without definitively establishing when it was first sworn.

59. Mr. John Murtagh deposed that in 2004 he was the registered owner of an undivided one quarter share in the lands in Folio MH14049; the other co-owners being Mr. Michael Murtagh – two quarters – and Mrs. Nora Drain (née Murtagh) – the remaining quarter. That was not new. It was at all times evident from the planning file as well as the Folio. He said that he gave a site to each of Orla and Aoife, along with their partners, to allow them to apply for planning. That was not technically correct in that the transfers were made by the coowners and had post-dated the planning applications: but the fact of the transfer of the sites was not new and was evident from the Folio.

60. Mr. Murtagh said that Orla and Aoife had made planning applications. That was not new. He said that he had signed two letters to say that he was willing to enter an agreement to sterilise the remainder of the land. That was not new. He said that he had never later been contacted by the Council acknowledging the letters or requiring him to do anything. That was not new. He said that the other co-owners did not know that he had signed the letters and that “when it came to the lands being sold and the other sites being transferred [he did] not mention it at the time.” He said that as far as he was concerned, he had never signed any agreement to sterilise the lands, only the letters. He said that he regretted very much the trouble that this has caused and was prepared to stand over everything he had said.

61. According to Mrs. Murray (para. 39):-

“… the Council and their solicitors, prior to the institution of the section 160, knew the following (a) that there was no section 47 agreement and that no attempt was made to ever made to put in place a section 47 agreement, (b) John Murtagh was never invited to sign a section 47 agreement and (c) that the co-owners of the land were never contacted or consulted with at any stage. It is clear (d) the co-owners of the land had no knowledge whatsoever of any proposal by the Council unilaterally to restrict any development on their lands in defiance of their proprietary interests without their consent and (e) that the County Council and their solicitors from 2007 knew that this was so.”

62. It is clear that the Council knew that there was no s. 47 agreement. Mr. Young said so in his affidavit grounding the s. 160 application. It was at least implicit in this that the Council had never asked John Murtagh or his co-owners to sign a s. 47 agreement. It was clear from the planning file that Mr. John Murtagh was not, by himself, in a position to execute a s. 47 agreement. The proposition that the Council, by the planning condition, unilaterally restricted the development of the lands in defiance of the proprietary interests of the co-owners is legal nonsense and utterly inconsistent with the fact – and the case made by the Murrays – that there was no restriction on the development of the land. The stipulation in condition No. 3 to planning permissions KA40669 and KA40653 was that prior to the commencement of development the owner of the lands outlined in blue “shall have entered a legal agreement with the planning authority …” On the face of the condition, the Council did not purport to restrict the development of the land. On the face of the condition, there was no sterilisation agreement at the date of the grant of the permissions but such an agreement was to be put in place after the grant of permission and before the commencement of development. It may very well be that Orla and Aoife should not have commenced development without ensuring that such an agreement was put in place. It may very well be that the service of the commencement notices ought to have prompted a check by the Council as to whether the conditions had been complied with, and an insistence that work should not start until it had. But none of this was of any concern to the Murrays.

63. It may very well have been that the Murrays might have had good reason to challenge the third reason given by the Council for its decision of 29th June, 2006 but they did not do so within the time or by the procedure stipulated by s. 50(2) PDA and their later attempt to do so in the s. 160 proceedings had been ruled by the High Court to be impermissible.

64. That none of what was put up in September, 2022 as new evidence was in fact new evidence, is evident from Mrs. Murray’s affidavit of 15th August, 2019. At para. 12 – from which I have quoted – she deposed that it was clear that there never was a sterilisation agreement. That was as clear from Orla’s and Aoife’s planning files at the time of the Murrays’ planning application on 8th May, 2006 as it was to their new solicitor when he reviewed the files in 2018 and as it would have been to their former solicitors had they – in 2007 – reviewed the files which they identified in their request for discovery as necessary to allow them to respond to the s. 160 proceedings.

65. Even Mr. John Murtagh’s evidence that his co-owners were unaware that he had written the letters of 20th April, 2005 was not new evidence. In her affidavit of 13th August, 2019, Mrs. Murray asserted (para. 15) that there was evidence that both the High Court and the Supreme Court had been “operating under certain misapprehensions and making certain unsustainable presumptions in arriving at their findings.”

66. The first such presumption was said to have been made at para. 6 of the judgment of Edwards J. where – it was said – it was stated that:- “6. By letter dated the 20th April, 2005, Mr. John Murtagh, presumably on behalf of the then registered owners, wrote to the planning authority as follows:” [The emphasis was added by Mrs. Murray].

67. In fact the quotation is from the judgment of McKechnie J. but nothing turns on that. What is relevant is that as of 13th August, 2019 – long and ever before there was any engagement with Mr. John Murtagh – Mrs. Murray was in a position to say that:- “I say and believe that this is completely wrong. There was no such ‘presumption.’ Mr. [John] Murtagh was writing a letter which would have been exclusively of assistance to his two daughters. There is no evidence of any consent, permission or authority for him to have made commitments on behalf of other registered owners. There is no evidence that they were ever even consulted or consented to the proposed sterilisation agreement. I say and believe that, having jointly gifted the land to Mr. Murtagh’s daughters, they would have been entitled to expect that their constitutional property rights would have been vindicated and not to have their lands sterilised for future development by virtue of an agreement to which they were not party. Thus, I believe no such presumption arises, but this seems never to have been pointed out or even commented on or noticed in the High Court or in the Supreme Court.” [Emphasis original.]

68. It is clear that the Murrays did not need the evidence of Mr. Murtagh to make their case as to the absence of his authority to have signed the letters of 20th April, 2005 on behalf of his co-owners. They had demonstrably made that case upwards of three years before – on their own account – they had his evidence.

69. As to Ms. Louise Murtagh’s judicial review proceedings, all that was said was that Ms. Murtagh had issued proceedings seeking a judicial review of a decision of An Bord Pleanála which was listed for hearing on 1st November, 2022. Mrs. Murray exhibited the Board’s statement of opposition which gave some insight into Ms. Murtagh’s case but not her statement of grounds.

70. Mr. and Mrs. Murray’s motion for interlocutory orders was duly issued and was adjourned from 7th November, 2022 to allow the Council to file a replying affidavit. It appears that the Council then and thereafter acquiesced in the continuation of the interim injunction pending the hearing of the interlocutory motion.

The statement of claim

71. On 27th January, 2023 Mr. and Mrs. Murray delivered their statement of claim. The statement of claim referred to the initial refusal of planning permission; the later refusal of the retention permissions; and a 2022 application for planning permission to build elsewhere on the lands: all of which had been refused by decisions in all of which – it was said – the Council had “repeatedly cited the s. 47 agreement.” At para. 10 it was pleaded that “It was revealed by John Murtagh in September 2022 that without consulting or seeking the consent of the other co-owners he had agreed to sterilise the remainder of the landholding as the putative landowner with authority”; that “the disputed s. 47 agreement [was] imposed by [the Council] on the entire of the lands”; and that the Council had failed, refused or neglected to enter “the s. 47 agreement” on the planning register.

72. The case made was that as a result of the actions and inactions of Meath County Council and as a result of “the misrepresentations” of the Council, the Murrays had “effectively acquired ‘a pig in a poke’ title to the lands.” At para. 15, under the heading “New Evidence”, the case was made – for the first time – that Orla’s and Aoife’s planning applications had incorrectly stated that John Murtagh was the sole owner of the lands; before it was immediately acknowledged that that assertion – or impression – was corrected by the Murtagh family solicitors’ letter of 26th April, 2004 which made clear that the land was owned by John, Michael and Nora.

73. Under the heading “Lack of Transparency” it was alleged that “the significant discrepancy relating to the s. 47 agreement and the failure of the [Council] to act upon it was not drawn to the courts attention by the Council.” This, it was said, was “an egregious abuse of process the full impact of which can only now be revealed due to the new evidence.”

74. By the time the statement of claim was delivered, Ms. Louise Murtagh’s judicial review proceedings had been heard by the High Court (Owens J.) and judgment had been reserved. The statement of claim referred to a number of questions which Owens J. had asked in the course of the hearing.

75. The relief claimed in the prayer to the statement of claim more or less matched the substance of the declarations set out on the summons save for the “constitutional” claim, which was now a claim for:- “A declaratory order that the [Council is] not entitled to prosecute proceedings under section 160 of the Planning Act, 2000 for any offence other than a minor offence as prescribed by Article 38.2 of the Constitution and any provision under the said section 160 of the Planning Act, 2000 providing for the prosecution by a body authorised by law under Article 37 of the Constitution, where without statutory limitation or restriction, renders section 160 of the Planning Act, 2000 repugnant to the Constitution being wholly or partly in direct conflict and contravention of the limitations provided by law under those aforementioned articles of the Constitution.”

76. I pause here to say that when I first read the statement of claim I was so startled by this claim that I reached for my Constitution to confirm what I already knew: Article 38.2 provides that minor offences may be tried by courts of summary jurisdiction; and Article 37 provides for the exercise of limited functions and powers of a judicial nature by a person or a body of persons who is not a judge or a court established as such under the Constitution.

77. The declaration claimed is gobbledegook. Section 160 PDA does not create a criminal offence but rather provides a mechanism through which the planning authority – or any other person – can seek civil enforcement in respect of breaches of planning law. Article

38 of the Constitution is entirely irrelevant to s.160 as there is no trial of any offence involved. There was never any question that the Council was entitled to prosecute for any offence other than a minor offence but if it had chosen to prosecute the Murrays for their breaches of planning law, the Council would not have done so under section 160. There is no provision in s. 160 which provides for a prosecution by anyone. The invocation by a planning authority – or anyone else – of s. 160 PDA could not conceivably be characterised as the exercise of limited functions and powers of a judicial nature.

The motion to dismiss

78. By notice of motion dated 9th February, 2023 the Council applied for an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out the summons and statement of claim and dismissing the action on the grounds that the claims made were frivolous and vexatious and disclosed no reasonable cause of action; and pursuant to the inherent jurisdiction of the court on the basis that the action was bound to fail and was an abuse of process.

79. There was a further exchange of affidavits on that motion which did not add anything much to what had been previously repeatedly said.

The High Court judgment

80. Mr. and Mrs. Murray’s motion for interlocutory relief and the Council’s motion to dismiss were heard together by the High Court (Dignam J.) on 29th June, 2023 and judgment was reserved.

81. I should say at this point that on 1st June, 2023 the Murrays had lodged yet another planning retention application with the Council. It is common case that when Dignam J. was informed of that, he said – and on the hearing of the appeal it was common case that he was correct in saying – that the retention application was immaterial to the issues which he had to decide. The High Court judgment, however, shows (para. 24) that part of the argument then made was that there was an arguable case that the latest retention application would be successful and that this met the requirement to show that there was a serious issue to be tried. The High Court found, and it was eventually acknowledged at the oral hearing of the appeal to this Court, that that was plainly wrong.

82. I should also say that by the time the motions came before the High Court Owens J. had given judgment in Ms. Louise Murtagh’s judicial review, Murtagh v. An Bord Pleanála [2023] IEHC 345. Ms. Murtagh’s appeal to An Bord Pleanála had been refused for three reasons, the third of which was that the proposed development would contravene the conditions attached to KA40669 and KA40653 – the Misses Murtagh’s 2006 permissions. Owens J. held that the third reason given for the refusal of Ms. Louise Murtagh’s application was invalid, but that the other two reasons were sufficient to support the refusal. The judgment of the High Court in this case shows (para. 22) that the judgment of Owens J. in Murtagh was described in argument as “a hugely significant event” and that “it trumps everything.” But as the risk of stating the obvious, the refusal of Ms. Murtagh’s appeal to An Bord Pleanála survived the infirmity found in that one reason.

83. At para. 29 of his judgment the High Court judge summarised the claim as being that the previous High Court and Supreme Court orders should be set aside because:-

(a) the purported s. 47 agreement was not registered;

(b) new evidence disclosed that (i) there was no s. 47 agreement, and (ii) Mr. John Murtagh’s letters were not written with the authority of all the landowners;

(c) these facts were known to Meath County Council at the time of the s. 160 proceedings and the Council did not inform the courts of them;

(d) it has been held by Owens J. that the refusal on the basis of the sterilisation condition in the earlier permissions was invalid and that reasoning must apply in this case.

84. There is no suggestion of any error in that summary.

85. Starting at para. 31 the judge identified the general principles applicable to an application to dismiss a claim on the ground that it is frivolous and vexatious and/or discloses no reasonable cause of action and is bound to fail. Those principles are well known and well established and there is no suggestion of any error.

86. At para. 32 the judge said that the Council’s motion was more or less the converse of the first limb of the test for the interlocutory injunction so that the two issues could be dealt with together. Noting that the onus of proof on the Council’s motion was on the Council and that the burden on that motion was a high bar, the judge said that he would consider the matter primarily by reference to the Council’s motion. That, he said, would be most fair to the Murrays and would relieve them of the burden that would otherwise be on them to show that there was a fair issue to be tried. There is no suggestion that the judge erred in taking the approach which he did.

87. At para. 44 the judge identified the central relief sought by the Murrays as the setting aside of previous orders and he went on to identify and consider the relevant authorities. There is no suggestion that the judge erred in his identification or analysis of the relevant authorities or in his conclusion (para. 55) that in order to set aside the orders of Edwards J. and the Supreme Court, the Murrays would have to establish at trial, not only the fact of the new evidence, but that the new evidence was concealed by the Council’s fraud or deceit, and that the new evidence would probably have affected the outcome if it had been available at the time of the original orders. The fraud, he said, must be pleaded – as all pleas of fraud must be pleaded – unambiguously and with exactness and particularity.

88. At para. 56 the judge found that the Murrays’ claim was frivolous, vexatious and an abuse of process. Startlingly, there is no clear and unambiguous appeal against that finding.

89. At para. 59 the judge identified the foundation of the claim as being that because the underlying planning decisions were wrong or invalid, the courts would not have made the s.

160 orders if they had known that the refusals were wrong and invalid. He demonstrated this by reference to the pleas in the statement of claim, the affidavits sworn by Mrs. Murray, and the written legal submissions which had been filed. The several points so identified were – said the judge – directed to the lawfulness of the planning decisions; and even what was put up as the new evidence was directed to the question of the lawfulness of those decisions.

90. At para. 66 the judge noted that s. 50(2) PDA precludes any challenge to the validity of a decision made or other act done by a planning authority on an application for permission, or a decision of An Bord Pleanála on any appeal or referral, otherwise than by way of an application for judicial review. And at para. 67 he referenced the time limit of eight weeks prescribed by s. 50(6) and the jurisdiction of the High Court to extend that time, subject to the conditions prescribed in s. 50(8)(a) and (b).

91. At para. 71 the judge characterised the Murrays’ claim that the decisions of the High Court and the Supreme Court in the s. 160 proceedings should be set aside because they were based on invalid planning decisions as a paradigm collateral challenge to the decisions of the planning authorities which, in circumstances in which the Oireachtas has designated that any such challenge must be brought by way of judicial review, must be an abuse of process. There is no appeal against that finding and the Murrays never even attempted to engage with it.

92. Starting at para. 73, the judge addressed the arguments based on the new evidence of Mr. John Murtagh. The judge did not get into the weeds of examining whether what Mr. Murtagh had to say was in fact new evidence but, taking the Murrays’ case at its height, looked at where it could go.

93. The judge said firstly that it was clear from the authorities – he had already looked at Launceston Property Finance DAC v. Wright [2020] IECA 146 and the authorities there considered, notably Tassan Din v. Banco Ambrosiano SPA [1991] 1 I.R. 569 – that the mere fact of the existence of new evidence is not sufficient. Rather, a final order will only be set aside on the basis of new evidence where a party and the court were deprived of the benefit of that evidence through the fraud, including conscious and deliberate deceit, of the other party. That is clear from the authorities and there is no appeal against the judge’s finding.

94. Next – citing Kenny v. Trinity College Dublin [2018] IESC 18 – the judge said that it was clear from the authorities that the nature of the fraud, deceit or dishonesty must be clearly and unambiguously and pleaded with particularity and exactness. There is no appeal against that finding of law; or against the judge’s finding of fact that fraud or deliberate and conscious deceit was not pleaded in the statement of claim.

95. Notwithstanding that fraud or deceit were not expressly pleaded, the judge went on to consider whether the substance of the claim pleaded in the statement of claim was one of fraud and found that it was not. There is no appeal against that finding.

96. The judge then looked closely at Mrs. Murray’s affidavits. He found that her evidence was not consistent with a clearly pleaded and particularised case in fraud or deceit: and there is no appeal against that finding.

97. At para. 86, the judge said that it was clear from the authorities that the evidence which was fraudulently withheld must be relevant and must be such as would have or would probably have had an effect on the original result. There is no appeal against that finding.

98. At para. 92 he found that the evidence that Mr. John Murtagh did not have authority to bind the other landowners could only be relevant to the basis of refusal of planning permission. There is no appeal against that finding.

99. Dignam J. concluded – as Edwards J. and the Supreme Court had already decided in the s. 160 proceedings – that the courts cannot consider the validity or correctness of planning decisions. It followed that the new evidence could not be relevant to the decision of either court. “93. Thus, even proceeding on the basis that fraud or deceit is alleged and will be established, the new evidence simply has no bearing on the decisions that were made and are now sought to be set aside and, therefore, the Murrays could not succeed in having those decisions set aside on the basis of that evidence.” There is no appeal against that conclusion.

100. Starting at para. 101 the judge dealt with the “Constitutional Challenge”. Again he did not attempt to grapple with the hopeless task of attempting to make head or tail of the claim but took a broad approach. He said first that this could not succeed where the necessary parties had not been joined and there was no indication that it was intended to join them, and secondly, that it was a point that could have been raised in the s. 160 proceedings but had not been. Citing Morrissey v. Irish Bank Resolution Corporation [2015] IEHC 200, the judge noted that the rule in Henderson v. Henderson (1843) 3 Hare 100 is not to be applied rigidly or inflexibly but said that no reason had been given as to why the point was not previously made. The judge noted that in their defence to the s. 160 proceedings the Murrays had raised a number of constitutional issues. It went without saying that the new evidence was not relevant to the constitutional challenge.

101. As I will come to, the Murrays now contend that the judge ought to have allowed them an opportunity to join or give notice to the Attorney General but there is no appeal against the judge’s finding that their constitutional claim was a claim that could and should – if it was to be made at all – have been made in the s. 160 proceedings.

102. On 12th December, 2024, for the reasons given in his judgment delivered on 20th November, 2024, the High Court judge made an order on the Council’s motion dismissing the Murrays’ action as frivolous and vexatious and an abuse of process; and an order on the Murrays’ motion refusing their application for interlocutory relief.

103. I add for completeness that since the Council’s motion had been issued and argued on the basis of O. 19, r. 28 as it stood prior to the coming into operation on 22nd September, 2023 of the rules substituted by the Rules of the Superior Courts (Order 19) 2023, the judge decided it on the law as it stood prior to the amendment.

The notices of appeal

104. By separate notices of appeal filed on 2nd January, 2025 Mr. and Mrs. Murray appealed against the judgment and orders of the High Court. Since the core issue identified and decided by the judge was whether the Council had demonstrated that the Murrays’ action was frivolous and vexatious and an abuse of process, and since the disposition of the Murrays’ motion followed the judge’s findings and conclusion on the Council’s motion, it might have been expected that the grounds of appeal would be the same. The grounds are not in all respects the same but there is considerable overlap. Doing the best I can to put some order on the appeals, I will deal first with the appeal against the order to dismiss the action.

Appeal No. 2025 2

105. By appeal No. 2025 2 the Murrays appealed against the order made on the Council’s motion on fifteen grounds: none of which engaged with the findings or reasoning of the judge.

106. It was first said that the judge erred in allowing the court to be unduly influenced by the decision of An Bord Pleanála on 23rd July, 2024 to refuse the Murrays’ retention application – that is to say the retention application made on 1st June, 2023 to the Council which was pending at the time of the High Court hearing and which was later refused by the Council and by An Bord Pleanála on appeal – as to as be effectively determinative of all relevant matters raised by them in the plenary proceedings. There is simply no basis for that suggestion. At the time he reserved judgment, the judge said that the retention application was irrelevant to what he had to decide. By the time judgment was delivered, the retention application which had been pending at the time of the hearing had been refused by Meath County Council and by An Bord Pleanála but yet another retention application had been lodged. The Murrays’ solicitor had submitted to the High Court that the then pending retention application amounted to a serious issue to be tried for the purposes of their injunction application. At para. 112 the judge spelled out in the plainest possible terms that:- “The serious issue must arise in the proceedings. The question of whether or not retention or planning permission might be granted is separate from the question of whether the proceedings themselves raise a fair question to be tried.”

107. The proposition that a pending application – before the planning authorities – for planning permission might be a proper foundation for an interlocutory High Court order is unstateable. The Murrays’ umpteenth retention application was completely irrelevant to the issue as to whether their High Court action was frivolous and vexatious. The judge said so. There was no warrant for the suggestion that the judge had any regard to the decision of An Bord Pleanála, still less that he had been “unduly influenced” by it.

108. Next it was said that the judge erred in refusing to rule that there was a fair issue to be tried by declining the Murrays’ application for the case to be referred to plenary hearing; that he erred in not taking adequate account of the issues raised in the summons and statement of claim where such issues had not been dealt with adequately or at all by the Council; and in not taking into account the fact that the Council had not sought particulars and had not delivered a defence. These grounds all betray a fundamental failure to understand the jurisdiction which was invoked by the Council. The Council’s argument was – and the judge so found – that the Murrays had no case at all. If there was nothing in it, there was no point in asking for particulars, no need to deliver a defence, and nothing to go to plenary hearing.

109. It was next suggested that there was a failure on the part of the judge to afford fair procedures; that he denied the Murrays access to pursue the reliefs sought; and that in the absence of any response to their allegations, there were no replies that could be met and fully tested by way of counterarguments, evidence or submissions. That, again, betrayed a failure to understand the jurisdiction invoked. The Murrays were demonstrably given – and availed of – every opportunity to answer the Council’s motion. There is absolutely no justification for the allegation that there was an absence of fair procedures. The Murrays were prevented from further pursuing the reliefs sought because – for all of the reasons given by the judge in a careful and comprehensive judgment – the action was an abuse of process and bound to fail.

110. The next ground was that the judge erred in failing to take account of the – unidentified – issues that could have been raised by the Murrays in the event of the matter being referred to plenary hearing, such being advanced by way of discovery, reply to defence, motions to cross-examine and other issues which would have arisen. What this boils down to is the proposition that the Murrays should have been permitted to thrash about, wasting court time and ratepayers’ money, prolonging a case which had been established to be an abuse of process and bound to fail. Like the argument that the house was an exempt agricultural building, it is frankly preposterous.

111. Ground No. 7 is garbled but the substance of it appears to be that the judge erred in failing to have sufficient regard to the judgment of Owens J. in Louise Murtagh. The reasons given by the An Bord Pleanála for refusing Ms. Murtagh’s application were similar to those given by the Council for refusing the Murrays’ application. Both applications were refused on the grounds that the proposed development would result in excessive density of development in a rural area lacking public services – which would be contrary to proper planning and sustainable development – as well as for the reason that the proposed developments would contravene condition No. 3 attached to KA40699 and KA40653. For the reasons given, Owens J. found that reason No. 3 for the refusal of Ms. Murtagh’s application was invalid but that the Board’s separate conclusion that the proposed development would be contrary to the proper planning and sustainable development of the area was valid. One of the three reasons was bad but the other two reasons were good: and so the decision was good.

112. Ground No. 8 is no less garbled but the substance of it – as far as I can discern – is a complaint that the Council did not deliver a defence and that the Murrays had “a legitimate expectation” that a defence would be delivered “pending the issue of an interim judgment.” If the Murrays expected that a defence would be delivered before judgment was delivered on the Council’s motion, they did not say so at the time. No less, if they had such an expectation, it was plainly misplaced. The substance of the Council’s motion was that the action was an abuse of process and that there was no case to defend. If the Council’s motion failed, it could be expected that the High Court would give directions for the progress of the action. But if the action were established to be an abuse of process, nobody could have sensibly expected anything other than an order dismissing it.

113. Ground No. 9 complains that the judge erred in law in failing to take adequate account of the new evidence. However, as I have previously observed, there is no appeal against the judge’s conclusion that it would not have affected the original outcome. It also suggests that the High Court and the Supreme Court were misled “in relation to the crucial issue of ‘ownership consent’ as mandated by article 22(2)(g) of the Planning and Development Regulations, 2001.” What appears to be behind this is an argument that the planning applications submitted on behalf of the Misses Murtagh suggested that Mr. John Murtagh was the owner of the land and/or that they had not submitted the written consent of the co-owners to make their applications. This is an impermissible collateral attack on the validity of the grant of planning permission to the Misses Murtagh in 2006. By the way, any frailty in the Misses Murtagh’s planning applications would have been evident from the planning files: but more fundamentally – as is acknowledged in the Murrays’ written submissions on the appeal

– an application by the Murrays for leave to apply for judicial review of the Misses Murtagh’s planning permissions would “most certainly have been declined … on the basis of locus standi.”

114. Ground No. 10 suggests that the judge erred in law in determining that s. 50 PDA acted as a barrier to “issues being raised in these plenary proceedings” and goes on to conflate the nature of the claim – to set aside the previous court orders – and the basis of the claim – the asserted invalidity of the refusal of permission. It also asserts that superior court judgments may be “set aside or vacated, due to error, fraud, mistake, or allegations in the nature of deceit and concealment” which, not to put a tooth in it, is contrary to all of the authorities. There was no attempt either in the written or oral submissions to engage with the finding of Edwards J. or Dignam J. that the belated and oblique attempted challenge to the validity of the refusal of permission was not justiciable.

115. The substance of Ground No. 11 is that the judge erred in failing to allow the Murrays an opportunity to apply for leave to amend their pleadings “in light of the allegations of fraud made directly and indirectly in the affidavits of Rose Murray.” The Murrays were afforded every opportunity to put forward their case in support of their application for interlocutory relief and in response to the Council’s motion to dismiss. Mrs. Murray swore two affidavits in support of their motion and two in opposition to the Council’s motion. The order of 12th December, 2024 on the Council’s motion to dismiss shows – as the judgment records – that the judge in dealing with the motion to dismiss considered them all. The judge considered the substance of the claim made in the statement of claim. At para. 85 he expressly – and correctly – recognised that he must take the Murrays’ case at its height and should not dismiss it if any defect or deficit in the pleadings could be remedied by an appropriate amendment. He carefully considered all that the Murrays had to say before concluding that the case was bound to fail. The Murrays simply do not engage with the judge’s finding (para. 83) that the affidavits did not disclose a case that could be clearly pleaded and particularised in fraud or deceit and (para. 93) that assuming for the sake of argument that fraud or deceit were alleged and could be established, the new evidence simply had no bearing on the decisions in the s. 160 proceedings. The Murrays do not identify what amendment they might have made to the statement of claim which would have saved it.

116. The substance of Ground No. 12 is that the judge ought to have allowed the Murrays the opportunity to join the Attorney General. As I have observed earlier, it does not engage with the judge’s rejection of the substance of the claim on Henderson v. Henderson grounds. Nor does it engage with the judge’s observation that the new evidence was irrelevant to the constitutional challenge. Once the so-called constitutional challenge is seen to be unrelated to the new evidence, the claim in the unnumbered ninth paragraph of the prayer in the statement of claim stands out as a claim which clearly could have been made fifteen years earlier in response to the s. 160 application. I will come back to this when I come to deal with appeal No. 2025 1 and the written and oral submissions.

117. The remaining grounds of appeal are directed to the refusal of the judge of an application made after delivery of the judgment for a stay on the final orders pending appeal which has fallen away.

Appeal No. 2025 1

118. By appeal No. 2025 1 the Murrays appealed against the order made on their motion for interlocutory relief. The grounds of appeal run to fifteen paragraphs – some of them with a number of sub-paragraphs – over seven pages. They are very confused and confusing.

119. At para. 113 of his judgment delivered on 20th November, 2024 the High Court judge said that he would make an order on the Council’s motion pursuant to the inherent jurisdiction of the court dismissing the action as frivolous and vexatious and an abuse of process but would hear the parties as to what order, if any, should be made on the Murrays’ motion and any ancillary orders: and the matter was listed on 12th December, 2024 for that purpose.

120. The first four, and the last three, grounds of appeal appear to be directed to the final form of order. The transcript of the hearing of 12th December, 2024 shows that the main item on the agenda was whether what was said to be the status quo should be preserved pending the Murrays’ then portended appeal to this Court. The submissions were unfocussed to say the least of it but the upshot was that the judge further extended the stay on the order Edwards

J. of 27th July, 2010 until the first directions hearing on the appeal. The transcript shows that the Murrays’ solicitor then applied to join Ireland and the Attorney General as co-defendants and to amend the plenary summons, and the order shoes that this was refused. The transcript also shows that there was talk of “liberty to bring a motion, at this very very late stage, to apply to amend proceedings, so that I’ve cleaned up my act, before I go to the Court of Appeal” but the order does not show that any such application was made. To put it as plainly as I can, the Murrays proposed on 12th December, 2024 that pending their appeal, Ireland and the Attorney should be joined as co-defendants to an action that the High Court had determined was frivolous and vexatious and an abuse of process; and that they should be given liberty to issue a motion to amend their statement of claim which the High Court had determined was incapable of being saved by amendment.

121. These grounds were directed to what should happen pending the hearing of the appeal and have been overtaken by the hearing of the appeal and the judgment and order of the Court (the President) of 14th February, 2025 on an interlocutory motion by the Murrays to this Court, refusing all reliefs.

122. Ground No. 5 – in eight sub-paragraphs, with five sub-sub-paragraphs, over three pages – is divided under two headings, “The Constitutional Issues and Background to Ground No. 5” and “Taking into Account Paragraphs A – E Above the following grounds apply.” It reflects to some extent some of what was said by the Murrays’ solicitor at the hearing before the High Court on 12th December, 2024 which was supposed to be directed to the final form of order rather than any argument previously advanced on the hearing of the motions. The proposition is this:-

(1) Article 30.3 of the Constitution requires that all crimes and offences prosecuted in any court other than a court of summary jurisdiction must be conducted by the Attorney General or, since 1974, the Director of Public Prosecutions;

(2) Section 151 PDA provides that any person who has carried out an unauthorised development shall be guilty of an offence;

(3) Section 156 PDA provides for a maximum penalty on conviction on indictment of a fine of €12,697,380.78 or imprisonment for a term not exceeding two years, or both;

(4) What the Murrays did was clearly a criminal offence;

(5) What the Murrays did was clearly a serious criminal offence, which could only have been prosecuted by the DPP;

(6) Under s. 37(1) of the Garda Síochána Act, 2005 it is the duty of a local authority to notify An Garda Síochána of any offence;

(7) It is a matter entirely for An Garda Síochána, on receipt of a complaint of an offence under s. 151 PDA to investigate it and seek the directions of the DPP;

(8) “Section 160 [PDA] is repugnant to the Constitution in that it does not expressly provide that prior to its initiation of proceedings and its deployment as an originating statutory remedy by a local authority, that it is subject to any restriction, or any prior requirement that if ‘an offence’ as defined by section 151 is disclosed … that a local authority can still proceed under section 160 and (a) completely ignore the entire statutory framework of enforcement procedures laid down by the Act as amended, notwithstanding the complaint of a criminal offence the local authority, can completely disregard its obligation to report the offence to An Garda Síochána for their investigation.”

123. The basic proposition appears to be either that the Council ought not to have invoked s. 160 without having first made a complaint to the Gardaí; or that the Oireachtas was not entitled to provide for the possibility of a civil remedy for unauthorised development without making it conditional on a criminal complaint, investigation and prosecution “and/or at a minimum, DPP consent be first obtained, prior to commencement of a section 160 injunctive proceedings”.

124. Notably absent from Ground No. 5 is any suggestion of error on the part of the High Court judge. The simple explanation for that is that none of this was pleaded or canvassed in argument before the High Court. Moreover, it is plainly an argument that is based on the scheme of the legislation which – if there was anything in it – could have been made in answer to the s. 160 application.

125. The notice of appeal fails to engage with the judge’s finding that the so-called constitutional issue – which at that stage appears to have been that the s. 160 proceedings were a prosecution of the Murrays by the Council for an indictable offence – was an argument that could have been made in the s. 160 proceedings.

126. Ground No. 5 is inadmissible for the reason that it is not directed to any finding or

conclusion by the High Court but is a new argument that the Murrays are not entitled to raise for the first time on this appeal. If they had attempted to make it in these proceedings in the High Court, it would have been ruled out as an argument that manifestly could have been raised in answer to the s. 160 application.

127. The remaining grounds of appeal in Appeal No. 2025 1 replicate the grounds in Appeal No. 2025 2, which I have dealt with.

The appellants’ submissions

128. In much the same way that the grounds of appeal did not engage with the findings and conclusions of the judge, neither were the written submissions filed on behalf of the Murrays based on the grounds of appeal.

129. As the statement of claim and the affidavits had been, the written submissions filed on behalf of the Murrays were replete with references to “an unregistered sterilisation order”, “a ‘purported’ s. 47 agreement”, “the s. 47 agreement”, “a s. 47 agreement”, “no sterilisation agreement”, “the s. 47 restriction” and to lands which were “sterilised and frozen from being ever developed [for] non-agricultural purposes.” The fair issue to be tried was identified as being that “the Council was and is under a positive duty to register any purported s. 47 agreement on the planning register … which it failed to do.” The Murrays sought to draw the Council’s solicitors into the fray by asserting that the letter explaining the title to the lands was written in support of Orla’s and Aoife’s planning applications and seeking to impute to the solicitors – and through the solicitors to the Council – knowledge that Mr. John Murtagh did not have the authority of his co-owners to write the letters of 20th April, 2005.

130. By reference to the observation in the judgment of McKechnie J. that “… it would appear that the panning authority was satisfied with [the letters of 20th April 2005] particularly having received commencement notices in respect of both developments, and in the knowledge that each has been completed” it was suggested that the Council had “botched the process” and had the opportunity to review the files after the commencement notices were served.

131. It was said (para. 15) that the Misses Murtagh’s planning applications ought to have been rejected because article 22(2)(g) of the Planning and Development Regulations had not been complied with. It was recognised (para. 74) that an application by the Murrays in 2006 for leave to apply for judicial review of the decisions to grant planning permission to the Misses Murtagh “would most certainly have been declined … on the basis of locus standi” but there was no indication as to why the Murrays might conceivably have had standing in 2022 in the plenary proceedings to make an argument which they would not have had standing to make in any leave application in 2006.

132. The written submissions more or less repeated the arguments which had been made in the High Court without even acknowledging, still less attempting to engage with the findings and conclusions of the judge. Over and over again, the Murrays protested that Mr. John Murtagh did not have the authority of his brother and sister to write the letters and that this was something which was or ought to have been known by the Council without engaging with the judge’s finding that this was an attempted collateral challenge to the validity of a planning decision which was precluded by s. 50(2) PDA. There was no attempt to revisit or clarify or develop whatever confused thinking may have been behind Ground No. 10.

133. Eventually, at para. 59, the written submissions came to the judgment under appeal: or at least by inserting a heading “In relation to the judgment of the 20th November, 2024” suggested that they would.

134. It was suggested that as a result of the judgment of Owens J. in Louise Murtagh “the s. 47 restriction no longer operated as an absolute barrier to any planning application being considered” and that they had submitted a new application prior to the hearing of the motions on 29th June, 2023. It was recalled that when Dignam J. was informed of the new planning application he had declined to look at it, specifically on the basis that he was precluded by s. 162(3) PDA – which provides that no enforcement action (including an application under s. 160) shall be stayed or withdrawn by reason of any application for retention or the grant of permission. The submission is very confusing but it was asserted that the Murrays believed that the action would “be referred to” plenary hearing. The written submission did not engage at all with the judgment under appeal but with the Murrays beliefs, hopes and plainly misguided expectations as to how the action would progress.

135. The fact is that the High Court judgment was not delivered as soon as the judge would have liked and between the date on which judgment was reserved and the date on which judgment was delivered the case was listed for mention on a number of occasions. Having acknowledged (para. 59) that the judge made it absolutely clear that the court could take no notice or account of the latest retention application, the Murrays’ written submissions later suggested (para. 64) that the matter was adjourned from time to time to await the outcome of the planning process. This is clearly wrong. It was submitted that the judge allowed undue weight and priority to be given to the planning process rather than the substance of the plenary action. This is plainly wrong. As it is acknowledged he did before reserving judgment, Dignam J. spelled out in the penultimate paragraph of his judgment that the question of whether or not retention or planning permission might be granted was separate from the question of whether or not the proceedings themselves raise a fair question to be tried. Contrary to the Murrays’ submission that it should, the pending planning application played no part in the judge’s assessment of whether there was a fair issue to be tried.

136. At the oral hearing of the appeal, the Murrays’ solicitor submitted that the most significant issue was the constitutional issue and he devoted some time to the proposition set out at Ground No. 5 of the notice of appeal in No. 2025 2.

137. Introducing yet another argument that could have been but had not been made in the s.

160 proceedings, and that had not been made below, and was not covered by the notice of appeal, he complained that no warning letter under s. 152 had been served. In response to questions from the Court, he acknowledged that s. 153(5) PDA expressly provides that any failure to issue a warning letter under s. 152 shall not prejudice the issue of an enforcement notice or any other proceedings that may be issued by the planning authority; and that s. 153(7) empowers – and indeed requires – the planning authority in a case of unauthorised development to issue an enforcement notice under s. 154 or to make an application under s. 160, or both, unless there are compelling reasons for not doing so.

138. In answer to another question from the Court, the Murrays’ solicitor said that he was not suggesting that the s. 160 procedure could not be invoked unless there was a criminal investigation. He acknowledged that the arguments made by Ms. Louise Murtagh in her judicial review proceedings could have been made by the Murrays at the time of the refusal of their application in 2006. As to the fact that the Murrays were not prosecuted for a serious criminal offence, he acknowledged – as he had to – that the Murrays knew that they were not being prosecuted and that any argument that this had anything to do with the invocation of the s. 160 procedure could have been made in answer to the s. 160 application.

139. In advance of the hearing of the appeal the Murrays’ solicitor filed a folder of extracts from legislation, textbooks and cases, some of which had been referred to in the written submissions, some of which were referred to in oral argument, and some of which were not referred to at all. Few of them had even a tangential relevance to the issues before the Court.

140. Reference was made to a number of passages in Morrissey Local Authority Enforcement (2014) but the argument went nowhere. It was not in issue that any prosecution for a serious criminal offence could only have been conducted by the DPP. Mr. Morrissey, at para. 10.12, considers the judgment in TDI Metro v. Delap (No. 2) [2000] 4 I.R. 520 in which the Supreme Court decided that the power conferred on planning authorities to “prosecute summarily” offences under the Local Government (Planning and Development) Act, 1976 empowered them to prosecute both summary offences and minor incidents of indictable offences clearly thought fit to be tried summarily. None if this had anything to do with anything that was before this Court and it was acknowledged at the oral hearing that this argument – whatever it was – had not been made in the High Court.

141. At the oral hearing of the appeal the Murrays’ solicitor handed in a copy of the judgment of McGuinness J. in TDI Metro v. Delap [1999] IEHC 177 – which was the judgment of the High Court which was reversed in TDI Metro v. Delap (No. 2) – and a copy of the judgment of Denham J. in TDI Metro v. Delap [2000] IESC 53 – which was the judgment of the Supreme Court on the Attorney General’s earlier application to intervene in the appeal. I have absolutely no idea what conceivable relevance it was thought that these might have had.

142. Reference was made to s. 37 of the Garda Síochána Act, 2005 which provides that a local authority shall, in performing its functions, have regard to the importance of taking steps to prevent crime, disorder and anti-social behaviour within its area of responsibility. Again the proposition – from the Murrays – was that the Gardaí should have been notified of their serious criminal offence but there was no sensible attempt to make any connection between this and the orders sought to be set aside. Moreover, there was no suggestion that the Council was aware of the Murrays’ intentions before the house was built, so that there was nothing that the Council could have done to prevent the crime.

143. In Monaghan UDC v. Alf-a-Bet Promotions Ltd. [1980] I.L.R.M. 64 the Supreme Court emphasised the necessity that an applicant for planning permission which might affect radically the rights and amenities of others and which might substantially enrich the grantee of a permission should comply with the prescribed procedures. This authority was relied on by the Murrays in support of their complaint that the Council had not done all that it might have done – and which they suggested it should have done – in dealing with their and the Misses Murtaghs’ (Orla, Aoife and Louise) planning applications. For the reasons given by Edwards J. fifteen years ago, those complaints were not justiciable and frankly I found it perverse that the Murrays – who had driven a coach and four through the PDA – were seeking to complain of a failure on the part of the Council to strictly comply with the prescribed procedures.

144. In Attorney General v. Sweeney [2019] IESC 39 the Supreme Court reversed an order of the High Court which had declared that s. 9(1)(b) of the Offences Against the State (Amendment) Act, 1998 was invalid having regard to the provisions of the Constitution. Section 9(1)(b) of the Act of 1998 provides that a person shall be guilty of an offence if he or she fails without reasonable excuse to disclose to An Garda Síochána information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of any other person for a serious offence.

145. The Murrays proposition was that they had committed a serious offence and that Meath County Council had failed to report it to An Garda Síochána. I could not and cannot understand how it could have been thought material that s. 9(1)(b) was not unconstitutional. I could not and cannot understand how it could have been thought material to the validity of the orders made in the s. 160 proceedings that Meath County Council might not have reported the offence to An Garda Síochána. By the way, there was no evidence that Meath County Council had not made a report to An Garda Síochána, still less that the commission of the offence had been “diverted from the Gardaí”. There was no evidence in relation to the engagement or lack of engagement by the Council with the Gardaí: rather the suggestion that the offence had not been reported was based on surmise. In any event, “serious offence” in s. 9(1)(b) of the Act of 1998 has the same meaning as it has in s. 8, which is an offence that involves loss of human life, serious personal injury, false imprisonment, or serious loss of or damage to property. In answer to a question from the Court, the Murrays’ solicitor acknowledged that the Offences Against the State (Amendment) Act does not apply to offences under the PDA.

146. The Murrays’ solicitor sought to place particular reliance on the judgment of Costello

J. in Attorney General v. Paperlink Ltd [1984] I.L.R.M. 373 in which the High Court granted a declaration that the defendants’ business of receiving and delivering letters was in breach of the provisions of the Post Office Acts, 1908 to 1969, and an injunction restraining the defendants from continuing to do so. That reliance was entirely misplaced.

147. The recurring theme of the Murrays’ submission was that they should have been prosecuted on indictment for a serious criminal offence rather than subjected to civil proceedings. But it was not suggested that the availability of the civil remedy was conditional on a criminal investigation, prosecution, or conviction. Apart altogether from the fact that the argument – if there was anything in it – was one that could have been made in the s. 160 proceedings, it went nowhere.

148. The Murrays’ solicitor pointed in particular to the passage at para. 62 of the judgment in Paperlink where it is recorded that counsel for the defendants submitted that the remedy sought by the Attorney General was unconstitutional because it amounted to a finding of criminal guilt in civil proceedings and that the State had ignored the criminal remedies available to it and opted instead to apply for declaratory and injunctive relief. If he had read on, he would have seen that that argument was rejected by Costello J. No less to the point, this was not a case in which the Attorney General sought an order to restrain a breach of a statutory provision but in which a planning authority invoked an express power to seek a statutory civil remedy.

149. As to the planning retention application that was pending before the Council at the time of the High Court hearing, it was at accepted at the oral hearing that the High Court judge declined to look at it or to take its existence into account, and it was finally acknowledged that he had been correct to do so.

The respondent’s submissions

150. By stark contrast with the Murrays’ submissions, the written and oral submissions on behalf of the Council were clear and focussed. In summary, the Council’s position was that the Murrays were seeking to obscure a straightforward problem at the core of their action to set aside the s. 160 orders, namely that the purported new evidence was directed to the validity of the decision to refuse planning permission; that they were seeking to reargue issues which had been determined against them; and that they were mutating their case by attempting to add new points. I agree.

151. The written submissions on behalf of the Council also summarise the applicable legal principles and identify the relevant authorities but, as I have said, there is no challenge to the judge’s identification of the principles and authorities.

152. For the reasons already given, I accept the Council’s submission that the so-called new evidence was not new; was not relevant; and could not have affected the outcome of the s. 160 proceedings.

Summary and conclusions

153. It is always important not to lose sight of the wood for the trees.

154. In 2006 the Murrays built a 6,220 ft 2 house at Faughan Hill, Kells, County Meath. They did so without planning permission. They well knew that they needed planning permission but hoped that they would get away with it. It was an aggravating factor that the Murrays had very shortly previously been refused permission for a much smaller house.

155. Following the refusal of the initial planning application, the Murrays had the option – if they thought that they could persuade An Bord Pleanála that the house they wished to build was consistent with proper planning and development – to appeal to An Bord Pleanála –or – if they thought they had good grounds – to seek a judicial review of the Council’s decision. They did neither.

156. In proceedings brought by Meath County Council in 2007 for orders under s. 160 PDA, the Murrays had every opportunity to make whatever case they thought they had in opposition to the making of the orders sought. The High Court in 2010 and the Supreme Court in 2017 carefully considered all that they had to say but decided that the house had to come down. The consequence of the Murrays’ failure to comply with the court orders was that the ratepayers of County Meath agreed to meet the cost of compliance with the court orders.

157. At the heart of the Murrays’ opposition to the s. 160 proceedings was a grievance with the refusal of their planning application. As a matter of law, their grievance was not justiciable. But taking a step back, any infirmity – if any – in the decision to refuse permission for the smaller house could not conceivably have provided any justification for the unauthorised construction of such a house, still less a house twice the size.

158. In 2022, on the very eve of the expiration of the thrice extended time for compliance with the s. 160 orders, the Murrays commenced an action to set aside final orders of the High Court and the Supreme Court – including an order the making of which they had consented to in 2020 – largely on the basis of arguments that had previously been fought and lost, and partly on the basis of arguments that had not previously occurred to them or their previous lawyers.

159. On the application of Meath County Council, the High Court determined that the action was frivolous and vexatious and an abuse of process. The Murrays’ appeal to this Court did not engage with the legal principles, reasoning and findings on which that

conclusion was reached. Inevitably, they have failed to identify any error in the judgment of the High Court.

160. I would dismiss the appeals on all grounds and affirm the orders of the High Court.

161. The Council having been entirely successful on the appeals is presumptively entitled to an order for its costs on both appeals against Mr. and Mrs. Murray. If either party wishes to contend for any other costs order they may notify the other and the Court of Appeal Office within fourteen days of the electronic delivery of this judgment of what other order is sought, in which case the Court will give such directions as may be necessary for the exchange of written submissions.

162. As this judgment is being delivered electronically, Butler and O’Moore JJ. have authorised me to say that they agree with it and with the orders proposed.