High Court dismisses appeal on unauthorized development where new house is distinct from previous mobile homes.

[2026] IEHC 342

THE HIGH COURT

PLANNING & ENVIRONMENT

CIRCUIT APPEAL

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

[High Court Record No.: H.CA.2025.0000329]

[Circuit Court Record No.: 2025 5748 Co. Dublin]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

NOTICE OF MOTION FOR RELIEF UNDER SECTION 160 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

SOUTH DUBLIN COUNTY COUNCIL

RESPONDENT/PLAINTIFF

AND

THRESHFORD LIMITED, MULLNASSA LIMITED AND BRANACH DEVELOPMENTS LIMITED

APPELLANTS/DEFENDANTS

AND

THE HIGH COURT

PLANNING & ENVIRONMENT

CIRCUIT APPEAL

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

[High Court Record No.: H.CA.2025.0000330]

[Circuit Court Record No.: 2025 5894 Co. Dublin]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

NOTICE OF MOTION FOR RELIEF UNDER SECTION 160 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

JOHN O’NEILL

APPLICANT/RESPONDENT

AND

BRANACH DEVELOPMENTS LIMITED AND MULLNASSA LIMITED

RESPONDENTS/APPELLANTS

Commencement of works: mid-August 2025

Date of Circuit Court order: 19 December 2025

Date of main hearing: 13 May 2026

Date draft judgment circulated: 22 May 2026

JUDGMENT of Humphreys J. delivered on Wednesday 3 June 2026

“Two photographs probably best encapsulate what this case is about.

Firstly, the below photograph shows the type of structure that was previously located on the

lands – mobile homes (there is no dispute about this).

Secondly, the below photograph shows what is now on the lands – a completely different

structure, a dwelling house. Nothing remains of the earlier structure.

Based on any objective and rational consideration of these images, any reasonable person would

plainly see that they are different structures. Despite this, the Appellants adopt a different and,

with respect, nonsensical approach in saying that they are, in essence, the same structure (the

second being represented by the Appellants as maintenance/improvement/alteration of the

first). This is not even so much as an application of the Ship of Theseus paradox, but more

gaslighting on a monumental scale.” (SDCC submissions paras. 4 to 6).

1. This is a particularly egregious case of disregard of planning law. It is not made any better

by the non-reality-based sworn evidence on behalf of the respondents that, like the Party’s final and

most essential command in Orwell’s Nineteen Eighty-four (London, Secker & Warburg, 1949), pt. 1

§7, “told you to reject the evidence of your eyes ...”. Nor are matters improved by the fact that

the unauthorised works have occurred in a highly sensitive setting – zoned “High Amenity – Dublin

Mountains” in the South Dublin County Development Plan 2022-2028, with the objective to “protect

and enhance the outstanding natural character of the Dublin Mountains Area”. Nor is the situation

made better by the almost unbelievable chutzpah of the developers who even now claim “innocent

mistake”, even though they ignored or deflected warning letters and intensified construction of the

unauthorised development in the teeth of interventions from the council and residents and during

the course of proceedings before the Circuit Court. This is as far from innocence as you can get –

this was an attempt to create a fait accompli with a view to turning around and defiantly asking the

system, in effect, “what are you going to do about it?”. I suppose like many other people who defy

planning law, the respondents are now going to find out.

2. The old adage is that when the facts are against you, hammer the law – and nobody could

take from the vigour of the hammering resorted to by the respondents in that regard. While a

superhuman jurisprudential effort has been made on behalf of the respondents to advance any

conceivable reason as to why the facts should not lead to an adverse order, that exercise, while at

one level enormously impressive, is, unpersuasive. As the council submitted, “this isn’t a marginal

case”. The ultimate reason for that is that while ornate scholarly infrastructure was totteringly

erected by the respondents in a majestic doctrinal exercise by way of defence, none of this arises

on the facts and therefore none of this makes any difference to anything. What defeats the

respondents is not some abstruse point of law that cries out for clarification, but the egregious nature

of their own conduct and the inevitably adverse factual findings that flow from that.

Judgment history

3. A 1972 permission required the removal of caravans within one year, but this was not

complied with. It also prohibited additional caravans. When the council sought to enforce this

against the previous owner Mr Hill, they were unsuccessful: Dublin County Council v. Hill [1994] 1

I.R. 86, [1992] I.L.R.M. 397 per McCarthy J. (ex tempore, O’Flaherty and Egan JJ. concurring).

4. During the Circuit Court proceedings, the appellants issued judicial review proceedings

seeking to restrain s. 160 proceedings but apparently without disclosing the existing s. 160

proceedings on the papers (Threshford Limited and Mullnassa Limited v South Dublin County Council

[Record No. 2025 1624 JR]). The appellants, the first time the matter was before the court, applied

to withdraw those proceedings. Notwithstanding the application to withdraw the said proceedings

the council sought to address the High Court (Holland J.), and I deal with this further below.

Ultimately the judicial review application was struck out.

5. Section 160 injunctions were granted by HH Judge O’Connor on 19 December 2025, and the

respondents appeal from those orders.

Geographical context

6. The proceedings comprise an appeal by the first and second named appellants against a s.

160 order made by Dublin Circuit Court on 19 December 2025 and perfected on 22 December 2025

in relation to lands located at Chianti Park, Mount Seskin Road, Raheen, Brittas, Co Dublin, at:

https://maps.app.goo.gl/5TAAWEjDT1VqLmDMA. The lands are zoned “High Amenity- Dublin

Mountains (HA-DM)” in the South Dublin County Development Plan 2022-2028.

7. The property the subject of these proceedings can be viewed on Google Street View using

https://maps.app.goo.gl/pnLXdfk8VTya5ALaA. An aerial photo of the property from Google Maps

can be accessed at https://maps.app.goo.gl/2S42xG7Vq8QWkVq36 .

8. Next door to Chianti Park is a development called Hillbrook Lawns which is a similar caravan/

mobile home park since 1968. The respondents say that the next door park demonstrates that the

modular dwellings may be of a superior type of structure to caravans/ mobile homes for the purposes

of living conditions.

Parties

9. The plaintiff/respondent, South Dublin County Council, is the relevant planning authority.

10. John O’Neill is the applicant/plaintiff in these proceedings. He lives c. 200 m from the

property the subject of these proceedings.

11. As to the respondents, Threshford Limited, of College House, 71/73 Rock Road, Black Rock,

Co. Dublin (A94 FPXP), is the owner and/or occupier of the lands and/or is the entity responsible for

carrying out the development the subject of proceedings pursuant to s. 160 of the Planning and

Development Act 2000 (the 2000 Act).

12. Mullnassa Limited, of College House, 71/73 Rock Road, Black Rock, Co. Dublin (A94 FPXP),

is the owner and/or occupier of the lands and/or is the entity responsible for carrying out the

development the subject of proceedings pursuant to s. 160 of the 2000 Act.

13. Branach Developments Limited, of Thomastown, Caragh, Kildare, Ireland, is the entity

carrying out the development on the lands on behalf of the first and second named appellants.

Facts – SDCC case

14. The alleged unauthorised development, the subject matter of these proceedings, gave rise

to a series of complaints from mid-August 2025 to mid-September 2025.

15. On 18 August 2025, pursuant to s. 152 of the 2000 Act, the council issued warning letters

to Mr Hill (the previous owner of the lands) and the third named appellant.

16. The previous owner responded to the said warning letter, indicating he was no longer the

owner of the lands.

17. The third named appellant responded to the council by letter dated 12 September 2025,

indicating that whilst they were carrying out the works on the lands, it was at the request/instruction

of the owner.

18. The council subsequently issued a letter to various parties, including the appellants herein,

prior to proceedings. Dated 30 September 2025, same sought for the unauthorised development to

cease immediately, as well as other specific undertakings.

19. The third named appellant replied to the said letter, by way of correspondence dated 1

October 2025, and again disputed any responsibility for the unauthorised development.

20. In response to this correspondence, the council wrote to the third named appellant on 1

October 2025, asking it to clarify who the owner of the lands was or who it was working for. By way

of further letter, dated 1 October 2025, the third named appellant failed and/or refused to provide

this information.

21. On 2 October 2025, the council received correspondence from solicitors acting for the first and

second named appellants. This correspondence indicated that they were seeking time to take

instructions.

22. The council responded to the said correspondence by email dated 3 October 2025, indicating

that it would extend time for any undertakings to 6 October 2025 at 2 pm.

23. On 7 October 2025, the solicitor for the first and second named appellants responded to the

council’s correspondence and indicated, for reasons set out, that the appellants’ position was that

the allegation of unauthorised development was “misconceived” and the development was exempt

pursuant to s. 4(1)(h) of the 2000 Act.

Facts – O’Neill case

24. The lands the subject of these proceedings are known as Chianti Park, Mount Seskin, Brittas,

County Dublin, also referred to as Hillsbrook Lawn, and are situated within the administrative area

of South Dublin County Council. The property comprises a former caravan, mobile home and chalet

site and is owned by the respondents.

25. The applicant resides in close proximity to the property and has done so for a number of

years. The applicant’s dwelling is located approximately 200 m from the property.

26. The property was originally in agricultural use. From 1968, allegedly, the property was used

for mobile homes and chalets. Planning permission was granted in or about 1972 for the retention

of a limited number of mobile homes, subject to conditions including a requirement that the

structures be removed within one year and that no further such structures be erected.

27. Over time, the number of structures on the property increased beyond what was originally

permitted, and there has been a history of unauthorised development on the property.

28. On or about 11 August 2025, works commenced on the property which are the subject of

these proceedings.

29. The works the subject matter of these proceedings are works for the maintenance,

improvement or other alteration of existing structures.

30. On or about 18 August 2025, the council issued a warning letter in respect of the said works.

31. On 19 September 2025, the applicant made a complaint to the council in relation to the

works being carried out on the property and was informed of the warning letter issued on 18 August

2025.

32. By correspondence dated 23 September 2025, the applicant’s solicitors wrote to the council

seeking information as to what further steps, if any, had been taken by the council in respect of the

said works. No reply was received.

33. By letter dated 2 October 2025, the applicant’s solicitors wrote to the respondents noting

that no planning permission had been granted for the development and calling upon the respondents

to cease all works on the property. The respondents were requested to confirm the basis upon which

the development was said to be authorised and were put on notice that injunctive relief would be

sought in the absence of an undertaking to cease works. No reply was received.

34. By further correspondence dated 21 October 2025, the applicant’s solicitors wrote to the

second named respondent in similar terms. No reply was received.

35. Notwithstanding the absence of any planning permission and the said correspondence, the

works on the property continued. The works carried out include the demolition of existing caravan/

mobile home/ chalet-type structures, the clearance of significant areas of the site, and the

construction of new modular dwellings, including on previously undeveloped areas of the property.

36. The works have also resulted in impacts on adjoining lands, including runoff from the

property which has affected drainage at the applicant’s dwelling.

37. On 3 November 2025, the applicant instituted proceedings pursuant to s. 160 of the 2000

Act seeking to restrain the said unauthorised development and to restore the property to its prior

condition.

38. On or about the same time, without notice to the applicant, the council instituted separate

proceedings pursuant to s. 160 of the 2000 Act in respect of the same property.

39. The applicant’s position is that the development is unauthorised development and is not

exempted development.

40. The respondent/defendants position is that development is exempted development pursuant

to s. 4(1)(h) of the 2000 Act.

41. Both sets of s. 160 proceedings were heard together on 4 and 9 December 2025.

42. On 19 December 2025, the Circuit Court delivered judgment and made orders restraining

the unauthorised development and directing relief pursuant to s. 160.

43. The respondents appealed the said orders to the High Court on 19 December 2025, and

sought an interim stay. A limited stay was granted by Ms Justice Farrell on 19 December 2025,

permitting certain specified weatherproofing works to be undertaken and directing that photographic

evidence of such works be furnished.

Procedural history – SDCC case

44. The proceedings were issued in Dublin Circuit Court on 24 October 2025.

45. The council, by way of ex parte application on 30 October 2025 – which the appellants

appeared at and addressed the court on – sought interim relief and/or short service for an application

for interlocutory relief to be heard at the earliest possible date.

46. The Circuit Court (HH Judge O’Connor) made the interlocutory application returnable for the

following week – 6 November 2025.

47. On 5 November 2025, the appellants issued a notice of motion to transfer the proceedings

to the High Court on the basis that it was contended that the market value of the lands exceeded

the Circuit Court’s jurisdiction.

48. Due to time constraints, the Circuit Court was unable to hear the interlocutory application

on 6 November 2025, and the matter was adjourned to the following week to fix an early hearing

date for the substantive case.

49. On 7 November 2025, the council, without prejudice to its position that the market value of

the Lands was within the jurisdiction of the Circuit Court, indicated to the appellants that it would

consent to the proceedings being transferred to the High Court (with a view to having same

determined as expeditiously as possible in the Planning and Environment List). The council appeared

before the Circuit Court to seek an order to this effect on 7 November 2025, however the appellants

informed the court, that they were withdrawing their motion (costs were awarded against them for

same) in circumstances where the Circuit Court had listed the matter to fix an early hearing date.

50. Following the close of pleadings (exchange of affidavits) and following the substantive

hearing of the matter on 4 December 2025 (2 hours) and 9 December 2025 (2 hours), on 19

December 2025, the Circuit Court made an order granting a planning injunction in the terms outlined

in the order under appeal.

51. On 19 December 2025, the appellants lodged the within appeal on the same day and sought

a stay on the Circuit Court order from the High Court (Farrell J.). The appellants were granted a

very limited stay which allowed them to carry out some minor weather-proofing to two structures

on the lands.

52. For the purposes of their appeal, the appellants have filed two additional affidavits, the

second affidavit of Keith McDermott and the affidavit of Ann Mulcrone. This was on a de bene esse

basis and the council maintained an objection to that.

53. Without prejudice to the council’s objections to the admissibility of same, the council filed a

replying affidavit from Cian Harte on 15 April 2026.

54. The council served its legal submissions, input into this statement of case and input index

of authorities on the appellants on 28 April 2026.

55. The appellants served their legal submissions, input into this statement of case and input

index of authorities on the council on 8 May 2026.

56. The appeal was heard on 13 May 2026 together with the related case 2025 5894 CA (the

O’Neill proceedings).

Procedural history – O’Neill case

57. The applicant instituted proceedings seeking an interim injunction before the Circuit Court

on 3 November 2025. Interim relief was refused, and the matter was listed for the hearing of an

application for interlocutory relief on 6 November 2025.

58. On or about the same time, South Dublin County Council instituted separate proceedings

pursuant to s. 160 in respect of the same property. The applicant had been unaware of such

proceedings.

59. On 5 November 2025, the respondents issued a motion seeking to transfer the proceedings

to the High Court on the basis, inter alia, of the alleged value of the property.

60. On the return date of 6 November 2025, issue was raised by the respondent as to the

jurisdiction of the Circuit Court to deal with both sets of proceedings by reference to the alleged

value of the property. The court rose to enable South Dublin County Council and the respondents

to consider matters. The application for an interlocutory injunction was not heard and no

undertaking was made by the respondents not to undertake further works.

61. On 7 November 2025, the applicant indicated to the Circuit Court his consent to the transfer

of the proceedings to the High Court. The respondents however subsequently withdrew the motion

to transfer and agreed that the proceedings would continue in the Circuit Court.

62. On 11 November 2025, the costs of the respondents’ motion to transfer the proceedings to

the High Court were awarded to the applicant with no stay.

63. On 13 November 2025, directions were given for the full hearing of the proceedings,

including directions as to the exchange of affidavits, the matter being fixed for hearing on 4

December 2025 and 9 December 2025. The respondents did not comply with the directions for filing

an affidavit.

64. The proceedings were called on for hearing on 1 December 2025 in the Circuit Court.

65. The respondent furnished unsworn replying affidavits to the applicant on 4 December 2025.

The applicant objected to the introduction of those affidavits in breach of the court’s directions.

They were admitted by the court on 4 December 2025.

66. The hearing continued, and concluded on 9 December 2025 with the court reserving

judgment and requesting that the respondents respect the court’s wish that no further work be

carried out pending delivery of judgment.

67. On 15 December 2025, the applicant informed the court that, inter alia, deliveries of sand

had been made to the property subsequent to 9 December 2025. The court indicated that judgment

would be brought forward to be delivered on 19 December 2025.

68. On 19 December 2025, the Circuit Court delivered judgment and made orders restraining

the unauthorised development and directing relief pursuant to s. 160 of the 2000 Act.

69. The respondents appealed the said orders on 19 December 2025, and sought an interim

stay from Ms Justice Farrell. Ms Justice Farrell granted a limited stay permitting certain specified

weatherproofing works only and directing that photographic evidence of such works be furnished.

The matter was listed for mention from time to time thereafter.

70. The matter was listed for hearing together with the related case 2025 0329 CA on 13 May

2026.

Post-hearing procedural history

71. Judgment was reserved at the end of that hearing. I would like to record my thanks to all

of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

72. On 22 May 2026, a draft of the present judgment was sent to the parties, pursuant to paras.

15, 195 to 198 and 204 of Practice Direction HC 137, to give an opportunity to address matters such

as errors/ ambiguities on the basis set out below.

73. Parties are required to:

(i) Read the draft or have their legal representatives if applicable do so on their behalf.

(ii) Identify any matters falling within the below.

(iii) Positively communicate with the court in writing in response to the draft by the

deadline specified, such responses to be emailed to the court and uploaded to

ShareFile, either stating that they have no comments or setting out the comments.

(iv) Carry out the foregoing without delay - the draft judgment procedure is a concession

which parties can engage with but must do so with immediate dispatch, discipline

and focus – it is not the opening of a new phase of the litigation that gives rise to

“an entitlement to elaborate procedures at every point” (to use a phrase of O’Donnell

C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service

Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39);

and still less should the procedure invite the perhaps “serious error, to which lawyers

are prone, to approach any such case on the tacit assumption that only procedures

which approximate to a criminal trial are fair, and anything which departs from that

is somehow dubious” (O’Donnell J. (Clarke C.J., McKechnie, MacMenamin, Dunne JJ.

concurring) in O’Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

(v) Keep the draft confidential. Draft judgments are not public domain materials and,

while they can be shared between the lawyers concerned and their clients, subject

to the following, it is inappropriate for any person to refer to them for any purpose

other than to assist the court in relation to the finalisation of the formal judgment.

Therefore anyone with information as to the text, content or proposed outcome of

any draft is required not to publish or transmit such information to others save solely

by way of private transmission for the legitimate purposes of assisting in the

finalisation of the judgment and subject to a similar restriction on any recipient.

Trial participants should take reasonable steps to keep drafts confidential. On this

topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R.

367, [24/01/2022] T.L.R. 1 (Briggs, Kitchin, Burrows, Rose, Arden SCJJ) which

discusses why restriction on publication of draft judgments is in the interests of the

administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC

1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R. (Counsel

General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy

[2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey

Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social

Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368, [2022] 3 WLUK

291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler LJJ. concurring); Itkin v. Wood

[2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).

74. The foregoing constitutes an immediately effective direction of the court to the parties and

anyone having notice of the draft judgment with effect from the date of circulation of the draft.

75. The responses should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

(i) informing the court as to whether the party prefers an alternative to a formal written

judgment as proposed, and if the party so considers, whether that party considers

that the entire matter or some specified part of it can be disposed of (a) by order

without a reasoned judgment, or (b) by ex tempore reasons without a written

judgment;

(ii) informing the court, assuming that the court proceeds with a formal judgment, as

to whether the party wishes to propose any corrections to the draft such as:

(a) any apparent typographical, factual, legal or other errors in the draft;

(b) any apparent ambiguity or other matter in the draft that could unnecessarily

multiply issues or complicate the further processing of the matter;

(c) any redaction of personal or other information that a party wishes to request;

(d) in the event that the court proposes to refer to any matter (whether factual,

legal (including reference to authorities or other legal material), obiter comment

or otherwise) not referred to at the hearing, any submission as to why such

reference is not relevant or otherwise should not be included or as to why such

matter if included should not lead to the proposed conclusion;

(e) any other matter in the draft judgment that the party considers should be

omitted;

(f) any matter not included in the draft judgment that the party considers should

be added to it (including where the party considers that procedural, factual or

legal points not set out in the judgment should be addressed or where the party

considers that reasons for any aspect of the decision are not set out or where

an overall ground is disposed of but detail of the ground or sub-ground is not

expressly addressed, or where an issue arose the disposition of which would be

obiter but on which the party concerned considers that there would be a benefit

in the court expressing a view); and

(g) any other proposals as to the wording (as opposed to substance) of the decision

if the proposed wording causes any issue for a party for any identified reason;

and

(iii) assisting the court by providing views on such matters if any on which views are

specifically invited in the draft judgment.

76. In particular, parties should draw the court’s attention to any apparent error or ambiguity

whether they have been successful on the point or not.

77. The rules of engagement in such a situation are that the draft is without prejudice to the

right of the court ultimately to issue a judgment in whatever form or with whatever content it

considers appropriate. It is then entirely a matter for the court as to whether to give judgment with

or without amendment including any amendment that appears appropriate to the court whether

arising from submissions or not. Any judgment may be given without further notice following the

expiry of the specified period, whether comments are made or not. That period will not be extended

save in exceptional circumstances.

78. The deadline for such comments from the parties was to be 16:00 on Wednesday 27 May

2026. Comments were as follows:

(i) SDCC – no changes proposed.

(ii) Applicant in O’Neill – some corrections/ updating of information.

(iii) Respondents – sought more time to respond due to Senior Counsel unavailability

during vacation. Unfortunately that is not generally a basis for additional time

because accepting that rationale would prevent the court from issuing judgments

during the vacation, which is an essential safety valve to avoid unsustainable build-

up of backlogs. Parties in cases heard near the end of any given term need to have

a contingency plan for the totally foreseeable possibility of a draft being issued

shortly thereafter. When this application was rejected the respondents then

delivered a "notice of appeal” type response.

79. This was, of course, a complete misunderstanding of the procedure, and, I’m afraid, not

uncharacteristic of the scattergun approach on behalf of the respondents here. For the record, their

response was:

“Further thereto, the Appellants would like to address the Court on the following matters

prior to the Court finalising its draft judgment.

It is respectfully submitted as follows:

1. The Court has failed to have appropriate regard to the nature of the structure which was

the subject matter of the works for alteration and improvement

2. The Court has failed to have appropriate regard to the fact that the footprint of the

structure has not been increased, nor the dimensions altered beyond what existed on the

site which evidence was not contradicted. That evidence was that the foundations of the

structure have been retained. That evidence was not cross examined and where there was

no contradictory evidence to undermine what was set out in that Affidavit

3. The evidence from the Architect showing the before and after demonstrates that the

extent of the alterations as was shown and was not a significant given the surveys carried

out by the Architect both before and after.

4. The Court has failed to have appropriate regard to the application of the principle

governing Section 4(1)(h) and in particular the Judgement of Ryan J (as he was then) in

Micheal Cronin (ReadyMix) Limited and the subsequent Judgment of the Supreme Court in

Cairnduff v O’Connell which gives the effect that there is a greater margin of appreciation

shown in a set of works which are exempted development as prescribed under that section

and is not confined to insignificant works.

5. The Court errored [sic] in its interpretation of the Defences available under Section

4(1)(h) as set out in Morris v Garvey the application of which defences apply to the facts of

this case where it was a genuine belief based on a statutory exemption which related to no

alteration of the character of the structure that would render the development inconsistent

with the previous development or adjoining structures.

6. It is also submitted that the Court errored [sic] in its interpretation of the defence of

disproportionate hardship in terms of how it has been applied to the facts of this case.

7. Whether the finding of the court that this development commenced subsequent to the

1st October 1964 is consistent with the purpose of the Section 160(6) (7 year rule) of the

Planning & Development Act 2000, as amended.

8. Having regard to the defences raised, whether it is appropriate to make the cost orders

contemplated in the draft judgment and in particular to the cost orders contemplated in the

O9’Neill [sic] proceedings in circumstances where those proceedings were commenced after

the first return date of the SDCC proceedings.

9. It is submitted that the Court errored [sic] in its interpretation of the reliefs sought by

the Applicants and in particular those reliefs relating to the restoration of the lands to their

condition immediately prior to the commenced of the development in August 2025.

10. The Court appears to make a finding that the original development consisted of mobile

homes only. If that is indeed the finding of the Court, it is disputed by the Appellants.

11. The Court errored [sic] in its finding that both Affidavits of Ann Mulcrone were

inadmissible on the basis that they should have been before the Court of first instance. The

Appellants were given liberty to file an Affidavit in the Appeal. The Appellants submit that

both affidavits should be admissible in the circumstances and on the basis of their relevance

and at the very least should be heard in the question of inadmissibility.

The Appellants have had a preliminary preview of the comments to the Court in the O’Neill

proceedings in the last few minutes and reserve its position in respect of those comments.

The Appellants also confirms that the photographs that were directed to be sent to the parties

by Ms Justice Farrell were in fact sent to the parties.”

80. In fairness to the parties I did extend the period for responses to a full seven days up to

17:00 on Friday 29 May 2026 (the period for corrections started on Friday 22 May 2026) and invited

any further responses from the applicants to the foregoing.

81. The council then responded in the following terms which I generally endorse:

“Date: 29th May 2026

Re:

SOUTH DUBLIN COUNTY COUNCIL Plaintiff /Respondent

-and-

THRESHFORD LIMITED, MULLNASSA LIMITED AND BRANACH DEVELOPMENTS LIMITED

Defendants/ Appellants

Dear Registrar,

Re: South Dublin County Council’s Response to the Appellants’ comments on Draft Judgment

As to the Appellants’ comments on the Draft Judgment, the Council respond as follows.

The Appellants appear to misunderstand the nature and purpose of the Draft Judgment

process - this is so notwithstanding the fact that same is clearly set out in the Draft Judgment

(§72 et seq). In this regard, the Appellants fail to note that the purpose of the Draft

Judgment procedure is not to reargue the substance of the case (Draft Judgment, §76). The

Appellants’ ‘points’ on the Draft Judgment ignore this very plain stated purpose and are

therefore regrettably a disrespectful attempt to re-argue the case and are entirely

inappropriate. The so called ‘points’ are framed in the language of a notice/grounds of

appeal to the same Court of judgment. In substance, the Appellants are inappropriately

purporting to treat the Draft Judgment as an opportunity for another appeal (having already

appealed from the Circuit Court).

A number of general observations can be made in response to the Appellants’ ‘points’ on the

Draft Judgment: they are advanced without actually engaging with the Draft Judgment -

noting that not one point is referrable to any particular paragraph of the Draft Judgment;

they are framed, in substance, as (albeit not in any sense compelling or weighty) grounds

of appeal; they appear to reflect an unwillingness on the part of the Appellant to accept that

on the application of existing case law to the facts of their case, their attempt to argue that

the works were exempted development was completely unsustainable; and they are

baseless when one considers the actual terms of the Draft Judgment.

The Council also has a broader concern, stemming from the nature of the Appellants’ ‘points’

on the Draft Judgment and the related request to address the Court on same, that the

approach being adopted by the Appellants is a rather blatant/obvious attempt to seek to

delay the finalisation of the Orders proposed.

Appellants’ Point 1: ‘The Court has failed to have appropriate regard to the nature of the

structure which was the subject matter of the works for alteration and improvement.’

Council’s Response: It is not clear what the Appellants point here is by reference to the

purpose of the Draft Judgment procedure. In any event, there is no substance to this

complaint and same appears to have been made without actually reading the Draft Judgment

or, alternatively, in wilful ignorance of same. In this respect, the Council would note:

The assertion that the Court failed to have ‘appropriate regard’ to the nature of the structures

which was altered or improved, is un-stateable. The Court was clearly aware of the existing

structures and new structures on the lands having had all of the relevant exhibits opened to

it, including photographs of the existing structures and the new structures, which the

Appellants did not dispute or address.

This complaint appears to repeat the similar approach adopted by the Appellant in opposing

the proceedings - which was one of ignoring the actual evidence and electing to make high

level abstract arguments divorced from the facts of the case.

The contention is also premised on the Appellants legally misconceived argument, which the

Court correctly rejected (inter alia, §130), that the same structure remained on the lands.

As the Draft Judgment notes, by reference to a range of cases which the Appellants did not

engage with in any meaningful way (either at trial or now in making these misconceived

complaints) the ‘total or near-total replacement of a structure is not maintenance,

improvement or alteration of the structure’.

The Draft Judgment deals with this issue at §128 et seq- where it expressly refers to the

photographic evidence adduced from the Council (§130, §133, and §135) - this included

images of what were there previously and what is now there.

Appellants’ Point 2: ‘The Court has failed to have appropriate regard to the fact that the

footprint of the structure has not been increased, nor the dimensions altered beyond what

existed on the site which evidence was not contradicted. That evidence was that the

foundations of the structure have been retained. That evidence was not cross examined and

where there was no contradictory evidence to undermine what was set out in that Affidavit.’

Council’s Response: Again it is unclear what the Appellants point here is by reference to the

purpose of the Draft Judgment procedure. There is no substance to this complaint - which

is again unhelpfully advanced without actually referring to or engaging with the content of

the Draft Judgment or the evidence before the Court. The points made in response to Point

1 also apply here. In addition, this point appears to repeat the error which informed the

Appellants approach in the case - continuously asserting that their evidence was not

contradicted - it was expressly contradicted by the Council, the Appellants just elected not

to engage with same. This is relevant to the Court’s findings that the Appellants have failed

to discharge the burden of proof which rests on them to established exempted development.

Relevantly, the Draft Judgment addresses these points:

At §96 et seq- the Court expressly noted that averments made by Mr Donoghue fly in the

face of reality and highlighted the lack of weight that could be attached to his evidence (a

point which the Appellants don’t dispute - illustrating the misplaced nature of the points they

now seek to make on the Draft Judgment).

At §133 et seq- there was no failure to have appropriate regard to anything.

Further, the point has to be considered in light of the findings made about Mr Donoghue’s

Affidavit - which the Appellants notably fail to address in their comments on the Draft

Judgment.

Appellants’ Point 3: ‘The evidence from the Architect showing the before and after

demonstrates that the extent of the alterations as was shown and was not a significant given

the surveys carried out by the Architect both before and after’.

Council’s Response: It is not clear what the Appellants point here is by reference to the

purpose of the Draft Judgment procedure. To compound matters, this ‘point’ invokes Mr

Donoghue’s misplaced invocation of the ‘Architect’ title, an issued addressed in the Draft

Judgment ( §95 et seq). This is worrying in circumstances where the Appellants appeared

to accept during the course of the hearing that this was incorrect and offered to file a

correcting affidavit (which they did not do). As outlined above, by reference to the Draft

Judgment, the Appellants do not actually say what the point here is - noting that Mr

Donoghue’s evidence was contradicted by the Council and rejected by the Court. Simply

stating that Mr Donoghue gave certain evidence (which is all this point does), which the

Court was aware of and which the Court addressed, does not enlighten anyone as to what

the issue is with the Draft Judgment (and there is no issue).

Appellants’ Point 4: ‘The Court has failed to have appropriate regard to the application of

the principle governing Section 4(1)(h) and in particular the Judgement of Ryan J (as he was

then) in Micheal Cronin (ReadyMix) Limited and the subsequent Judgment of the Supreme

Court in Cairnduff v O’Connell which gives the effect that there is a greater margin of

appreciation shown in a set of works which are exempted development as prescribed under

that section and is not confined to insignificant works.’

Council’s Response: It is not clear what the Appellants point here is by reference to the

purpose of the Draft Judgment procedure. Certainly the procedure is not one that permits

an unsuccessful party to ignore the actual text of the Draft Judgment and complain that

cases were not considered when they clearly and expressly where. This point is just wrong

- the Court did have regard to these authorities and other relevant authorities ( which the

Appellants conveniently ignore). Same were cited in submissions, same were opened in oral

argument and same are expressly cited in the Draft Judgment (§92, §130(i) and (ii)). The

reality for the Appellants (albeit one which they seem unwilling to accept - reflective of the

unreality based nature of the evidence they sought to tender to the Court - a point which is

also not addressed in their series of points raised in respect of the Draft Judgment), is that

neither of the cases support their erroneous argument that the exempted development

provisions under s.4(1)(h) of the PDA apply.

Appellants’ Point 5: ‘The Court errored [sic] in its interpretation of the Defences available

under Section 4(1)(h) as set out in Morris v Garvey the application of which defences apply

to the facts of this case where it was a genuine belief based on a statutory exemption which

related to no alteration of the character of the structure that would render the development

inconsistent with the previous development or adjoining structures’.

Council’s Response: It is not clear what the Appellants point here is by reference to the

purpose of the Draft Judgment procedure. In any event the point, insofar as it refers to

‘defences’, is misconceived. Moreover, the Draft Judgment records that the Court considered

Morris v Garvey [1983] IR 310 (§151 and §15B(xii)). The fact that the Applicants’ unreal

contention that this unauthorised development occurred because of a ‘genuine mistake’ was

correctly rejected does not disclose any issue with the Draft Judgment. The Court is not

obliged to accept such misconceived contentions and the rejection of same is not a basis for

seeking to revisit a Draft Judgment.

Appellants’ Point 6: ‘It is also submitted that the Court errored [sic] in its interpretation of

the defence of disproportionate hardship in terms of how it has been applied to the facts of

this case’.

Council’s Response: It is not clear what the Appellants point here is by reference to the

purpose of the Draft Judgment procedure. This abstract complaint (not tethered to any

specific part of the Draft Judgment) is baseless. The Court addressed the Appellants

arguments advanced in respect of the discretionary nature of the relief sought - the fact that

same weren’t convincing is not a reason to revisit the Draft Judgment.

Appellants’ Point 7: ‘Whether the finding of the court that this development commenced

subsequent to the 1st October 1964 is consistent with the purpose of the Section 160(6) (7

year rule) of the Planning & Development Act 2000, as amended’.

Council’s Response: Again, it is not clear what the Appellants point here is by reference to

the purpose of the Draft Judgment procedure. This abstract complaint is without merit and

difficult to follow. In this regard, the development, works, commenced in August 2025 as

the Draft Judgment records ( §113-§115). It is not suggested that this is incorrect - in fact,

the agreed Statement of Case records the Appellants accepted this to be the case.

Appellants’ Point 8: ‘Having regard to the defences raised, whether it is appropriate to make

the cost orders contemplated in the draft judgment and in particular to the cost orders

contemplated in the O’Neill proceedings in circumstances where those proceedings were

commenced after the first return date of the SDCC proceedings’.

Council’s Response: This is not a matter for the Council as it appears to be directed to the

O’Neill proceedings. In any event, as to the Council’s case, the proposed costs orders are

entirely appropriate.

Appellants’ Point 9: ‘It is submitted that the Court errored [sic] in its interpretation of the

reliefs sought by the Applicants and in particular those reliefs relating to the restoration of

the lands to their condition immediately prior to the commenced of the development in

August 2028’.

Council’s Response: There was no error in the Draft Judgment in this respect ( §163 et seq),

which notes the wide discretion available to the Court to make whatever order it deems

appropriate - a position accepted by the Appellants (§165).

Appellants’ Point 10: ‘The Court appears to make a finding that the original development

consisted of mobile homes only. If that is indeed the finding of the Court, it is disputed by

the Appellants’.

Council’s Response: As outlined in the Council’s response to Point 1 above, the Court

correctly understood the nature of the previous structures on the lands - as was evident

from the exhibits opened to the Court (see, for example, Fifth Affidavit of Paul Byrne, SDCC,

dated 251209) and, for example, by the recitation of the parties position as set out in the

Statement of Case (mostly mobile homes). The Council’s exhibits set out the nature of the

structures located on the lands previously - the Respondent did not establish in evidence of

anything to the contrary, rather, it accepted the position but tried to argue the demolition

and removal of same was exempted development. The Applicants’ Written Submissions

accept that the previous structures on the lands comprise mobile-home type structures

(§55):

‘ ...the character that has been replicated in terms of the appearance of the buildings with

the height, the type of roof, the type of window detail, the type of materials used to be

consistent with that of a mobile home type chalet...’

The Court was fully aware of the nature of the structures previously located on the lands -

with the central point being that once demolished and removed, they could not be the same

structures (a point which the Appellants seem unwilling to accept). Indeed, this is expressly

reflected in the proposed Order at §175(iii), wherein the Court restrains the Appellants from

‘re-erecting caravans, mobile homes or other structures that have been removed ..’.

Appellants’ Point 11: ‘The Court errored [sic] in its finding that both Affidavits of Ann

Mulcrone were inadmissible on the basis that they should have been before the Court of first

instance. The Appellants were given liberty to file an Affidavit in the Appeal. The Appellants

submit that both affidavits should be admissible in the circumstances and on the basis of

their relevance and at the very least should be heard in the question of inadmissibility’.

Council’s Response: This really is not an appropriate point to raise in the Draft Judgment

procedure. It is an entirely belated and inappropriate attempt to address matters which the

Appellants, for reasons only known to themselves, didn’t address at trial. The Council

objected to the admissibility of these Affidavits in its Written Submissions and Statement of

Case. The Appellants did not address this objection in any meaningful way - despite the

opportunity to do so in Written Submissions, Statement of Case and oral submissions. It

can’t seek to do so now that the case has concluded. Significantly, the point also doesn’t

engage with the Draft Judgment and the reasons therein for determining the Affidavits to be

inadmissible ( §107-§108).

The Council do not consider that any of the points raised by the Appellants warrant further

consideration by the Court and are wholly inappropriate in circumstances where the

Appellants are or should be aware be aware that the Draft Judgment process is not for the

purposes of re-arguing the matter which has already been heard.”

82. The applicant in O’Neill replied as follows:

“Thank you for the opportunity to reply to the respondent’s comments.

We like to highlight some points relevant to item 8. in the recent reply from the respondents

wherein it is stated that:

‘Having regard to the defences raised, whether it is appropriate to make the cost orders

contemplated in the draft judgment and in particular to the cost orders contemplated in the

O’Neill proceedings in circumstances where those proceedings were commenced after the

first return date of the SDCC proceedings.’

The Applicant’s position is as follows:

- We wrote to the respondents with pre-litigation letters on the following dates 3rd October

2025, 7th October 2025. 10th October 2025, 21st October 2025 and the 23rd October 2025

and received no response despite threating to bring injunctive proceedings in the event of

no reply.

- We also wrote to SDCC before our client issued their proceedings seeking details of

enforcement action and we did not receive a substantive reply to our queries.

- It was in these circumstances our client felt compelled to bring proceedings because he

was directly affected by the development and lived right beside it and where the

development was progressing apace without the benefit of any planning permission.

- When the applicant applied for interim relief to the Circuit Court, the Court refused interim

relief and made our application for interlocutory relief returnable for the same date as SDCC’s

case and the proceedings then travelled together.

- Judge O’ Connor in delivering judgment on 19th December expressly thanked the local

residents for their assistance.”

83. Any apparent clarity as to the joinder of issue was then fractured by the arrival at 13.14 on

31 May 2026, the Sunday of a bank holiday weekend in the Whit vacation, of notifications of upload

to ShareFile of the following two files:

“260529 Appellants further response to draft judgment.msg

Size 77.50 KB

Date 05/31/2026 8:13:58 am

User ...

260529 Appellants further response to draft judgment.msg

Size 77.50 KB

Date 05/31/2026 8:14:25 am

User ...

84. The time of 8:13 am is predictably inaccurate, the emails by way of ShareFile notification

arriving at 13:14. The file name suggests that the responses were dated Friday 29 May 2026 – but

were not uploaded on that date. The files arrived, needless to say, in a non-standard .msg format

which I could not open (despite trying multiple apps for the purpose). All I could read was the

header of one of them which purported to be an email dated 29 May 2026 at 17:00.39 – even then

outside the time allowed albeit only just – almost as if one was making a point. The content was

not readable.

85. For future reference it would be appreciated if parties could:

(i) comply with timelines for submissions/ observations;

(ii) upload documents as they are issued;

(iii) limit themselves to readily accessible formats like .docx and .pdf – preferably .docx;

and

(iv) ensure their own internal systems are not set to generate inaccurate information

such as regarding time/date.

86. The suspense was broken on Tuesday 2 June 2026, when I eventually received the content

of the message. The content was:

“Dear Registrar,

We refer to the above matter and to the further request by the Court for further comments

on the draft judgment until 5pm today.

The following comments are additional to the comments submitted by the Appellants by

email of 4pm on 27 May 2026 and should be read in conjunction with those comments.

Please note that the comments are submitted in accordance with the requirements of HC137

in relation to draft judgments.

The Appellants note that SDCC made no comments on the draft Judgment within the time

prescribed for in the original timeline.

The Appellants note that Mr O’Neill did make a comment in relation to the form of the order.

In addition to the comment of the Appellants at bullet point 8 of their original commentary

the Appellants do not accept that Mr O’Neill is entitled to seek to vary the terms and wording

of the reliefs sought in his notice of motion. The O’Neill proceedings were brought at a point

after which the South Dublin County Council proceedings were before the Court and are in

essence no more than a duplication of the SDCC proceedings. The O’Neill reliefs are

encompassed in the SDCC proceedings, and it is respectfully submitted that there is no basis

or jurisdiction to amend the reliefs now being sought. In addition, no application of that

nature was made during the course of the hearing, and the Appellants would certainly need

to be heard by Court if that application as to be considered or acceded to by the Court.

Without prejudice to the forgoing the Appellants make the following additional comments

arising from the judgment.

1. The Appellants assert that the Court errored [sic] in its interpretation of the established

use of the development site at para 115 of the judgment.

2. The Appellants submit that the order at para 175(x)(a) are unworkable arbitrary and

unfair having regard to the requirements of the Planning and Development Act 2000 as

amended and the provisions of Section 4(1)(h).

3. The Appellants submit that the order at para 175(x)(b) is in error and does not take

account of the reliefs sought by both Respondents.

4. The Appellants submit that it should and would have the opportunity to address the Court

on any and all of the issues arising from the within comments and the original comments of

Wednesday 27 May.”

87. The statement that “Please note that the comments are submitted in accordance with the

requirements of HC137 in relation to draft judgments” is unfortunately a complete misunderstanding

and a non-reality-based statement from the respondents. The comments overall largely constitute

an impermissible attempt to reargue the substance, contrary to PD HC 137 and to any ordered and

rational procedure.

88. The statement that “The Appellants note that SDCC made no comments on the draft

Judgment within the time prescribed for in the original timeline” could give the unintendedly

inaccurate impression that the council did not reply in time. The original letter stated “The deadline

for comments is 16:00 on Wednesday 27 May 2026, and parties are required to positively respond

one way or another by the deadline either with comments or confirmation that there are no

comments.” The council’s email expressing no changes is timed at “Sent: 27 May 2026 10:07”.

89. Insofar as the letter from the respondents requested to “address the court ... prior to the

Court finalising its draft judgment”, the form of response envisaged by the draft judgment procedure

is in writing and to a tight timetable, consistent with Practice Direction HC 137. The concession of

written corrections was made clear in the draft judgment when issued. Any jurisdiction, such as

England & Wales, that envisages draft judgments operates on the basis of written comment, because

it is obviously totally unworkable to have further oral hearings to reargue the substance of the case.

90. That said, I have no particular objection to the respondents making submissions on the form

of the order. But we need to be clear that such submissions will be within the contours of the

judgment and not by way of rearguing the case, which would be totally improper and inappropriate.

91. For the tiny minority interested in the mechanics of judgment production, maybe I can be

forgiven for mentioning that an excessive and inappropriate attempt to reargue the case on the

basis of a draft judgment imposes considerable production pressures on the court. The present

judgment involved a local record of 20 further internal drafts subsequent to the circulated draft in

order to cope with the ebb and flow of that attempt here (see previous relevant judgments for how

numbers are calculated). This case is not a how-to guide for parties addressing draft judgments.

Relief sought

92. The reliefs sought by the council in the notice of motion before the Circuit Court are as

follows:

“1. An Order, pursuant to Section 160(1)(a) of the Planning and Development Act 2000

(as amended), requiring the Defendants, their respective servants, agents, licensees or any

persons acting in connection with them or on their instruction, to cease and/or refrain from

carrying out unauthorised development (as more particularly described in the Affidavit of

Paul Byrne), at the lands located Chianti Park, Mount Seskin Road, Raheen, Brittas, Co Dublin

(‘the Lands’) (as more particularly described in the Affidavit of Paul Byrne), comprising the

following:

(i) Site clearance works and the demolition and removal of multiple chalets and mobile-

home structures from the Lands.

(ii) The laying of serviced concrete platforms/foundations – and all works associated

with servicing same, including installation of electrical cabling and waste/water pipework.

(iii) The development of multiple new accommodation/chalet structures on the Lands.

2. An Order, pursuant to Section 160(1)(b) of the Planning and Development Act 2000

(as amended), requiring the Defendants, their respective servants, agents, licensees or any

persons acting in connection with them or on their instruction, to remove the unauthorised

development referred to at paragraph 1 above and to restore the Lands to the condition that

such lands were in prior to the commencement of the unauthorised development referred to

at paragraph 1 above.

3. Interim and/or interlocutory relief, pursuant to Section 160(3)(a) of the Planning

and Development Act 2000 (as amended), as may be necessary.

4. Such further or other order as this Honourable Court shall deem fit.

5. The costs of these proceedings.”

93. In the O’Neill case the reliefs were as follows (relief 3 having been amended by consent in

the Circuit Court prior to the hearing per underlined wording):

“1. An Order pursuant to section 160(1)(a) of the Planning and Development Act 2000

(as amended), restraining the Respondent, its servants, agents, or licensees, or any person

acting in concert with them and any person having knowledge of such Order, from carrying

out or continuing to carry out unauthorised development and/or unauthorised use at the

property (the ‘Property’) known as Chianti Park, Mount Seskin, Brittas, County Dublin and

identified in the Schedule to the Notice of Motion;

2. An Order pursuant to section 160(1)(a) of the Planning and Development Act 2000

(as amended), enjoining the Respondent, its servants, agents, or licensees, or any person

acting in concert with them and any person having knowledge of such Order, to cease and

desist from carrying out any unauthorised development on and/or unauthorised use of the

Property;

3. An Order pursuant to section 160(1)(b) of the Planning and Development Act 2000

(as amended), directing the Respondent, its servants, agents, or licensees, or any person

acting in concert with them and any person having knowledge of such Order, to restore the

Property to its condition before its/the unauthorised development;

4. Interlocutory Orders in terms of the above paragraphs, or such Orders as this

Honourable Court shall deem appropriate pending the hearing of the within application;

5. An Order granting the Applicant and its experts permission to enter onto the Property

and inspect, survey, observe, photograph, and investigate the same, prior to the

determination of these proceedings;

6. A determination pursuant to section 7 of the Environment (Miscellaneous Provisions)

Act 2011 that section 3 of the said Act applies to these proceedings;

7. Such further or other Order, including declaratory relief, as this Honourable Court

shall deem appropriate;

8. An Order providing for the costs of this application;

9. Liberty to file further affidavits,

10. Such further or other Order as this Honourable Court deems fit.”

Order of the Circuit Court

94. While ideally in a circuit appeal, the High Court would not be told of the order, that wasn’t

an option here not least because of the extensive publicity given to the matter. The orders were

identical apart from the title and apart from the fact that the SDCC order covered two counsel. The

O’Neill order provides as follows:

“DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

BEFORE JUDGE O’CONNOR

THE 19th DAY OF December 2025

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) NOTICE

OF MOTION FOR RELIEF UNDER SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT

2000 (AS AMENDED)

BETWEEN

John O’Neill

PLAINTIFF

AND

Branach Development Limited and Mullnassa Limited

DEFENDANTS

The application coming before the Court this day on Motion on behalf of the Plaintiffs for

reliefs pursuant to Section 160(l)(a) and (b) of the Planning and Development Act 2000 (as

amended). WHEREUPON and on hearing Counsel for the Plaintiffs and Counsel for the

Defendants.

AND THE COURT having adjourned the matter for Judgement to this day

THE COURT DOTH ORDER

1. An Order, pursuant to Section 160(l)(a) of the Planning and Development Act 2000 (as

amended), requiring the Defendants, their respective servants, agents, licensees or any

persons acting in connection with them or on their instruction, to cease and/or refrain from

carrying out unauthorised development (as more particularly described in the Affidavit of

Paul Byrne), at the lands located at Chianti Park, Mount Seskin Road, Raheen; Brittas, Co.

Dublin (‘the Lands’) (as more particularly described in the Affidavit of Paul Byrne),

comprising the following :

(i) Site clearance works and the demolition and removal of multiple chalets and mobile-

home structures from the Lands;

(ii) The laying of serviced concrete platforms/foundations - and all works associated with

servicing same, including installation of electrical cabling and waste/water pipework;

(iii) The development of multiple new accommodation/chalet structures on the Lands.

2. An Order, pursuant to Section 160(1)(b) of the Planning and Development Act 2000 (as

amended), requiring the Defendants, their respective servants, agents, licensees or any

persons acting in connection with them or on their instruction, to remove the unauthorised

development referred to at paragraph 1 above within 4 months and to restore the Lands to

the condition that such lands were in prior to the commencement of the unauthorised

development referred to at paragraph 1 above within 8 months.

THE COURT DOTH ORDER that the Plaintiff do recover from the Defendants costs of the

proceedings, to include a Certificate for Junior Counsel, such costs to be taxed in default of

agreement.

THE COURT DOTH MAKE AN ORDER granting liberty to the Defendants to take up the DAR

transcript of today’s Judgement, on the undertaking that they pay for the transcript and

furnish a copy of the transcript to the Plaintiff’s Solicitor.

BY THE COURT

… (SEAL)

NOMINATED SIGNATORY BY THE COMBINED OFFICE MANAGER

Order settled by …

Draft Order settled on 22/12/2025”

95. The reference to taxation of costs is the procedure in the Circuit Court. Adjudication applies

to the High Court and upwards.

Section 160

96. Section 160 of the 2000 Act provides (emphasis added):

“160.—(1) Where an unauthorised development has been, is being or is likely to be

carried out or continued, the High Court or the Circuit Court may, on the application of a

planning authority or any other person, whether or not the person has an interest in the

land, by order require any person to do or not to do, or to cease to do, as the case

may be, anything that the Court considers necessary and specifies in the order to

ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the

commencement of any unauthorised development;

(c) that any development is carried out in conformity with—

(i) in the case of a permission granted under this Act, the permission pertaining to

that development or any condition to which the permission is subject, or

(ii) in the case of a certificate issued by the Dublin Docklands Development Authority

under section 25(7)(a)(ii) of the Dublin Docklands Development Authority Act 1997

or by the Custom House Docks Development Authority under section 12(6)(b) of the

Urban Renewal Act 1986, the planning scheme made under those Acts to which the

certificate relates and any conditions to which the certificate is subject.

(2) In making an order under subsection (1), where appropriate, the Court may

order the carrying out of any works, including the restoration, reconstruction,

removal, demolition or alteration of any structure or other feature.

(3) (a) An application to the High Court or the Circuit Court for an order under this section

shall be by motion and the Court when considering the matter may make such interim or

interlocutory order (if any) as it considers appropriate.

(b) Subject to section 161, the order by which an application under this section is determined

may contain such terms and conditions (if any) as to the payment of costs as the

Court considers appropriate.

(4) (a) Rules of court may provide for an order under this section to be made against a

person whose identity is unknown.

(b) Any relevant rules of Court made in respect of section 27 (inserted by section 19 of the

Act of 1992) of the Act of 1976 shall apply to this section and shall be construed to that

effect.

(5) (a) An application under this section to the Circuit Court shall be made to the judge of

the Circuit Court for the circuit in which the land which is the subject of the application is

situated.

(b) The Circuit Court shall have jurisdiction to hear and determine an application under this

section where the market value of the land which is the subject of the application does not

exceed €3,000,000.

(c) The Circuit Court may, for the purposes of paragraph (b), in relation to land that has not

been given a market value or is the subject with other land of a market value, determine

that its market value would exceed, or would not exceed, €3,000,000.

(d) Where the market value of any land which is the subject of an application under this

section exceeds €3,000,000, the Circuit Court shall, if an application is made to it in that

behalf by any person having an interest in the proceedings, transfer the proceedings to the

High Court, but any order made or act done in the course of such proceedings before the

transfer shall be valid unless discharged or varied by the High Court by order.

(e) In this subsection ‘market value’ means, in relation to land, the price that would have

been obtained in respect of the unencumbranced fee simple were the land to have been sold

on the open market, in the year immediately preceding the bringing of the proceedings

concerned, in such manner and subject to such conditions as might reasonably be calculated

to have resulted in the vendor obtaining the best price for the land.

(5A) (a) An application under this section to the Circuit Court shall, in respect of development

situated wholly or partly in the nearshore area of a coastal planning authority, be made to

the judge of the Circuit Court for the circuit in which the functional area (other than the

nearshore area) of that coastal planning authority is situated.

(b) The Circuit Court shall have jurisdiction to hear and determine an application under this

section in relation to a development referred to in paragraph (a) where the aggregate

amount of the levy or levies payable under Chapter 7 of Part 4 of the Maritime Area Planning

Act 2021 in respect of the maritime area consent granted to the person who carried out the

development does not exceed €500,000.

(5B) (a) An application under this section, in respect of development situated wholly or partly

in the nearshore area of a coastal planning authority, shall be made to the High Court if that

development was carried out by or on behalf of a person who at the time of the carrying out

of the development was not the holder of a maritime area consent granted for the occupation

of a maritime site for the purposes of the proposed development.

(b) An application under this section, in respect of development situated wholly in the outer

maritime area, shall be made to the High Court.

(6) (a) An application to the High Court or Circuit Court for an order under this section shall

not be made—

(i) in respect of a development where no permission has been granted, after the

expiration of a period of 7 years from the date of the commencement of the

development,

(ii) in respect of a development for which permission has been granted under Part

III or section 293, after the expiration of a period of 7 years beginning on the

expiration, as respects the permission authorising the development, of the

appropriate period (within the meaning of section 40) or, as the case may be, of the

appropriate period as extended under section 42, or

(iii) in respect of a development in respect of which a certificate has been issued by

the Dublin Docklands Development Authority under section 25(7)(a)(ii) of the Dublin

Docklands Development Authority Act 1997 or by the Custom House Docks

Development Authority under section 12(6)(b) of the Urban Renewal Act 1986, after

the expiration of a period of 7 years beginning on the date the certificate ceases to

have effect in accordance with Part 4 of the Dublin Docklands Development Authority

(Dissolution) Act 2015.

(aa) Notwithstanding paragraph (a) an application to the High Court or Circuit Court for an

order under this section may be made at any time in respect of unauthorised quarry

development or unauthorised peat extraction development in the following circumstances:

(i) where no permission for the development has been granted under Part III and

the development commenced not more than 7 years prior to the date on which this

paragraph comes into operation;

(ii) where permission for the development has been granted under Part III and, as

respects the permission—

(I) the appropriate period (within the meaning of section 40), or

(II) the appropriate period as extended under section 42 or 42A,

expired not more than 7 years prior to the date on which this paragraph comes into

operation.

(ab) Notwithstanding paragraph (a) or (aa), an application to the High Court or Circuit Court

may be made at any time for an order under this section to cease unauthorised quarry

development or unauthorised peat extraction development.

(b) Notwithstanding paragraph (a), an application for an order under this section may be

made at any time in respect of any condition to which the development is subject concerning

the ongoing use of the land.

(7) Where an order has been sought under this section, any other enforcement action under

this Part may be commenced or continued.”

Procedure on circuit appeals

97. An appeal from the Circuit Court to the High Court is by way of rehearing. Thus even if it is

the respondent is appealing, the applicant goes first. That is an instance of the general principle

that the party bearing the onus of proof goes first (which is why, for example, the respondent in an

Article 40.4 application goes first – the order is determined by the burden of proof and not by the

title “applicant”). Thus in a circuit appeal, the concept of the applicant going first would not apply if

the only issue was one on which the respondent carried such a burden. The respondents carried the

burden to show this was exempted development, which was the main issue, but in fact the

respondents didn’t avail of any rights to open the appeal that arose from that but (rightly or wrongly)

asked for the applicants to go first, a request which I humoured in the circumstances.

98. The procedure for an appeal depends on whether oral evidence was heard and also on what

circuit the matter originated in. Case heard on oral evidence from provincial circuits are heard by

the High Court on Circuit. Cases originating in Dublin or heard without oral evidence elsewhere

generally go to the Non-Jury List, except insofar as they relate to planning and environment matters

which go to the Planning & Environment Court (see PD HC 137).

99. In terms of evidence in such a rehearing, s. 37 of the Courts of Justice Act 1936, as amended,

provides:

“(1) An appeal shall lie to the High Court sitting in Dublin from every judgment given or

order made (other than judgments and orders in respect of which it is declared by this Part

of this Act that no appeal shall lie therefrom) by the Circuit Court in any civil action or matter

at the hearing or for the determination of which no oral evidence was given.

(1A) Notwithstanding subsection (1), an appeal shall lie to the High Court sitting in Dublin

from every judgment given or order or decision made (other than a decision to which section

169 (4) of the Personal Insolvency Act 2012 applies) by the Circuit Court in the performance

of any function or exercise of any power or jurisdiction conferred on that court by that Act,

whether or not oral evidence was given at the hearing or for the determination of the

proceedings or matter concerned.

(2) Every appeal under this section to the High Court shall be heard and determined by one

judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the

action or matter in which the judgment or order the subject of such appeal was given or

made, but no evidence which was not given and received in the Circuit Court shall be given

or received on the hearing of such appeal without the special leave of the judge hearing such

appeal.”

100. Order 61 RSC includes inter alia the following (emphasis added):

“6. An appeal shall not operate as a stay of proceedings upon the judgment or Order

appealed from unless the Circuit Judge, or, upon appeal, the High Court sitting in Dublin

shall so order and then only upon such terms (if any) as the Circuit Judge or the High Court

sitting in Dublin (as the case may be) may fix. Such appeal shall be by notice of motion

served on all parties affected by the application and lodged in the Central Office within four

days of the application to the Circuit Judge.

…

8. Where any party desires to submit fresh evidence upon the hearing of an appeal in any

action or matter at the hearing or for the determination of which no oral evidence was given,

he shall serve and lodge an affidavit setting out the nature of the evidence and the

reasons why it was not submitted to the Circuit Court. Any party on whom such

affidavit has been served shall be entitled to serve and lodge an answering affidavit or to

apply to the Court on the hearing of the appeal for leave to submit such evidence, oral or

otherwise, as may be necessary for the purpose of answering such fresh evidence, provided,

however, that the Court may at any time admit fresh evidence, oral or otherwise on such

terms as the Court shall think fit, and may order the attendance for cross-examination of

the deponent in any affidavit used in the Circuit Court or the High Court.

…

11(1) Every judgement or order of the High Court on Circuit shall be drawn up and signed

by the County Registrar, and every judgement or order of the High Court sitting in Dublin

shall be drawn up and signed by the Registrar of such Court, who shall transmit a copy

thereof to the County Registrar of the appropriate county. Every judgement or order of the

Court shall state whether it is made with or without costs and the sum (if any) payable for

costs, including witnesses’ expenses, shall be inserted therein, except in such cases as the

Court may refer such costs and expenses for taxation.

(2) A copy of every judgement or order of the High Court on Circuit in a Circuit appeal from

or against the making of an order transferring any civil action to the Court from the Circuit

Court or an order sending forward any civil action or appeal to the Court from the Circuit

Court shall be remitted to the proper officer of the Central Office forthwith on its being

signed.

12. The costs of appeals, when referred for taxation, shall be taxed by the appropriate

County Registrar (who shall for this purpose have all the powers of a Legal Costs

Adjudicator). Such costs shall, subject to any special direction by the Court, be taxed on

the scale applicable to an action or matter commenced or heard in the Circuit Court, with

the addition of necessary outlay and the items set out in Part III of the scales of costs in

Appendix W. Any application for the review of a taxation effected under this rule shall be

by notice of motion to the High Court sitting in Dublin served on all parties affected by the

application and lodged in the Central Office within ten days from the date of the certificate

of taxation. The notice of motion shall specify the matters or items or parts thereof objected

to and the grounds and reasons for such objection. A copy of the notice of motion shall be

transmitted forthwith from the Central Office to the County Registrar for his report or

observation thereon. In the taxation of costs under this rule, the County Registrar shall, in

addition to the principles specified in Schedule 1 to the Legal Services Regulation Act 2015,

have regard to the costs allowed or allowable in respect of the hearing of the case in the

Circuit Court.

…

20. Every judgment or order of the High Court on Circuit and of the High Court sitting in

Dublin may (unless the Court shall otherwise direct) be enforced by execution order issued

by the Circuit Court in accordance with the Rules of the Circuit Court for the time being in

force as if it were a judgment or order of the Circuit Court.”

Onus of proof

101. The onus is on a defendant to establish that development is exempted development: South

Dublin County Council v. Fallowvale Limited [2005] IEHC 408 (Unreported, High Court, McKechnie

J., 28 April 2005); Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January

2022) (Ní Raifeartaigh and Pilkington JJ. concurring) at §121.

102. Any such defence must be capable of being distilled from the affidavit evidence before the

court: Diamrem Ltd. v. Cliffs of Moher Centre Ltd [2018] IEHC 654 (Unreported, High Court, Faherty

J., 20 November 2018) (§157-§160), a decision upheld by the Court of Appeal in Diamrem Ltd. v.

Cliffs of Moher Centre Ltd [2021] IECA 291 (Unreported, Court of Appeal, Woulfe J., 5 November

2021).

103. In that regard, the court is not obliged to accept vague and unsubstantiated averments:

Tesco Ireland Limited v. Stateline Transport Limited [2024] IECA 46 (Unreported, Court of Appeal,

Butler J., 23 February 2024) (Costello and Noonan JJ. concurring) (§63).

104. While the appellants relied on Michael Cronin (Readymix) v. An Bord Pleanála [2017] IESC

36, [2017] 2 I.R. 658 (O’Malley J.; MacMenamin and Laffoy JJ. concurring) at 39, referring to the

fact that a defendant only needs to raise a reasonable doubt, that is self-evidently a statement in

the criminal context. It has no relevance to civil enforcement.

105. Given the onus of proof, the lack of cross examination is fatal to the respondents. Where

there is a conflict of admissible evidence, in the absence of cross-examination such a conflict must

generally be resolved against the party carrying the onus of proof: RAS Medical Ltd v. Royal

College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019] 2 I.L.R.M. 273 (Clarke C.J.)

(O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring).

106. Two further matters regarding the affidavit evidence for the respondents unfortunately

occasion some concerns.

107. The more specific one is the misplaced use on affidavit of the title “Architect” by Mr Adrian

Donoghue who is not a registered architect. He is an “architectural graduate”, and my understanding

of the practical effect of s. 18 of the Building Control Act 2007 which criminalises the use of the term

“architect” by a non-registered person in specified circumstances.

108. His latest affidavit begins:

“1. I say that I am an qualified architect having graduated in 2005 from Edinburgh

University with a BA Architecture. I say that I have been practicing in Ireland as an Architect

and I am the principal of Adrain [sic] Donoghue Design Studio. I say that Adrian Donoghue

Design Studio have been retained as a consulting architect by the First and Second Named

Defendants in respect of the development known as Chianti Park and Hillbrook Lawns located

at located at Raheen, Brittas, Co. Dublin and in that regard and I am duly authorised to

make this affidavit for and on behalf of the First and Second Named Defendants from facts

within my own knowledge, save where otherwise appears whereso appearing I believe same

to be true.”

109. He is referred to as an “Architect” throughout the respondents’ legal submissions.

110. In this affidavit he purports to give a “professional opinion”, e.g. para. 16.

111. Counsel’s response was that the word “architect” was used in the sense of graduate. That

concept in other contexts can be non-problematic, for example someone with a degree in law could,

depending on the context, call themselves a lawyer even if not practising or qualified to practice.

But the whole point of a protected title is that once protected, people are not entitled to use that

title in their own sense. The protection requires people to use the term only in the sense defined

by law. That’s the point that the respondents are missing.

112. The dismissive response to this perfectly legitimate concern was unfortunately misplaced. I

did give an opportunity for a further affidavit on this issue but have not been notified of that having

been taken up. On the contrary the respondents doubled down on their position in their further

correspondence to the court so I will be open to any proposals from the applicants as to how best

to address this problem.

113. The more general point is that certain of the matters sworn to on behalf of the respondent

include averments that fly in the face of reality and that no reasonable person could have sworn to.

A prime example is para. 13 of Mr Donoghue’s second affidavit (emphasis added):

“13. I say that I was careful in advising on the design to ensure that the said design

was such as to create no material change in the appearance. I say that I have

prepared a series of drawings showing the appearance of residential units as they were

before works were carried out and the design as they appear when they are complete and I

beg to refer to a copy of said drawings located at TAB 4 of the Booklet of Exhibits.”

114. As outlined above, this is a non-reality-based averment. The necessary implication that the

new design did not in fact involve a material change to the appearance of the structures is manifestly

false and untenable and lacks any stateable basis whatsoever.

115. The council put Mr Donoghue fully on notice of the complete unreality of this via their

affidavits – any reply was little more than a repetition and certainly not an answer. I am not offering

a view on deliberateness or culpability, merely on the total objective unreasonableness of such an

averment which does nothing for the weight to be attached to his evidence generally, even assuming

that it otherwise warranted weight given that the burden to show exempted development lies on the

developers and must be resolved against them in the absence of cross-examination.

116. The legal context is that while conflict between equally inherently credible averments, with

no cross-examination, is generally resolved against the party carrying the onus of proof, a court is

not always obliged to regard all averments as being equally credible, or to disregard

internal or evident problems with them (see by analogy the manner in which the Supreme Court

considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for

Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court,

Denham J. (Geoghegan and McCracken JJ. concurring), 29 July 2004)). Among the matters to which

regard might be had would be included the failure to explain patently relevant questions that are

clearly within that party’s responsibility (Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of

Appeal, 21 January 2022) at para. 137). This specific and common sense power of the court to

evaluate inherent defects in evidence remains notwithstanding caselaw on cross-examination such

as RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63, [2019]

2 I.L.R.M. 273 (Clarke C.J.) (O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ. concurring)

or Re Bayview Hotel (Waterville) Limited [2022] IEHC 516 (Unreported, High Court, Butler J., 8

September 2022). This is consistent by analogy with the judgment of Hardiman J. (Hanna and

Feeney JJ. concurring) in DPP v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, [2007] 1 I.L.R.M. 350

at para. 95 – the court as finder of fact is “not ... constrained” to accept “the only account available”

even if that account is provided by oral evidence.

The issues here

117. As to the necessary proofs there is no issue about the following:

(i) there was development (not an issue save in relation to tree cutting);

(ii) there is no planning permission; and

(iii) the jurisdiction of the Circuit Court by reference to rateable valuation – this had been

a concern at an earlier stage but the respondents confirmed they are not making an

issue of it now.

118. Thus the issues are the following:

(i) an issue about admissibility of affidavits;

(ii) whether this was pre-1964 development;

(iii) the seven-year rule;

(iv) whether tree cutting was development;

(v) whether this is exempted development;

(vi) in the event of breach, the question of discretion; and

(vii) in the event of an order, the form of such order.

Issue 1 – admissibility of affidavits

119. The appellants have sought to introduce new evidence for the purpose of this appeal,

including from a planner, Ms Mulcrone. This is not admissible because such evidence was not

adduced before the Circuit Court (when it could have been) and no explanation has been provided

for the failure to do so, and no special leave was sought from or granted by the High Court. Thus

the affidavit is out by reason of a failure to engage with O. 61 r. 8 RSC and s. 37 of the Courts of

Justice Act 1936 (see e.g.: Murphy v. Minister for Defence 1991 WJSC-SC 981, [1991] 2 I.R. 161;

Emerald Meats v. Minister for Agriculture [2012] IESC 48 (Unreported, Supreme Court, 30 July 2012)

per O’Donnell J. (Hardiman and McKechnie JJ. concurring) at §36; Student Transport Scheme Limited

v. Minister for Education and Skills [2015] IECA 303 (Unreported, Court of Appeal, Hogan J., 18

December 2015) (Ryan P. and Peart J. concurring) (§10); Wicklow County Council v. Beattie [2018]

IEHC 282 (Unreported, High Court, Barrett J., 17 May 2018); Kerry County Council v. McElligott

[2021] IEHC 542 (Unreported, High Court, Hyland J., 30 July 2021) (§33); Lyons v. McDonagh

[2024] IEHC 471 (Unreported, High Court, Simons J., 31 July 2024) (§14), wherein the court noted

that “the respondents should have applied to the judge for special leave to file an affidavit…required

under [s. 37]…and Order 61…”).

120. The respondents seem to be labouring under the misunderstanding that obtaining de bene

esse liberty to file an affidavit constitutes the sort of special leave envisaged by s. 37 and O. 61

RSC. That is not the case. A de bene esse permission is subject to objection – and there was an

objection. That should have triggered the formal application for special leave. No such application

was made.

121. Even if I am wrong about the foregoing, no weight should be attached to the new evidence

as in the absence of cross-examination the respondents have not discharged the onus of proof on

the issue of exempted development. Furthermore Ms Mulcrone’s affidavit contradicts other affidavits

of the respondents regarding the date of commencement of the caravan/ mobile home park.

122. The respondents also misleadingly attempted to cry foul in the draft judgment process by

demanding a “right to be heard” on the admissibility of the affidavits. But where have they been all

this time? The council maintained the objection from the outset of such affidavits, and put it in lights

in submissions. The respondents could have said anything they wanted at the hearing. The

respondents now turn around and claim to be victims denied a right to be heard - but they were

heard. A right to a hearing does not involve a right to be spoon-fed: Y.Y. v. Minister for Justice and

Equality (No. 1) [2017] IEHC 176 (Unreported, High Court, 13 March 2017), para. 95 (this point

wasn’t affected by the judgment in Y.Y. v. Minister for Justice and Equality [2017] IESC 61, [2018]

1 I.L.R.M. 109 (O’Donnell J.)); Friends of Killymooney Lough v. An Coimisiún Pleanála [2025] IEHC

407 (Unreported, High Court, 16 July 2025).

123. The council’s written legal submissions contain the following:

“45. Noting that the burden is on the Appellants to establish that the said works comprise

exempted development, and whilst it is submitted that the evidence of the Council (including

photographs) clearly demonstrates that the Appellants’ position is untenable, the following

comments can be made about the evidence adduced:

- The Appellants have sought to introduce new evidence for the purpose of this appeal,

including from a planner – Ms Mulcrone. The Council objects to the admissibility of this

Affidavit (and indeed the further Affidavit from Mr McDermott) in circumstances where such

evidence was not adduced before the Circuit Court (when it could have been) and no

explanation has been provided for the failure to adduce same. In this regard, Order 61 Rule

8 of the Rules of the Superior Courts provides:

‘Where any party desires to submit fresh evidence upon the hearing of an appeal in any

action or matter at the hearing or for the determination of which no oral evidence was given,

he shall serve and lodge an affidavit setting out the nature of the evidence and the reasons

why it was not submitted to the Circuit Court. Any party on whom such affidavit has been

served shall be entitled to serve and lodge an answering affidavit or to apply to the Court

on the hearing of the appeal for leave to submit such evidence, oral or otherwise, as may

be necessary for the purpose of answering such fresh evidence, provided, however, that the

Court may at any time admit fresh evidence, oral or otherwise on such terms as the Court

shall think fit, and may order the attendance for cross-examination of the deponent in any

affidavit used in the Circuit Court or the High Court.’

- Moreover, the Appellants have not complied with s.37 of the Courts of Justice Act

1936, as amended, insofar as special leave was not sought from this Honourable Court.

Section 37 provides:

‘(1) An appeal shall lie to the High Court sitting in Dublin from every judgment given or order

made (other than judgments and orders in respect of which it is declared by this Part of this

Act that no appeal shall lie therefrom) by the Circuit Court in any civil action or matter at

the hearing or for the determination of which no oral evidence was given.

(1A) Notwithstanding subsection (1), an appeal shall lie to the High Court sitting in Dublin

from every judgment given or order or decision made (other than a decision to which section

169 (4) of the Personal Insolvency Act 2012 applies) by the Circuit Court in the performance

of any function or exercise of any power or jurisdiction conferred on that court by that Act,

whether or not oral evidence was given at the hearing or for the determination of the

proceedings or matter concerned.

(2) Every appeal under this section to the High Court shall be heard and determined by one

judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the

action or matter in which the judgment or order the subject of such appeal was given or

made, but no evidence which was not given and received in the Circuit Court shall be given

or received on the hearing of such appeal without the special leave of the judge hearing such

appeal.

…’

Order 61 Rule 8 of the RSC and s.37 have been addressed in a number of s.160 appeals –

including Kerry County Council v McElligott [2021] IEHC 542 (§33); Lyons v McDonagh

[2024] IEHC 471 (§14), wherein the Court noted that ‘the respondents should have applied

to the judge for special leave to file an affidavit…required under [s.37]…and Order 61…’; and

Wicklow County Council v Beattie [2018] IEHC 282.

- No explanation has been provided by the Appellants for the failure to adduce this

evidence before the Circuit Court – which could have been so adduced with reasonable

diligence. Same should not be admitted. See also Murphy v Minister for Defence [1991] 2

I.R. 161; Student Transport Scheme Limited v. Minister for Education and Skills [2015] IECA

303 (§10); and Emerald Meats v Minister for Agriculture [2012] IESC 48, wherein O’Donnell

J observed (§36):

‘The rules on the admission of fresh evidence on an appeal are quite strict. This is as it

should be. There are very few cases in which the losing side does not regret that different

witnesses were called, evidence given or points made either in cross-examination or in

submission. But a trial is not a laboratory experiment where one element can be substituted

and all other elements maintained and a different outcome obtained. It is important that

parties are aware of the finality of litigation, and bring forward their best case for

adjudication’.

- Without prejudice to the foregoing, the substance of the Affidavit from Ms Mulcrone

does not add anything to the case. It comprises a reiteration of the Appellants’ flawed

submissions which were advanced before the Circuit Court relating to s.4(1)(h) of the PDA

and makes a number of unsubstantiated averments which are in fact inconsistent with the

Appellants’ other Affidavits – including in respect of pre-1964 use (the Appellants’ evidence

before the Circuit Court was that the use of the Lands for residential purposes has occurred

‘since approximately 1968…’).

- Mr Donoghue purports to be an architect, but does not appear to be and does not

aver that he is registered with the RIAI. Section 18 of the Building Control Act 2007, as

amended, contains a prohibition against using the title/term architect unless registered.

- The Appellants have not adduced any evidence and do not address their claim of

exempted development by reference to the actual structures previously located on the Lands

(an approach repeated by Ms Mulcrone). Rather, they vaguely refer to ‘residential dwellings’

being located on the Lands, but at no point do they actually acknowledge that the previous

structures mostly comprised mobile homes (although, it appears that Ms Mulcrone accepts

that this was the case insofar as she refers to previous/historic enforcement action). Noting

that the burden of proving the exemption rests on them, the failure of the Appellants to

engage in this basic exercise is fatal to their misconceived attempt to rely on same. For

example, at no point do the Appellants acknowledge the previous mobile home structures

located on the Lands and then attempt to explain how the new structures comprise

improvements/repair to same. The reason for this failure is obvious – they simply cannot

make such a claim as the new structures are manifestly not mobile homes, but rather are

completely different, new larger structures.

- The Appellants have adduced no evidence to establish existing foundations on the

Lands – noting that the photographs depict mobile homes on blocks. Moreover, even if

foundations did previously exist on the Lands, the Council’s photographs depict the

development of new larger and materially different foundations with new services to same.

Again, none of the Appellants’ deponents attempt to engage with this evidence. Noting the

restrictive interpretation to s.4(1)(h) of the PDA, it is simply not credible to argue, as the

Appellants enthusiastically attempt to, that these comprise repairs to the alleged existing

foundations. The evidence demonstrates that the new structures are considerably larger

and different from those previously located on the Lands – which is consistent with the need

for new larger foundations.

- The Appellants do not address the fact that there were clearly parts of the site where

no structures were located at the time they commenced the unauthorised development – it

is thus simply not possible to suggest that the unauthorised works comprise improvement

works to a non-existent structure.

- The Appellants have not adduced any evidence from anyone who actually carried

out the unauthorised works – this includes the Third Named Appellant. The contentions

regarding what was on the Lands before the works started and what is now there are lacking

any evidential substance. Many of the averments made as to the condition of the Lands and

the structures thereon before the commencement of the unauthorised development ignore

the evidence adduced by the Council of the nature of the previous structures on the Lands

– for example, the Appellants completely ignore (and do not dispute) the evidence of mobile

homes being previously located on the Lands.

46. The Appellants have not remotely discharged the onus of proof which they bear that

the unauthorised works are repair works to existing structures for the purposes of s.4(1)(h)

of the PDA – which they clearly are not.”

124. It was up to the respondents to reply to that at the hearing if they wanted to – they did not

rebut that in any meaningful way. The claim of a “right to be heard” is in essence a claim to a “right

to reargue the case having lost”. No rational, self-respecting, serious, developed legal system could

operate on that basis. The council’s reply, which I endorse, is pretty devastating:

“It is an entirely belated and inappropriate attempt to address matters which the Appellants,

for reasons only known to themselves, didn’t address at trial. The Council objected to the

admissibility of these Affidavits in its Written Submissions and Statement of Case. The

Appellants did not address this objection in any meaningful way - despite the opportunity to

do so in Written Submissions, Statement of Case and oral submissions. It can’t seek to do

so now that the case has concluded. Significantly, the point also doesn’t engage with the

Draft Judgment and the reasons therein for determining the Affidavits to be inadmissible

(§107-§108).”

Issue 2 – whether this was pre-1964 development

125. The respondents accept that their averments (Mr McDermott first affidavit para. 6, Mr

Donoghue at para. 6) that a development had taken place “since approximately 1968” is mere

assertion, and they also accept that they have no actual evidence that there was a development of

any relevant kind in place here pre-1964.

126. So it is not at all clear to me why they made this even formally an issue in the case. Doing

so is, unfortunately, wholly without merit and bound to fail. This is a frivolous point, to use a

somewhat superseded but unfortunately appropriate term.

127. Even if counterfactually there had been a development pre-1964, the various changes and

intensifications since then and in particular the completely new works since August 2025 mean that

we are dealing now with a new development which cannot avail of the pre-1964 defence.

Issue 3 – the seven-year rule

128. As noted in Rutledge v. Fingal County Council [2026] IEHC 223 (Unreported, High Court, 17

April 2026) at 97 in relation to uses, but analogous principles are relevant to works:

(i) “abandonment and resumption can defeat any seven year defence: see e.g. South

Dublin County Council v. Balfe (Unreported, High Court, Costello P., 3 November

1995); Kildare County Council v. Goode & Ors. (Unreported, High Court, Morris J.,

13 June 1997); Sligo County Council v. Martin [2007] IEHC 178 (Unreported, High

Court, O’Neill J., 24 May 2007); Pierson v. Keegan Quarries Ltd [2010] IEHC 404

(Unreported, High Court, Irvine J., 7 October 2010); Wicklow County Council v. Lee

[2019] IEHC 19 (Unreported, High Court, Noonan J., 15 January 2019);

(ii) permission for an inconsistent use can be evidence of abandonment thus

necessitating permission for a resumption of the previous use: Clonres v. An Bord

Pleanála [2021] IEHC 303 (Unreported, High Court, 7 May 2021), §37; Leitrim

County Council v. Dromaprop Ltd [2024] IEHC 233 (Unreported, High Court, 29 April

2024), §33-35; Murphy v. An Bord Pleanála [2024] IEHC 186 (Unreported, High

Court, Farrell J., 30 August 2024), §42; Ó Murthuile v. An Bord Pleanála [2026] IEHC

36 (Unreported, High Court, Farrell J., 3 February 2026) at §32; and

(iii) intensification can require permission and thus defeat any seven year defence:

Patterson v. Murphy [1978] I.L.R.M. 85 (Costello J.); Butler v. Dublin Corporation

[1999] IESC 19, [1999] 1 I.R. 565, [1999] 1 I.L.R.M. 481; Kildare County Council

v. Goode [1999] IESC 43, [1999] 2 I.R. 495, [2000] 1 I.L.R.M. 346; In Lanigan and

Benghazi Ltd t/a Tullamaine Castle Stud v. Barry and Motor Speedway Ltd t/a

Tipperary Raceway [2008] IEHC 29 (Unreported, High Court, Charleton J., 15

February 2008); Cork County Council & Ors v. Slattery Pre Cast Concrete Ltd & Ors

[2008] IEHC 291 (Unreported, High Court, Clarke J., 19 September 2008); Lanigan

v. Barry [2016] IESC 46, [2016] 1 I.R. 656 (at §5.5 per Clarke J.; Denham C.J. and

Dunne J. concurring).”

129. It is clearly established that significant works commenced in mid-August 2025. These works

resulted in significant new development, site clearance, excavation, tree felling, hard standing and

the replacement of mobile home-type structures with block built modular homes. On any reality-

based analysis, this is a new development. Hence even on the basis that there was a previous

caravan/ mobile home park-type development for more than seven years, the various changes and

intensifications since then mean that we are dealing now with a new development which cannot avail

of the seven-year defence.

130. More specifically, the removal of an unauthorised structure that would have benefitted from

a defence does not give rise to an entitlement to reinstate such a structure without permission,

because that would in itself be a new development.

131. There was an ancillary, unstateable, argument by the respondents that there was an

established “use” as a caravan/ mobile home park which precluded enforcement. The reason that

is unstateable is twofold. Firstly it gets the respondents nowhere in terms of the legality of works.

Secondly, even assuming in their favour that there was such an established use while the caravans/

mobile homes were in place, the lawful exercise of that use requires structures. The respondents

themselves have in substance removed all of the previous structures (I deal below with the last-

ditch defence that there were fragments of foundations underneath new concrete), so there are no

structures there by reference to which any such use could be carried out. Hence the removal of the

last caravan/ mobile home with a view to being replaced by the present house-type structures

terminated the lawful established use by caravans/ mobile homes. Any resumed use in the latter

regard would be a new development. Estoppel and so on simply doesn’t arise once the use ceases.

Issue 4 – whether tree-cutting is development

132. Section 3 of the 2000 Act defines development:

“Development.

3.—(1) In this Act, except where the context otherwise requires, ‘development’ means—

(a) the carrying out of any works in, on, over or under land, or the making of any material

change in the use of any land or structures situated on land, or

(b) development within the meaning of Part XXI (inserted by section 171 of the Maritime

Area Planning Act 2021).

(2) For the purposes of subsection (1) and without prejudice to the generality of that

subsection—

(a) where any structure or other land or any tree or other object on land becomes used for

the exhibition of advertisements, or

(b) where land becomes used for any of the following purposes—

(i) the placing or keeping of any vans, tents or other objects, whether or not

moveable and whether or not collapsible, for the purpose of caravanning or camping

or habitation or the sale of goods,

(ii) the storage of caravans or tents, or

(iii) the deposit of vehicles whether or not usable for the purpose for which they

were constructed or last used, old metal, mining or industrial waste, builders’ waste,

rubbish or debris,

the use of the land shall be taken as having materially changed.

(3) For the avoidance of doubt, it is hereby declared that, for the purposes of this section,

the use as two or more dwellings of any house previously used as a single dwelling involves

a material change in the use of the structure and of each part thereof which is so used.”

133. Section 3(2)(a) draws an implicit distinction between a “structure” and a “tree or other

object”. This is not an unquestionably natural distinction because the normal meaning of “object”

does not suggest immoveable living natural beings.

134. Section 2 defines “structure”:

“‘structure’ means any building, structure, excavation, or other thing constructed or made

on, in or under any land, or any part of a structure so defined, and—

(a) where the context so admits, includes the land on, in or under which the structure is

situate, and

(b) in relation to a protected structure or proposed protected structure, includes—

(i) the interior of the structure,

(ii) the land lying within the curtilage of the structure,

(iii) any other structures lying within that curtilage and their interiors, and

(iv) all fixtures and features which form part of the interior or exterior of any

structure or structures referred to in subparagraph (i) or (iii);”

135. Thus structures are either human made constructions or the land in, on or under which they

are made. Given that “structure” includes the land on which it is situated, we will not be surprised

at the somewhat circular definition of “land”:

“‘land’ includes any structure and any land covered with water (whether inland or coastal);”

136. The key point is that “land” includes the natural environment even though “structure” is

directed to the built environment.

137. Thus cutting a tree or a hedge is the carrying out of “works” on “land” and thus is

“development”.

138. Such a reading leads to a coherent interpretation of the 2000 Act. It therefore makes sense

that the definition of “exempted development” in s. 4(1) includes the following (which would not be

necessary if works on trees were not development):

“(i) development consisting of the thinning, felling or replanting of trees, forests or

woodlands or works ancillary to that development, but not including the replacement of

broadleaf high forest by conifer species;”

139. Section 34(4)(e) allows tree planting to be conditioned by the imposition of:

“(e) conditions for requiring the planting, maintenance and replacement of trees, shrubs or

other plants or the landscaping of structures or other land;”

140. The fifth schedule includes this as a non-compensatable condition and extends it to flowers:

“20. Any condition relating to the preservation and protection of trees, shrubs, plants and

flowers.”

141. In summary therefore, tree felling/ thinning (or cutting of hedges, shrubs, flowers or other

plants) is indeed development, subject to consideration of exemptions. For good measure this is

consistent with Doorly v. Corrigan [2022] IECA 6 (Unreported, Court of Appeal, 21 January 2022).

Issue 5 – whether the development is exempted development under s. 4(1)(h) of the

2000 Act

142. The parties’ positions in the SDCC case as recorded in the statement of case are summarised

as follows:

“Main Issue

Is the development exempted development under s.4(1)(h) of the PDA?

Respondent’s Position:

1. As appears from their Affidavit evidence before the Circuit Court, the only basis upon

which the Appellants opposed the Council’s application for injunctive relief under s.160 of

the PDA was on the basis that same comprised exempted development for the purposes of

s.4(1)(h) of the PDA. This position is [maintained] on appeal (as appears from the further

Affidavits filed before the High Court – which, as outlined in Written Submissions, the Council

is objecting to).

2. The Appellants’ arguments in this regard are entirely misconceived. The following

points can be noted:

- This case concerns significant unauthorised development of multiple dwelling-type

structures and extensive unauthorised site development works by the Appellants on lands

located at Chianti Park, Mount Seskin Road, Raheen, Brittas, Co Dublin.

- As is clear from the Council’s photograph exhibits, the structures previously located

on the lands comprised mobile homes (this is not disputed) while the structures now on the

lands are dwelling houses. The exhibits illustrate the full extent of the unauthorised site

clearance works and the construction, from the ground up, of these new dwelling structures.

- Section 4(1)(h) is concerned with works which make insignificant differences

(improvements/maintenance/alterations) to existing structures. It does not apply to works

which comprise the total or substantial replacement of the original structure. It does not

apply to development which involves the demolition of one structure and the construction of

an entirely new structure. It does not apply to site clearance works.

- It is completely unsustainable to suggest, as the Appellants do, that these new

unauthorised structures comprise the maintenance and improvement of the previous

structures (mostly mobile homes) located on the Lands. The Appellants’ position is utterly

un-stateable. The structures now on the Lands are completely different to the [structures]

previously located on same. There is no pre-existing structure which is subject to some

form of maintenance or improvement works (per s.4(1)(h)), so that the same structure

remains but has been improved or repaired for maintenance. The structures are not even

similar – the previous structures comprise mostly mobile homes, while what has now been

constructed on the Lands are new permanent dwellings. They are different in size, shape,

design, materials, etc. The Appellants’ reliance on s.4(1)(h) of the PDA is entirely without

substance.

- The onus of proof is on the Appellants to demonstrate that they fall within the

exemption - which they have failed to discharge.

- In terms of discretion (noting that the Appellants did not address this in the Circuit

Court), as detailed in the Council’s submissions, all of the relevant factors which the Court

can consider (per Meath County Council v Murray [2018] 1 IR 189) weigh in favour of

affirming the Circuit Court Order.

Appellants’ Posiiton [sic]:

1. The site is long established as a residential use and development. The documents

on file state this use has been established pre October 1964. The SDCC Development Plan

2022-2028 land use Zoning Map shows the subject development as an existing established

development within the context of the land use and heritage and other conservation

objectives. The planning unit of the overall site of Hillsbrook Lawns and Chianti Park are

included on the development plan zoning map and it is implicit that this forms the relevant

planning unit.

2. The works on site can be described in broad terms as;

• the existing residential units were in poor condition and required improvement

• that the works were limited to and incorporated the existing foundations to the

existing structures which were generally retained,

• the existing footprint of the structures and site layout was retained, and

• and road and access and entrance arrangements were retained.

• Existing site infrastructure and services were retained.

• That the works were confined to the footprint of the existing structure and land

under the structure.

3. The works, subject matter of the complaint, are an exempted development because

they fall within statutory exemption contained within Section 4(1)(h) of the Planning and

Development Act 2000, as amended.

4. The exemption clearly provides therefore that if a person is carrying out works, that

is any construction, demolition, excavation, alteration, improvement, repair or renewal of

anything or part of a thing made or constructed on land then this falls with a category of the

exemption) specifically that category of exemption provided under Section 4(1)(h) of the

Planning and Development Act 2000, as amended.

5. There is no doubt that these works complained of fall into at least three categories

of activity provided for in Section 4(1)(h) namely works for the ‘maintenance’ and/or

‘improvement’ and/or ‘alteration’ of a structure.

6. These structures were the subject matter of a survey conducted by the Respondents

architect (who’s [sic] qualifications and expertise are not disputed) and who confirms that

the foundations of these structures were retained and improved and that the

alteration/improvement works are carried out on or within the footprint of those foundations.

This is the only evidence of actual survey which is averred to at paragraph 7 of the affidavit

of Adrian Donoghue and therefore as a matter of evidence has not been put in dispute and

must be accepted.

7. These works prima facie exempted development so long as they comply with the

second element of the exemption contained in Section 4(1)(h) of the Planning and

Development Act 2000, as amended.

8. The only limitation provided for in this statutory exemption is that where the works

materially affect the external appearance of the structure they are exempted development

so long as they do not render the appearance of that structure inconsistent with its own

character or the character of neighbouring structures.

9. The appearance of the said structures are consistent with the character of the

original structures being of the same size height, and design constructed as it has been on

the original footprint of the existing structure. It has similar lightweight materials,

fenestration, design and has exhibited a drawing of the design of the original structure and

a drawing of the design of the new structure to demonstrate the non-material nature of the

alteration.

10. The Appellant/Respondents submit that exempted development is specifically

excluded from the definition of unauthorised development/ unauthorised works that the

works being carried out by the Respondent constitute exempted development and

accordingly they cannot amount to an unauthorised development for the purposes of Section

2 of the Planning and Development Act 2000, as amended.”

143. In the O’Neill case the statement of case records as follows:

“Applicants’ Position

42. The Applicant’s position is that the Respondents have carried out, and continue to

carry out, a substantial and ongoing programme of unauthorised development at Chianti

Park, Mount Seskin, consisting of site clearance, demolition of existing structures,

construction of new modular homes, and the laying of new foundations. The Applicant

submits that there is no planning permission for these works, no valid basis for exempted

development under the Planning and Development Act 2000, and that the works go well

beyond maintenance or alteration of existing structures. The Applicant relies on extensive

affidavit and photographic evidence showing continued development, including on land

where there were no structures prior to the commencement of the unauthorised

development.

43. The Applicant further contends that the Respondents’ attempt to rely on exemptions

under section 4(1)(h) of the Act is legally and factually unsustainable. It is argued that the

exemption only applies to works affecting existing structures and cannot cover demolition

and complete replacement of structures, nor the construction of entirely new dwellings. The

Applicant relies on established case law, including authorities confirming that exemptions

must be strictly construed and do not extend to substantial rebuilding or replacement. On

that basis, the Applicant submits that the Respondents’ activities constitute ‘unauthorised

development’ within the meaning of the Act and cannot be retrospectively justified.

44. Finally, the Applicant argues that the Court should exercise its discretion under

section 160 in favour of granting relief because there is a clear and continuing breach of the

planning code, with works proceeding despite complaints, engagement with the planning

authority, and the commencement of proceedings. The Applicant emphasises that the

development has significant planning and environmental impacts, including drainage issues

affecting nearby residents, and that allowing it to continue would undermine the integrity of

the planning system. Accordingly, the Applicant seeks orders restraining further works and

requiring restoration of the land to its prior condition, with no stay on any such orders.

The Respondent’s Position

45. The site is long established as a residential use and development. The documents

on file state this use has been established pre October 1964. The SDCC Development Plan

2022-2028 land use Zoning Map shows the subject development as an existing established

development within the context of the land use and heritage and other conservation

objectives. The planning unit of the overall site of Hillsbrook Lawns and Chianti Park are

included on the development plan zoning map and it is implicit that this forms the relevant

planning unit.

46. The works on site can be described in broad terms as;

• the existing residential units were in poor condition and required improvement

• that the works were limited to and incorporated the existing foundations to the

existing structures which were generally retained,

• the existing footprint of the structures and site layout was retained, and

• and road and access and entrance arrangements were retained.

• Existing site infrastructure and services were retained.

• That the works were confined to the footprint of the existing structure and land

under the structure.

47. The works, subject matter of the complaint, are an exempted development because

they fall within statutory exemption contained within Section 4(1)(h) of the Planning and

Development Act 2000, as amended.

48. The exemption clearly provides therefore that if a person is carrying out works, that

is any construction, demolition, excavation, alteration, improvement, repair or renewal of

anything or part of a thing made or constructed on land then this falls with a category of the

exemption) specifically that category of exemption provided under Section 4(1)(h) of the

Planning and Development Act 2000, as amended.

49. There is no doubt that these works complained of fall into at least three categories

of activity provided for in Section 4(1)(h) namely works for the ‘maintenance’ and/or

‘improvement’ and/or ‘alteration’ of a structure.

50. These structures were the subject matter of a survey conducted by the Respondents

architect (who’s qualifications and expertise are not disputed) and who confirms that the

foundations of these structures were retained and improved and that the

alteration/improvement works are carried out on or within the footprint of those foundations.

This is the only evidence of actual survey which is averred to at paragraph 7 of the affidavit

of Adrian Donoghue and therefore as a matter of evidence has not been put in dispute and

must be accepted.

51. These works prima facie exempted development so long as they comply with the

second element of the exemption contained in Section 4(1)(h) of the Planning and

Development Act 2000, as amended.

52. The only limitation provided for in this statutory exemption is that where the works

materially affect the external appearance of the structure they are exempted development

so long as they do not render the appearance of that structure inconsistent with its own

character or the character of neighbouring structures.

53. The appearance of the said structures are consistent with the character of the

original structures being of the same size height, and design constructed as it has been on

the original footprint of the existing structure. It has similar lightweight materials,

fenestration, design and has exhibited a drawing of the design of the original structure and

a drawing of the design of the new structure to demonstrate the non-material nature of the

alteration.

54. The Appellant/Respondents submit that exempted development is specifically

excluded from the definition of unauthorised development/ unauthorised works that the

works being carried out by the Respondent constitute exempted development and

accordingly they cannot amount to an unauthorised development for the purposes of Section

2 of the Planning and Development Act 2000, as amended.”

Analysis of exempted development defence

144. Section 4(1)(h) provides that the following is exempted development:

“development consisting of the carrying out of works for the maintenance, improvement or

other alteration of any structure, being works which affect only the interior of the structure

or which do not materially affect the external appearance of the structure so as to render

the appearance inconsistent with the character of the structure or of neighbouring

structures;”

145. The exempted development categories are to be construed strictly: Dillon v. Irish Cement

Limited 2004 WJSC-SC 2866, [1986] 11 JIC 2602 (Unreported, Supreme Court, Finlay C.J., 26

November 1986); Corajio Unlimited v. An Bord Pleanála [2023] IEHC 373 (Unreported, High Court,

Phelan J., 29 June 2023) (§70); Leitrim County Council v. Dromaprop Ltd [2024] IEHC 233

(Unreported, High Court, 29 April 2024) (§44).

146. The respondents bear the onus to show that the exemption applies, an onus they have not

only not discharged but which they never had any hope of discharging. There are two independent

but mutually reinforcing and insuperable problems:

(i) Total or near-total replacement of a structure is not maintenance,

improvement or alteration of the structure: this is clear from an overview of the

consistent caselaw touching on this, including Cairnduff v. O’Connell 1986 WJSC-SC

209, [1986] I.R. 73, [1986] I.L.R.M. 465; Dublin Corporation v. Arnold Lowe and

Signway Holdings Limited [2000] IEHC 161 (Unreported, High Court, Morris J., 4

February 2000) at p. 9; Fingal County Council v. Crean [2001] IEHC 148

(Unreported, High Court, Ó Caoimh J., 19 October 2001); Dublin City Council v.

Lowe [2004] IESC 106, [2004] 4 I.R. 259 (McCracken J.; Murray C.J. and Kearns J.

concurring); McCabe v. Coras Iompair Éireann and Iarnród Éireann [2006] IEHC

356, [2007] 2 IR 392 (Herbert J.) (§28); Sligo County Council v. Martin [2007] IEHC

178 (Unreported, High Court, O’Neill J., 24 May 2007) (§21 et seq.); Cronin

(Readymix) Ltd v. An Bord Pleanála [2017] IESC 36, [2017] 2 I.R. 658 (O’Malley J.;

MacMenamin and Laffoy JJ. concurring); Morgan v. Slaneygio Limited [2017] IEHC

284 (Unreported, High Court, Baker J., 4 May 2017), at 39-41.

(ii) Furthermore, the works did materially affect the external appearance of each

structure (see photographs illustrated above) so as to render it inconsistent with

the character of the structure. The works here go so far beyond anything accepted

in Cairnduff v. O’Connell 1986 WJSC-SC 209, [1986] I.R. 73, [1986] I.L.R.M. 465 or

any other case as to make reliance on s. 4(1)(h) simply unstateable and irrelevant.

The averment to the contrary by Mr Donoghue is not reality-based as set out above.

147. So the elaborate legal arguments based on s. 4(1)(h) just don’t get off the ground on these

facts.

148. It doesn’t help that there are clearly areas of the site which had no pre-existing structures,

so there was nothing to improve in any event. This illustrates I suppose that it is possible for an

argument to be totally without merit for more than one reason.

149. As regards the argument that the foundations are improvements to the pre-existing

foundations, I endorse the council’s reply bearing in mind the onus of proof:

“The Appellants have adduced no evidence to establish existing foundations on the Lands –

noting that the photographs depict mobile homes on blocks. Moreover, even if foundations

did previously exist on the Lands, the Council’s photographs depict the development of new

larger and materially different foundations with new services to same. Again, none of the

Appellants’ deponents attempt to engage with this evidence. Noting the restrictive

interpretation to s.4(1)(h) of the PDA, it is simply not credible to argue, as the Appellants

enthusiastically attempt to, that these comprise repairs to the alleged existing foundations.

The evidence demonstrates that the new structures are considerably larger and different

from those previously located on the Lands – which is consistent with the need for new larger

foundations.”

150. The respondents implausibly claim that they have discharged the onus via Mr Donoghue:

“These structures were the subject matter of a survey conducted by the Respondents [sic]

architect [sic] (who’s [sic] qualifications and expertise are not disputed) and who confirms

that the foundations of these structures were retained and improved and that the

alteration/improvement works are carried out on or within the footprint of those foundations.

This is the only evidence of actual survey which is averred to at paragraph 7 of the affidavit

of Adrian Donoghue and therefore as a matter of evidence has not been put in dispute and

must be accepted.”

151. As noted above Mr Donoghue is not an architect. The assertion that the lack of foundations

is not in dispute is incorrect given the photographic evidence put forward by the council. The

respondents’ failure to invoke cross-examination means this issue must be decided against the party

carrying the onus of proof – in relation to an exemption that is the respondents.

152. Furthermore Mr Donoghue’s affidavit generally is manifestly not reality-based, to a very

concerning degree. Little or no weight should be attached to his averments in any event, even if

the council bore the onus of proof. There is no explanation of how pouring new foundations on top

of 50-year-old foundations could ever have worked, even if counterfactually all of the previous

homes had foundations.

153. Even if rudimentary fragments of old foundations survive, they have been subsumed into

the new unauthorised development and thus fall to be removed in their entirety.

154. As regard what the respondents clearly think is a winning point that they have kept the same

footprint and dimensions, that is not a winning point. The 2000 Act does not create a defence that

you can have a new development as long as you keep the old footprint and dimensions. This is a

new and different development, irrespective of those matters.

155. As regards the ancillary matters – the extensive site clearance works, the development of

new roads within the lands, the installation of new services such as pipes – the defence is that these

are ancillary to exempted development and are thus themselves exempted in consequence (relying

on Rehabilitation Institute v. Dublin Corporation 1988 WJSC-HC 626, [1988] 1 JIC 1401 (Unreported,

High Court, Barron J., 14 January 1988)). Unfortunately, the notion of acceptable ancillary

development does not arise when the substantive development is not exempted. So this argument

never gets out of the traps.

156. The immense ingenuity deployed on behalf of the respondents knew few bounds (and in

case I had overlooked any of the numerous elaborate fall-back arguments, I invited the respondents

to let me know during the draft judgment process, but no such notification was received), in that a

further argument was made that the road works were covered by para. (h) as improvements to the

existing roads. Again however the respondents have not discharged the onus of proof on this

including by way of showing that the original roads were authorised or exempt in the first place. If

the original roads were unauthorised structures (and the respondents have not proved the contrary),

it would be contrary to public policy to interpret s. 4 as having the effect that improvements to such

roads, even if proved, could also be exempt.

Tree-cutting issue as alleged exempted development

157. In fairness to the respondents I have considered s. 4(1)(i) even though it didn’t particularly

feature in their submissions.

158. First of all that doesn’t cover any damage to hedges and the like, only to trees.

159. Secondly and more generally, the tree-cutting was in the service of an unauthorised

development. That which might otherwise be non-exempted may be permissible if it is ancillary to

exempted development: by analogy with Rehabilitation Institute v. Dublin Corporation (Unreported,

High Court, Barron J., 14 January 1988) whereby a use ancillary to the main use was deemed not

to be a different use. But this cuts both ways – by necessary logical reciprocation and as a matter

of legal policy, that which might otherwise be exempted ceases to be so if it is for the purposes of

an unauthorised development.

160. In any event, s. 4 goes on to provide:

“(1B) Development referred to in paragraph (a), (d), (e) or (g) of subsection (1A) shall not

be exempted development if an environmental impact assessment of the development is

required.

(1C) Development referred to in paragraph (a), (d), (e) or (g) of subsection (1A) shall not

be exempted development if an appropriate assessment of the development is required.”

161. The respondents here, who carry the onus of proof to demonstrate that an exemption

applies, have not shown that no environmental impact assessment (EIA) or appropriate assessment

(AA) would have been required. So the defence is not made out in any event.

Issue 6 – discretion

162. The council submitted, with all due respect, that “you can hardly come across a less

deserving case of discretion”. Unfortunately that is fair comment.

163. Discretion has two dimensions, an objective element (regarding planning considerations

independently of the particular occupier/developer etc.) and a subjective element. Of these, the

objective element is notably more compelling.

164. There are multiple reasons why that should be so. The primary context is separation of

powers – it is for statutory decision-takers to decide whether to allow any development. If a court

refuses to require remediation of an unauthorised development, it in effect grants a form of retention

permission contrary to the statute and contrary to the separation of powers.

165. Secondly, it is central in planning law that development is objective, and that taking into

account in a material way the identity or personal characteristics or conduct of the owner or occupier

renders a decision unlawful – see Killegland Estates Ltd v. Meath County Council [2023] IESC 39,

[2023] 12 JIC 2109 (Unreported, Supreme Court, Hogan J., 21 December 2023) at 83-85, applied

in daa v. Fingal County Council [2024] IEHC 589 (Unreported, High Court, 17 October 2024). So it

would be illogical and unprincipled to quash planning decisions if regard was had to particular

occupiers or developers, and yet grant a de facto retention permission by reference to those very

types of subjective considerations.

166. The third and most poignant reason why objective factors are notably more weighty is that

development by a particular person is a transitory thing. Yes, a court might be understandably

tempted to hold off on enforcement against a sympathetic respondent, perhaps an aged and infirm

individual and so on, but once that particular respondent goes the way of all flesh, we are left in

perpetuity with a blot on the landscape and violence having been done objectively to the

environment and the separation of powers, to the detriment of the public interest for as long as the

development lasts, perhaps indefinitely, and to the detriment in particular a whole cohort of present

and future people who must suffer the illegality and who are rendered invisible in a subjective

analysis that renders the wrongdoer’s ill-gotten interests as somehow weighty or decisive.

167. For this reason, the fact that a property is used as a dwelling does not give rise to an

exemption from planning law, any more than the existence of housing shortages renders the law

unenforceable against dwellings constructed without permission. To put it another way, rights are

not boot-strapping – you can’t confer on yourself a right to live in structure X merely by erecting the

structure, if you do not otherwise enjoy such a right, any more than you can confer on yourself a

right to live in a particular State by entering it, or a right to private property in something just by

taking possession of it that you are not otherwise entitled to. To go down that road does a severe

injury to the objective nature of planning law and renders the law overall incoherent and in significant

part unenforceable. And when the sympathetic resident waving their copy of the Constitution has

disappeared over the horizon, the structure remains potentially for all time. Such an argument

inflates a distortedly individualised notion of constitutional rights to eclipse the rights and interests

of others and society generally, as well as the bedrock notion of the rule of law and the separation

of powers. What Hogan J. said for a unanimous seven-judge Supreme Court in Killegland at 84,

“[p]lanning and zoning decisions should, generally speaking, at least, be blind as to issues of

ownership”, is doubly true of discretion in planning enforcement, because a court has no legitimacy

to impose its own subjective planning outcomes by refraining from applying the law based on some

kind of romanticised sympathetic consideration of the individual owner/occupier at a given time.

This misconception of self-starting “rights” takes an even more extreme form when we are dealing

with people who simply walk onto land and set up residence. To block enforcement of planning law

based on the “rights” of people, however otherwise unfortunate, who trespass onto lands is to

incentivise trespass and to undermine equality before the law. To reward wrongdoers with court-

imposed rights in such situations is to in effect exempt trespassers, or even worse particular judicially

favoured categories of trespassers, from laws that apply to other citizens. This is, I emphasise,

simply comment for completeness. And also for completeness we must acknowledge the growing

relevance of EU law in the planning area – failure by the courts to uphold the integrity of the planning

system and provide an effective remedy for unauthorised developments would in many cases

constitute a breach of European law, including as to assessments and public participation.

Objective factors

168. The primary objective factor is the integrity of the planning system (Morris v. Garvey 1982

WJSC-SC 1253, [1983] I.R. 319, [1982] I.L.R.M. 177 (Henchy J.; Griffin and Hederman JJ.

concurring); Meath County Council v. Murray [2017] IESC 25, [2018] 1 I.R. 189 (McKechnie J.;

Denham C.J, O’Donnell, Laffoy and Dunne JJ. concurring) at 221-225). That militates in favour of

full remediation.

169. Relief will only be refused in exceptional circumstances. As put in Krikke v. Barranafaddock

Sustainability Electricity [2020] IESC 42 (Unreported, Supreme Court, 17 July 2020) by O’Malley J.

(Clarke C.J., Charleton and Baker JJ. concurring) at §110:

“The orderly operation of the planning code is, in my view of high public importance. As

McKechnie J. emphasised in Murray, the starting point is that, subject to certain exemptions,

no development can lawfully be commenced without planning permission. As well as

rendering the developer liable to very far-reaching orders under s. 160, unauthorised

development is a serious breach of the criminal law. The penalties are, McKechnie J. stated,

‘a significant expression of the high level of public concern there is in regulating orderly and

sustainable development’.”

170. That primary consideration of the integrity of the system, the principle of legality, the need

for equal justice and the rule of law, militating in favour of an order being made, is reinforced here

by:

(i) the high amenity zoning;

(ii) the related protection objective;

(iii) the traffic hazard, as explained by John Joe Hegarty, senior engineer, traffic and

transportation division – noting the unsuitable nature of the roads serving the area

around the lands;

(iv) the water and wastewater arrangements and impacts on local water courses, as per

the affidavit of Lorcan Brennan, senior engineer with the council; and

(v) the impacts on the local heritage and sensitive environment – as per the affidavit of

Rosaleen Dwyer, heritage officer with the council and the affidavit of Laurence

Colleran, senior executive parks superintendent.

171. It is also reinforced by the impact on local residents. Mr O’Neill lives 200m from the

unauthorised development – to translate that into terms some readers may relate to, it is the

distance as the crow flies from Chancery Place to the Bar’s Church Street building. The need to

consider residents illustrates the general problem with subjective approaches that render innocent

parties legally invisible – wrongdoers are not the only people whose interests or rights need to be

considered.

172. Finally, this is not a technical breach or one that can be readily remedied.

173. The objective factors overwhelmingly favour full remediation.

Subjective factors

174. Subjective factors, even if established to be in any way favourable (which they are not in

this case), are generally of limited weight when placed against objective factors, particularly the

need to enforce planning law.

175. The claim for the exercise of discretion is unsustainable having regard to the following:

(i) Some of the development – particularly in the area with no previous structures – is

not covered by any claimed exemption, however threadbare (unless passing

reference to a septic tank on the virgin field is a claim that the building of houses is

“improvement” of that, although I didn’t understand that to be the argument).

(ii) The response to pre-litigation letters was either lacking (in Mr O’Neill’s case) or

wholly unsustainable (in the council’s case – e.g., raising a frivolous and evidence-

free pre-1964 point that was never substantiated).

(iii) Works continued and accelerated despite the council’s intervention and while the

matter was before the court. As the council submits, the appellants ignored the

warning letters and correspondence from the council seeking an undertaking to

cease the works and continued to proceed with the completion of the work. If the

appellants had stopped when the council requested, they would not be facing the

extent of removal required – they are therefore entirely the authors of their own

misfortune. As the council submits, “any consequences, including financial

consequences, for the Appellants are entirely of their own making and were entirely

foreseeable. The Appellants’ action of proceeding with the unauthorised

development, driven by their own commercial motivations (noting the averments

indicating an intention to rent out the unauthorised structures), does not provide

any basis for withholding the relief and would in fact set an extremely dangerous

precedent by rewarding the Appellants for continuous unauthorised development (a

criminal offence under s. 151 of the PDA). Nobody made the Appellants proceed

with the unauthorised development. Nobody stopped the Appellants applying for

planning permission before commencing the unauthorised development. Nobody

stopped the Appellants applying for a s. 5 Declaration before commencing the works.

Nobody made them expedite the unauthorised development whilst the s. 160

proceedings were before the Circuit Court. The financial consequences of an Order

on the Appellants provides no basis for withholding relief”.

(iv) There was removal of significant mature trees without a felling licence.

(v) This was likely to have been during prohibited season contrary to the Wildlife Act

1976.

(vi) The respondents’ litigation conduct does not improve their position. There was an

unexplained failure to comply with the Circuit Court’s directions as to the exchange

of affidavits.

(vii) There was also the issuing and then withdrawing (without any explanation ever

having been provided on affidavit) of a motion to transfer the case to the High Court

on the basis that the Circuit Court lacked jurisdiction (for which costs were ordered

against them).

(viii) There was also the issuing and withdrawing judicial review proceedings (High Court

Record No. 2025 1024 JR)which sought to stay these proceedings. These judicial

review proceedings sought, inter alia, a stay on any enforcement steps being taken,

including the issuing of s. 160 proceedings (§D6, statement of grounds), but did not

refer to the fact that, as of 10 November 2025 (the first listing date before the High

Court), s. 160 proceedings had already issued in the Circuit Court and directions had

been fixed for the hearing of an urgent interlocutory application (with the case

having been listed before the Circuit Court on 30 October 2025 and 6 November

2025 in this regard).

(ix) While this isn’t of course criticism, it is nonetheless a fact that this is a commercial

exercise by the respondents who clearly seek to make a gain from the unauthorised

structures by renting same out.

(x) There has been no delay in the council acting to address the unauthorised

development, not that delay within the quasi-limitation period is particularly weighty

or even relevant in any event (there is developed EU law on that subject).

(xi) Housing shortages are not a weighty consideration. The fact that the structures

would be used as dwellings is not a weighty consideration. The respondents don’t

in any event have standing to assert dwelling-based interests in that regard. There

is no such argument anyway because these houses are not occupied. The former

occupants are not parties and there is no evidence that they have any rights of

reoccupation. Even if there was occupation of unauthorised structures,

constitutional rights don’t provide protection against demolition of such structures

save in the most exceptional circumstances that are hard to envisage. Even in such

circumstances, a stay or adjournment would be more proportional than objectively

despoiling the environment in perpetuity by refusing relief without any policy

mandate to do so and on the insubstantial basis of the transitory fact of occupation

by a particular person.

(xii) Characterising what happened here as “genuine mistake” (Morris v. Garvey 1982

WJSC-SC 1253, [1983] I.R. 319, [1982] I.L.R.M. 177 per Henchy J. (Griffin J. and

Hederman JJ. concurring)) is a ludicrous defence to offer when works pressed ahead

and intensified after enforcement letter, an enforcement order and proceedings. To

do that isn’t engaging in a genuine mistake – it is defiance and a voluntary

assumption of risk.

(xiii) There is no acquiescence over a long period as referred to by Henchy J. We are not

talking about the old caravan/ mobile home park anymore. We are talking about

the new works since August 2025. The triviality or the mere technicality of an

infraction could be relevant in a given case (which is an objective factor as noted

above) but this is not a trivial or technical infraction. Gross or disproportionate

hardship or such like extenuating or excusing factors are subjective but the hardship

here is not disproportionate. It cannot be the law that some illegal developments

are too big to remediate. A developer cannot create a defence of gross or

disproportionate hardship merely by engaging in gross or disproportionate illegality.

To put it another way, full remediation is not disproportionate merely because it is

full, or merely because the illegality is large and therefore the full remediation is

going to be expensive. Even if legally recognised gross hardship did arise, the

objective factors are still of compelling weight.

176. Insofar as any of the factors are contested, the respondents bear the onus to establish facts

necessary to show that discretion should be exercised in their favour, which they have not

discharged.

177. Overall, even if counterfactually, there were subjective reasons against immediate

enforcement, it would normally be disproportionate to refuse relief altogether and certainly would

be here. Relief with a stay or an adjournment pending some engagement with the planning system

would be far more proportionate in one of the exceptionally rare situations where the subjective

elements were of such immense moment as to outweigh the separation of powers and the integrity

of the planning system.

178. Ultimately the core reasons why objective factors are compelling were identified in Sligo

County Council v. Martin [2007] IEHC 178 (Unreported, High Court, O’Neill J., 24 May 2007) (§28-

29):

“If the court were to not grant relief that would have the effect of granting planning

permission for this structure in circumstances where the various procedures set out in the

Act of 2000 for the purposes of protecting the public in regard to development would be

ignored with the inevitable defeat of a variety of public interests. Firstly there is the interest

of the public in general to participate in the planning process by making objection or

observation in relation to any particular proposed development. Secondly the expert

supervisory role of the local authority as planning authority would be set at nought as it

would be entirely excluded.

It was at all times open to the respondent prior to taking the precipitous action of replacing

this mobile home in August of 2005 to seek, in the ordinary way, planning permission for

this development. He choose not to do so and in my view he cannot now call in aid the

discretion of this court, when it is clear that what he has done is a breach of the statutory

obligation to obtain planning permission prior to the carrying out of a development ...”

Issue 7 – form of the order

179. There are three basic questions about the form of the order:

(i) what should happen;

(ii) who should do it; and

(iii) when should it happen.

Sub-issue I – what should happen

180. The logic of the position successfully put forward by the applicants is that the removal of the

original caravans/ mobile homes terminated any defences that would have applied to those

structures. The modular homes are a new development which is unauthorised. Remediation of the

unauthorised development therefore involves removing the new structures including new

foundations without re-erecting the old ones which would be unauthorised development.

181. The respondents made extensive submissions on the shortcomings of the reliefs as originally

drafted by the applicants in the notices of motion before the Circuit Court. That’s all as may be, but

the court has to be able to grant the appropriate relief under s. 160. Since the respondents also

made much of the right to have ancillary matters included in the substantive matter, the appropriate

order under s. 160 is going to involve some ancillary matters to make it effective.

182. In any event, in fairness to the applicants, the claim for further and other relief has to be

wide enough to allow the court to make the order under the section they invoke that most

appropriately gives effect to the findings of the court. Indeed the respondents submitted that the

court “can make any order that the court considers appropriate”, and while that was a concept they

invoked in favour of allowing them to continue to have unauthorised structures, it applies equally to

an order requiring removal and remediation.

183. Relying on Lawlor v. Dundalk Town Council [2005] IEHC 73, [2005] 2 I.L.R.M. 106 (O’Neill

J.), the respondents claim lack of clarity as to what is demanded. But there is no analogy between

a self-executing enforcement notice, at issue in that case, and a motion invoking an equitable

jurisdiction of the court. It is the order, and not the motion, that provides the necessary clarity. If

the respondents think there is any lack of clarity in the order I invited them to raise their issues in

the draft judgment process (which they did not do) or to invoke the liberty to apply post-perfection.

184. Overall, the respondents gave the impression of having the belief that they had a winning

“gotcha” point that the exact reliefs in the notices of motion were insufficiently wide and/or that the

applicants needed to be pinned down rigidly to the original wording. Unfortunately it is my painful

rôle to explain that that is not a winning point.

185. Especially in the quasi-equitable context of a statutory injunction, the court needs to be able

to fashion the relief that arises most appropriately from the evidence as the issues are shaped by

the particular submissions made.

186. By way of summary, the court is not shackled to the exact wording of the specific reliefs

sought in the original notices of motion in the Circuit Court for any one or more of the following

independent reasons and a fortiori for these reasons taken cumulatively:

(i) the respondents submitted that the court “can make any order that the court

considers appropriate”, and so it is improper to now make the opposite submission

having lost;

(ii) the precise order made has to take into account the evidence and the run of the

case in terms of what issues were raised by way of defence and what issues were

determined, something that cannot conceivably be anticipated on day one;

(iii) the applicants in any event expressly sought further and other relief;

(iv) this is in any event a quasi-equitable context;

(v) the order provisionally proposed remains squarely within the context of s. 160 of the

2000 Act;

(vi) subsection (1) of s. 160 provides inter alia that the court can “by order require any

person to do or not to do, or to cease to do, as the case may be, anything that the

Court considers necessary and specifies in the order to ensure, as appropriate,

the following: (a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the

commencement of any unauthorised development; ...”

(vii) subsection (3)(b) of s. 160 provides inter alia that the order “may contain such terms

and conditions (if any) as to the payment of costs as the Court considers

appropriate”;

(viii) there will be an opportunity to make a submission on the form of the order; and/or

(ix) there are in any event significant objective interests involved in terms of the integrity

of planning law and EU law.

187. As specified above, the exact form of the order will be open for submissions but not in a way

that revisits the judgment.

188. With a view to assisting the respondents, I can clarify that it would be improper to attempt

to avail of the liberty to make submissions on the form of the order in a manner that impermissibly

re-argues the case, including by reference to any of the following:

(i) that the court has failed to have appropriate regard to the nature of the structure

which was the subject matter of the works for alteration and improvement;

(ii) that the Court has failed to have appropriate regard to the fact that the footprint of

the structure has not been increased, nor the dimensions altered beyond what

existed on the site which evidence was not contradicted;

(iii) that the evidence from the unregistered person showing the before and after

demonstrates that the extent of the alterations as was shown and was not a

significant given the surveys carried out by him both before and after;

(iv) that the court has failed to have appropriate regard to the application of the principle

governing s. 4(1)(h) and in particular the judgement of Ryan J. in Micheal Cronin

(ReadyMix) Limited v. An Bord Pleanála [2009] IEHC 553, [2009] 4 I.R. 736, and

the subsequent judgment of the Supreme Court in Cairnduff v. O’Connell 1986

WJSC-SC 209, [1986] I.R. 73, [1986] I.L.R.M. 465 which gives the effect that there

is a greater margin of appreciation shown in a set of works which are exempted

development as prescribed under that section and is not confined to insignificant

works;

(v) that the court erred in its interpretation of the defences available under s. 4(1)(h)

as set out in Morris v. Garvey 1982 WJSC-SC 1253, [1983] I.R. 319, [1982] I.L.R.M.

177 (Henchy J.; Griffin and Hederman JJ. concurring) the application of which

defences apply to the facts of this case where it was a genuine belief based on a

statutory exemption which related to no alteration of the character of the structure

that would render the development inconsistent with the previous development or

adjoining structures;

(vi) that the court erred in its interpretation of the defence of disproportionate hardship

in terms of how it has been applied to the facts of this case;

(vii) that the finding of the court that this development commenced subsequent to the 1

October 1964 is not consistent with the purpose of the s. 160(6) (seven-year rule)

of the 2000 Act;

(viii) that the court erred in its interpretation of the reliefs sought by the applicants and

in particular those reliefs relating to the restoration of the lands to their condition

immediately prior to the commenced of the development in August 2025;

(ix) that the court erred in its finding that both affidavits of Ann Mulcrone were

inadmissible on the basis that they should have been before the court of first

instance;

(x) that the respondents should be (re-)heard in the question of inadmissibility of

affidavits;

(xi) that the court erred in its interpretation of the established use of the development

site;

(xii) that the proposed mandatory order is arbitrary and unfair having regard to the

requirements of the 2000 Act and the provisions of s. 4(1)(h); and/or

(xiii) that the proposed mandatory order is in error and does not take account of the

reliefs sought by both respondents (or the applicants for that matter).

189. In short, to pay homage to Oscar Wilde, inappropriately trying to re-litigate the case once is

unfortunate but twice would be careless – presumably that won’t arise. Liberty to make submissions

on the form of the order is fine as long as we are clear it is within the tramlines of the judgment and

not a procedure to reargue a case having lost it.

Sub-issue II – who should do it

190. While in theory a s. 160 order should require the respondent to carry out works themselves,

the council seemed to appreciate that in practice this often doesn’t work and failure to comply with

legal responsibilities tends to continue. The only practical method of upholding the integrity of the

planning system is in some cases for the relevant council to carry out thew works itself and reclaim

the cost via the obligations stemming from the enforcement notice, or on a quantum meruit basis,

or by way of terms of an order of the court.

191. The respondents’ preference was to do any remediation themselves in the first instance. I

am not inherently opposed to that, but it needs to be understood that this would be on a strict

timetable and on strict conditions to ensure compliance, breach of which would mean that the council

would be required to take exclusive possession for the purposes of enforcement of the order. The

respondents would need to demonstrate a reality to compliance. On reflection I am not going to be

absolutely prescriptive about what that would involve at this stage other than that there will

inherently need to be a timetable and a plan to remediate the site, to be agreed or directed. There

would be something to be said for nominating individual directors to take responsibility for receiving

personal service of the order marked with the penal endorsement and/or for payment on account,

but on reflection if the order is very prescriptive it could get in the way of a practical solution.

192. If the respondents comply with the reasonable and modest conditions of the order, then

they can be allowed to take the remediation in hand. If they do not then non-compliance with

anything would mean that the council could either take the lead in carrying out the works, without

prejudice to any legal consequences for the respondents in terms of recovering the costs of non-

compliance (preferable, I would have thought), or else proceed exclusively by contempt (resource-

heavy as far as the court is concerned so probably my second preference, if my views are of interest).

193. I am providing for submissions on the form of the order but strictly within the contours of

the judgment.

Sub-issue III – when should it happen

194. There is no obvious reason at the moment why the situation should not be rectified forthwith,

so I have included a timeline in the proposed order below subject to submissions on the form of the

order.

Costs

195. Section 161 of the 2000 Act provides (emphasis added):

“Costs of prosecutions and applications for injunctions.

161.—(1) The court shall, unless it is satisfied that there are special and substantial reasons

for not so doing, order the person to pay—

(a) where a person is convicted of an offence under this Part, to the planning authority, or

(b) where the person is the subject of an order under section 160, to the planning

authority or to any other person as appropriate,

the costs and expenses of the action, measured by the court.

(2) Where costs or expenses are to be paid to the authority, they shall include any such

costs or expenses reasonably incurred by the authority in relation to the investigation,

detection and prosecution of the offence or order, as appropriate, including costs incurred in

respect of the remuneration and other expenses of employees, consultants and advisers.”

196. Presumptively therefore costs will follow the event.

197. I am open to measuring the costs as specified in s. 161(1) but it may just be easier to allow

for adjudication. If the parties wanted measuring I invited them to raise that in the draft judgment

process but nobody did.

198. The order will provisionally include the specific provision in sub-s. (2) insofar as relevant.

Summary

199. In outline summary, without taking from the more specific terms of this judgment:

(i) it is settled law that the onus of proof to show that development is exempted lies on

the respondent;

(ii) applying such law to the facts here, the respondents have failed to discharge that

onus;

(iii) it is settled law that exemptions should be construed narrowly and that an exemption

for alteration does not include total removal and replacement;

(iv) applying such law to the facts here, this is not exempted development;

(v) it is settled law that removal of structures or a definite cessation of use means that

any pre-1964 or seven-year rule defence ends and that new structures or a re-

established use requires permission unless exempted;

(vi) applying such law to the facts here, this is new and unauthorised development;

(vii) it is settled law that the integrity of the planning system is a significant factor in the

court’s discretion; and

(viii) applying such law to the facts here, discretion weighs in favour of making an order.

Order

200. For the foregoing reasons, it is ordered that:

by way of order to be perfected forthwith on the delivery of this judgment:

(i) in each case, the appeals be dismissed;

(ii) in each case, the orders of the Circuit Court be affirmed, on the basis of being

varied by way of prohibitory order as set out below and on the basis of being varied

by way of mandatory and further order(s) in a manner to be determined by order(s)

of the court following submissions on the form of the provisional orders;

(iii) in each case, there be a prohibitory order under s. 160 of the 2000 Act, such

order to be effective immediately, restraining the respondents, their directors or

officers or any person having notice of the order from at any time:

(a) carrying out any works on any of the lands on which the unauthorised

development took place, save in accordance with an order of the court;

(b) permitting any use of any of such lands (including occupation of any

structures) save in accordance with an order of the court; and

(c) re-erecting on such lands any of the caravans, mobile homes or other

structures that have been removed save in accordance with an order of

the court;

(iv) in each case, that the respondents have liberty to make written legal submissions

(without attempting revisit any findings in the judgment) on the form of the

provisional further orders and as to on costs, by 09:30 on Wednesday 10 June

2026, with the applicants to reply by 09:30 on Wednesday 17 June 2026;

(v) in each case, that the respondents be required to submit a detailed draft

remediation and landscaping plan by 09:30 on Wednesday 10 June 2026,

specifying both (a) the steps the respondents intend to take to comply with the order

if the provisional order is made as drafted and (b) any proposed variations within

the scope of the judgment, specifying specific timelines in respect of all steps, with

the applicants to reply by 09:30 on Wednesday 17 June 2026, specifying the extent

to which (if at all) the proposals in the draft remediation and landscaping plan are

agreed;

(vi) in each case, it be directed that any unsuccessful application to vary the provisional

order set out in the judgment may be the subject of an adverse costs order, inter

alia pursuant to O. 103 r. 40(4) RSC, and that any improper attempt to revisit the

findings of the judgment in the context of submissions on the form of the order or

costs may be the subject of an adverse costs order;

(vii) in each case, there be liberty to apply including in the event of non-compliance

with any order of the court;

(viii) in each case, the matter be listed at 14:00 on Wednesday 3 June 2026;

by way of order to be perfected 7 days following the judgment in the event of failure

by the respondents to make contrary submissions by the specified time or failure by

the respondents to prepare a draft remediation and landscaping plan within that

time, or otherwise to comply with the order, or in the event of such submissions and

compliance, 14 days following this judgment or at such other time as may be

specified subject to contrary submissions within the scope of the judgment as set

out above, provisionally as follows:

(ix) in each case, there be a mandatory order under s. 160 of the 2000 Act requiring

the respondents to take the following steps (such order to cease to have effect

(without prejudice to the consequences of any breach that has already occurred) if

vacant possession of the entire lands on which the unauthorised development

occurred is surrendered to the council with the consent of the council in accordance

with the order), namely within 6 weeks from the date on which the remediation and

landscaping plan is agreed by the parties or directed by the court, to remove all

structures erected since August 2025 including remnants of previous structures

incorporated in the new structures, which includes removal of all foundations, and

to restore the lands, in a manner to be agreed with the applicants or directed by the

court in default of agreement, and in accordance with a remediation and landscaping

plan to be so agreed or so directed by the court in default of agreement, to a

condition representing a landscaped finish to the status quo on each part of the lands

as it stood:

(a) in the case of trees, hedges or other vegetation, immediately prior to their

removal (i.e., by replanting trees, hedges and vegetation as appropriate);

(b) in the case of dwellings, following the removal of all caravans and mobile

homes (or other dwellings however described) and prior to the erection of

modular houses and foundations; and

(c) in the case of other works, immediately prior to such works;

and subject in each case to such consequential and ancillary landscaping as may be

required by the remediation and landscaping plan;

(x) in each case, there be a mandatory order under s. 160 of the 2000 Act requiring

the respondents to surrender to the council vacant possession of the entire lands

within their possession or ownership within which the unauthorised development

occurred for the purposes of remediation by the council, either in the event that the

respondents and the council agree such surrender or in the event that the

respondents breach any provision of this order and the council thereafter requests

such surrender, and that in the event of any dispute as to the extent of the lands

required to be surrendered to the council, the matter be determined by the court,

and that in the event of the council taking exclusive possession of the lands pursuant

to this order, the council be required to carry out all necessary demolition and

restoration works as set out above in this order, subject to any further directions of

the court, within 6 weeks from taking such possession or such further period as may

be allowed by the court, and that in that eventuality, the return of possession of the

lands to the respondents will be determined by further order of the court subject to

completion of remediation and landscaping and to s. 154(6) and (7) of the 2000 Act;

(xi) in the O’Neill case, the order of the Circuit Court as to costs be affirmed on the basis

that there be an order for costs in the Circuit Court (including reserved costs and

the costs of written submissions and including a certificate for junior counsel as

granted by that court) being awarded to the applicant against the respondents jointly

and severally to be taxed in default of agreement;

(xii) in the SDCC case, the order of the Circuit Court as to costs be affirmed on the basis

that there be an order for costs in the Circuit Court (including reserved costs and

the costs of written submissions and including a certificate for junior counsel and

senior counsel as granted by that court) being awarded to the applicant against the

respondents jointly and severally to be taxed in default of agreement;

(xiii) in each case, there be an order for costs in the High Court (including reserved costs

and the costs of written submissions) being awarded to the applicants against the

respondents jointly and severally and any issue as to the extent of such costs be

determined, in default of agreement, by way of legal costs adjudication;

(xiv) in each case, the order for costs in the High Court shall include an order for the costs

of legal costs adjudication; and

(xv) in the SDCC case, pursuant to s. 161(2) of the 2000 Act, the order for costs in the

High Court shall include all costs or expenses reasonably incurred by the applicant

in relation to the investigation and detection of the unauthorised development as

well as in the proceedings, including costs incurred in respect of the remuneration

and other expenses of employees, consultants and advisers in respect of those

matters.