Wicklow County Council wants the High Court to order the demolition of the home of a young couple and their child alleged to have been built without planning permission.
The wooden chalet was built on a plot of land at Tinode, Blessington, Co Wicklow, owned by siblings Gregory and Gillian Kinsella, the President of the High Court, Mr Justice Nicholas Kearns, was told. Gregory Kinsella, his partner, and their child live in the chalet.
The Kinsella siblings acquired the site, where an old cottage already existed, about a decade ago. It is on the Tallaght to Hollywood N81 road.
In its action, the council seeks orders under Section 160 of the 2000 Planning and Development Act requiring the removal of the concrete base and timber chalet from the site.
In opposing the application, Gavin Ralston SC relied on another High Court ruling where Mr Justice Gerald Hogan refused to make orders requiring Katie Fortune demolish her home at Carrigeenshinnagh, Lough Dan, Roundwood, Co Wicklow.
While he found Ms Fortune’s chalet was an unauthorised development, Mr Justcie Hogan ruled, because Ms Fortune had been living there for some time with her family and it was her only home, the inviolability of the family home under Article 40.5 of the Constitution had been engaged.
Mr Justice Hogan found the council had failed to make a compelling argument that demolition was the only realistic and proportionate response in the Fortune case.
Having heard submissions from both parties in the Kinsella case, Mr Justice Kearns said “a significant point had been raised” and he would give judgment after Easter.
Earlier, Alexander Owens SC, for the council, said a council inspector had in August 2012 discovered a timber chalet on a concrete base had been built on the site at Tinode and was being fitted out. A warning letter was sent by the council but works continued and, by April 2013, the dwelling was occupied.
After its warning letters were ignored, the council brought enforcement proceedings. An application for retention of the dwelling was made to the council in November 2013 which was refused. That refusal was upheld by An Bord Pleanála on grounds the chalet represented a danger to public safety by reason of a traffic hazard, counsel outlined.
Mr Ralston said Mr Kinsella accepted the chalet did not have planning permission but he believed he did not require planning permission as the chalet was a replacement of a previous structure that had been on the site during the 1990s.
When the Kinsella siblings bought the site in 1999, it was agreed between them Gillian would have the existing cottage and Gregory would build a new dwelling, counsel said. They were prepared to give an undertaking to the court that only one of the two dwellings on the site would be used.
This case was “on all fours” with the Fortune judgment and the court should exercise its discretion refusing orders requiring Mr Kinsella to demolish his home, counsel argued.
In reply, Mr Owens said no constitutional right exists that allows a person build a dwelling where they want in breach of planning permission. The planning laws must be enforced by the local authority or there would be “anarchy”, he submitted.