The Supreme Court has deferred a final decision on an appeal by a man living on a former minesweeper vessel in a Dublin harbour against a ruling it can be scrapped because of its unsafe condition.
Shane Kennedy has been living on the "very large" Portisham since 2007 and brought it into Balbriggan harbour in 2010 despite having been told by Fingal County Council the 100 tonne vessel would not be permitted into any harbours in the council's area, Ms Justice Mary Laffoy observed.
The council had offered Mr Kennedy alternative accommodation and took legal action in 2012 after he refused those offers, she noted.
Before bringing its proceedings, the council received several complaints about the vessel being in the harbour.
The core issue was whether the vessel was unauthorised development within the meaning of the Planning and Development Act 2000 and the High Court had ruled it was and also observed the vessel was unseaworthy, unregistered and uninsured.
Delivering the five-judge court's judgment on Mr Kennedy's appeal against that decision, she said the onus was on the council to prove Portisham is located on the foreshore, the line of high water of medium tides.
The evidence before the court, via an exhibited site plan, was that the vessel is moored along the south western side of the easterly/northeasterly pier extending into Balbriggan harbour, she said. Assuming the site plan accurately replicates the relevant ordance survey map, Portisham was located on what is foreshore as defined in the relevant legislation.
If the vessel was moored to and floating over the foreshore, it was not exempted development and it required planning permission, she said. Mr Kennedy had not sought or obtained such permission.
Before final orders can be made, the council has to provide proper proofs of its claim the vessel is located on the “foreshore”, the judge ruled.
That matter raised technical legal issues, Mr Justice Adrian Hardiman said, and he advised Mr Kennedy, representing himself, it would be in his interests to get legal assistance.
When Mr Kennedy complained the court had not addressed his “human rights” arguments, Mr Justice Hardiman observed Mr Kennedy was making that allegation just after the court’s judgment was handed down on Friday and before he had read it.
The court will set a date later for addressing the proofs issue. Previously, the High Court Mr Kennedy (55), an electronics engineer, has lived on the Portisham since buying it in Essex, England, in 2007 after it was decommissioned by the Royal Navy in 1989.
Mr Kennedy paid €34,000 for the boat and estimates he has spent €70,000 doing it up. He spent three years in Weymouth and Pembroke before sailing to Dublin Port. He eventually ended up in Balbriggan Harbour in October 2010.
The council, which controls and manages Balbriggan harbour, became concerned at the condition of the vessel particularly as the harbour itself is in a very poor state. It commissioned reports which found serious problems with the vessel including rotting timbers, lack of electrical and radio services, lack of working sanitation, and generally unsafe conditions aboard. One report concluded up to €1m would have to be spent on the boat to make it seaworthy, Conleth Bradley SC, for the council, said.
Mr Kennedy disputed those figures and disagreed with the findings of the council’s reports. His own surveyor had found the boat was basically sound, he said.
