Fingal County Council -v- Kennedy [2017] IESC 32 (25 May 2017)

Fingal County Council -v- Kennedy [2017] IESC 32 (25 May 2017)

The appeal was allowed because Fingal County Council failed to provide technical proof that 'Portisham' was moored on the foreshore or otherwise within its functional area, a prerequisite for relief under s.160 of the Planning and Development Act 2000. The lack of certified evidence as to the boundary of the foreshore was fatal to Fingal's case.

Citation
[2017] IESC 32
Parties
Applicant/respondent: Fingal County Council; Respondent/appellant: Shane Kennedy
Jurisdiction
Ireland
Judgment Date
25 May 2017
Procedural Posture
Appeal (planning Injunction) / Supreme Court Judgment on Further Hearing After Remittal
Outcome
Appeal allowed
Legal Topics
Planning Injunctions, Burden of Proof, Foreshore Boundaries, Right to Home, Environmental Law Compliance
Planning Law Administrative Law Constitutional Law Human Rights Law Planning Injunctions Burden of Proof Foreshore Boundaries Right to Home +1 more

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Parties

Fingal County Council

Applicant/respondent

Shane Kennedy

Respondent/appellant

Procedural Posture

Appeal (planning Injunction) / Supreme Court Judgment on Further Hearing After Remittal

Legal Issues

  1. 1 Whether Fingal County Council discharged the burden of proof that 'Portisham' was moored on the foreshore within its functional area
  2. 2 Whether technical proof of the foreshore boundary was established
  3. 3 Whether the use of 'Portisham' as a habitation constituted unauthorised development under planning law

Ratio Decidendi

The appeal was allowed because Fingal County Council failed to provide technical proof that 'Portisham' was moored on the foreshore or otherwise within its functional area, a prerequisite for relief under s.160 of the Planning and Development Act 2000. The lack of certified evidence as to the boundary of the foreshore was fatal to Fingal's case.

Court Disposition

Appeal allowed

Orders

  • Order of the High Court discharged
  • No order as to the removal of 'Portisham'