Kerry County Council v McElligott (Approved) [2021] IEHC 542 (30 July 2021)

Kerry County Council v McElligott (Approved) [2021] IEHC 542 (30 July 2021)

The gates erected by the defendant constitute unauthorised development as they lack planning permission and prevent compliance with condition 12 of the 2008 planning permission. The plaintiff has provided sufficient evidence of unauthorised development, and the defendant has failed to identify or prove any exemption. There is no culpable delay or improper motivation by the plaintiff. Relief under section 160 is appropriate and granted.

Citation
[2021] IEHC 542
Parties
Plaintiff: Kerry County Council; Defendant: Michael McElligott
Jurisdiction
Ireland
Judgment Date
30 July 2021
Procedural Posture
Appeal / High Court Appeal From Circuit Court Decision
Outcome
appeal allowed in part; section 160 relief granted
Legal Topics
Unauthorised Development, Planning Permission, Enforcement Proceedings, Section 160 Planning and Development Act 2000
Planning Law Administrative Law Unauthorised Development Planning Permission Enforcement Proceedings Section 160 Planning and Development Act 2000

Case Brief

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Parties

Kerry County Council

Plaintiff

Michael McElligott

Defendant

Procedural Posture

Appeal / High Court Appeal From Circuit Court Decision

Legal Issues

  1. 1 Whether the erection of gates constitutes unauthorised development under planning law
  2. 2 Whether the plaintiff is entitled to relief under section 160 to require removal of gates
  3. 3 Whether delay or improper motivation disentitles the plaintiff to relief

Ratio Decidendi

The gates erected by the defendant constitute unauthorised development as they lack planning permission and prevent compliance with condition 12 of the 2008 planning permission. The plaintiff has provided sufficient evidence of unauthorised development, and the defendant has failed to identify or prove any exemption. There is no culpable delay or improper motivation by the plaintiff. Relief under section 160 is appropriate and granted.

Court Disposition

appeal allowed in part; section 160 relief granted

Orders

  • Open up the laneway intended to serve the developments from Church Street, Tarbert, County Kerry for vehicular access
  • Remove the gateway placed across the laneway accessing the defendant’s developments