[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. Dub

tempt to create a fait accompli with a view to turning around and defiantly asking the 3 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

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

1. 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).
2. 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.
3. Section 160 injunctions were granted by HH Judge O’Connor on 19 December 2025, and the respondents appeal from those orders. Geographical context
4. 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

Chianti Park, Mount Seskin Road, Raheen, Brittas, Co Dublin,

: https://maps.app.goo.gl/5TAAWEjDT1VqLmDMA. The lands are zoned “High Amenity- Dublin Mountains (HA-DM)” in the South Dublin County Development Plan 2022-

2. 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

https://maps.app.goo.gl/2S42xG7Vq8QWkVq36 .

1. Next door to Chianti Park is a development called Hillbrook Lawns which is a similar caravan/ mobile home park since
2. 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
3. The plaintiff/respondent, South Dublin County Council, is the relevant planning authority.
4. John O’Neill is the applicant/plaintiff in these proceedings. He lives c. 200 m from the property the subject of these proceedings.
5. 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).
6. 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.
7. 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
8. The alleged unauthorised development, the subject matter of these proceedings, gave rise to a series of complaints from mid-August 2025 to mid-September
10. 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.
11. The previous owner responded to the said warning letter, indicating he was no longer the owner of the lands.
12. 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

the request/instruction of the owner. 4

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

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

the applicant’s dwelling.

1. 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.
2. 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.
3. The applicant’s position is that the development is unauthorised development and is not exempted development. 5
4. The respondent/defendants position is that development is exempted development pursuant to s. 4

and addressed the court on – sought interim relief and/or short service for an application for interlocutory relief to be heard

the earliest possible date.

1. The Circuit Court (HH Judge O’Connor) made the interlocutory application returnable for the following week – 6 November
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. Without prejudice to the council’s objections to the admissibility of same, the council filed a replying affidavit from Cian Harte on 15 April
11. The council served its legal submissions, input into this statement of case and input index of authorities on the appellants on 28 April
13. The appellants served their legal submissions, input into this statement of case and input index of authorities on the council on 8 May
15. 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
16. The applicant instituted proceedings seeking an interim injunction before the Circuit Court on 3 November
17. Interim relief was refused, and the matter was listed for the hearing of an application for interlocutory relief on 6 November
19. 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.
20. 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.
21. 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. 6
22. 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.
23. 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.
24. 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
25. The respondents did not comply with the directions for filing an affidavit.
26. The proceedings were called on for hearing on 1 December 2025 in the Circuit Court.
27. The respondent furnished unsworn replying affidavits to the applicant on 4 December
28. 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
30. 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.
31. 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
32. The court indicated that judgment would be brought forward to be delivered on 19 December
34. 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.
35. 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.
36. The matter was listed for hearing together with the related case 2025 0329 CA on 13 May
37. Post-hearing procedural history
38. Judgment was reserved

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: (

1. i)Read the draft or have their legal representatives if applicable do so on their behalf. (
2. 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. (
3. 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

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)

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. 7 Trial participants should take reasonable steps to keep drafts confidential. On this topic, see

torney 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,

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; (

1. e)any other matter in the draft judgment that the party considers should be omitted; (
2. 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 (
3. 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

tention 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: (

1. i)SDCC – no changes proposed. (
2. 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 8 during the vacation, which is an essential safety valve to avoid unsustainable buildup 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

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.”

1. 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.
2. The council then responded in the following terms which I generally endorse: “Date: 29th May 2026 Re: SOUTH DUBLIN COUNTY COUNCIL Plaintiff /Respondent -and- 9 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

tempt 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

tempt 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

tempt 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

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

§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 10 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:

§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

tached 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).

§133et 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

§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

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

tempt to address matters which the Appellants, for reasons only known to themselves, didn’t address

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.” 12

1. 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
2. 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
3. 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.”
4. Any apparent clarity as to the joinder of issue was then fractured by the arrival

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

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

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: (

1. i)comply with timelines for submissions/ observations; (
2. ii)upload documents as they are issued; (iii) limit themselves to readily accessible formats like .docx and .pdf – preferably .docx; and (
3. 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

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

a point 13 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

para 115 of the judgment. 2. The Appellants submit that the order

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

para 175(x)(b) is in error and does not take account of the reliefs sought by both Respondents.

1. 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.”
2. 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

tempt 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

“Sent: 27 May 2026 10:07”.

1. 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
2. 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.
3. 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.
4. For the tiny minority interested in the mechanics of judgment production, maybe I can be forgiven for mentioning that an excessive and inappropriate

tempt 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

tempt 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

1. The reliefs sought by the council in the notice of motion before the Circuit Court are as follows: “
2. An Order, pursuant to Section 160

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: (

1. i)Site clearance works and the demolition and removal of multiple chalets and mobilehome structures from the Lands. (
2. 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

paragraph 1 above and to restore the Lands to the condition that 14 such lands were in prior to the commencement of the unauthorised development referred to

paragraph 1 above. 3. Interim and/or interlocutory relief, pursuant to Section 160

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

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 : (

1. i)Site clearance works and the demolition and removal of multiple chalets and mobilehome structures from the Lands; (
2. 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

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

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.—

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.

any time in respect of unauthorised quarry development or unauthorised peat extraction development in the following circumstances: (

1. 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; (
2. 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. 17 (
3. ab)Notwithstanding paragraph (
4. a)or (aa), an application to the High Court or Circuit Court may be made

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

any time in respect of any condition to which the development is subject concerning the ongoing use of the land.

the hearing or for the determination of which no oral evidence was given. (1A) Notwithstanding subsection

the hearing or for the determination of the proceedings or matter concerned.

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

any time admit fresh evidence, oral or otherwise on such terms as the Court shall think fit, and may order the

tendance for cross-examination of the deponent in any affidavit used in the Circuit Court or the High Court. … 11

§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).

1. 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).
2. 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)

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.

1. 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).
2. Two further matters regarding the affidavit evidence for the respondents unfortunately occasion some concerns.
3. 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.
4. His latest affidavit begins: “
5. 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 19

located

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.”

1. He is referred to as an “Architect” throughout the respondents’ legal submissions.
2. In this affidavit he purports to give a “professional opinion”, e.g. para.
4. 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.
5. 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.
6. 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): “
7. 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

TAB 4 of the Booklet of Exhibits.”

1. 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.
2. 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

tached 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)

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

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: (

1. i)there was development (not an issue save in relation to tree cutting); (
2. ii)there is no planning permission; and (iii) the jurisdiction of the Circuit Court by reference to rateable valuation – this had been a concern

an earlier stage but the respondents confirmed they are not making an issue of it now. 118. Thus the issues are the following: (

1. i)an issue about admissibility of affidavits; (
2. ii)whether this was pre-1964 development; (iii) the seven-year rule; 20 (
3. iv)whether tree cutting was development; (
4. v)whether this is exempted development; (
5. 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)

§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…”).

1. 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.
2. Even if I am wrong about the foregoing, no weight should be

tached 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

tempted 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

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).

1. The council’s written legal submissions contain the following: “
2. 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

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

any time admit fresh evidence, oral or otherwise on such terms as the Court shall think fit, and may order the

tendance 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: 21 ‘

the hearing or for the determination of which no oral evidence was given. (1A) Notwithstanding subsection

the hearing or for the determination of the proceedings or matter concerned.

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

tempt to rely on same. For example,

no point do the Appellants acknowledge the previous mobile home structures located on the Lands and then

tempt 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

tempt to engage with this evidence. Noting the 22 restrictive interpretation to s.4

tempt 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

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

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

tempt to address matters which the Appellants, for reasons only known to themselves, didn’t address

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

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

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.

1. 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
2. As noted in Rutledge v. Fingal County Council [2026] IEHC 223 (Unreported, High Court, 17 April 2026)

97 in relation to uses, but analogous principles are relevant to works: (

1. 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); (
2. 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)

§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 23 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 (

§5.5 per Clarke J.; Denham C.J.

and Dunne J. concurring).”

1. It is clearly established that significant works commenced in mid-August
2. 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 realitybased 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.
3. 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.
4. 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 lastditch 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
5. Section 3 of the 2000 Act defines development: “Development. 3.—

the somewhat circular definition of “land”: “‘land’ includes any structure and any land covered with water (whether inland or coastal);”

1. The key point is that “land” includes the natural environment even though “structure” is directed to the built environment.
2. Thus cutting a tree or a hedge is the carrying out of “works” on “land” and thus is “development”.
3. 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

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

least three categories of activity provided for in Section 4

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

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’

tempt to rely on exemptions under section 4

least three categories of activity provided for in Section 4

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. 27 51. These works prima facie exempted development so long as they comply with the second element of the exemption contained in Section 4