McArdle & ors v Carroll [2019] IEHC 850 (03 December 2019)

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IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING

JUDGMENT of Mr.Justice MacGrath delivered on the 3rd day of December, 2019.

1. These proceedings were commenced by way of notice of motion dated the 8th June,

2018. The applicants, inter alia, sought an order pursuant to s. 160(1) of the Planning

and Development Act 2000 as amended (“the Act of 2000”) to restrain the respondent

from carrying out an unauthorised development on his lands, being a boundary wall. It

was contended that the wall was of such a height as required planning permission in

accordance with the provisions the Act of 2000 and Regulations made thereunder. An

order was also sought for inspection of the respondents’ property. In circumstances

outlined hereunder, it is accepted that proceedings have now become moot and the sole

remaining issue requiring the court’s determination is in relation to costs.

2. The applicants and the respondent are neighbours and reside at Rock Road, Blackrock,

Co. Louth. Before the emergence of this dispute in April, 2018, there is nothing to suggest

that they were on anything but good terms. The respondent has described his family’s

relationship with the applicants as cordial and friendly. This situation pertained before the

respondent decided to build a boundary wall. The wall was constructed to the rear of the

applicant’s dwelling house and behind an existing boundary wall thereon. The lands of the

respondent are zoned for residential use. The respondent, in an affidavit sworn in

opposition avers that he built the wall to improve and secure his own boundary. The

3. In circumstances outlined hereunder, the respondent applied to the local planning

authority for permission to retain the wall and in the events which have transpired, An

Bord Pleanála confirmed the local authority’s decision to grant retention permission. The

decision of the Board was made on 17th December, 2018. Thus, it is agreed that the

4. The application for retention was lodged with the planning authority on 12th June, 2018.

Some days prior to that, a site notice was erected. On the evidence, this occurred on the

morning of the 7th June, 2018, being the day on which the first applicant swore her

affidavit grounding the proceedings and one day prior to the institution of these

proceedings. It appears, nevertheless, that the preparation of the proceedings was in

train prior to the 7th June, 2018. This is evident from the supporting affidavit of Mr. J.P.

Murphy, engineer, which was sworn on 6th June, 2018. He deposed to having inspected

the planning register and he addressed the planning status of the property in his affidavit.

He confirmed that the lands are zoned residential, that no applications had been

submitted for planning permission and that a warning letter had been issued to the

5. In her affidavit, the first named applicant also complained that the wall had been erected

over pipes servicing the dwelling house of the second and third named applicants and that

a gap had been left between the two walls which was considered by the applicants to be

dangerous and hazardous, particularly to children. The court was informed that separate

proceedings had been commenced in respect of an alleged trespass. These also issued on

8th June, 2018. Apart from being served on the respondent, they have not been

6. The applicants maintain that the wall was built at such a pace that it was substantially

completed by the morning of the 9th April, 2018, despite conversations which had taken

place on site and the sending of a letter written on the 5th April, 2018 in which the

applicant had expressed concerns. They maintain that they sought to avoid proceedings.

7. On the evidence, I am satisfied that the works commenced without prior consultation by

the respondent with the applicants. I accept, on the evidence, that Mr. Carroll engaged a

contractor on Wednesday 4th April, who in turn commenced excavation and poured the

8. I am also satisfied that there was communication on that day when the third applicant,

Ms. Olivia McArdle, who leaned over the rear wall of her home and queried what was

happening. She maintains that certain assurances were given to her as to the pace at

which the works might take place. In his affidavit, para. 10, the respondent avers that

she enquired of him as to when he proposed to construct a wall and he responded that it

would probably be Monday or the following week. Ms. McArdle queried why he had not

informed her that he was building a wall and Mr. Carroll states that he had intended to

inform her sister, Ms. Shirley McArdle, in short course. On enquiry as to the height of the

wall, Mr. Carroll avers that he confirmed that the wall would be the same height as the

wall to the east, which bounded the property of another neighbour, approximately 1.8m

above her garden level but that it would not be as high as a wooden partition fence

dividing the applicant’s garden into two sections. He also states that Ms. Olivia McArdle

said to him “[w]hat about my view?”. She inquired about the sewage pipe passing from

her property to a council sewer running under and through her own property and he

confirmed that he was aware of the council pipe and that he would not be encountering

any pipe work in the course of excavating the foundation for the wall. This was because

9. Mr. Carroll also accepts that on the 5th April, at approximately 8:30a.m., Ms. Olivia

McArdle once again leaned over the wall and requested that he cease all works

immediately. A discussion ensued about the height of the wall and the respondent avers

that he informed her that he understood that it was permissible to build a wall up to 2m

in height without planning permission and that the finished wall would be less than 2m

above ground level on her side. He states that Ms. McArdle informed him that she wished

to have her engineer inspect the works to which he replied that he had no difficulty with

such course of action. Ms. McArdle also expressed concerns regarding the foundation of

her boundary wall and Mr. Carroll states that he put her mind at ease about this.

However, Mr. Carroll maintains that Ms. McArdle again demanded, in what he described

as a very pointed and aggressive fashion that all works cease immediately, to which he

responded that the works were in progress with men and all materials on site and advised

her that he had a delivery of concrete arriving to fill the foundations which was “arriving

10. Mr. Carroll also confirms at para. 13 of his affidavit that the construction of the wall

commenced on the 7th April, 2018 and that he was approached at approximately

lunchtime by Ms. Sharon McArdle and Ms. Olivia McArdle who he says were quite

aggressive towards the blocklayers and who demanded that they immediately cease

laying blocks otherwise they would call the Gardaí. Mr. Carroll states that he believes the

import of this communication to the workers in question was that they were in some way

committing a criminal offence. Later that afternoon, Saturday 7th April, Ms. Olivia McArdle

called to his front door. He was not there and his daughter informed Ms. McArdle that she

was unaware of his whereabouts. Once again Mr. Carroll complains about the demeanour,

tone and what he describes as the aggressive and oppressive nature of that demeanour,

11. Mr. Carroll avers that on Sunday 8th April, 2018, he was present in the garden with a

number of blocklayers and was confronted again. He informed Ms. Sharon McArdle that

this was not a party wall, it was built entirely on his property, that the blocklayers were

independent contractors who started on Saturday as they had another job waiting and

because the weather was forecast to deteriorate. However, he confirmed that engineers

retained by the applicants were welcome to inspect the works and could liaise with his

engineer, Mr. McMahon, of Messrs. Padraig Herr and Associates who, he states, had

already inspected the works the previous day and found that there was nothing wrong

with either the wall or the foundations. He forwarded a copy of the engineer’s report to

them on Monday, 9th April, 2018. However, he states that Ms. Sharon McArdle dismissed

this immediately and indicated that the report would not stand up in court. He

acknowledges that Ms. Olivia McArdle accused him of deliberately misleading her because

the workers had started on site on Saturday and not on the following Monday. That

apparently was the last verbal communication between the parties.

12. I am satisfied that while there may have been no legal obligation to do so, the actions of

the respondent in not communicating with the applicants in advance and the haste with

which the wall was thereafter constructed significantly contributed to the colouring of the

13. On Monday 9th April, 2018, Mr. Padraig Herr called on the respondent with Mr. J.P.

Murphy, an engineer representing the applicants. It is evident that the primary concern at

that time was the safety of the wall. Mr. Carroll confirms that at that time the wall was

substantially completed by Wednesday the 11th April, 2018. He also avers that certain

other work was put on hold because of the correspondence between the parties.

14. On the 17th April, 2018 the respondent received a warning letter issued by the local

authority pursuant to s. 152 of the Act of 2000, advising that the wall was or may be

unauthorised. This issued on foot of a complaint made by the applicants to the local

15. In early May, 2018, the respondent advised the local authority that he intended to make

an application for retention permission. This appears to have been in response to the

warning letter and on the advice of his engineer. On the 2nd May, 2018, Ms. Sharon

McArdle made a formal complaint to the local authority that the wall was a dangerous

structure. This was not accepted by the local authority and on the 2nd May, 2018 Mr.

Fergus Fox, council engineer who inspected the wall, recommended that the file be

16. It would also seem that on the same day, Mr. Herr wrote to the local authority, informing

them that he had been instructed by Mr. Carroll to prepare and submit a planning

application for retention of the wall. In the meantime, communications were taking place

between the parties regarding inspection facilities and an issue arose concerning whether

such inspection facilities would be permitted in the absence of an indemnity (presumably

to indemnify the respondent in respect of anything that might happen while the plaintiff’s

engineer was on the property). Mr. Carroll makes the complaint that this was not

progressed before the proceedings issued on the 8th June, 2018. He also points to the

fact that in the letter of 10th May, 2018, prior to the institution of proceedings, the

solicitors on behalf of the plaintiff stated that they wished to have confirmation that not

alone would the wall be removed but trees recently planted would also be removed and

that there no reference request was made that the planning status of the wall be

regularised by way of a grant of permission. The demand was one for removal of the wall.

17. Mr. Carroll also says that on the 7th June, 2018 being the date on which Ms. McArdle

swore her affidavit, at approximately 8:30 a.m., a site notice was placed directly at his

entrance gate (the main access road of Rock Road where all of the parties live) stating

that the respondent was applying for retention permission for the wall. It is submitted

that this site notice was clearly visible to all passers-by but that despite this, the

applicants nevertheless went ahead with this application. The site notice stated:-

The planning application may be inspected, or purchased at a fee not exceeding the

reasonable costs of making a copy, at the offices of the planning authority during

A submission or observation in relation to the application may be made in writing to

the planning authority on payment of the prescribed fee, €20, within the period of 5

weeks beginning on the date of receipt by the authority of the application, and such

submissions or observations will be considered by the planning authority in making

a decision on the application. The planning authority may grant permission subject

18. The application for retention was made on the 12th June, 2018 and the applicants and

others objected. A report was prepared by representatives of the local authority’s

planning department. This was based on a site visit which occurred on 28th June, 2018.

The authors described the height of wall as ranging between 2.4 m and 2.8 m. They

“…no application for residential has been submitted, the provision of such a wall of

this nature would not be an uncommon feature/requirement as part of a planning

application and is a requirement under s.6.7.13.[of the development plan].”

The principle of the development was considered acceptable and it was recommended

19. On the 26th July, 2018, the planning authority issued a decision to grant retention

permission. A number of conditions were attached, including that the development

comply with certain requirements of Irish Water. An appeal was lodged to An Bord

Pleanála by the applicants and the Board of Management of the local school. On the 17th

December, 2018, the Board granted retention permission on terms in accord with those

20. By letter of the 7th August, 2018 the respondent’s solicitors wrote to the applicants

proposing that in order to avoid further legal costs, the proceedings should be adjourned

pending the issue of a grant of planning permission or a final determination. This and a

further letter of reminder were not responded to at that time. The applicants changed

their solicitor at that time. While complaint is made that these letters were not responded

to, nevertheless, it appears that no further substantial step was taken by the applicants.

The respondent filed a replying affidavit. The respondent also filed and delivered an

affidavit sworn by a chartered engineer, Mr. Roger Cagney. This followed a number of

inspections of the wall, including a joint inspection which occurred on 19th July, 2018 and

which concerned the structure and the safety of the wall. In the affidavit he responded to

a letter which had been sent by the applicants dated 4th May, 2018, in which concerns

regarding the design, safety and structure of the wall were expressed. He refuted those

21. Mr. Connolly S.C., on behalf of the respondent points out that a court order was extant

requiring the filing of a replying affidavit within a specified time and that in the absence of

agreement to defer further proceedings pending the outcome of the appeal to An Bord

Pleanála, the respondent was obliged to file that affidavit, thereby incurring costs.

22. Thereafter, it may be said that little occurred until after the application for retention was

granted by An Bord Pleanala and before the issue of costs became a significant matter

between the parties. It appears that the proceedings were adjourned on at least one

occasion while the appeal was pending before the Board. No further affidavits were

exchanged until early 2019. These included a supplemental affidavit sworn by the

respondent on 17th January, 2019 in which he updated the situation regarding the

granting of retention permission. A further affidavit was sworn by the first applicant on

10th April, 2019 to respond to and refute the contentions outlined in the respondent’s

first affidavit. She denied that the applicants were being unreasonable and reiterated her

concern about the safety of the wall. She refuted any suggestion that the applicants were

themselves in breach of the planning laws. She expressed her belief that the construction

of the wall was in anticipation of an application for planning permission for a housing

development and raised doubts as to the respondent’s belief that the development was

exempt. Reference was made to the fact that the respondent, in response to another

warning letter under s. 152 in respect of another wall, had made application for retention

permission for that wall which was also granted; and an issue was raised regarding

compliance with the condition attached to the retention permission. She also stated her

belief that the open market value of the lands exceeded €3,000,000 and that they had

23. Mr Kavanagh, engineer, swore an affidavit on 29th April 2019. This was submitted on

behalf of the applicants. He refuted certain assertions contained in Mr. Cagney’s affidavit

and reiterated his concern that the design of the wall was fundamentally flawed.

24. Mr. Gunne, auctioneer, in an affidavit sworn in support of the land valuation, stated that

his valuation of the property was based on a valuation of €300,000 per acre, giving a

gross value of €3,111,000. He avers that the residence was valued at €425,000 and given

that it may be necessary to sacrifice the residence or to pay a premium for access, the

net value of the land was, in his opinion, just over €3 million. Mr. Gunne avers that since

the date of his first valuation, he learned that the respondents also have additional

adjoining landholding which was not included in his initial evaluation. Reference is also

made to a right of way which the respondent benefits over adjoining property. In

25. These affidavits led to a further extensive affidavit in reply from Mr. Carroll. He referred

to the meeting of engineers on 9th April, 2018. He rejected the suggestion that the

application for retention was provoked by the institution of these proceedings. He

exhibited a report from valuers, Sherry Fitzgerald Carroll, in relation to the valuation of

his lands. It is fair to observe that this is more detailed than Mr. Gunne’s.

26. The provisions of O. 99 of the Rules of the Superior Courts provide that, although

ultimately it is a matter for the discretion of the court, an award of costs follow the event.

If the court is minded to dis-apply this rule then, in accordance with dicta in Godsil v.

Ireland [2015] 4 IR 535, it can only do so on a reasoned basis and one which is

rationally connected to the facts of the case to include the conduct of the participants.

The court has also been referred to a passage from Delaney and McGrath on Civil

Procedure, (4th ed., 2018) that it enjoys a wide discretion not to award costs or to reduce

the costs awarded where it disapproves of how the proceedings were conducted by the

27. The parties now essentially agree that the proceedings have become moot, and that the

only issue which is now outstanding is that of costs. Both parties seek their costs.

28. Mr. O’Donnell B.L, counsel for the applicant, in reliance on the decision of Clarke J. (as he

then was) in Telefonica O2 Ireland Ltd v. Commission for Communications Regulation

and Others [2011] IEHC 380, a decision which shall be discussed in more detail below,

submits that the generally accepted principle that where proceedings become moot as a

result of an external event that the parties should bear their own costs does not apply

because these proceedings were rendered moot by the actions of the respondent in

applying for retention permission. The decision of An Bord Pleanála, which had the effect

of rendering the proceedings moot, therefore, was not an event which was truly

independent of the actions of the parties. It is submitted, that the court should exercise

its discretion to award costs in favour of the applicants. To this end, significant emphasis

was placed by counsel on the conduct of the respondent in constructing a wall at a height

which attracted the requirement for permission under the Act of 2000, without prior

notification to the applicants and which, despite their concerns and objections, he

completed in a hasty manner. Emphasis is placed on certain assurances or

representations made by respondent when the matter first arose on 4th April, 2018, that

the wall would not be constructed until the following Monday but that the work was

substantially completed earlier, over the weekend, and in spite of correspondence

between the parties. It is submitted that the wall was built at a height which was

considerably in excess of that for which permission is required under the Planning and

Development Regulations. On 17th April, 2018 the planning authority issued a warning

letter which indicated that unauthorised development may have been carried out and the

applicants were unaware that the respondent intended to apply for retention permission

before these proceedings were instituted. It is contended that the application for retention

was made in response to the proceedings. Mr. O’Donnell B.L. submitted but for the

proceedings being brought, the unauthorised structure would have remained in situ and

that it was only the subsequent decision of the Board that the structure obtain the benefit

of planning permission that render that which was unauthorised, authorised.

29. Significant emphasis is placed on s. 162(3) of the Act of 2000 which provides that no

enforcement action, including an application under s. 160 shall be stayed or withdrawn by

reason of an application for permission or retention of unauthorised development under s.

34(12) or the grant of that permission. Counsel submits that this provision applies in a

situation such as this, and that it was designed to avoid the type of scenario which is

relied upon by the respondent and for which the provisions of s. 162(3) were enacted. It

is submitted that the respondent waited for a considerable time before taking action

despite having been notified of the applicants’ concerns both verbally and in writing.

Further, it is submitted that the respondent refused to allow inspection notwithstanding

30. The respondent’s position is that he did not make the application for retention in response

to the institution of these proceedings. It was made in consequence of the warning letter

and on the basis of the advice which he received from his engineer. He believed that he

did not require planning permission, as the construction of the wall to the height intended

was exempt from the requirement to obtain planning permission. He states that his

approach has been to limit the cost of the proceedings at an early stage, but that the

applicants have added to the costs by the submission of further affidavits in April, 2019.

This had the effect of significantly enlarging the case subsequent to the granting of the

retention permission. The respondent also maintains that the filing of the affidavits must

be viewed in the context of the respondent having made proposals to avoid escalating

legal costs with particular regard to the letter of the 7th August, 2018, which went

31. Mr. Connolly S.C., counsel for the respondent, submits that s. 162(3) of the Act of 2000

does not preclude the court from exercising its discretion in relation to costs in favour of

the respondent. He points to several matters which, he submits, had the case gone to a

full hearing, in accordance with the principles in Morris v. Garvey [1983] I.R. 319, as

applied in Meath County Council v. Murray [2018] 1 I.R. 189, may have resulted in the

court, in the exercise of its discretion, refraining from making the order. Counsel

confirmed that it was not being suggested that, if deciding the case, the court might take

another view i.e. that it was at all times an exempted development. Nevertheless, he

advanced these matters such that the court may take into account in concluding that

there was a plausible view that the respondent, or any other person might take, that this

was an exempted development; and that his mistaken belief in that regard is also

“90. What, then, are the factors which play into the exercise of the Court’s discretion?

From a consideration of the case law, one can readily identify, inter alia, the

(i) The nature of the breach: ranging from minor, technical, and inconsequential

(ii) The conduct of the infringer: his attitude to planning control and his

• Acting in good faith, whilst important, will not necessarily excuse him

• Acting mala fides may presumptively subject him to such an order;

(iii) The reason for the infringement: this may range from general mistake,

(iv) The attitude of planning authority: whilst important, this factor will not

(v) The public interest in upholding the integrity of the planning and

The importance of the underlying structure/activity, for example,

(vii) The conduct and, if appropriate, personal circumstances of the applicant;

(viii) The issue of delay, even within the statutory period, and of acquiescence;

(x) The consequences of any such order, including the hardship and financial

91. The weight to be attributed to each factor will be determined by the circumstances

of a given case. Some, because of their importance, may influence whether an

order is or is not in fact made: others, the scope, nature or effect of that order.

This list is not in any way intended to be exhaustive, and it may well be that other

matters might require consideration in an appropriate case. For example, in Pierson

v. Keegan Quarries Ltd. [2010] IEHC 404, Irvine J took account of the hardship

which demolition might cause to third parties, and referred also to the possible

effect of the developer having relied in good faith on professional advisers. The jobs

of non-related members of the public, mentioned at para. 90(iv), above, featured in

Stafford v. Roadstone Ltd and Dublin County Council v. Sellwood Quarries Ltd

[1981] I.L.R.M. 23. There are many other examples. However, the above list is

generally representative of the type of factors which the judge will normally be

called upon to consider. It is thus an appropriate framework within which to analyse

the High Court’s exercise of discretion in this case, conducted, as it only could be,

by reference to the traditional or customary approach (see paras. 134-139, infra)…”

33. Adopting the above approach, Mr. Connolly S.C. points to the following factors:

a. The reasonable belief of the respondent, objectively verified, that the construction

of the wall was an exempt development, or that he held a plausible view that the

development was exempt. Particular emphasis is placed on his belief that it was

permissible to measure the height of the wall from the perspective of the lands

b. The concern about the hazard allegedly created by the wall brought a sense of

urgency into the proceedings was nihil ad rem and unrelated to planning matters;

c. The failure of the applicants to bring to the court’s attention in the grounding

affidavit the events and communications which occurred between the time of the

construction of the wall and the date of the application before the court, particularly

those in relation to the safety of the wall. The correspondence and a report on the

safety of the wall which had been commissioned by the respondent and furnished

to the applicant in April, 2018 was not exhibited or referred to in the grounding

affidavit. The report of the engineer which had been furnished to the applicants on

9th April, 2018 was not exhibited in the grounding affidavit of Ms. McArdle,

something which is described as significant omission particularly where it was Mr.

McMahon’s opinion that the wall would not adversely impact any existing drains or

other services. In passing, it is to be noted however, that this letter did not address

the planning status of the wall or whether permission was required for a

development of such a nature and height. It is contended that by failing to refer to

the available information unfairly coloured the urgency of the case from a safety

perspective. Further, an application to the local authority under the dangerous

e. That the respondent applied for retention in response to the warning letter, rather

than the proceedings and that in so doing he acted on the advice of his engineer;

f. At the time of the institution of the proceedings, the applicants were aware that the

council had been investigating the issue, because they had made the complaint and

g. The applicants must be presumed to have been on notice of the making by the

respondent of the application for retention, something which had been triggered by

the Council’s planning enforcement process but nevertheless, these proceedings

were brought. Emphasis is placed on the site notice and the planning officers report

on the 28th June, 2018 that the site notice was displayed and was in accordance

with regulations and therefore, it was submitted that notices were validly in place

and that the applicants ought to have been on notice of them. The respondent

relies on what it describes as the presumption that the public notification

requirement in relation to the making of their retention application was complied

h. The applicant’s initial demand for the removal of the wall, rather than its

i. The unreasonable failure on the part of the applicant to furnish the respondent an

engineering report and the exchange between the parties in relation to the engineer

and the basis upon which an inspection might take place. It is emphasised in this

regard that the applicants’ engineer was not refused inspection facilities;

j. The respondent also maintains that the applicants’ purported structural concerns in

relation to the wall are unsustainable given the expert evidence which has been

adduced. While the respondent maintains that this was a matter of agreement

between the engineers, Mr. Murphy in his affidavit disputes this. The wall is

structurally sound and has been built within the respondent’s private property and

k. It is suggested that the breach of the planning code in this case was undoubtedly

“minor, technical and inconsequential”, as discussed in Murray and that it was

therefore wholly inappropriate for the applicants to seek to invoke the jurisdiction

of the court under s. 160 in pursuit of what is described as a personal advantage,

being the preservation of a view to the rear of their property, and a view which is

beyond the rear garden boundary wall. No such general right exists;

l. The attitude of the planning authority - reliance was placed on the fact that no

m. It is also submitted it cannot be plausibly be argued that the public interest in

upholding the integrity of the planning and development system necessitated the

34. The court has been referred to a number of authorities including the decision of Simons

J. in Tanager DAC v. Ryan [2019] IEHC 649 as authority for the proposition that account

“whether the proceedings were seeking a private personal advantage, and whether

the legal issues raised were of special and general public importance and potentially

35. Reference is made to the conduct of the applicants, that they have constructed out office

buildings on a common boundary and that they have been in breach of the planning laws.

The respondent also makes the point that following this a number of affidavits which were

delivered on behalf of the applicants, including a supplemental affidavit from Ms. Sharon

McArdle of the 29th April, 2019, Mr. Stephen Gunne, auctioneer, of 26th April, 2019 and

Mr. Kavanagh, chartered engineer on the 29th April, 2019, that this necessitated the filing

of further affidavits by both the respondent and by an engineer on his behalf.

36. In so far as the respondent’s application for costs is concerned, the court has also been

addressed in relation to the provisions of the Environment (Miscellaneous Provisions) Act

2011 (“the Act of 2011”). In North East Pylon Pressure Campaign Limited v. An Bord

Pleanála No. 5 [2016] IEHC 490, Humphreys J. observed at para. 32:-

“The upshot is that the not-prohibitively-expensive rule applies (to the fullest

extent that it is possible to read national law to that effect) to challenges based on

national environmental law within the field of EU environmental law even if the

challenges do not relate to the public participation rules. Thus there is no need to

get unduly caught up in classifying challenges as relating to public participation only

as opposed to national environmental law within the EU law field more generally

because ultimately both come to the same thing. As regards the rider that national

law should be read to this effect ‘to the fullest extent possible’, this is not a problem

for Ireland as the discretion arising from O. 99 is sufficiently flexible that it can

37. In essence, the respondent maintains that if the court should determine that s. 3 of the

Act of 2011 applies, the respondent is entitled to seek its costs pursuant to s. 3(3)(b) of

38. In response to these particular submissions, Mr. O’Donnell B.L. emphasises the statutory

basis for an application under s.160 of the Act. He submits that the wall was built at a

height which ought not to be regarded as a minor and technical or inconsequential

breach, given that the height to which it was constructed was well in excess of that in

respect of which permission is required. There was no acquiescence over a long period

nor has there been shown gross and disproportionate hardship such as might have

influenced the court to exercise its discretion to refuse any relief. Counsel relies on the

decision of Morris v. Garvey in this regard. There, Henchy J. stated:-

“When s. 27(2) is invoked, the Court becomes the guardian and supervisor of the

carrying out of the permitted development according to its limitations, and in

carrying out that function it must balance the duty and benefit of the developer

under the permission as granted against the environmental and ecological rights

and amenities of the public, present and future, particularly those closely or

immediately affected by the contravention of the permission. It would require

exceptional circumstances (such as genuine mistake, acquiescence over a long

period, the triviality or mere technicality of the infraction, gross or disproportionate

hardship, or such like extenuating or excusing factors) before the Court should

refrain from making whatever order (including an order of attachment for contempt

in default of compliance) as is "necessary to ensure that the development is carried

out in conformity with the permission". An order merely restraining the developer

from proceeding with the unpermitted work would not alone fail to achieve that aim

but would often make matters worse by producing a part completed structure which

would be offensive to the eye as well as having the effect of devaluing neighbouring

Further, he submits that the respondent has displayed in his affidavits a knowledge of

planning laws and that if he was confident that it was an exempted development, he

should have had no difficulty in approaching his neighbours in advance. He submits that

the making of the retention application was, in effect, an acceptance that planning

permission was required and that at the when the application was lodged, the wall was

an unauthorised structure and the proceedings were in being. If a genuine mistake was

made by the respondent, Mr O’Donnell B.L. observes that no remorse for such a mistake

39. I have taken into account the above submissions and the responses thereto, all of which I

have considered in balancing how the discretion of the court ought to be exercised.

40. These proceedings were instituted on the 8th June, 2018 seeking an order pursuant to s.

160 of the Act of 2000 to restrain the unauthorised development being the boundary wall

which as it transpires and despite the respondent’s belief, was one to which the planning

inspector, Mr. Niall Haverty, concluded that because of its height dimensions, required

41. It must also be considered, nevertheless, that certainly in the initial stages, the

applicants’ concerns centred on the safety and stability of the wall. Letters were issued by

and on behalf of the applicants on 5th April, 2018 and 11th April, 2018. The letter of 5th

April was sent by the third named applicant who requested that he refrain from taking

any further steps to construct any wall, foundation or other structure next to or near the

“so as to allow us the opportunity to be appraised of the extent of the proposed

works and ascertain whether or not they would affect the structure, stability,

amenity, or otherwise of our property and/or the connection small property to and

She felt that the request was reasonable in circumstances where the applicants had no

prior notification of the proposed works such as would have afforded them an opportunity

to ascertain the position. The letter concluded: “we trust you will appreciate our concerns

herein and would hope that this matter might be resolved amicably in due course”.

42. Unfortunately the response of the respondent was to persist with the works and while it

may be that engineers were retained to look at the structure and stability of the wall, the

fact remains that the wall was constructed despite the request of the applicants that it not

be. In his replying affidavit, Mr. Carroll states that he built the wall to improve the

security zone boundary because the boundary arrangements in place at that time

consisted of a broken down concrete post and chain link fence. In the same affidavit, he

avers that he had a number of concerns with respect to the applicants’ low level garden

wall. He states that these did not meet the appropriate standards for a wall retaining so

many cubic tonnes of soil, it had no piers or expansion joints and was built with a single

course of block laid on its edge. He also expressed concern about the lack of privacy and

security. Nowhere is it suggested, that prior to his decision to construct this wall had he

raised any such concerns with the applicants. It is also evident from the respondent’s

affidavit, that he accepts that the third named applicant, Ms. Olivia McArdle, when she

approached him on 4th April, enquired as to when he proposed to construct the wall and

that he responded to her that it would probably be Monday of the following week. The

works continued. He accepts that on 5th April, Ms Olivia McArdle once again leaned over

the wall and requested that he cease all works. She queried the height of the wall

because she thought the wall should only be six foot high. The respondent avers that he

indicated to Ms. McArdle that it was his understanding that it was permissible to build the

wall of up to 2m in height without planning permission, and that such measurement be

taken from the ground level point on his side of the boundary line. This was above her

foundation level before the pre-existing soil was stripped away. He informed her that the

finished wall would be less than 2m above ground level on her side. It is clear, therefore,

on the respondent’s own evidence that the issue of the requirement for planning

permission, or the lack of such requirement, was discussed as early as 5th April, 2018. It

is also clear that when the wall was being constructed over the weekend, despite the

protestations of the applicants, the respondent continued with the work and it is also of

note that in his affidavit sworn on 6th September, 2018, he accepts that on Sunday, 8th

April, 2018, Ms Olivia McArdle stated “… that I had deliberately misled her because the

workers had started on site on Saturday and not on Monday.” Mr. Carroll does not, in this

43. While the applicants maintain that the works were substantially completed by Sunday, 8th

April, the respondent maintains that it was not until the 11th April that works were

substantially completed, but other works including backfilling, repointing, drainage weep

installation and closing of cavities were put on hold because of the threats in

correspondence “and the present proceedings which issued from the applicants’ solicitor.”

It is also evident from the respondent’s affidavit and in particular para. 19, that he gave

some consideration to planning requirements. He avers that he interpreted the

regulations to mean that the wall was an exempted development up to 2m in height

measured from the pre-existing ground level before any foundation excavation took

place. This corresponds with the averment regarding the discussion which he says that he

44. It appears that the focus of the meeting which occurred between the parties’ engineers on

Monday 9th April 2018 was on the structural integrity and safety of the wall, rather than

on planning considerations. This is also evident from the letter of 11th April, 2018,

written on notepaper of Messrs. McArdle and Co., a firm of solicitors in which the names

two of the three applicants appear on the letterhead, in which the principal expressed

concern relating to the structural impact of the works on the applicants’ property.

Proceedings were threatened. A request was also made for all planning permissions

relating to the subject works together with the engineer’s certificate of compliance in

respect of same. Thus, it appears to me to be evident that planning issues were under

consideration. Further, it emerges from para. 6 of the respondent’s affidavit sworn on

11th June, 2019, that the respondent was aware that the warning letter had issued in

response to a complaint to the planning enforcement section of the local authority, by

way of submission of an enforcement complaints form dated 13th April, 2018, on behalf

of the applicants. He also avers that an official in the council planning enforcement

section confirmed to him on 22nd May, 2018, in advance of the institution of these

“whilst rightly respecting the anonymity of the complainant, that receipt of the

complaint… was officially acknowledged in writing to the complainant, together with

The respondent further accepts that the issuing of the warning letter was a matter which

45. The letter of 4th May, 2018 from the applicants’ solicitors, while heavily emphasising the

issue of trespass and safety, advised that the applicants reserved the right to apply for

46. In all the circumstances, I am satisfied that prior to the institution of the proceedings,

while the principal focus was on the safety of the structure and issues relating to

trespass, the respondent ought to have been aware that the applicants were concerned,

inter alia, about the planning status of the wall. There is no evidence of an attempt being

made prior to the proceedings to expressly or directly communicate with the applicants or

otherwise inform them that an application for retention was in contemplation or was in

the process of being made, save for the erection of a site notice which I address below .

47. While the respondent maintains that he was of the belief that he did not require planning

permission, nevertheless, he does not appear to have made appropriate inquires either

48. With regard to issues relating to engineering inspection prior to proceedings, any dispute

between the parties as to the basis on which such inspection might take place or the

requirement for an indemnity, was removed when the parties consented to an order for

inspection on 2nd July, 2018. It also seems to me that the issue of the planning status of

the applicants’ premises was unlikely to have been raised but for these proceedings.

49. It seems to me that in balancing all matters to which Mr. Connolly S.C. and Mr. O’Donnell

B.L. have referred and which, had this case gone to a conclusion, a court might have had

regard to in determining whether to exercise its discretion to grant the relief claimed

under s. 160, significant weight must be attached to the actions of the respondent from

the outset, without which this dispute might never have arisen. While prior consultation

with the applicants may not have been required as a matter of law, one would have

thought that in order to maintain good neighbourly relations, matters ought to have been

approached differently by the respondent, particularly when objection was raised. Perhaps

50. Having considered the applicable legislation and the authorities, I am satisfied that it

remains the position, in a planning law context, but with particular regard to the facts of

this case, that this Court retains a discretion in relation to costs as specified in O. 99 of

the Rules of the Superior Court. Therefore, had there been an event, on the basis of the

rules and on the authorities, costs ought to follow that event unless there is good,

expressed and stated reason to the contrary. Where proceedings become moot, different

considerations may apply to the exercise by the court of its discretion. Cunningham v.

The President of the Circuit Court [2012] 3 IR 222 and Telefonica O2 Ireland Ltd indicate

that the default position is that there should be no order as to costs where the

proceedings have been rendered moot by the happening of an external and independent

event or occurrence, over which the parties have no control. This was addressed by

Clarke J. (as he then was) in Telefonica O2 Ireland Ltd at para 2.6.1 of his judgement

“2 6.1A question can become moot for a whole range of reasons. It is impossible to be

overly prescriptive as to the proper approach which the court should adopt for the

range of factors that may be relevant are wide, However, it seems to me that a

factor which is at least of some significance is an analysis of how it came about that

proceedings had become moot. Sometimes (as was the case in Eircom), external

factors over which the parties have no control render proceedings moot. In many

such cases there may at least be an argument for the court making no order as to

costs. It clearly would, at least in the vast majority of cases, be an unacceptable

use of scarce court resources for a hearing to have to go ahead to decide a moot

issue simply for the purposes of deciding who should pay the costs. Indeed, given

that all that will be at issue are the costs up to the time when the proceedings

become moot, it would seem particularly foolish for parties to have to incur much

more costs solely for the purposes of deciding who should bear the costs up to the

Having analysed the position of both parties in such a situation, he continued:-

“That analysis seems to me to lead to a view that a court should favour making no

order as to costs in proceedings which became moot in the absence of other

significant countervailing factors. However, that analysis is based on a situation

where the case becomes moot by reason of factors entirely outside the control of

the parties. It seems to me that somewhat different considerations apply where the

reason (or at least a significant contributory reason) to the proceedings becoming

moot derives from the actions of some but not all of the parties to the case.”

Referring to the decision of the Supreme Court in Murray & Anor v. Commission to Inquire

“It seems to me, therefore, that a significant factor to be taken into account in the

exercise of the court's discretion as to costs in proceedings which have become

moot is to analyse whether it can reasonably be said that the actions of any

relevant party have rendered the proceedings moot. If that be so, then that is a

significant factor to be taken into account in the award of costs. The situation with

which the court is then faced remains one where, in the absence of trying a moot

case, the court will not know who would have won. However, the situation of any

party who was not involved in rendering the issue moot, in not being able to

establish that their side of the case was right, has resulted not from any action

which that party took or, indeed, from some entirely external event over which no

one had any control, but rather from actions taken by their opponent. That is a

factor which ought weigh significantly in favour of the grant of costs to the party

who was not involved in the action which led to the proceedings being moot. This

remains the case even where, as here, there were entirely understandable reasons

why the parties took the actions - settling the case - which they did.”

51. On the facts, I am satisfied that a decision was made by the respondent to seek retention

some weeks prior to the institution of these proceedings. This is evident from the letter

written by Mr. Herr on the 2nd May, 2018 which confirmed that the application for

retention would be made within two weeks. Nevertheless, while that decision may not

have been made in response to the institution of proceedings, it was significantly

prompted by what had occurred up to that time. There is no evidence, however, that the

intention of the respondent to apply for retention was expressly communicated to the

applicant in advance of the institution of the proceedings. The respondent maintains,

however, that the applicant ought to have been aware of the application because it was

made in response to a warning letter which he had received from the local authority and

which warning letter had been precipitated by the applicant’s complaint. In essence, the

claim of the respondent in this regard is that the applicant was precipitous in seeking the

52. In consideration of why the proceedings became moot, the applicants submit that the

decision of the Board is not a truly independent event, but one to which the respondent

contributed. The respondent maintains that it does not follow that by engaging in the

statutory process that one has or assumes control over the outcome of that process or

that it is or becomes a unilateral act; and that the process of application and granting

retention is one in which an independent decision is made by an independent body.

53. It is difficult to accept that where a person a) who is subject to enforcement proceedings,

or where he or she has been in receipt of a warning letter; and b) where at the time of

the institution of the proceedings he or she may have been in default of his or her

planning obligations; and c) is subsequently successful in his or her application for a

retention permission thus thereby bringing the proceedings to a stage of mootness, that

he or she can thereafter maintain that this is a truly independent event over which he or

she has no control. Here the granting of the retention permission could not have come

about without the application by, and participation of, the respondent in that process. The

54. While each case must be considered on its merits and within its own factual and legal

context, it seems to me that the court’s conclusion in this regard is reinforced in the

particular context of planning enforcement legislation. In my view the proposition

advanced by the respondent is difficult to reconcile with the provisions of s. 162 (3) of

the Act of 2000, which expressly provides that no enforcement action, including an

application under s.160, shall be stayed or withdrawn by reason of an application for

retention of permission under s. 34(12) or the grant of that permission (emphasis added).

To hold that the granting of permission in respect of the subject matter of the

enforcement action thereby renders those proceedings moot would appear to be

inconsistent with the express provisions of that subsection. I am therefore not satisfied

that it has been established that, as a matter of principle, because the proceedings are

now moot that the generally stated proposition that there should be no order as to costs

applies. Thus, I am not satisfied that the circumstances which arise in this case require

the application of any general principle that each party should be required to bear its own

55. Nevertheless, there continues to remain the issue of the manner in which the court ought

to exercise its discretion in the light of the necessity, timing or circumstances surrounding

the commencement of proceedings. On this issue, it appears to me that, on the

authorities, the court is required to assess the overall circumstances including the conduct

of the parties. Further, it is also relevant to consider the criteria to which this Court has

been referred and as outlined in Morris v. Garvey and as discussed in Murray in the

56. In my view, the failure of the respondent to engage with the applicants in advance of the

works, and the expedition with which such works took place contrary to certain

representations made as to when they might commence, contributed significantly to the

subsequent course of events and to the institution of these proceedings. While it may

have been, and on the facts I am satisfied that it was, decided that an application for

retention was to be made considerably in advance of the institution of the proceedings, it

is clear that this intention was not communicated to the applicants. The fact that a site

notice may have been in place at 8a.m. on the morning on which the grounding affidavit

was sworn does not appear to me to be of great significance. Such notices are required to

be put in place for particular periods of time to give the public a reasonable opportunity to

be aware of the application in respect of a proposed development. That someone does not

see that notice immediately when it is erected is not, in my view, a matter for which he or

she ought to be criticised, and this is particularly so when a letter in advance of action

had been served. Again, a simple communication would have removed any mystery about

what was intended. Further, placing the site notice in position did not alter the planning

status of the wall or render authorised that which may have been unauthorised.

57. In all the circumstance, I am satisfied that in so far as the timing of the proceedings is

concerned, the applicant is not to be criticised, particularly in the light of the threat of

proceedings, the conduct of the respondent in the hasty construction of the structure,

which on all the evidence, was unauthorised because of its height and in the absence of

communication in advance that retention would be sought. That the respondent may have

harboured a subjective belief that planning permission was not required must be viewed

in the context of the immediate objection by the applicants to what was taking place.

58. The respondent, however, also raises issues concerning the failure of the applicants to

disclose the course of dealings between the parties and communications with the local

authority, together with that authority’s response, relating to the safety of the wall. Mr.

O’Donnell B.L., counsel for the applicants, submits that the applicants could not to be

criticised for their failure to inform the court about these matters. He submits that this is

particularly so where no interim or interlocutory relief is sought and where it is anticipated

that after the commencement of proceedings a further exchange of affidavits, and the

59. In applications under s. 160 it is accepted that even where a prima facie case for relief is

established, the court retains a discretion to refuse relief, to be exercised in accordance

with principle. In my view, if a position is stated on affidavit which does not provide a

complete and fair picture of the circumstances leading up to and surrounding the

application, this may be taken into consideration by the court in determining how it might

exercise its discretion. The weight to be attached to this must relate to the nature of the

application and the relief, statutory or non-statutory which is sought. Here, the matters

that were not fully expressed to the court concerned issues relating to the safety of a

structure, rather than its planning status, nevertheless it is a factor which in the particular

60. It also appears to me that I should consider, and take into account, the conduct of the

parties while the proceedings were ongoing including, in this case, the lack of response to

the respondent’s invitation in August, 2018 that matters might be stayed pending the

decision of An Bord Pleanála on appeal. In view of the provisions of s. 162(3), it may be

said that there was no obligation on the applicants to desist from pursuing the

proceedings, and further, it may also be contended that had the respondent applied for a

stay on the proceedings it is likely to have been refused in the light of the express

wording of s. 162(3). Nevertheless, I do not believe it is appropriate, when considering

the question of costs, that the reply to communications or the failure to do so should be

61. The contents of the affidavits which followed subsequent to August, 2018, on both sides,

far from lowering the temperature served only to increase the tension with allegations of

a hate campaign, breach of the Act of 2000 by the applicants - a matter which appeared

not to concern the respondent up to this time - and the introduction of matters regarding

other planning issues concerning the respondent, and his regularisation thereof; again

something which does not appear to have exercised the minds of the applicants before

62. The parties are neighbours and may continue to be long after these proceedings have

concluded. Taking everything into account, in my view, any inclination of the court to

award costs of the application, up to the time of the proceedings becoming moot, must be

considered in the light of the absence of constructive communication thereafter, to which

63. I have come to the conclusion that in all the circumstances and weighing all matters in

the balance including the respective conduct of the parties, the applicant should be

entitled to their costs up to the date on which an event occurred which rendered the

proceedings moot, namely the 12th December, 2018 and that the court should make no

order as to costs incurred by the parties arising thereafter. It seems to me that the

primary precipitating factor giving rise to the dispute between the parties and the

subsequent institution of the proceedings was the conduct of the respondent in erecting a

wall of a height, which was shown in the events which transpired, required planning

permission and which was constructed in a hasty fashion without prior consultation and

64. As to the level of those costs, I have considered the affidavits of the parties including the

supporting affidavit of Mr. Gunne and in particular the reports of Sherry Fitzgerald Carroll

which have been exhibited to the respondent’s affidavits. There is no issue but that this

court has jurisdiction to entertain this application. Rather the issue is whether, given the

jurisdictional limits, the proceedings ought to have been brought in the Circuit Court. In

my view, the onus of proof lies on the applicants to establish that which was alleged in

the initiating grounding affidavit, that the value of the respondent’s lands on the open

market was in excess of €3 million. On the basis of the affidavits and evidence before the

court, I am not satisfied that the applicants have discharged the onus of proof on this

issue. In view of the description of the property outlined in the application and grounding

affidavit, and the evidence and contents of the reports of the valuers, I am not, and

cannot, be satisfied that it is more likely than not that the lands the subject matter of

these proceedings exceed €3 million in value. I find the report of Sherry Fitzgerald

Carroll, dated 21st May, 2019, which is detailed in its description of the lands and has had

regard to comparators, more convincing in this regard. Some emphasis was placed during

the course of argument on the description of the land outlined in the grounding affidavit,

which were confined to the property comprising one folio of land owned by the

respondent. In my view, on the basis of the analysis conducted in each of the reports and

in the affidavit of Mr. Gunne, even if one were to consider the land as comprising those

contained in four rather than one folio and extending to 13.08 acres, rather than 4.27, I

65. For similar reasons as outlined above I am not satisfied that the respondent is entitled to

a costs order. Thus, issues which may have arisen pursuant to the Act of 2011, do not

66. Therefore the applicants are entitled to their costs up to the time of the decision of An

Bord Pleanála on 12th December, 2018, but not thereafter, costs to be adjudicated on the

Circuit Court scale. Each party must bear the costs incurred by them after that date.

Result: Costs to the applicant up to 12th December, 2018, but not thereafter, costs to be adjudicated on the Circuit Court scale.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McArdle & ors v Carroll [2019] IEHC 850 (03 December 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC850.html Cite as: [2019] IEHC 850

High Court of Ireland Decisions