Whether a scheme comprised of certain works and uses is or is not development or is or is not exempted development
When notice to cease works was served by the local authority on Saturday following a High Court injunction, twenty piers had been erected. By Monday, when works were ceased, officials noted six more.
The concrete lintels and piers were delivered precast and trabeated on a ground beam cast thirty six metres in diameter over a November weekend in 2011 on commonage at Slievemore, Dooagh, Keel East, Achill Co. Mayo, without the benefit of planning permission.
The stoney service road of the unauthorized development offers a tidy serpentine procession, with a raised bank forming the circumference in cut and fill. At the centre remains a rough island of virgin bog, displaced quartz glistening in the peat spoil. Drawings show an unbuilt central column 5.5 metres high in a semi-circular colonnade offset 6.73 metres within the peristyle, indicated 4.2 metres high and 1 metre deep, surrounded by an earth bank planted in hazel with, curiously, a heat pump. The works are described as a garden ornament.
The owner/occupier, a native of the island, defended the works as a ‘place of reflection’ and an exempted development within the meaning of the Planning and Development Regulations 2001. He spent three days in jail for contempt of court.
On 6 December 2011, the feast day of St. Nicholas of Myra, patron saint of owners of property and others, the local authority received an application from the owner/occupier for a declaration as to whether the works were exempt from the requirement of planning permission. The authority requested drawings and a description of its use.
The planning authority determined that the subject was development and was not exempted development. The owner/occupier then referred the declaration to the Board of Appeals.
His referral advanced arguments that the works were exempted by planning law with reference to certain types of development, inter alia the laying out and use of land as a park, a private open space, an ornamental garden, a roadside shrine, a lighthouse, beacon, buoy or other aid to navigation on water or in the air, or incidental to the use of a burial ground, churchyard or monument, or indeed roofless cubicle, open loose yard, self-feed silo, feeding apron, assembly yard, milking parlour or structure for the making or storage of silage or that of a similar character or description, having an aggregate gross floor space not exceeding 200 square metres.
He concluded that the structure in question does not have a floor area, is not enclosed and is roofless and circular so it does not have a length. He claimed it unimportant what purpose it serves.
The Board of Appeals inspector visited the works on 18 April 2012. According to Meteorological Office records there was six millimetres of precipitation over the day, with a temperature range from six to eleven ºC with relative humidity of 86º. There were seven hours of daylight. He describes his findings in his report reference number 16. RL2965.
‘The works in question are on Achill island. They occupy an elevated position in the peatland to the north of the settlements at Doagh [sic] and Keel along the coast. Access to the site from the public road can be achieved along an unsurfaced track.
‘Under the 2008 Mayo County Development Plan the R318 Regional Road is designated as a scenic route and views from it towards the site are protected.’
He debates the picturesque position, acknowledging that the works are not visible in the protected views. He determines that the works would not aid navigation by air or water. He dismisses the other uses mentioned, reporting that the board ‘should consider in the first place whether or not to dismiss the referral under section 138 of the planning acts as vexatious and without substance’.
He returns to the stated use as an ornamental garden.
‘It is entirely plausible that the development would be used as a park, private open space or ornamental garden. It is accessible by foot and by vehicle along a track from the public road. It occupies a position with extensive scenic views. The geometric layout of the colonnades and the other built elements of the development could reasonably be regarded ornamental and aesthetically pleasing.
‘However the works involved in the development comprise the erection of tall and massive structures which required very substantial earthworks and the excavation of a large area of blanket bog which was probably in a relatively intact, natural state, to judge by the character of the bog immediately adjoining the site. The scale of the structures and the volume of the earthworks mean that the works involved in the development are much greater in scale and intensity than those which could be contemplated by the term “laying out... of land”... ’
He notes that the building of a monument differs in its planning character than the laying out of land because of its much greater physical impact on the previously existing condition of the land. He continues
‘The statement of the intention to use the land as an ornamental garden is qualified by the phrase “inter alia”. The referral then states that the land will remain in agricultural use. It then states that the purpose of the scheme is unimportant.’
He sums up that
‘The request and the referral have therefore failed to specify a particular use for the development. This failure is deliberate and repeated. The definitions of exempted development… are expressed in functional terms. The claim in the referral that the use of the development is unimportant to its exempted status is therefore absurd.’
The inspector concludes that the subject of the case was development and was not exempted development. On foot of this report, the board upheld the decision by the local authority and the folly was condemned in July 2012. The place of reflection is illegal and must be removed and the land returned to viginity.
These islands considers the unauthorised development at Slievemore, Dooagh, Keel East, Co. Mayo in field recordings between Saturday 27 – Monday 29 October 2012.
27/10/12: rainfall 0.7mm; mean wind speed (knots) 9.5; sunshine 1.7hrs
28/10/12: rainfall 11mm; mean wind speed (knots) 13.5; sunshine 0.1hrs
29/10/12: rainfall 2.3mm; mean wind speed (knots) 11.1; sunshine 2.9hrs
(reports from Met Eireann station, Belmullet)