A man living on a 100 tonne former minesweeper vessel in a Dublin harbour has won his Supreme Court appeal aimed at preventing it being removed and scrapped.
The three judge Supreme Court stressed it was allowing Shane Kennedy's appeal only because Fingal County Council had failed to establish the necessary "technical proof" the Portisham vessel was located on the foreshore within the Council's functional area.
Nothing in the judgment should be taken as establishing that the vessel's location, and use as a habitation, is lawful, whether as a matter of planning law or any other basis, Mr Justice Frank Clarke stressed.
Mr Kennedy, an electronics engingeer aged in his 50s, has lived on the Portisham since buying it in Essex, England, in 2007 after it was decommissioned by the Royal Navy in 1989.
He paid €34,000 for it and estimates he has spent €70,000 doing it up. He spent three years in Weymouth and Pembroke before sailing to Ireland. He brought the vessel into Balbriggan harbour in 2010 despite the Council telling him it would not be permitted into any harbours in the Council’s area.
Mr Kennedy disputed the Council’s claims the vessel was unsafe and unseaworthy.
Refused offers
The Council offered Mr Kennedy alternative accommodation and took legal action in 2012 after he refused those offers. It had also received several complaints about the vessel being in the harbour.
The core issue in the Council’s case was whether the vessel was unauthorised development within the meaning of the Planning and Development Act 2000. The High Court ruled it was and also said the vessel was unseaworthy, unregistered and uninsured.
In a previous Supreme Court judgment of 2015 on Mr Kennedy's appeal against the High Court decision, Ms Justice Mary Laffoy said the Council had failed to provide the necessary proof Portisham was located on the foreshore, the line of high water of medium tides, within the Council's functional area.
While it was “highly probable” the vessel was moored on the foreshore, the Council had to provide technical proof of that before final orders could be made under Section 160 of the 2000 Act, she said. If the vessel is moored to and floating over the foreshore, it required planning permission which Mr Kennedy had neither sought nor obtained, the judge noted.
The matter was adjoured for further submissions in another hearing.
Second judgment
In a second judgment on Thursday, Mr Justice Frank Clarke said the position had not changed and it was “surprising in the extreme” the Council had not introduced relevant certified ordnance survey maps as evidence of boundaries.
While it might be possible to accept there was sufficient evidence to establish the harbour pier is part of the Council's functional area, Portisham is not "on" the pier but is rather moored to the pier in a location which may, or may not, be on the foreshore, he said.
There continues to a be a "technical lack of proof" that Portisham, as a habitation, is within the functional area of Fingal, due to a technical lack of proof as to the precise location of the foreshore by reference to the positioning of the vessel, he said.
In the circumstances, and because the Council had got an opportunity to deal with the technical proof issue, the court would allow the appeal.
Earlier, noting Mr Kennedy’s complaint the court had not dealt with his claims of alleged breach of his rights to his home, the judge said the sole basis for the Council’s case was the 2000 Act and it was the issue the court must address.
If the court had found a breach of the Act, it would be clear Mr Kennedy acted in “flagrant breach” of the planning law, he said. The fact the vessel was his home would then have to be taken into account but, of itself, could not allow a court to overlook a flagrant breach of planning law.
