Article 40.5 – a safe-haven for unauthorised dwellings?

The recent judgment of Mr. Justice Hogan in The County Council of Wicklow v Katie Fortune (no.2)has attracted the concern of planners in relation to the suggested precedent it lays down for unauthorised dwellings to bypass planning regulation.


The case concerned Katie Fortune’s wooden chalet which was constructed without planning permission and the consequent order for demolition of the chalet sought by the Council. Mr .Justice Hogan refused the order on the basis of Article 40.5 of the Constitution which safeguards the inviolability of the dwelling. While noting that the Constitution was not intended to allow persons who deliberately ignored planning regulations to protect themselves from legal action he did emphasis that Article 40.5 “affords real protection”.


Mr. Justice Hogan clarified that “in a planning context this does not mean that the courts cannot order the demolition of an unauthorised dwelling because it is “inviolable”. It rather means that the courts should not exercise the s.160 jurisdiction in such a manner as to require the demolition of such a dwelling unless the necessarily for this step is objectively justified”


Wicklow County Council put forward three arguments in an effort to establish that such a s 160 order be granted namely that failure to do so would undermine the effective protection of the environment, that refusing the order would set a precedent for cases involving unauthorised dwellings and that it impinged on the special area of conservation surrounding the chalet.  Mr.Justice Hogan rejected all three arguments and while cautioning that such arguments might well prevail in the circumstances of a different case, he concluded that he was bound to uphold the wording of article 40.5 and outlined that “the making of a s 160 order on the particular facts of the present case would represent a drastic interference with the inviolability of the dwelling and with Ms Fortune’s property rights”.


In a recent article of the Irish Times Fergal MacCabe, a member of the Irish Planning Institute, expressed concern over the implications of the judgment arguing that it sets an “unhappy precedent”.  While the judgment itself cannot be appealed to the Supreme Court, planners, legal advisors and indeed home-owners will be interested to see how future cases of this nature are dealt with and in particular whether the Supreme Court sets down more stringent criteria outlining the circumstances in which Article 40.5 can be invoked to protect unauthorised dwellings.


For more detail on this case see the full judgment at,Fortune,~language_en~




For any queries regarding planning permission and property law in general please contact our offices at 01-8727655 or email us at






No comments yet.

Leave a Reply