Court of Appeal ruling on the burden of proof in Section 160 planning injunction cases
On 21 January 2022, Mr Justice Humphreys sitting in the Court of Appeal (COA) delivered judgment in Doorly -v- Corrigan & Anor  IECA 6, overturning an earlier decision of the High Court. The COA considered, amongst other issues, the burden of proof in planning injunction applications made under Section 160 of the Planning and Development Act 2000 as amended (s.160 cases). He held that whilst the initial burden of proof, to establish the existence of "unauthorised development", lies with the applicant, the burden then shifts to the respondent to demonstrate that the development is exempt, or occurred over seven years ago, or that for any other reason, the orders sought should not be made.
Background and procedural history
At issue in the proceedings was whether or not the felling of trees at Claremount Demesne, Co. Offaly, constituted unauthorised development. The High Court thought not, and refused to grant the s.160 injunction sought. The appellant, Gerard Doorly, appealed the decision to the Court of Appeal.
Court of Appeal decision
Mr Justice Humphreys, in giving judgment for the COA (with which Ms Justice Ní Raifeartaigh and Ms Justice Pilkington agreed) said that it appeared to him that the High Court judge's consideration of the affidavits "was saturated throughout with the approach that the appellant had to prove everything, a view which doesn't seem reconcilable with her earlier, correct, acceptance that proof of the development being exempted lay on the respondents".
He stated that taking the jurisprudence on the burden of proof in s.160 cases as a whole, one could attempt to summarise it. We in turn have summarised his judgment, as follows:
- The onus of proving the initial formal requirements for example jurisdiction of the Circuit Court where applicable and that a development without planning permission has been, is, or is likely to be carried out by the respondent lies on the applicant
- The onus of proving any defence lies on the respondent
- The onus of proving that a development is exempted lies on the respondent
- The onus of proving any other matter within the knowledge of a party lies on that party
The COA decision is a useful summary of where the burden of proof in s.160 cases lies. A link to the full judgment can be found here.
For more information on this topic, please contact Alison Fanagan, Consultant, Síofra Heffernan, Solicitor or any other member of ALG's Environmental & Planning team.
*This article is for general information purposes only and should not be relied upon as a substitute for legal advice. The author(s) do not accept liability for any errors or omissions made.
Date published: 1 April 2022