Factual and Procedural Background
The Plaintiff initiated proceedings seeking injunctive and declaratory relief and/or damages against the Defendants concerning development works carried out on State owned foreshore adjacent to the Defendants' property at Blind Harbour, Reen, Union Hall, Co. Cork. The Defendants, foreign nationals, acquired the property around 1999/2000. The disputed developments included a breakwater mostly constructed on State foreshore, a seawater retention basin partly on State foreshore, valves related to the basin on State foreshore, and a slipway partially on State foreshore. Following the commencement of proceedings, the Defendants adjusted the pool, valves, and slipway to remove encroachment onto the State foreshore, but the breakwater remained largely on State foreshore below the mean High Water Mark.
The breakwater was originally constructed by a predecessor in title to the Defendants, Mr. Forsey, around 1990 after a severe storm caused damage to the property. Mr. Forsey sought planning permission for the breakwater and other developments in 1991 but was refused. The Plaintiff only became aware of the breakwater's existence around 2006 after receiving notification of ongoing development works. Subsequent inspections and reports confirmed the presence of unauthorised structures on State foreshore, and correspondence between the parties ensued, including demands for removal of the structures. Despite adjustments by the Defendants, the breakwater remained on State foreshore, leading to the initiation of the current proceedings in 2013.
Legal Issues Presented
- Whether the Plaintiff's failure to comply with section 12(1) of the Foreshore Act 1933 precludes relief.
- Whether the Defendants constructed or are in possession of the breakwater.
- Whether the Plaintiff's delay in instituting proceedings has prejudiced the Defendants.
- Whether the breakwater should be left in situ given its protective function over twenty-seven years.
Arguments of the Parties
Defendants' Arguments
- The Plaintiff failed to comply with statutory requirements under section 12(1) of the Foreshore Act 1933 by not pursuing the original builder, Mr. Forsey, before seeking relief against the Defendants.
- The Defendants did not construct nor possess the breakwater and thus should not be liable for its removal.
- The Plaintiff's delay in commencing proceedings caused prejudice to the Defendants, including inability to pursue third-party indemnity claims.
- The breakwater has served as essential coastal protection for over twenty-seven years and should remain in place.
- The Defendants asserted that the breakwater lies within their property boundaries, supported by prior surveys and planning applications.
- The breakwater does not significantly impede public access to the beach, and alternative access routes exist.
Plaintiff's Arguments
- The Plaintiff is not restricted to relief under section 12 of the Foreshore Act 1933 and may rely on torts such as trespass and nuisance to vindicate public rights.
- The Defendants have adopted possession of the breakwater through acts of maintenance, use, and assertion of ownership despite not having constructed it.
- The Plaintiff became aware of the breakwater in 2006 and pursued removal through correspondence and inspections, with delays attributable to awaiting title documents and resource constraints.
- The breakwater restricts public access to the beach and is unlawfully constructed on State foreshore without licence or lease.
- Removal of the breakwater is necessary to restore public access and uphold the public interest in State owned foreshore.
- The Defendants have alternative means to protect their property through construction of a compliant revetment on their own land.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Clarke v. Midland Great Western Railway [1895] 2 IR 294 |
Liability for continuing trespass where a structure remains on land causing ongoing interference. |
Supported the Plaintiff's claim that Defendants' possession and maintenance of the breakwater constituted continuing trespass. |
| Sedleigh-Denfield v. O'Callaghan [1940] AC 880 |
Adoption of nuisance by occupier who fails to take reasonable steps to end it. |
Used to assess whether Defendants adopted the nuisance by maintaining and using the breakwater. |
| Yankwood Ltd v. London Borough of Havering [1998] EWCA Civ 1764 |
Adoption of acts of trespass by failure to prevent them. |
Referenced in context of Defendants' alleged possession and responsibility for the breakwater. |
| Vitalograph (Ireland) Ltd v. Ennis Urban District Council and Clare County Council [1997] 4 JIC 2301 |
Failure to take reasonable steps to end nuisance can amount to adoption of nuisance. |
Supported Plaintiff's position that Defendants' maintenance of the breakwater equated to adoption of nuisance. |
| Irish Employers Mutual Insurance Association Limited (In Liquidation) [1955] IR 176 |
Interpretation of constitutional provisions vesting ownership of lands and waters in the State as a juristic person. |
Affirmed State ownership of foreshore and underpinning Plaintiff's authority to regulate foreshore. |
| Cromane Seafoods v. Minister for Agriculture, Fisheries and Food [2016] IESC 6 |
State control over foreshore and limitations on private rights without State permission. |
Supported Plaintiff's control over foreshore and requirement for licences for works. |
| Nelson v. Rye [1996] 2 ALL ER 186 |
Doctrine of laches and delay in equitable claims. |
Considered in relation to Defendants' claim of prejudice due to Plaintiff's delay. |
| O'Sullivan's Pharmacies and Beauticians (Sarsfield Street) Ltd v. HSE [2008] |
Equitable injunctions require prompt action. |
Referenced regarding timeliness of Plaintiff's claim. |
| Fisher v. Brooker [2008] EWCA 287 |
Laches as a defence to equitable relief and considerations of undue delay and prejudice. |
Discussed in context of whether delay barred Plaintiff's equitable relief. |
| O'Domhnaill v. Merrick [1984] IR 151 |
Inherent jurisdiction to strike out claims due to delay causing unfairness. |
Considered in relation to Defendants' plea of prejudice from delay. |
| Dunne v. ESB [1999] IEHC 199 |
Assessment of prejudice and fairness in delayed claims. |
Applied in evaluating Defendants' prejudice arguments. |
| Manning v. Benson & Hedges [2004] 3 IR 556 |
Inherent jurisdiction to dismiss claims for risk of unfair trial due to delay. |
Referenced in relation to Defendants' delay arguments. |
| Cahill v. Irish Motor Traders' Association [1966] IR 430 |
Delay does not bar injunctions to enforce legal rights absent fraud or statute bar. |
Supported Plaintiff's position that delay alone does not bar relief. |
| Habib Bank Ltd v Habib Bank AG Zurich [1981] 2 ALL ER 650 |
Defence of laches available for injunctions but not for declaration of legal rights. |
Considered in assessment of Defendants' laches defence. |
Court's Reasoning and Analysis
The Court examined whether the Plaintiff was required to comply with section 12(1) of the Foreshore Act 1933 before seeking relief against the Defendants. It rejected the Defendants' argument that the Plaintiff was confined to such statutory relief, affirming that common law tort remedies of trespass and nuisance remain available to protect State owned foreshore.
Regarding possession of the breakwater, the Court found that although the Defendants did not construct the breakwater, they had exercised possession and control through maintenance, use, assertion of ownership in correspondence, and integration of the structure with their property. The Court relied on established case law concerning continuing trespass and adoption of nuisance to conclude that the Defendants are responsible for the breakwater's presence.
The Court addressed the Defendants' claim of prejudice due to delay by the Plaintiff. It acknowledged the delay but found it insufficient to bar relief, particularly given the extended statutory limitation period of sixty years applicable to State foreshore claims. The Court noted that the Defendants were able to present full evidence and that the prejudice to third parties did not justify denying relief to the Plaintiff.
On the issue of whether the breakwater should remain, the Court evaluated conflicting expert evidence. It preferred the Plaintiff's expert's opinion that the breakwater did not meet accepted engineering standards and posed a public access obstruction. The Court found the Defendants' proposed alternative of constructing a compliant revetment on their land feasible and less intrusive to public rights.
The Court concluded that the breakwater unlawfully restricts public access to the beach and that its removal is necessary to restore public rights and uphold the public interest in State owned foreshore.
Holding and Implications
The Court ordered the Defendants to remove the breakwater from the State foreshore at Blind Harbour and to restore the foreshore to its condition prior to the construction of the breakwater.
The Defendants will be afforded a reasonable period to carry out the removal, preferably during a season with reduced storm risk. The decision directly affects the parties by mandating removal of the unauthorised structure and restoration of the foreshore but does not establish new legal precedent. It affirms the State's authority to protect public rights in foreshore and clarifies that equitable and common law remedies are available alongside statutory provisions.