The High Court has ordered that a farmer in Co. Wexford remove a milking parlour constructed without planning permission by September 19, 2024.
Patrick Furlong has also been ordered to cease the use and operation of the milk parlour on his lands at Gurteen, Templeshambo by July 21.
Justice Garrett Simons said that an earlier date had not been specified “in the interests of animal welfare”.
He said that this will “allow time for the dairy herd to be removed from the lands to a different farm which has a lawful facility for milking”.
Milking parlour
Patrick Furlong’s overall lands at Gurteen comprise an existing farmyard on around 1.2ac and an adjoining dairy farm on 24.7ac.
The unauthorised development includes a milking parlour; machinery storage; slatted cubicles; a cattle shed with slatted tank and an extension to a previously constructed slatted tank to provide for external agitation point.
The farmer also constructed underground tanks for slurry storage; an underground tank for parlour washings; entrance gates and walls.
Furlong conceded that he commenced building the milking parlour, and associated works, on his lands without planning permission in or around June 2020.
The High Court was told that the lands had previously been used for dry stock farming.
Justice Simons noted that the structures subject to the proceedings measure 916.8 square metres (m2), while they also breach the 100m separation distance prescribed for third party houses.
Planning
In 2020, Wexford County Council served a warning letter on Furlong, which was followed by an enforcement notice.
The farmer then made the first of three applications for retention planning permission in March 2021.
The council refused the initial application stating that it had not been shown that there is sufficient effluent storage capacity available on site.
It added that it was unclear if the development would comply with the EU Nitrates Directive, and therefore “may present a public health hazard”.
Stephen McCann, a neighbour of Patrick Furlong, appealed this ruling to An Bord Pleanála as he believed there were were additional reasons for refusal, over and above those which had been stated by the planning authority.
This appeal was later withdrawn in July 2021 by McCann as Furlong did not bring an appeal himself.
The second application for retention planning permission was made in September 2021, which was refused on similar grounds, along with an additional reason relating to environmental concerns.
Furlong did not seek to appeal this decision to An Bord Pleanála and instead made a third application for retention planning permission in January 2023.
The council rejected the application as invalid, as it considered that the proposed development would have triggered the requirement an appropriate assessment for the purposes of the EU Habitats Directive.
Furlong filed an appeal to the High Court against the judgment and order of the circuit court in May 2023. However, the application for leave to apply for judicial review has not yet been moved.
Stephen McCann, whose family home is immediately adjacent to the unauthorised development, initiated enforcement proceedings before the circuit court in July 2021.
In April 2023, the circuit court ordered the cessation of the unauthorised development and the restoration of the land. A stay of twelve months was placed on the order.
Furlong then appealed this decision to the High Court which was dismissed by Justice Garrett Simons this week.
The judge rejected a request from Furlong for a further period of time to allow him apply for “substitute consent” from An Bord Pleanála in the hope of being allowed to retain the unauthorised development.
“The respondent [Furlong] is, in effect, asking for time to be allowed to make what will be a fourth attempt to obtain a form of retrospective development consent. With respect, no developer is entitled to this level of indulgence,” Justice Simons said.
High Court
In his judgement, Justice Simons said that the fact of the matter is that Furlong engaged in “large scale unauthorised development”.
He said that the farmer had been shown “remarkable indulgence” and was allowed time to make three applications for planning retention.
The judge said that the public interest in upholding the integrity of the planning and development system demands that flagrant breaches of the planning legislation not be allowed to continue unrestrained for years after enforcement proceedings have been instituted.
“This is a clear-cut case of unauthorised development and orders should be made requiring the cessation of the use of the unauthorised structures, and the reinstatement of the lands,” he said.
Justice Simons noted that the enforcement orders will have “negative financial implications” for Furlong, but added that this cannot be a reason to defer making the orders.
The judge said this is “the inevitable consequence” of Furlong’s “own failure to comply with the planning legislation and his reckless decision to press on with the unauthorised development in the teeth of the warning letter from the planning authority”.