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Has Fingal County Council met its Jutland?

Shane Kennedy and his home, a former British naval minesweeper,
‘The Portisham’, prove resistant to legal battles

By Maeve Hosier

Unfortunately, Fingal County Council has recently decided to get nasty in its pursuit of Shane Kennedy’s maritime lifestyle on his ‘liveaboard’ or floating home, ‘The Portisham’. Kennedy who is a passionate sailor bought ‘The Portisham’ in the UK in 2007, and in 2010, he brought her to Balbriggan. ‘The Portisham’ is a 32-metre-long former British Royal Navy Minesweeper, and Kennedy, an electronics engineer by profession, has spent much of the last 11 years renovating this remarkable vessel. During that time, ‘The Portisham’ has provided a home for Shane, and for a while it was also home to his daughter Aisling, a talented environmental scientist.

The ‘fáilte’ Shane received from Fingal County Council upon arrival at Balbriggan was chilly. Almost immediately upon disembarking, he was greeted by a Fingal County Council official who informed him that ‘The Portisham’ was not welcome. This led to a lengthy struggle culminating in a Supreme Court victory for Kennedy in 2017 when he was deemed not to have violated s 160 of the Planning Act (PA) 2000 (unauthorised development) because Fingal County Council could not establish to the Supreme Court’s satisfaction that ‘The Portisham’ was located on the foreshore and, accordingly, that it was within the Council’s jurisdiction.

A lengthy struggle culminated in a Supreme Court victory for Kennedy in 2017 when he was deemed not to have violated the Planning Act 2000 [unauthorised development]. it couldn’t be proved that ‘The Portisham’ was located on the foreshore

Fingal County Council is of course aware, that because ‘The Portisham’ is Shane’s home, he enjoys certain protections both constitutionally and under international law. In accordance with Article 40.5 of the Constitution of Ireland, the dwelling of every citizen is inviolable. Article 7 of the Charter of Fundamental Rights of the EU provides that everyone has the right to respect for his private and family life. Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for his private and family life, his home and correspondence. It is established law that any decision of Fingal County Council which directly impacts upon Shane’s rights to a home, or upon his private or family life must meet the requirement of proportionality. This means that any Council decision must be taken in order to meet a legitimate aim, and furthermore the decision must represent a proportionate method of achieving that aim. Whereas Fingal County Council may argue that it has pursued the legitimate aim of upholding planning law, given that planning law does not apply to ‘The Portisham’ at its current location, the Council’s decision to prosecute Shane under s 160 cannot be deemed to be a proportionate means of meeting that aim.

The proportionality requirement must also be met by any court decision which affects Shane’s rights to his home, or his private and family life. However, to date, the courts have paid little attention to Kennedy’s rights, and have lined up squarely behind Fingal County Council in its efforts to harass him into leaving Balbriggan before he’s ready to do so. The
decision of the High Court in 2013 to order the destruction of ‘The Portisham’ was a particularly low moment for Kennedy. It’s difficult to see how the seizure and destruction of Shane’s home – which happens to be a vessel of considerable international historic interest – could be anything other than downright irrational and unreasonable. It’s hardly surprising that the

Supreme Court found in Kennedy’s favour, as to rule otherwise would have had the effect of applying planning law to liveaboards generally, and also to vessels in the vicinity of the foreshore for repair, maintenance or other reasons, whereas currently the latter are subject only to Maritime Law.

The stress of dealing with Fingal County Council for 10 years has taken its toll on Shane; however he remains determined to complete his refurbishment work on ‘The Portisham’, and to fulfil his dream of putting her to sea once more.

Unfortunately, notwithstanding the considerable sum of public money which has been wasted to date in pursuing the s 160 prosecution, Fingal County Council recently decided to commence further proceedings against Shane, this time under s 153 PA 2000 (failure to comply with a s 152 order which was served on Shane almost 7 years beyond the statutory time limit).
However, these latest proceedings are destined to fail for precisely the same reasons as the previous s 160 prosecution attempt: Fingal County Council does not have jurisdiction over the sea, and any such proceedings also fail to meet the proportionality requirement.

Kennedy knows the onshore sea-faring life is not for the faint-hearted. In June a barge owner lost his Supreme Court bid from preventing Waterways Ireland disposing of his boat.

‘The Portisham’ may never have seen active service when it was with the Royal Navy, but under Shane’s watch, she has already seen off one attempt by Fingal County Council to destroy her, and Shane’s in no mind to abandon his ship just yet…