High Court orders couple to remove protective seawall breakwater that blocked public access to beach

A couple has been ordered by the High Court to remove a protective seawall breakwater which was mostly built on State foreshore and blocked public access along a beach.

High Court orders couple to remove protective seawall breakwater that blocked public access to beach

By Ann O'Loughlin

A couple has been ordered by the High Court to remove a protective seawall breakwater which was mostly built on State foreshore and blocked public access along a beach.

The breakwater was built in 1990 to protect a seafront house at Blind Harbour, Reen, Union Hall, in Co. Cork.

It was constructed by a previous owner of the property which French couple, Pierre and Catherine Damiens, bought in 2000 as a holiday home.

Ms Justice Mary Faherty ruled that, on the available evidence, reasonable and safe access to the beach for the public requires the removal of the breakwater.

The court heard Blind Harbour became the Damiens' permanent home in 2006 having two years earlier decided to build a seawater swimming pool to the front of the property, which is also protected by the breakwater.

In March 2006, the Department of Environment received a complaint about the swimming pool.

Following an inspection, it was found the breakwater was mainly constructed below the high water mark, or State foreshore, and any such structure requires a licence from the State. It was recommended that it should be removed as should the seawater pool which was partly built on State foreshore.

It was claimed by the Department that the breakwater blocked public access to the beach and was "an effort to privatise the foreshore." While it provided some form of protection to the Damiens' property, it was not properly designed, constructed, located or oriented and there were concerns about its effectiveness in the event of a significant storm, it was claimed.

The Damiens, through their expert, argued it had already withstood the test of time, now being in place for 28 years.

Any works carried out by them did not impede access to the beach and many people have used it without any complaints, their expert said. There had been incursions on their property to which they turned a blind eye and if people asked kindly they allowed them to pass in front of their house.

They had in fact maintained the foreshore over the years, including removing unsightly blocks of concrete left on the beach for a number of years, it was argued.

Although they had initially argued the breakwater and pool were within their boundary they later said they were "the unfortunate victims of history", Ms Justice Faherty noted in her decision.

They later accepted a portion of the breakwater was on State property. They said it was for the Department to decide how to deal with it but asked that the very exposed situation of their family home in bad weather be taken into account.

In relation to the seawater swimming pool, which had planning permission and which the court heard they financed with a €15,000 bank loan in 2006, they spent another €15,000 in 2014 on reconfiguring it so as to ensure it did not protrude into State property.

The court heard that when they bought the property, it was marketed in the auctioneer's brochure as having a "private pier" in reference to the breakwater.

The Damiens' expert also told the court he did not believe the beach to be of high amenity value and if the breakwater was not there, an existing rocky outcrop and rough terrain rendered it hazardous for people walking on the beach.

The Department's expert strongly disagreed.

Ms Justice Faherty said, having regard to a number of matters, including that the Damiens had asserted ownership of the breakwater, it would be neither unduly prejudicial nor oppressive to them if the breakwater was removed. She was satisfied to direct its removal and the restoration of the foreshore to its previous condition.

She was not satisfied the Department had made out a case in relation to nuisance but she was satisfied sufficient acts of possession by the Damiens in relation to the breakwater structure had been established in relation to a claim of continuing trespass.

She was not satisfied in relation to claims of delay by the Department in bringing proceedings.

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