An application by Kerry County Council for an order to demolish a half-built house, which has been refused planning permission on an elevated site on the Ring of Kerry, was adjourned at the Circuit Court in Killarney yesterday.
Judge Seán O'Leary said he would have Mr James Wharton's building at Templenoe, four miles from Kenmare, "taken down" in March if county councillors voted against a Section 140 motion to retain it.
"Have absolutely no doubt about it, if they reject it, I will make an order to have it taken down," Judge O'Leary said.
Councillors had attempted to move a Section 140 motion directing the county manager to grant permission for the building, but withdrew after being informed by officials that such a motion would prejudice the council's legal proceedings, which were already in train, and leave councillors open to being surcharged.
Judge O'Leary said it was up to the members to decide whether they wanted to exercise their right to move a Section 140.
"I'm not saying it's either a good idea or a bad idea. But I am not going to get in the way of the exercise of councillors' rights."
Enforcement notices and warning notices had been served on Mr Wharton. His application for planning permission had been refused by both Kerry County Council and An Bord Pleanála four times in all, said Ms Elizabeth Murphy, barrister for Kerry County Council.
Mr Joe Revington, barrister for Mr Wharton, said that the council was "using a bulldozer to crack a nut". Mr Wharton had started building his house after he received a favourable report from a Bord Pleanála inspector in the autumn of 2000. Mr Revington now wanted the council to enter talks with his client.
Despite the inspector's report, the planning appeals board turned down Mr Wharton's appeal. It upheld the council's refusal on the grounds that it would lead to development of the back lands and lead to "serious scarring" of the scenic rural landscape.
Outside the court, Mr Paudie O'Mahony, engineer for Mr Wharton, said they wanted the house retained on human grounds. They had now applied for retention to the council.
He said that Mr Wharton (24) was a Kerry hurler. He and his fiancée, Ms Susan Lynch, had a two-year-old child. He also owned a chip-shop in Kenmare and employed four people. The family was renting a one-bedroom apartment in Kenmare while the building was stopped.
He said Mr Wharton was building on the family farm, which had been transferred to him. The site, though elevated, was fully screened. An alternative site suggested by the council was not suitable. Around €60,000 had already been spent on the €180,000 house.