The President of the High Court has issued an order for the demolition of the wooden chalet home of a family in Blessington, Co Wicklow.
The home was held to have been built in "gross" breach of planning laws.
Mr Justice Nicholas Kearns' judgment strongly disagrees with findings of another High Court judge in a 2013 judgment.
The other judge in 2013 refused the demolition of a different wooden chalet home near Lough Dan in Co Wicklow.
Yesterday's order permits demolition of the home at Tinode, Blessington.
The home on the N81 road between Tallaght and Blessington, belongs to Gary Kinsella, his partner and their young child.
The home is to be demolished at a date to be agreed.
If the sides cannot agree, the judge will fix a date for demolition later.
Mr Kinsella had told the court he had no alternative housing for his family and after a failed effort to sell the lands, had "no option" but to build there.
He did not accept traffic hazards existed as the Council alleged.
In his decision, Mr Justice Kearns said planning control is "an essential environmental necessity in a properly ordered society" without which there would be nothing to stop "a free for all development culture from running riot".
He said: "There would be levels of "absurdity" if property rights of a person acting unlawfully were in every instance to be permitted trump those of a democratic society.W
An "extreme" example was a person might create overnight a structure outside Dublin's GPO with sleeping and cooking facilities and then claim it was "inviolable" due to the constitutional protection afforded to the family home.
While the courts can take many considerations into account in enforcement applications, including personal circumstances, the "bottom line" was Section 160 of the Planning and Development Act 2000 (which permits demolition of unauthorised structures) was intended to provide an "effective tool" in planning enforcement.
When a development is not build bona fide, the court's discretion was necessarily limited, he said.
Mr Justice Kearns said he had difficulties with the June 2013 decision of Mr Justice Gerard Hogan in the case of Wicklow County Council v Fortune.
In that case the Council argued rendered "ineffective" the enforcement procedures, including demolition, of Section 160 of the Planning and Development Act 2000.
Mr Justice Hogan appeared to have reviewed the planning assessment of the Council, the statutory planning authority, when various legal decisions said such a review was not within the courts' remit, he said.
Mr Justice Hogan's decision also went against case law to the effect a person's conduct is a compelling factor to be taken into account when a court is exercising discretion.
The Council had expressed serious concern about the "far reaching consequences" of the Fortune decision where Mr Justice Hogan refused to order demolition of an unauthorised wooden chalet home built by Katie Fortune in a scenic area near Lough Dan.
Mr Justice Hogan refused demolition on grounds including protection of property rights and inviolability of a dwelling under Article 40.5 of the Constitution.
While the chalet was not built bona fide, the Council had failed to show the retention of the dwelling was manifestly at odds with important public policy objectives, he ruled.
Mr Justice Kearns said the Council believed the Fortune decision created "carte blanche" for individuals to build family homes where and how they want with "perceived immunity" from demolition due to the constitutional protection of the home.
The Council was also particularly concerned the Fortune decision was made on a Circuit Court appeal which cannot be further appealed.
Without wishing to offend Mr Justice Hogan, "perhaps the outstanding constitutional legal expert of this generation", Mr Justice Kearns said a Circuit Court appeal, because it cannot be appealed further, is not an appropriate forum to lay down "novel legal principles" which may have far-reaching effect and consequences such as in the Fortune case.
It was "beyond the court's comprehension" how some "free-standing" application of Article 40.5 could be applied to reward the Kinsellas or Ms Fortune when both developments were not bona fide, particularly having regard to the "huge public and community interest in protecting the environment and the integrity and efficacy of planning law enforcement".
The Council raised its concerns about the implications of the Fortune decision in proceedings against siblings Gregory and Gillian Kinsella over construction by Mr Kinsella of the wooden chalet on lands bought by the siblings in 2003 which front onto the N81 road.
When the council issued a warning letter about that structure in September 2012, Mr Kinsella said he was unaware he needed permission as there was a structure on the site previously and would seek retention permission.
He failed to do so within the eight weeks stipulated.
An enforcement notice issued and, after an April 2013 inspection found the chalet was occupied, the Council initiated proceedings for removal of the unauthorised development.
Shortly before the High Court return date of November 2013, an application for retention permission was made but was refused.
Mr Justice Kearns said full enforcement of Section 160 was appropriate and proportionate in this case where the development was "unauthorised and deliberate".
Mr Kinsella built and completed the dwelling and occupied it without any planning permission and in full knowledge the Council regarded it as unauthorised and illegal, he said.
Traffic hazards from the proximity of the chalet to the busy N81 road were identified as the reason for refusal of retention permission and there was no realistic prospect that hazard would abate in the short term, he said.
Any protection for a dwelling under Article 40.5 "may be modified by law in a proportionate way and may sometimes yield to competing rights and also to duties owed to the citizen", the judge said. "Article 40.5 does not confer on any citizen a right to establish a dwelling of his choosing at the place of his choosing."
The Planning Act modifies property and other rights which might otherwise be enjoyed to establish dwellings in the interests of proper planning control by removing the right to establish or alter dwellings except in accordance with planning permission, he said.
