Council cannot consider a woman’s candidacy for a detention permit for a house built on family land
The law prohibits Kerry County Council from considering a woman’s application for a retention permit for a house built on her family’s land five years ago without a building permit, the High Court found.
The house, known as “Sadie’s Lodge”, was built on land in Derreenamucklagh, Tahilla, owned by the family of Emer O’Sullivan.
Suaimhneas Ltd, a Jersey registered company operating to hold property in Ireland, objected when work began on the land in the spring of 2016, involving the demolition of a rental chalet / cottage and the construction of a house “Three times larger”.
Suaimhneas, who owns residential property on adjacent land, said the development is on land adjacent to the Kenmare River Special Area of Conservation, a European protected site, and should have been assessed appropriate (AA) under the Habitats Directive.
It took enforcement proceedings from the Circuit Court, but claimed development work had not been halted pending determination. A retention authorization was requested in the meantime by the promoter and was granted by the council in June 2017.
Suaimhneas successfully appealed the authorization to An Bord Pleanála (ABP).
Having noted that it could not rule out the possibility that the proposed development is not likely to have a significant effect on a European site, the Board of Directors decided in 2018 that it was prohibited from granting the authorization.
In October 2018, the Circuit Court issued orders to demolish the house and reclaim the land, but suspended those orders pending the council’s decision on a new application for leave to retain Ms O’Sullivan. .
In the High Court judicial review proceeding, Suaimhneas argued that the law precluded council from considering this 2019 claim. Her case was against council with Ms O’Sullivan as a party of notice.
In his recent judgment, Judge Simons said that due to various amendments to the Planning and Development (Amendment) Act 2010, necessary to comply with a judgment of the EU Court of Justice, a local planning authority is now barred from considering a request to retain an unauthorized development if, among other things, that development was carried out in violation of the requirements of the Habitats Directive, he said.
The directive requires that development projects likely to have a significant effect on designated conservation sites – European sites – must be subject to an AA, he noted.
The Town Planning Act prohibits granting a detention permit where an AA would have been required if an application for permission had been made for the “relevant development” before the start of that development, he said.
This case revolved around whether the board acted unlawfully in serving a request for additional information regarding the retention request, rather than rejecting the request outright.
The council was not entitled to take into account the “revised” proposals for the development, that a sewage treatment unit would be provided rather than using an existing septic tank, as indicated in the first planning application. valid from September 2016, he said.
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The term “relevant development” should be understood to refer to the development envisaged when the unauthorized development started in 2016, he said.
The board had to consider whether such a development would be likely to have a significant effect on a European site and it was misguided in law by not making such a decision, he said. He had indeed sought to filter the last iteration of the development rather than the “concerned development”.
The judge said, “even more worryingly”, that council had misunderstood the legal implications of the ABP’s earlier finding that council was precluded from considering the detention request.
In light of his findings, the judge said he is proposing to declare that the council does not have jurisdiction to rule or rule on the 2019 claim. He will make the orders final at a later date after hearing the parties.