Kerry County Council is precluded by law from considering a woman's bid for retention permission for a house built on her family’s lands five years ago without planning permission, the High Court has found.
The house, known as “Sadie’s Lodge”, was built on lands at 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 lands in Spring 2016, involving demolition of a rental chalet/cottage and construction of a house “three times larger”.
Suaimhneas, which owns a residential property on adjoining lands, claimed the development was on lands immediately adjoining the Kenmare River Special Area of Conservation, a protected European site, and should have been subject to an Appropriate Assessment (AA) under the Habitats Directive.
It took Circuit Court enforcement proceedings but claimed development works were not halted pending determination of those. Retention permission was sought in the interim by the developer and was granted by the council in June 2017.
Suaimhneas successfully appealed the permission to An Bord Pleanála (ABP).
Having found it could not screen out the possibility the proposed development would not be likely to have a significant effect on a European site, the board ruled in 2018 it was precluded from granting permission.
In October 2018, the Circuit Court made orders for demolition of the house and reinstatement of the lands but put a stay on those orders pending the council’s decision on a further application by Ms O’Sullivan for retention permission.
In High Court judicial review proceedings, Suaimhneas argued the council was precluded by law from considering that 2019 application. Its case was against the council with Ms O’Sullivan as a notice party.
In his recent judgment, Mr Justice Simons said, due to various amendments of the Planning and Development (Amendment) Act 2010, necessary to comply with a judgment of the Court of Justice of the EU, a local planning authority is now precluded from considering an application to retain unauthorised development if, inter alia, that development was carried out in breach of 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.
Planning law precludes granting retention permission where an AA would have been required if an application for permission was made for the “development concerned” before that development was commenced, he said.
This case centred on whether the council acted unlawfully in serving a request for further information in respect of the retention application, rather than rejecting the application outright.
The council was not entitled to have regard to “revised” proposals for the development, that a waste water treatment unit would be provided rather than utilising an existing septic tank, as set out in the first valid planning application of September 2016, he held.
The term “development concerned” should be understood as referring to the development envisaged when the unauthorised development commenced in 2016, he said.
The council had to ask itself whether such a development would be likely to have a significant effect on a European site and it misdirected itself in law in failing to make such a decision, he said. It had, in effect, sought to screen the latest iteration of the development rather than the “development concerned”.
The judge said, “even more worryingly”, the council had misunderstood the legal implications of ABP’s earlier finding that the council was precluded from considering the retention application.
Given his findings, the judge said he proposed to declare the council has no jurisdiction to adjudicate upon, or determine, the 2019 application. He will make final orders on a later date after hearing the parties.