The High Court refused the applicants leave to seek judicial review of Kerry County Council enforcement notices concerning an unfinished housing development at Páirc Chumin, Clashnagrance, Kilcummin, near Killarney.
The notices, dated 22 October 2015, required the applicants to stop using the site for an insulation-related commercial business or similar use by 30 October, and to remove materials, machinery, containers and other specified items by 23 December. The court heard that the council had received concerns about an unauthorised change from residential to commercial use, including the placement of truck trailers or containers.
The applicants argued that enforcement was time-barred, that the complaint was vexatious, and that they had reduced the visual impact. They also challenged the notices on procedural grounds, including the omission of “Limited” from the name of one applicant company, an alleged lack of investigation and reasons, and alleged failures to record decisions in the council’s public register.
Justice Richard Humphreys held that the statutory “substantial grounds” test applied. He said a minor error in the company’s name did not provide grounds to quash the notice. The applicants had not produced evidence that the council failed to investigate or consider their submissions; the council had replied to their correspondence. The notices themselves set out reasons, and any shortcoming in recording details in a public register would not invalidate them, he found.
The judge said the time-limit argument concerned the merits of any enforcement action and was not a matter for judicial review. He rejected the claim that the planning complaint was vexatious, observing that citizens may bring suspected unauthorised development to a council’s attention. He also noted that the applicants had not asserted they had permission for the development and that the council contended no time limit applied to enforcement of a planning condition.
The judgment referred to an earlier judicial review application concerning an enforcement notice, which had been withdrawn in March 2015. The judge said relevant previous proceedings should be expressly disclosed in an ex parte application. He did not determine whether that earlier case concerned the same site, as he was refusing leave in any event.
The court refused leave, directed the applicants’ solicitors to serve the judgment on the council within seven days, and listed the matter further so the applicants could consider seeking leave to appeal. The judge also said that issues raised, or which could have been raised, in this judicial review could not be relied on in subsequent litigation, such as a prosecution under the planning legislation.