The High Court has ordered a homeowner to take the steps required to withdraw a planning appeal that was holding up construction of a 48-apartment social and affordable housing development in Carrickmines, Dublin 18. The order is interlocutory: the court did not finally decide the contract dispute or grant summary judgment to the developer.
Cavernbell Limited sought a mandatory injunction against Padraig Walsh over an appeal he lodged after Dun Laoghaire Rathdown County Council notified the developer of a decision to grant retention permission for the development. The apartment block had been built about 4.9 metres from the position shown in its planning drawings, creating privacy concerns because balconies would overlook gardens at Blackberry Hill.
The parties, together with the housing body Respond, signed settlement terms on 18 August 2023. Those terms provided for opaque screens on specified balconies and said Walsh would withdraw his appeal “with immediate effect”. Walsh maintained that his obligation depended on registering the screens commitment as a burden on the property title. The Land Registry declined to register the settlement terms, saying they were not a registrable burden under section 69 of the Registration of Title Act 1964.
Cavernbell argued that the written settlement did not make withdrawal conditional on registration. It said the live appeal prevented work from resuming and could expose it to late completion charges of €4,800 a week, termination of its development agreement and rising construction costs. Walsh argued that the developer’s construction error had caused the delay and that registration was necessary to protect his privacy interests if the apartments changed hands.
Mr Justice Mícheál O’Higgins said the settlement appeared clear on its face and found that Cavernbell had a strong case likely to succeed at trial. He also found a real risk that the developer could suffer substantial losses if relief were refused, while describing Walsh’s concern about future buyers not being bound by the screens commitment as remote and not supported by evidence at this stage.
The judge acknowledged that the injunction required positive action and was close to final relief, which courts are generally slow to grant before trial. In the unusual circumstances, however, he concluded that the balance of justice favoured allowing construction to resume while the parties continued trying to resolve registration of the screens commitment.
The court granted the interlocutory relief sought but left the remaining proceedings, including any ancillary orders, for later. It did not decide the parties’ allegations about disclosure or whether Respond and Cavernbell were in dispute. The question of specific performance and any declaration requiring immediate withdrawal remains for the final hearing, if one is held; costs were also left for later consideration.