By Tom Arden
The Supreme Court has ruled that William P. Keeling & Sons Limited can argue that a partially completed bungalow at Killeek Lane, Killeek, County Dublin, was exempt from the requirement for planning permission, despite having previously applied three times to retain the development.
Fingal County Council had sought an order requiring the company to demolish the bungalow and clear the site. The development had been carried out without prior planning permission. Its legality therefore depended on whether it qualified as exempted development under planning regulations.
The company based its exemption argument on the existence of an old disused cottage on the site. The Supreme Court expressly did not decide whether that argument was correct, as the issue had not yet been examined by the High Court.
Instead, the appeal concerned a preliminary legal question. The High Court had held that an earlier Supreme Court case, known as Tallaght Block, prevented the company from claiming exemption because it had already submitted unsuccessful retention applications.
Mr Justice Fennelly, delivering the Supreme Court judgment, examined the earlier case and found that its comments on estoppel were not binding precedent. Estoppel, in this context, would prevent a party from taking a legal position inconsistent with an earlier position in circumstances where the law recognises such a bar.
The court found that the relevant comments in Tallaght Block were unnecessary to the decision in that case and had not been supported by detailed legal analysis. They were therefore obiter dicta rather than part of the binding reasoning.
Fennelly J held that simply applying for retention permission could not, without more, deprive a landowner of the right to argue that planning permission had never been required. A person might apply through caution, mistake or to clarify a property's planning status.
The appeal was allowed. The question of whether the Killeek development was genuinely exempt remained to be determined separately.