The High Court has ruled that an exemption from disability-access requirements in building regulations must be assessed for each dwelling individually, rather than by the total work completed under a planning permission. It answered an agreed legal question in a dispute between two developers and the Minister for Environment, Heritage and Local Government.
The case concerned an 1,520-dwelling development planned on former James Connolly Memorial Hospital lands at Blanchardstown, Dublin 15. An Bord Pleanála granted permission in December 1999 for the development to be built in 18 clusters over ten years. By the time of the dispute, 888 homes had been built in ten clusters, leaving clusters 11 to 18 outstanding.
The Building Regulations (Amendment) Regulations 2000 generally applied Part M, on access for people with disabilities, to works on dwellings that began on or after 1 January 2001. An exemption covered certain dwellings subject to a planning application made by 31 December 2000, provided substantial work had been completed by 31 December 2003.
The developers argued that work across the development under the 1999 permission brought the remaining homes within the exemption. The Minister’s department took the view that homes not substantially complete by the deadline had to comply with Part M. A department letter in February 2004 told the developers that dwellings not substantially complete by 31 December 2003 must meet the requirements.
The parties agreed two issues arose, but asked the court to decide only the first: whether “substantial work has been completed” referred to work on individual dwellings or work carried out under the planning permission as a whole.
Mr Justice Kelly held that the regulations’ definition of “works” tied the exemption to construction work on a building. The relevant measure was therefore work on each individual dwelling, not the amount completed across the permitted development. He said his decision was based on the 2000 regulations and the statutory definition of “works”; he did not rely on a definition introduced by 2002 regulations that the department had cited in correspondence.
The court answered the agreed question in those terms and concluded that dwellings in clusters 11 to 18 must comply with Part M. The judgment addressed the first of the two issues identified by the parties; it does not record a determination of the second issue.