The High Court has allowed a judicial review challenge to Kerry County Council’s handling of a retention planning application, finding that the council used the wrong legal screening process and lacked jurisdiction to decide the application. The precise form of the order, including whether to set aside the council’s request for further information, remained for further submissions.
The case concerned unauthorised works carried out in April 2016 on lands adjoining the Kenmare River Special Area of Conservation. The works included demolishing a chalet or cottage and building a much larger dwelling. No planning permission had been sought. A Circuit Court order in October 2018 directed the developer, among other things, to demolish the unauthorised structure and reinstate the former cottage.
A 2016 retention application was refused on appeal by An Bord Pleanála. The Board said it could not rule out likely significant effects on the protected site and was therefore precluded from granting permission. A 2019 application proposed a wastewater polishing filter at a different location and included a screening report seeking to rule out the need for an appropriate assessment.
Kerry County Council sought further information about the proposed treatment system. Suaimhneas Ltd, which brought the judicial review, argued that the earlier Board decision meant the council could not consider the new retention application and should return it. The council’s position, as described in the judgment, was that the 2019 proposal differed from the earlier one and that its screening process was not complete.
Justice Garrett Simons held that the statutory test required the council to consider the development as envisaged when the unauthorised works began—not later revisions submitted to secure retention permission. At that time, wastewater was to be managed using the existing septic tank. The judge said the Board had already found that even a later proposal for a treatment unit did not remove the need for an appropriate assessment.
The judge rejected the council’s argument that the judicial review was premature, citing the council’s legal errors, the jurisdictional nature of the objection and the burden of continuing to engage with an application the council had no authority to determine. He did not decide the separate challenge to the council’s refusal to consider a solicitor’s submission lodged on 25 July 2019.
The judicial review was allowed. The judge’s provisional view was that the appropriate order would declare that the council had no jurisdiction to determine the 2019 application and set aside its 12 August 2019 request for further information. He directed that counsel be heard further on the precise order and costs, with the case listed for 16 July 2021.