The High Court has dismissed a judicial review brought by two homeowners over Dublin City Council’s decision to grant retention permission for a development that included a disputed parking space in the Bushy Park Road area of Rathgar/Terenure.
In a judgment delivered on 12 June 2024, Mr Justice Humphreys held that the applicants had not exhausted available administrative remedies before asking the court to quash the council’s decision. The court did not determine the substantive legality of that decision or decide whether the developer had obtained the applicants’ consent to its planning application.
The development has eight dwellings. The original permission allowed 12 parking spaces, but 13 were built, with some spaces also laid out differently from the approved plans. The applicants bought a dwelling and two spaces under an agreement dated 13 August 2021. The judgment says their space was not authorised under the original permission and remained unauthorised after the retention decision.
The developer applied to the council for retention permission in September 2023, including for the additional space and changes to the site layout. The council granted permission subject to a condition requiring that only 12 spaces be provided and that space number 7 be omitted. The applicants said the decision was invalid because their consent had not been obtained and challenged the council’s handling of the application. The council argued that they had failed to participate in the planning process or use other available routes.
The applicants did not make a submission on the retention application, although the judgment records that a site notice had been erected and that they did not challenge its adequacy. After the council’s decision, they sought leave to appeal to An Bord Pleanála. The Board refused leave, finding that it had not been shown that the condition materially changed the permitted parking provision. The applicants did not seek judicial review of that refusal.
The judge said that, in the circumstances, available remedies included making a submission to the council, which could have preserved an appeal as of right; seeking retention permission for their own space; and, if there were grounds, challenging the Board’s refusal. He treated the failure to challenge the Board’s decision as a factor that did not assist the applicants, but said he was not relying on it alone. The decisive point was the failure to use available administrative procedures.
The proceedings were dismissed. The council was released from an undertaking to give advance notice of any intention to take enforcement action. Unless a party applied otherwise by written submission within 14 days, the order was to be perfected with no order as to costs.