The High Court refused an application to stop the use of a completed stormwater outfall in Kilkenny, finding that the works were covered by an unrevoked planning permission and that section 160 did not allow the court to grant the requested order blocking the system.
P.M. Cantwell Limited and GMB Construction Limited had sought orders against Paddy McCarthy, Tony McCarthy and McCarthy Brothers Building Contractors Limited under section 160 of the Planning and Development Act 2000. The application concerned a new drain running through several Kilkenny streets to an outfall at the Breagagh River, serving a housing development permitted under a separate planning reference.
The applicants argued that the drain works were unauthorised because the route was outside the red boundary on a map and, they said, beyond the scope of the permission. They also raised alleged failures to meet planning conditions, including a requirement that the outfall be built and tested before construction began on the housing site.
The respondents said the permission expressly covered the revised stormwater system and that drawings submitted with the application showed the drain route. They said the work complied with the permission and that the local authority had granted road-opening licences. The court also noted evidence that a local authority warning letter had alleged non-compliance with a planning condition, and a later solicitor’s letter said the authority was satisfied with the work.
The judgment, delivered by Mr Justice Roderick Murphy on 1 November 2005, records that the works were complete by the hearing in October and that the roads had been reinstated to the planning authority’s satisfaction. The applicants’ original requests to stop further works and restore the roads had therefore become largely moot. They sought instead to prevent use of the outfall by blocking its connection to the housing site. Although the motion had not formally been amended, the judge considered that request.
The court held that the permission remained in force and that the works and use were therefore not unauthorised for the purposes of section 160. Any challenge to the permission’s validity belonged in the separate judicial review proceedings, which were not before the court. The judge also concluded that the drain route’s omission from the red boundary did not invalidate the permission, given the submitted drawings and the planning authority’s decision not to require revised plans.
The court refused the relief sought. It said section 160 did not appear to empower it to restrict use of development in the way requested, and that blocking the outfall would cause a nuisance to the developers and surrounding area.