The High Court has refused a solicitor’s application to overturn An Bord Pleanála’s refusal of permission for permanent residential use of his house at Ballylickey, near Bantry.
The Board refused retention permission in October 2017 after finding that the house relied on an off-site wastewater treatment system, and that the applicant had not demonstrated sufficient rights to operate, maintain or take corrective action on it. The court held that the Board’s decision was rational and within its jurisdiction.
The house had originally been permitted in 2000 as a caretaker’s residence serving a hostel on adjoining land. The applicant later became its sole owner, while the hostel property and treatment plant were sold to CPFM Limited in 2016. Cork County Council granted permission in March 2017 for the house to be used permanently. CPFM appealed, arguing that the applicant’s easement covered a sewer pipe and its connection to the treatment plant, but not access to maintain the plant itself.
The court noted that the applicant was given an opportunity to respond to CPFM’s appeal but made no submission within the statutory period. Submissions he later attempted to make were returned as out of time. The judgment said he had not put before the Board his arguments that implied or ancillary legal rights entitled him to inspect and maintain the plant. The court held that he could not use judicial review to introduce arguments he could have made during the appeal.
The Board’s inspector reported that the treatment plant was outside the house’s site boundary and appeared inoperable. The judgment also records that the plant was not being maintained and was not connected to a functioning electricity supply. Although the original permissions included conditions requiring connection to, and ongoing maintenance of, the plant, the court agreed the Board had to assess the circumstances on the ground.
The applicant argued that the Board should have sought further submissions about his rights or granted permission while leaving any dispute over access to civil proceedings. The court rejected both arguments. It said the Board had not purported to decide the applicant’s legal rights; it had assessed whether he demonstrated sufficient control to ensure the plant’s availability. The court also considered it inappropriate to allow permanent occupation first when a suitable wastewater solution had not been established.
The court refused the judicial review application. It added that a future application for independent residential use was likely to succeed if the applicant demonstrated access to and control over the treatment plant.