The High Court has quashed Roscommon County Council’s refusal to extend a planning permission after finding the council relied on an improper consideration. The court did not decide whether the house being built complied with the permission.
The judicial review concerned a permission granted in 1999 to Anne McDonagh for a house and associated works on land south of Carnadoe Bridge, in Lavagh townland, Rooskey, Co Roscommon. Michael McDowell and Niamh Brennan, who bought the site in June 2004, applied for a three-month extension in August, shortly before the permission was due to expire.
The council refused the extension in October, saying the dwelling under construction was significantly different from the approved development and did not have the benefit of planning permission. Its planner had concluded that the building’s floor level was lower than the approved level. The applicants’ architects had earlier told the council that a survey showed the site was steeper than indicated in the planning drawings and that the house was being built further into the slope.
The judgment records that the council asked the applicants for clarification and a copy of a site layout plan. After receiving the plan, it did not tell them it had concerns about compliance or invite them to address those concerns before deciding the extension application.
The court considered the scope of section 42 of the Planning and Development Act 2000. It held that the council’s task was to assess the matters specified in that section, including whether the permitted development had commenced, substantial works had been carried out and completion would occur within a reasonable time. The authority could not refuse an extension simply because it believed the work did not fully comply with the permission.
The judge said the development was the one contemplated by the permission, even if it might not be fully compliant. Whether it was compliant was not for the court to decide in this judicial review, which concerned the decision-making process. The judgment said that question could be determined in separate proceedings on the merits or under Part VIII of the 2000 Act; it noted that separate proceedings had, as the judge understood it, already been instituted.
The court found the council had misconstrued its role and acted outside its powers by relying on non-compliance as the reason for refusal. It quashed the refusal. The applicants’ other grounds, including an alleged denial of natural justice, were not considered. The judge said counsel would be heard on the terms of the order to be made.