The High Court has dismissed a challenge to planning permission for a café development at Cloan, Allihies, Co Cork, holding that An Bord Pleanála was not required to resolve a separate dispute over earlier works at the property.
Desmond Murphy, a neighbour, sought to quash the Board’s April 2001 decision granting Martin Hayes permission for a partial change of use of a house and the conversion and first-floor extension of a domestic store to create a ground and first-floor café.
Murphy argued that the proposed development incorporated earlier works which he said were unauthorised. He contended that the Board had misunderstood the legal status of those works and should not have granted permission without first resolving that issue.
Hayes disputed that position and maintained that the earlier works were exempted development. Circuit Court enforcement proceedings previously brought by Murphy against Martin and Jackie Hayes had been settled and struck out in October 2000, with no order determining whether the works were unauthorised.
Mr Justice Feeney found that Murphy had not established that the earlier extension was unlawful. He also held that, even if there were an existing unauthorised development, that would not automatically prevent An Bord Pleanála from granting permission for a separate proposed development.
The judge relied on the principle that planning permission does not, by itself, authorise a developer to carry out something otherwise unlawful. Any unresolved enforcement issue concerning earlier works remained a matter for the planning authority.
The Board was therefore entitled to consider whether the café proposal itself accorded with proper planning and development without deciding the status of the disputed earlier extension.
The court also found that the Board had been aware of the dispute and had not ignored a relevant consideration. Murphy failed on all grounds and his judicial review application was dismissed.