Court dismisses case over council's refusal to extend planning for homes in Dalkey

High Court reporters

The High Court has not found any legal flaw in a decision to refuse to extend planning permission for the construction of 15 homes on a site in Dalkey, Co Dublin, on which a developer has so far carried out some €1.125 million worth of work.

Mr Justice David Holland dismissed a request by developer Grassridge Limited to overturn Dún Laoghaire-Rathdown County Council’s refusal to extend planning permission granted in 2018 and valid for six years.

He said his decision to dismiss was “not without appreciable sympathy” for Grassridge’s position.

Grassridge wanted a two-year planning permission extension and claimed the pandemic and high construction tenders had delayed it in commencing work on the site of a former nursing home on Ardbrugh Road.

Work began in April this year – five months before the permission’s expiry – with site preparation, levelling and demolition of the nursing home costing some €1.125 million, Grassridge said.

The council said it was obliged to refuse Grassridge’s extension application as it was not satisfied “substantial works” had yet been carried out.

In its High Court challenge, the company alleged the council misinterpreted the meaning of “substantial works”.

Mr Justice Holland rejected this ground after concluding that the phrase is a “relative” rather than an “absolute” concept. He noted the council interpreted the phrase as connoting a “substantial proportion” of the overall works.

Noting the work done is in excess of €1 million, the judge said he did not find or rule out that the council could have found that the work was substantial. He accepted there is a “strong case” for arguing the work is substantial.

However, this was a matter for the council, rather than the court, to decide.

Once a council determined work was not substantial, it has no discretion to refrain from refusing an extension, he said.

Grassridge also claimed the extension refusal was disproportionate as the council knew about the expiry date when it accepted significant sums and a notice of intention to begin building last April. The developer said it has been put to significant expense and inconvenience.

The council denied disproportionality and submitted that its acceptance of the developer’s commencement notice falls under Building Control Regulations, which are entirely separate from the planning code.

Mr Justice Holland dismissed the claims, finding there was no lack of fair procedures or proportionality. He said there is no legal basis for asserting that acceptance of a building commencement notice requires an assessment of whether the relevant planning permission has enough time left on it to enable completion of substantial work.

The judge dismissed Grassridge’s other complaints, including alleging the decision contained legal and factual errors.