An application for permission to retain an extension should be given “no forbearance”, Fingal County Council has argued, after a court heard the permission was sought more than five years after an enforcement order seeking its demolition was issued.
The council is seeking an order that Philip Farrelly demolish a two-storey extension at the rear of his Victorian home on Burrow Road in Sutton, Dublin.
Mr Farrelly, who is in his 70s, first received an enforcement notice in March, 2020, ordering him to remove a two-storey extension within four months. However, the structure remains in place, prompting the council to initiate legal action.
In 2019, the homeowner demolished a two-storey extension at the rear of his home and ultimately replaced it with a larger two-storey extension without planning permission.
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The Circuit Court heard on Monday that Mr Farrelly applied for permission to retain the structure within the past fortnight. He is seeking an adjournment until this is progressed.
However, the council’s barrister, Tim O’Sullivan BL, told Judge John O’Connor the time “has long since passed” for any forbearance to be given to the application, saying the homeowner initially said he would apply for such permission more than five years ago.
“There’s been plenty of time to lodge a retention application and there’s no reason Mr Farrelly couldn’t have done that from the get-go, from the first warning letter,” he said.
In an affidavit, Mr Farrelly maintained his belief that the extension “enjoyed the benefit of exemption” as the original extension was constructed before the Planning Act of 1964. He also argued that extending the size of the extension by less than 40sq m meant it was exempt.
Mr Farrelly said the original extension was replaced as the entire rear of the house was “structurally unsound and unsafe” and was in danger of falling, which the court heard would have been exempt should the end result be the same.
However, Mr O’Sullivan argued it was “abundantly clear” the new extension was not like-for-like. He said it was larger in size and was moved by one metre from its original location.
Mr O’Sullivan said he did not believe the issue was a “genuine mistake”. He told the court the original extension had a total floor area of 92sq m, while the current structure was 123sq m, adding that none of the original perimeter walls were rebuilt in the same location.
After receiving an enforcement order to remove the structure the council deemed unauthorised, Mr Farrelly responded by saying he believed he was in compliance with planning regulations “at all times”.
On foot of a subsequent complaint from neighbours, a council inspection in June, 2023, observed another single-storey extension had been constructed. This was to be the main entrance to the extension, the court heard.
In previous correspondence with the council, Mr Farrelly claimed he was subjected to a campaign of “intimidation and harassment from an individual neighbour”, further claiming that at one stage he was victim to a “tirade of abuse” after he commenced the development. He said the action taken by the council was prompted by this “campaign”.
The homeowner said he lives at the property with his wife, his son and his son’s fiancee, adding that one couple would become “homeless” should the court grant the order to demolish the development.
The court heard that a declaration from An Bord Pleanála in August, 2023, deemed the extension to be not exempt from planning permission. Mr O’Sullivan said this legally binding declaration puts the matter “beyond dispute”.
The hearing will continue on Tuesday, during which Mr Farrelly’s legal representation will put forward his argument.
