Roscommon County Council's refusal to extend the duration of planning permission for the proposed holiday home of the Minister for Justice, Mr McDowell, near Rooskey was "irrational", the High Court was told yesterday.
Mr Paul Gallagher SC argued that the council's insistence on the development conforming to the original grant of permission would result in the house being two metres higher in an area of scenic beauty, and this would impact on the surroundings.
The council contends that it refused to extend the planning permission because the house under construction was significantly different from that for which permission was granted. It argues it was not obliged to automatically grant the extension as Mr McDowell and his wife had not complied fully with the requirements of Section 42 of the planning Acts.
Mr Gallagher yesterday opened judicial review proceedings brought against the council by Mr McDowell and his wife, Prof Niamh Brennan, concerning planning difficulties relating to their nearly completed holiday home at Levagh, Rooskey. The case is being heard by the President of the High Court, Mr Justice Finnegan.
Mr McDowell, in an affidavit, said they were also taking separate proceedings against the council in which they claim damages for "significant financial loss and damage sustained by us as a result of these unlawful actions of the council as well as for the severe distress caused to us and to our family by those actions".
Mr McDowell said they had incurred expenses of €150,000 plus stamp duty, about €39,000 for a sub-contractor and about €390,000 for the builders, Griffner Coillte.
These liabilities were being financed by a mortgage on the family home. If they did not get the extension of planning permission they stood to lose substantial monies, together with the costs of demolition of the house.
In its statement of opposition to the judicial review, the council states "that at all material times it was unaware of any involvement on the part of the Minister". It had considered an application by "Mrs N. Brennan" c/o the consulting engineers, and not otherwise.
The council decided there were material differences between the planning permission and the dwelling being constructed which could not be ignored. The Minister's engineers were invited to submit an application for retention of the dwelling under construction.
Yesterday Mr Gallagher told Mr Justice Finnegan that the council decision would involve the building of a concrete plinth or support to raise the house higher on the site, and there was no such permission. He said the primary issue was whether it was ever legally permissible for the council to refuse an extension of a planning permission on the basis that a dwelling house, as constructed, was significantly different from that for which planning permission was given.
Of more particular importance was whether the council, in considering requirements under Section 42 of the Planning and Development Act, 2000, was entitled to form a view that there had been non-compliance in respect of the planning permission and then refuse permission on that basis.
He said Section 42 set out a number of specified matters to which a local authority must have regard in making its decision. If those requirements were met the authority had no discretion because the provision stated that the authority "shall extend the period".
The council had said it was not disputed that specified conditions had been satisfied. It argued it had an inherent jurisdiction under Section 42 to refuse an extension if there was deviation from the planning permission.
Mr Gallagher said there was also an issue as to whether the requirements of natural justice had been complied with. Mr McDowell and his wife claimed they applied in the normal way and in accordance with regulations for an extension, and nobody suggested there was any deviation from or non-compliance with the planning permission.
They found on October 5th that the council had purported to determine that Mr McDowell and his wife were in breach of the planning laws without any opportunity to make submissions or address the concerns which the council said they had.
The council was saying there was no requirement to comply with natural justice and that it was entitled to make a decision without any opportunity for Mr McDowell or his wife to be heard.
The dispute effectively concerned one condition of the planning permission - condition 11 - which provided that the development was, subject to conditions one to 10, carried out in accordance with the elevations and floor plan submitted on December 18th, 1999, and the site layout plan of July 12th, 1999.
The council argued that the dwelling was constructed at too low a level and that it should have been higher by from 2.2 to 2.6 metres. This was inconsistent with certain documentation when considering the planning permission which was granted.
It also appeared that the council decision resulted from a mistaken construction of a letter furnished by the engineer acting for Mr McDowell and his wife on June 21st this year.
In an affidavit, Mr John Cunningham, director of the council's services, said he had made the decision refusing an extension for the planning permission. It was a correct, reasonable and lawful decision.
The council also argued that it was not obliged to conduct any sort of adversarial hearing before deciding the matter. The report from Mr McDowell's engineers contained significant factual errors which did not accord with the documentation on the planning files, it said.
A council file contained a recommendation of a council senior planner that the developers of the site, by their own admission in a letter of June 2004, were constructing a dwelling which was significantly different than that for which permission was granted.
The hearing continues today.