High Court of Ireland Decisions

1. From the Affidavits filed in this matter it appears that the fifth named Respondent applied for and on the 14th of April 1999 obtained planning permission for a residential development consisting of twenty-six dwellings in six blocks at Castle Point, Camden Road, Crosshaven in the County of Cork. The fourth named Respondent is an architect and was also a director of the fifth named Respondent and on whose behalf he made the application for planning permission. It is now clear as a result of his filing an Affidavit sworn on the 26th of March 2001 that the fourth named Respondent was not involved in the carrying out of works pursuant to the planning permission although he did act for a time after 15th of October 1999 as architect to the first named Respondent which in fact carried out the works. He disposed of the issued share capital in the fifth named Respondent to the second named and third named Respondents pursuant to an agreement in writing dated the 15th of October 1999. The fifth named Respondent holds title to the lands in question. The second named and third named Respondents are now and at all times relevant to the development have been directors of the fifth named Respondent.

2. The planning permission is subject to twenty conditions the following of which are relevant:-

3. All the matters mentioned at (ii) to (v) above represent deviations from the plans lodged with the application for planning permission.

4. As to condition 6 while various drawings have been submitted to the Applicant I am not satisfied that the condition has been complied with. In this regard I have noted drawings lodged with the Applicant in September and December 1999. The latter was a contour map described as general levels and did not give pre-development levels in relation to the levels of the development either as proposed or constructed. As to the meaning of “submit” in this condition I find that in this context it means merely to lodge and not to lodge for approval or agreement. Where the Applicant sought to have matters approved or agreed pursuant to a condition as in conditions 2,4,5,11,17 and 18 of the planning permission it clearly said so. In any event insofar as the planning permission is ambiguous it should be construed contra proferentem i.e. against the Applicant. In order to comply with condition 6 at this time elevations must be submitted showing for each of the six blocks:-

5. In each case they should be to Mallon Head datum. I will require an undertaking from the first named and fifth named Respondents to comply with the condition in the manner I have indicated within the period of four weeks.

6. The windows at third floor level have as agreed prior to the institution of these proceedings now been removed there is now no non-compliance in this regard.

7. The first named, second named, third named and fifth named Respondents sought to justify the construction of the utility rooms as exempt development relying on the Local Government (Planning and Development) Regulations 1994, Schedule 2, part 1, class 2 which provides as exempt:-

8. The provision, as part of a central heating system of a dwelling house, of a chimney, boiler house or oil storage tank.

9. While the structure houses the central heating boiler it is advertised in the sales literature for the development as a utility room. It measures 2.15m by 1.66m and is slightly in excess of what is required for the specified oil or gas central heating. It is however small - approximately 7ft by 3ft 9”: it is below ground level. In terms of its construction it is of minimal extent. It is I find exempt development within class 2. The Applicant in relation to this however relies on the Local Government (Planning and Development) Regulations 1994 Regulation 10 (1)(viii) which provides that development otherwise exempt should not be exempt if the carrying out of such development -

10. I accept that if the development because of the matters relied upon by the Applicant is unauthorised then the alteration of the area of which complaint is made is not exempt by reason of this provision. However in all the circumstances I regard these as works of a very minor significance in the context of the overall development and not material.

11. As to the footprint of the development it is clear that there has been a deviation from the plans. As I understand the position the Applicant does not by reason of this require the now completed development to be demolished. I take it therefor that the experienced planners in the Applicant’s employ regard the deviation as immaterial in the sense that term is used within the planning code. I propose in deference to the Applicants expertise and specialist knowledge to regard this deviation as immaterial.

12. The major problem relates to the ridge height of block 5 as constructed which deviates from the plans lodged. There is a dispute as to the extent to which the as constructed height exceeds that shown on the plans lodged with the application. The plans lodged with the application contained an error in that the levels shown on elevations for Camden Road were transposed so that the fall of the road was shown as being from west to east whereas it is in fact from east to west. Upon the basis of these levels the excess in height is very great indeed - some 2.894m on the Applicant’s calculation. This is not disputed by the Respondents. Such a deviation would be very material in terms of the impact on the view enjoyed by residents on the south side of Camden Row prior to the development being carried out. The actual excess height as scaled on the elevation Respondents’ on the calculation is 1.34m. This is not disputed by the Applicant. The first named, second named, third named and fifth named Respondents respond to the Applicant’s complaint as follows. If one scales the elevations lodged and ignored the levels given thereon for Camden Road the height above Camden Road of the ridge of block 5 is 2.9m: as constructed the height above Camden Road is 3.4m - as constructed block 5 is .5m higher than shown on the approved plans. Thus the excess height of block 5 as constructed is either -

13. I propose accepting that the relevant deviation is that at (c) namely .5m. I do this on the basis that a non-technical person concerned about the application and inspecting the same would be guided by the relevant heights of the ridge and Camden Road as thereon shown: if still concerned they would go further and scale the elevations. The absence of a level for the ridge on the elevation confused matters somewhat but save insofar as condition 6 is concerned the Applicant did not seek clarification prior to granting planning permission. The confusion is compounded by the legend on the elevations which reads as follows:-

14. The Respondents in view of this are entitled to some latitude in relation to levels. Accepting the calculation of the first named, second named, third named and fifth named Respondents of a .5m excess height and having regard to a ground level to ridge height of 11.55m the deviation is of some 7% in one block of the six constructed. I hold with some reluctance that this is immaterial in the context of the entire development of six blocks. In reaching this decision I am influenced by the photographs exhibited on the application. Careful consideration of these satisfies me that to reduce the ridge height of block 6 even by 1.3m would not materially alter the effect of the development in terms of visual impact, on the locality in general or the occupiers of houses on the south side of Camden Road in particular.

15. I must now look at the overall effect of deviations from the approved plans and in particular the altered footprint and the increased ridge height and determine whether the combined effect of the same is that there is a material non-compliance with the planning permission notwithstanding that each of the deviations on their own does not amount to a material non-compliance with some dissidence I hold that there is not a material non-compliance.

16. The fourth named and fifth named Respondents by lodging inaccurate plans were the authors of this problem. The problem was compounded by the first named, second named, third named and fifth named Respondents who defaulted in complying with condition 6 of the planning permission: prompt compliance before commencement of the development within the spirit of the condition - it refers to proposed ground level thereby signifying pre-development compliance - would have brought the problem to light and avoided all controversy. Further the cocktail of deviations from the planning permission exhibited a cavalier disregard for the planning process which justifiably caused the Applicant unease and in the air of general uncertainty which surrounded the position as to compliance with the planning permission justified the institution of these proceedings.

17. In summary then the Respondent, subject only to the direction which I have given in relation to condition 6 to the planning permission, is not carrying out the development other than in compliance with the planning permission. The non-compliance with condition 6 can be remedied in the manner in which I have indicated.