The owners of a house in Rathgar, Dublin, stood “majestically aloof” from a planning process that declared as unauthorised one of the two car-parking spaces provided as part of the €1.64 million purchase of their dwelling, a High Court judge said.
Mr Justice Richard Humphreys said Bronagh Hughes and Andrew Sinclair, three years after the purchase of the property on Bushy Park Road in 2021, “ended up in a painful legal tangle over a parking space”. While it would “activate the sympathy of a court”, it did not relieve them from choosing the correct legal route to resolve the problem, he said when dismissing their case.
He said they had failed, among other things, to properly investigate the planning nonconformity of property they purchased and did not engage a surveyor or otherwise check the planning permission as against what had been completed on the ground.
They brought judicial review proceedings against Dublin City Council seeking an order quashing a decision requiring that permission for the eight-unit development, which their house is part of, meant their second car space did not have planning permission.
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There was only permission granted for 12 spaces for the development built on the former site of number 59 Bushy Park Road by Red Rock BPRKH Ltd, which built 13 spaces.
The developer then submitted a retention application for the 13th space to the city council but this was refused. It was the space bought by Mr Hughes and Ms Sinclair which was affected by that decision.
They then sought to appeal that decision to An Bord Pleanála but the board ruled it could not deal with such an appeal because the council’s decision did not differ materially from the original permission granted for the development.
They did not challenge the board’s decision but brought High Court proceedings seeking to challenge the city council’s decision.
They claimed, among other things, that decision was irrational and was invalid because the developer did not have their consent when he applied for retention as it affected land owned by them.
The city council opposed the action claiming, among other things, that they had failed to exhaust the available appeal procedures and/or other administrative remedies which were available to them before coming to court.
Dismissing their case, Mr Justice Humphreys said their failure to participate in the process had been compounded by the further failure to challenge the board’s refusal of leave to appeal. The council was correct in saying there were at least four other remedies available to them, he said.
Insofar as they said they had not participated in the process, including in the developer’s application for retention, because their consent had not been sought, “that is a dog-ate-my-homework excuse”, he said.
The failure to exercise the available administrative remedies was disqualifying for relief by way of judicial review, he said.
The judge also said that normally during the conveyancing process any nonconformity with the planning permission for the property is addressed, generally by way of a survey.
In this case, he said the developer provided the certificate of compliance with the planning permission. But that did not seem to have been “meaningfully challenged or investigated on behalf of the applicants”.
Why the development was certified as being compliant is one of the unanswered questions in this case, he said. One might also wonder why the developer and their solicitors didn’t notice that they were drafting documents for the sale of 13 spaces when only 12 were allowed, he said.
If Ms Hughes and Mr Sinclair “haven’t become too embedded in their existing doomed strategy one can only encourage them to have a fresh look at their options”, he said.
These could include making a fresh retention application, perhaps co-ordinated with the developer, he said. The others are complying with the permission and taking the loss and selling up.
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