Desmond firm wins challenge to city council over work at house

A company involving businessman Mr Dermot Desmond has won its High Court challenge to the issuing by Dublin City Council of a notice seeking further information about proposed restoration works at the former home of the late fashion designer Sybil Connolly at Merrion Square.

Upholding the challenge by Illium Properties Ltd, which bought the house at number 71 Merrion Square in 2000, Mr Justice O'Leary said the issuing by the council of the disputed notice of September 10th, 2001, was "a device to extend illegally the time to consider the planning application".

"The history of the processing of planning applications in respect of this property reflects no credit on the planning authority," he added.

The judge granted a declaration that the September 10th, 2001, notice was not a bona fide request for further information under the planning Acts, and made an order quashing that notice.

He also declared that Illium's application for planning permission was deemed granted. At the request of Mr Paul Gardiner SC, he adjourned the case for a week when the costs issue will be dealt with.

The proceedings challenging the notice are just one aspect of a major dispute between Mr Desmond and the council in relation to how it has handled issues regarding the renovation and protection of the house.

In his judgment yesterday, Mr Justice O'Leary said what was at issue was details of the rear of a historic building.

The major difference between Illium and the council related to the demolition of an extension which was not part of the original house and the opening of windows overlooking the rear garden.

Article 33 of the 1995 planning regulations provided that a planning authority could require an applicant for planning permission to submit any further information which the authority considered was necessary to deal with the application and evidence to verify any particulars or information given in the application.

Article 33 requests could not be used to vary a planning application, the judge said. Variation could be done only by agreement or condition or by reapplication. If a planning authority could not get agreement or apply suitable conditions to its decision, it must accept or refuse the application as submitted.

Illium had applied for planning permission for renovations to number 71 in November 2000. On January 24th, 2001, the council issued a notice for further information.

The judge found this notice was defective in at least part because it fell outside the terms of Article 33 in that it sought to direct amendments to the planning application.

However, the judge said, it was not necessary to decide whether the January notice was entirely void because a planning permission had issued on April 4th, 2001 with conditions.

On July 12th, 2001, Illium made an application to demolish a 1960s extension to the house and to insert a classical window in the return.

The window proposal was supported by a letter from the Irish Georgian Society. A decision on the application had, under law, to be made by September 12th, 2001.

Mr Justice O'Leary said nothing appeared to have happened in the council's planning department regarding the processing of the application until about late August.

Illium's advisers were then asked by the council to seek a time extension (time extensions may only be granted by a planning authority at the request of an applicant). On September 7th, 2001, Illium wrote to the council saying it would not seek a time extension, and the council issued its notice for further information on September 10th, 2001.

The notice appeared to have been issued because the council needed extra time to make a decision, the judge said.

The effect of the notice was to suspend the planning application pending receipt of the requested information. Illium had disputed the validity of the notice, but provided some of the requested information.

Of five requests in the September notice, four of those were improper requests under Article 33. The fifth, for a survey to help assess the structural condition of the building, "may have been" a proper request. It appeared the planning department had received on September 7th a report from its conservation officer (who had correctly pointed out she did not have planning functions) regarding number 71.

The officer said in her report that the further information which was later sought in the September 10th notice was essential in determining the application.

It was clear, based on the experience of the 2000 and 2001 applications regarding number 71, that the planning process had subsumed itself without legal authority to the requirements of the conservation officer, the judge said. The planning department had either commissioned the report to buy time "to hide its own lack of activity" or used its coincidental arrival for that purpose, said Mr Justice O'Leary.