A nearly-completed 28-unit housing development in Co Waterford may have to be demolished to comply with a planning enforcement order, the High Court has heard.
Lawyers for Cosmo Development Kilmeaden Ltd said the development is being built as social housing for Waterford City and County Council, which is also the planning enforcement authority.
The council’s enforcement order issued in May deems the scheme to be an unauthorised development because, it says, the dwellings sit three to four metres higher than permitted, the court heard.
Cosmo Development, with a registered address in Kilcock, Co Kildare, denies this and is asking the court to quash the order directing it to cease works on the project in Kilmeaden, Co Waterford. The order also requires it to bring the finished floor levels of the dwellings into compliance with the development’s grant of planning permission.
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The finished floor levels refers to the elevation of a building floor after all flooring material has been installed.
According to Cosmo Development, compliance with the order would require demolition of the houses, the excavation of nearly four metres of material, “equating to thousands of truckloads”, and the reconstruction of the houses at the lower level.
The order says the floor level of the units under construction are not in line with the development’s planning permission when measured against a temporary benchmark on the construction site.
In planning applications, applicants typically include a temporary local benchmark or an Ordnance Survey Ireland (OSI) datum point – the national standard benchmark – as a reference point for measurements within the proposed development.
In its court documents, Cosmo Development says the development’s original planning application – compiled by an architecture firm that is not a party to the action – mistakenly did not include either a temporary local benchmark or an OSI datum point.
The temporary benchmark referenced in the council’s enforcement order was introduced “arbitrarily and without any explanation” by the architecture firm in a compliance submission, after permission had been granted for the development subject to certain conditions, according to the developer.
The planning permission for the development was initially granted in April 2022 to a previous owner of the site.
“[The temporary benchmark’s] retrospective use amounts to the imposition of an entirely new level regime after the grant of permission,” the developer’s court papers say.
Cosmo Development’s position is that the planning permission intended for the houses to be constructed “relative to the existing topography”, not “under the existing ground level with extensive excavations required”.
The developer says the order should be quashed for a number of reasons, including that work directed by the order is based on a mistaken interpretation of the grant of planning permission.
This week, barrister John Kenny, appearing for the developer, said the development is being built as social housing for Waterford City and County Council.
Mr Justice David Holland permitted the developer to bring judicial review proceedings against the council.
He granted a temporary pause to the enforcement order. It is due to last until the case returns later this month.
