The way has been cleared by the High Court for the Minister for Justice and his wife to complete their holiday home near Rooskey after the court decided Roscommon County Council was wrong in refusing to extend the planning permission for the near-complete building.
Mr McDowell and his wife, Prof Niamh Brennan, could still face difficulties when the house is completed because of the council's contention that the dwelling under construction is 2.2 metres lower than that for which permission was granted. In further proceedings, the couple are claiming damages from the council.
The McDowells had challenged the local authority's refusal to extend the duration of planning permission. They claimed the refusal was "irrational" because the result would require the building to be some two metres higher in an area of scenic beauty, which would have an impact on the surroundings.
Giving an 18-page reserved judgment, the President of the High Court, Mr Justice Finnegan, said he was not concerned as to the correctness of the council's decision that the dwelling under construction was significantly different from that for which planning permission was granted. That was a matter which could only be determined in other proceedings.
The judge said his function was to review the manner in which the decision (refusing to extend planning permission) was arrived at and determine whether it accorded with the requirements of Section 42 of the Planning and Development Act, 2000.
He said the council misconstrued the scope of its function under Section 42. It took into account its conclusion that there was non-compliance with the planning permission and relied upon such compliance as the reason for its refusal and was not entitled to do that. The decision was accordingly outside its powers and must be quashed.
Following discussions with counsel for the sides after giving his judgment, the judge adjourned making an order until January 11th to allow time for consideration of his judgment.
He said that if the planning permission was extended as sought, for three months from August 30th, it would now have expired and the McDowells would get no benefit from it. Adjourning a final order until next month, he told counsel that the proceedings should achieve something.
Mr Michael Collins SC, for the McDowells, who were not in court, said it seemed a solution had to be devised which did not leave the situation in a vacuum. Mr James O'Reilly SC, for the council, suggested that the matter be put back to next month.
An earlier hearing was told that the McDowells had already spent about €600,000 on the development.
In his judgment, Mr Justice Finnegan said the council had said on October 5th that it was refusing to extend planning permission as the development under construction was significantly different from that to which the permission referred.
It submitted that the question of the extension to the duration of the permission, therefore, did not arise as the dwelling under construction did not have the benefit of planning permission.
It was quite clear that the reason for the refusal was the council's perception that the dwelling was not in compliance with the planning permission. It had concluded that, as the development was not in compliance, it was entitled to have regard to that conclusion and on that basis refuse to extend the permission.
It was argued that, notwithstanding the wording of section 42, it had a residual discretion which it was entitled to exercise and refuse the extension.
The judge said it was not the county council's function under Section 42 to inquire as to whether the development, insofar as it had been completed, was in compliance with planning permission and, on the basis of its conclusion on that inquiry, decide on the application. It was confined to matters specified in Section 42 in reaching its decision.
The county council determined that its conclusion in relation to compliance precluded it from considering the matter further.