The High Court has blamed Dublin Corporation for the failure of a Circuit Court judge and his wife to appeal, within a fixed time limit, against a planning decision granting their next door neighbour a "very radical" change of plans for an extension to his home.
Mr Michael White and his wife, Ms Maud White, of Park Lane, Chapelizod, Dublin, complained that the permission was given in circumstances where they were not, and could not have been, aware that Dublin Corporation had invited their neighbour, Mr Kevin Tracey, to submit revised drawings for his house extension.
The judge deferred making a final order and adjourned the hearing to July 5th to allow the parties to consider his judgment.
He held that the Whites' ignorance of their rights during the two-month limitation period specified in Section 83 of the 1963 Planning Act was caused by the corporation's "own wrongdoing".
He found that the limitation period, in the absence of any saver, was so restrictive as to render access to the courts impossible for persons in the position of the Whites. As such, it "must be considered to be unreasonable and therefore unconstitutional", he said.
He held that the Whites had shown, if they had not been debarred by the two-month time limit in the 1963 Act, as amended, that they would be entitled to have the decision in question quashed as being made in disregard of the planning regulations and in circumstances where the decision to grant permission to Mr Tracey without fresh notification was irrational and unreasonable.
Mr Tracey applied in June 1999 for permission to build a house extension in his back garden. He showed the plans to Judge White, who did not object. Mr Tracey was refused planning permission and submitted a fresh application in September 1999. In May 2000, Judge White learned that Mr Tracey had been granted permission for a radically different development and complained that the Whites' property would be overlooked.
Mr Tracey told Judge White that the corporation had forced him to change the plans.
Mr Justice Ó Caoimh said it was clear that the original applications on behalf of Mr Tracey, in June and September 1999, were made in circumstances where it was sought to avoid overlooking the Whites' property.
The Whites complained that the granting of permission occurred because they were not aware that the corporation had invited revised drawings. This action had been taken by the corporation under local government regulations which did not require the public to be alerted of what was contemplated. The result of those regulations being applied was a very radical change of plans to what had been proposed, the judge said.