‘Irrational’ refusal to extend planning for 58 Donegal houses is challenged

A construction firm has challenged a local authority’s “irrational” refusal to further extend a planning permission for a development of 58 houses in Donegal town.

In its proceedings, Axis Construction says it had in July 2018 bought a site at Lurganboy, Donegal town, being offered for sale with planning permission.

A permission had been granted in 2008 to another man for a housing development and associated site works on lands at Lurganboy which was extended in 2013 and was due to expire in November 2018, Axis managing director Liam McGroary said.

Last January, Donegal County Council refused, on grounds of failure to carry out substantial works during the appropriate period of the permission. Axis application to further extend the permission.

The Council said a further extension would be contrary to the “proper planning and sustainable development” of the area.

In judicial review proceedings, Axis claims that refusal is fundamentally flawed, irrational, in breach of natural and constitutional justice and outside the Council’s powers.

On Monday, Mr Justice Robert Haughton grant Axis’s application to fast-track the case in the Commercial Court. It will return before the court in May.

In his affidavit seeking a speedy hearing, Mr McGroary said Axis is an Irish based firm with five full time employees and had 30 men working on the site daily since taking possession of it on August 8th last.

All work stopped last November because there was no entitlement to continue until the Council decided Axis’ extension application, made on November 9th.

As of now the site is closed down and is an “eyesore” with development exposed to the elements, he said.

Axis has spent abut €1.12m to date on the development and, as a result of the extension refusal, has been left with an asset that is “effectively worthless”.

He said, when Axis acquired the site, it was a green field site being offered for sale with the benefit of planning permission and no works had been carried out under that permission.

Before Axis bought the lands, he and others met the Council’s senior executive planner Paul Kelly to discuss the permission, including whether the Council would be amenable to extending it.

He said Mr Kelly had indicated he wanted to see they were making a “substantive effort” on site and would have the means and ability to complete the development and asked whether they would have a showhouse completed.

Mr McGroary said they indicated they would aim to get houses roofed and enclosed and carry out works on distribution roads to those houses and other works but did not think a showhouse was possible by mid November 2018.

The Axis side considered Mr Kelly was “very positive” about Axis commencing the development and, if they “by and large” carried out the works discussed, he could see no reason why the extension of permission should not be granted.

Axis has so far carried out works including works for the construction of eight houses and the forming and basing of internal roadways, he said. The work on the eight houses could not reasonably be classed as “insubstantial”.

In those circumstances, Axis was “extremely shocked” when it learned in January 2019 the Council had decided not to further extend the permission, he said.