The Minister for Justice, Mr McDowell, and his wife, Prof Niamh Brennan, have claimed before the High Court that Roscommon County Council breached the planning acts when it refused to extend the duration of planing permission for their lakeside holiday home near Roosky, Co Roscommon.home in Roosky unlawful, Minister claims in court
The permission was granted in August 1999 and an extension of its duration was sought earlier this month.
Mr McDowell and Prof Brennan were given leave by Mr Justice Quirke yesterday to challenge, in judicial review proceedings, the council's handling of the matter.
In an affidavit read during yesterday's hearing, Mr McDowell said that if the extension of planning permission was not granted, he and his wife were at risk of losing a substantial amount of the monies they had invested, together with the costs of demolition of the premises.
He said they had incurred considerable expense on the development - €150,000, plus stamp duty and associated costs on the purchase, some €39,000 for a subcontractor and some €390,000 for builders Griffner Coillte and other professional expenses. Those liabilities were financed by a mortgage on their family home, he added.
He said the couple had entrusted the handling of all matters regarding construction and planning to professional firms retained by them.
"At no point were we asked for, nor did we ask for or approve, any deviation from the planning permission in the execution of the development," he added.
Counsel for the Minister and Prof Brennan told the court there was an urgency about the case as the premises are now exposed to the weather and that any works undertaken now to make the premises weatherproof would be without the protection of planning permission.
Mr McDowell and Prof Brennan were given permission to seek a declaration that the council's refusal on October 5th of their application for an extension of the duration of planning permission granted on August 30th, 1999, for the building breached section 42 of the Planning and Development Act.
They also got leave to apply for a declaration that, in refusing the application for an extension on the grounds that "the dwelling under construction is significantly different from that for which planning permission was granted", the council failed to comply with section 42.
In the alternative, the Minister and his wife were given leave to seek an order directing the council to reconsider their application for an extension of planning permission. It is expected that there is also to be a claim for damages against the council in separate proceedings.
Mr McDowell was outside Court No 14 just before yesterday's 30-minute hearing. However, he did not attend the hearing of the application which was made by his senior legal team on an ex parte basis (in the absence of the opposing side). Applications for leave to seek judicial review are almost always made on an ex parte basis.
After granting leave, Mr Justice Quirke told Mr Paul Gallagher SC, with Mr Michael Collins SC, and Mr David Barniville, instructed by McInerney Solicitors, that he would return the case to court next Thursday.
Earlier, it was submitted on behalf of Mr McDowell and Prof Brennan that, on December 18th, 1998, the council had received an application from Ms Anne McDonagh for planning permission for a dwelling house, septic tank, effluent disposal system and a new vehicular entrance.
In the couple's statement of grounds, it was stated that, on August 30th, 1999, the council granted planning permission for the development, subject to 11 conditions.
Condition 11 provided that the development be carried out in accordance with elevations and floor plans submitted on December 18th, 1998, and with a site layout plan of July 12th, 1999.
The proposed floor level in relation to the adjoining road was to be "8.40m above road level". Condition nine of the permission required that all walls and chimney stacks "shall be uniformly finished externally in nap or dry-finish and shall be both light and uniform in colour".
In April 2004, Mr McDowell and his wife agreed to purchase the lands and completed the purchase last June. They engaged Jennings O'Donovan and Partners, Project Management, Environmental, Civil and Structural Consulting Engineers, and Griffner Coillte Ltd to carry out the development in accordance with the 1999 planning permission.
On June 21st, 2004, Jennings O'Donovan wrote to the council stating that a contour survey indicated that the site was steeper than shown on the planning drawings and that they had taken the finished floor level, which is 8.4m above the adjoining road level, to correspond to the ground floor rather than the basement floor, which resulted in the house being more cut into the slope and requiring less fill than was originally indicated.
On October 12th, the reason for refusal to grant the extension was disclosed, it was submitted. It was contended that the house, which the council accepted was then substantially complete, was "different in external finish" and "some two metres lower" than the levels originally submitted.