An alleged unauthorised development of 28 modular homes near Brittas, Co Dublin, appeared to be “phase one” of an intended development of 71 residential units, a judge has been told.
At Dublin Circuit Civil Court on Tuesday, Judge John O’Connor said he will rule in February whether the development at Chianti Park and an adjoining site is exempt from the need for planning permission, or whether it is unauthorised and must be removed.
The judge was told the developer and site owners will “respect” the court in the interim.
If works continued before his judgment, he would consider that “disrespect”, he said.
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In separate but similar applications South Dublin County Council and a local resident, John O’Neill, who lives 200m from the development, said it is unauthorised, the units should be removed and the site restored.
The applications are opposed by Branach Developments Ltd, the developer, with a registered address at Thomastown, Carragh, Kildare; and the site owners, Mullnassa Limited and Threshford Limited, both with registered addresses at Rock Road, Blackrock, Dublin.
Photographs before the court last week indicated about 28 homes have been constructed on the site, formerly used for mobile homes and chalets, with foundations laid for at least 12 more.
In submissions on Tuesday Michael O’Donnell, for the respondents, said his core argument was this is exempt development under section 4.1.h of the Planning and Development Act. Works for maintenance, improvement or alternation of a structure that do not materially affect that structure are exempt, he said. Works are any act of construction and the disputed works involve construction, demolition, alteration, improvement, repair or maintenance.
This development, he argued, falls within the exemption as it is consistent with the character and nature of the structures that were already on the site.
The established use of the previous structures was residential use and the disputed works have not altered that use, he submitted.
If the works are not consistent with the character of the existing development, that was “a genuine mistake”, and it would be disproportionate to order their removal, he said.
There is a housing crisis, people are sleeping rough on streets, his clients were “doing nothing more than refurbishing existing units to provide a home” and “should not be pilloried”.
Stephen Dodd, for the council, said this was “blatant unauthorised development”, which should be removed and the landscape restored.
These “structures” are permanent modular style housing with permanent foundations, he said. It would make “a complete mockery of the planning system” if the argument that these new structures were exempt development was correct.
The development has transformed the site, which was zoned to protect the outstanding natural character of the area, he said.
There was “no genuine mistake”, the council had raised its concerns last August and the development was accelerated after it took proceedings, counsel said. The legal arguments by the respondents were “unstateable”.
Any hardship to the respondents was “entirely of their own making”, and any “prudent” developer would have stopped once they started to get warning letters, counsel said.
This was “completely uncontrolled and unregulated development in a completely inappropriate location” where the evidence was that one-off housing has been repeatedly refused by An Bord Pleanála for reasons including the location and substandard roads, he said.
Barrister Conor Sheehan, instructed by Christine O’Connor, BKC Solicitors for Mr O’Neill, adopted Mr Dodd’s submissions, adding his client has raised issues about the impact of the works on drainage, sewage and roads locally.
An affidavit for the respondents referred to the “first phase” of the development being repair and improvement of 29 residential dwellings to the standards necessary for rental in the private market, counsel said. This appeared to be “phase one” of an intended development of 71 units, he said.
