The Supreme Court has ruled that a developer who applies for retention of a development built without planning permission cannot be prevented from bringing a legal claim that the development is exempted.
Mr Justice Nial Fennelly was giving the judgment of the five-judge court on a preliminary issue in an appeal by William P Keeling and Sons Ltd arising from an application by Fingal County Council in 2001 for an order requiring the company to demolish a partially completed bungalow at Killeek Lane, Killeek, Co Dublin, and to carry out site clearance following the demolition.
The company applied three times for permission to retain the development, but each application was refused.
In opposing the application for the demolition order, it claimed the development was exempt from requiring permission on grounds of the existence on the site of an old disused cottage.
In a decision on a preliminary issue in the proceedings for a demolition order, the High Court held, in light of a Supreme Court decision in the Tallaght Block case, that the company was estopped - not entitled to - raising the defence of exempt development in circumstances where it had not sought planning permission for the development.
Upholding the company's appeal against that decision yesterday, Mr Justice Fennelly said the Supreme Court, in the Tallaght Block case, had not expressed any opinion about estoppel and it was not a binding precedent for the existence of an estoppel.
He said there was a very narrow issue in the appeal before the court, and it was undesirable for the Supreme Court to play the role of the High Court by determining at this stage the extent to which estoppel rules have a role to play in the relations in public law between an individual and a planning authority.
It sufficed at this point to hold that if a proposed development was, in fact and in law, an exempted development, no principle had been identified where the owner of land should be estopped from asserting that exemption merely because they had made a proper and lawful application for planning permission.