Couple win landmark planning appeal

A newly retired couple, living in County Waterford, have won a landmark planning appeal to An Bord Pleanala against an objector who complained that the roof of their new house was six inches too high and should be lowered at a cost of approximately €80,000.

The couple who reside at Lighthouse Road, Ballinacourty, Dungarvan, were served with a Planning Enforcement Notice ordering them to remove the roof of their recently completed house and to lower it by six inches to comply with their planning permission. The cost of removing the new roof of the house to lower it by 6 inches was estimated at between €70,000 and €80,000.

The proceedings followed receipt by the Council of an objection from a neighbour and failure to comply could have resulted in the couple facing a fine of up to €1,500 and/or six months imprisonment.

Planning staff in Dungarvan recommended the couple apply for retention but local Waterford based planning consultant, Peter Thomson, was consulted and advised the couple against this course of action.

Peter Thomson explained: “To apply for retention in this case would have been tantamount to a confession of guilt and would not necessarily have put a stop to court proceedings. A court visit would have been the likely outcome given the objecting neighbour had legal advisers pressing the Council to enforce.


“In my opinion, there was no material departure from the permitted drawings and I recommended we set about proving that point. In my view, such a minor increase in height was insignificant and that to require the roof to be removed at an estimated cost in the region of €70,000 to €80,000 was unjustified and wholly unwarranted.”

After losing the argument with the Planners in Dungarvan, Peter Thomson brought the matter before An Bord Pleanala who visited the site and ruled against the Council and the objecting neighbour.

The Board concluded that the height increase of the roof was of such a minor scale it could not be interpreted as being at variance with the planning permission.

“This is a great outcome for my clients who are at last able to put this 18 month nightmare behind them and enjoy their retirement years with a roof over their heads”, said the consultant planner.

In separate but connected matters, the couple also won against the Council’s requirement to apply for permission to retain 2 roof lights on a thatched outbuilding they had restored within the grounds of the house. Through their planning consultant the couple argued to An Bord Pleanala that the windows were exempt from planning permission and the Board agreed. They also won their right to retain an existing entrance which it had been claimed was unauthorised.

Playing catch-up

“This case goes to show that you can never take planning enforcement lightly and the importance of seeking independent professional planning advice”, he said. “The outcome of this case could have been very different for this couple if they had adopted the Council’s advice and applied for retention. I believe at the time they would at the very least have received a court fine for not removing the roof as instructed”.

“This is a time when Councils across the Country are pursuing unauthorised developments. In the past they were so busy processing planning applications that enforcement took a back seat. Now they have the time they are playing catch up”, he said.

“Council enforcement staff are often in a very difficult position caught between objectors and the developer. They have a statutory duty to pursue alleged breaches of the planning codes and the onus is on the accused to prove they are in compliance”.

It is important not to ignore warning letters and enforcement notices and the Courts, rightly, do not take kindly to those who do.

Seeking proper advice is essential and, as this case proves, can have fruitful outcomes at a time when everything and everyone appears to be against you”.

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