Solicitor fails in High Court challenge to planning board ruling

A West Cork solicitor yesterday failed in a High Court challenge to quash a ruling by An Bord Pleanála which refused him planning permission to use, as his home, a building with questionable access to wastewater treatment facilities.

Ray Hennessy, who runs a legal practice in Bantry, had sought a judicial review of a Bord Pleanála decision to overturn a ruling by Cork County Council to approve the use of the property in Ballylickey as his main residence.

Ms Justice Deirdre Murphy said she was satisfied the planning appeals authority had made “a rational decision based on the evidence presented to it”.

The use of the building was restricted to that of a caretaker’s lodge to service a hostel built on the same lands. Part of the lands which included the hostel and wastewater treatment plant was sold to CPFM in February 2016 following the appointment of a receiver by AIB. The company successfully appealed the council’s decision to grant retention permission to Mr Hennessy for permanent use of the building as a residence.

The board found Mr Hennessy did not have sufficient rights to access the treatment system.

The judge said it was “somewhat bewildering” the council had two contradictory reports on file, by the same planner, and both dated February 3, 2017. One recommended granting planning permission on the basis Mr Hennessy had access to the treatment plant but the other recommended deferring a decision as the council had no legal confirmation about his right of way.

Ms Justice Murphy said the solicitor had failed to advise the court he had been given a copy of CPFM’s appeal and he had failed to make any submissions to An Bord Pleanála.

In her judgement, Ms Justice Murphy said the solicitor had been “somewhat selective” in the facts he had placed before the court. She said Mr Hennessy had submitted the planner’s report which had been favourable to his position but failed to refer to a second report.

The judge said he also failed to reveal he had been given every opportunity to respond to CPFM’s appeal.

Dismissing his claims, she said: “The situation on the ground, in this case, is that the wastewater treatment plant on which the applicant purports to rely is not on his land, is not being maintained, is apparently inoperable, and is not connected to an electricity supply.”

However, she said a planning application to use the building as a residence was likely to succeed if Mr Hennessy demonstrated he had access to and control over the treatment facility.

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