Planning laws: Shaky foundations for grand home leads to decade-long legal battle

Michael and Rose Murray had the dream home in mind, to be built where Michael had grown up. A house double their initial plans was constructed and the family have been living there for over a decade. The only problem is planning permission was never granted, writes Caroline O’Doherty.

Planning laws: Shaky foundations for grand home leads to decade-long legal battle

Michael and Rose Murray had the dream home in mind, to be built where Michael had grown up. A house double their initial plans was constructed and the family have been living there for over a decade. The only problem is planning permission was never granted, writes Caroline O’Doherty.

THE Murrays didn’t do things by half. When they were refused planning permission for a substantial dormer bungalow in 2006, they went ahead anyway — but the home they built was twice the size of the one denied permission.

As one local person put it: “They didn’t give two fingers to the planners — they gave the whole fist.”

Or, as a High Court judge said when the case came before it, they “sought to drive a coach and four through the planning laws”.

The High Court is just one forum to have heard the case which has also been through the local planning department, An Bord Pleanála, the Supreme Court and even the European Court of Justice over the last 12 years.

Finally, after exhausting all apparent avenues, the house was under orders to be demolished by Wednesday of last week.

But was building it an act of madness, a display of wanton disregard for the law, or the understandable reaction of despairing citizens at the end of their tether with a frustrating planning system? And just how often do people take the chance of building without planning permission? And how do local authorities deal with them?

The legend begins

The Murrays’ house, Faughan Hill, near Bohermeen, Co Meath. The house is under orders, since last Wednesday, to be demolished. Picture: Dara Mac Dónaill
The Murrays’ house, Faughan Hill, near Bohermeen, Co Meath. The house is under orders, since last Wednesday, to be demolished. Picture: Dara Mac Dónaill

Michael and Rose Murray’s story goes back to 2005 when they acquired land at Faughan Hill, a scenic rural area a couple of kilometres outside the village of Bohermeen which itself is around 8km from Navan, Co Meath.

Faughan Hill, according to legend, is the burial place of Niall of the Nine Hostages, the 5th-century high king who, another legend has it, may have brought St Patrick to Ireland.

It may also have been the site of the battle that determined Meath as the centre of power in Ireland in prehistoric times.

The battle between the Murrays and Meath County Council may not be quite so epic but it will certainly go down in local folklore.

In that same year, 2005, planning permission was granted for two houses for members of the local family who had sold the Murrays their site while retaining the rest of the overall parcel of land for themselves.

Those two planning permissions were granted on condition they would enter a legal agreement with the planning authority to sterilise the remainder of the landholding from any further housing or non-agricultural development. In other words, no more building would take place.

In fact, no such legal agreement was ever drawn up — an anomaly the courts would later comment upon — but Meath County Council did receive letters in respect of both of the planning permissions agreeing to that condition.

It isn’t clear how long that condition was meant to apply for. Sterilisation agreements, provided for under section 47 of the Planning and Development Act 2000, often specify a timeframe, but without a formal document in this case it is hard to prove if the land was to remain off limits permanently or just indefinitely.

Rose Murray would later tell the High Court she and her husband did not know about the agreement, regardless of its intent, and in early May 2006, Michael lodged a planning application for a dormer house of 283sq m (3,045sq ft) on his part of the land.

Weeks later, the council delivered its verdict: A flat refusal. The reason given was that “to permit a further dwelling on these lands would result in an excessive density of development in an unserviced rural area”.

The council also cited public health concerns because of the fear that the house would lead to “an excessive concentration of wastewater treatment systems”.

And of course it would contravene the sterilisation condition that attached to the planning permissions for the two neighbouring houses.

Eight months later, in February 2007, the council received a complaint from a member of the public. A house had been built on the site, 588sq m (6,229sq ft) in size, and the Murrays were living in it.

In fact, they had been living there since two days before Christmas the previous December, having built their new home in a few short months — an impressive feat considering the scale of the project.

The house, two storeys high, was split into four sections with handsome dark-slated, multi-gabled roofing, a natural stone-clad exterior, and an interior that held a kitchen/dining room, two living rooms, a playroom, office, five bedrooms, multiple bathrooms, and a double garage.

A 60m-long curved driveway swept up to the door, lined by trees and ornate lamp posts and surrounded by extensive lawns, all contained behind a tasteful stone wall, topped by metal fencing and fringed by trees.

The meticulously maintained garden and trees have matured now and on a visit last week, the property, bathed in sunshine and serenaded by birdsong in a quiet cul-de-sac amid hedgerows and fields, could only be admired.

Less than impressed

But Meath County Council has never been less than impressed. It wrote to the Murrays ordering the demolition of the house.

Michael Murray replied that he would lodge a planning application for retention. The council wrote back warning that enforcement proceedings were imminent, but, nevertheless, it did consider the retention application that arrived in March 2007.

The verdict, another refusal, was issued in May, citing the same reasons as in the original decision but also describing the house as an “incongruous feature” that would be “injurious to visual amenity”.

At the time, the house certainly stood out. The few neighbouring houses are dormers or small traditional two-storeys in an area dominated by bungalows.

Ironically, with the growth of the trees around it, the house, apart from the very top of one gable, could not be seen from the cul-de-sac last week, nor indeed from the back of the property which is separated from the M3 motorway by just two fields.

Standing on an overbridge above the M3, it is possible to see just that one triangle of gable jutting out above the greenery. Work on the M3 only began in 2007, after the lines in the planning battle had been drawn. From the old N3 which it replaced, there is no sign of the house at all.

You can only see it at night when the lights are on, says a local. Other than that, you wouldn’t know it’s there.

The Murrays appealed to An Bord Pleanála, a process that took until June 2009, when the board returned its decision, backing Meath County Council for the same reasons already provided. Now the courts were their only option but for some reason, the Murrays did not seek a judicial review, the next step available to them.

Instead, the council got to the courts first, applying to the High Court for an order directing the Murrays to remove the house and restore the site.

It was here, before Mr Justice John Edwards in March 2010, that the Murrays set out their case. The court heard that Michael Murray, a plumber who’s also known locally as Chris, was born and bred in the shadow of Faughan Hill, that he went to the local school, played in the local football club, and that when he emigrated in the 1980s for work he always intended coming back to make his home there.

That urge became all the stronger after his father died and he returned in the late 1990s determined to set up home close to his widowed mother.

He married Rose in 1999 and the couple first applied for planning permission at Ongenstown, about 3km away, but were refused. He would tell the court that subsequently another house was built on the same site, which he found very frustrating.

The couple then found another site in the area but, after a lengthy decision process during which the council sought further information on three separate occasions, they were refused permission there as well.

By now the Murrays had two children and were expecting their third. They were living in rented accommodation and yearned to provide a permanent home for their young family.

IN HIS affidavit, Michael Murray said they had spent almost two years “looking for sites, applying for planning permission, answering endless queries from the planning authority, negotiating prices, and meeting with architects, drawing up plans, completing drainage tests, and waiting for a decision”.

He said he then became aware that his mother’s neighbour was selling off a parcel of land. It seemed the perfect solution. The two parties knew each other and negotiated a deal privately. The Murrays, for reasons unspecified, did not get legal or architectural advice before the handshake.

Mr Murray was fully confident he would get planning permission this time as he would be farming the land, he was a local, there would be no objections from neighbours (and there never has been), and the proposed site for the house was set well back off the road so it would not intrude on anyone’s line of vision.

He said he was “distressed” when the council ruled otherwise and refused him permission. And that was when he went ahead and built the house.

Unable to refute the reasons they were refused permission, the Murrays tried a different tack in court, claiming their house didn’t actually require permission because it was an agricultural building and therefore an exempted development.

“Our farm accounts, all farm documents, and indeed all farm implements and machinery including food stuffs are stored within the building. In those circumstances, it is a critical part of the existing farm and operation,” stated Mr Murray’s affidavit.

Mr Justice Edwards didn’t see it that way. Delivering his judgment, he said: “It is frankly preposterous to suggest that this is an agricultural structure.”

His tone softened when he came to considering the evidence of Rose Murray, whose affidavit he described as “articulate and impassioned”.

Mrs Murray detailed her fears for her children — at the time two primary school pupils and a preschooler — and the impact it would have on them if they had to move from their home, their school, their friends, and the many local activities in which they were involved.

“The children themselves have their own rooms and have laid out the rooms to fit their own personalities as all children do,” she said.

“I think frequently about what would occur and how I would explain to my children that their house, which is a source of security to them so far, is to be demolished.”

She couldn’t think about it without getting upset.

She said she and her husband were driven to build the house out of their concern to provide stability for the children.

“It was in desperation at having been refused planning permission that we decided to proceed and build a dwelling house which, if we had understood the full implications of what we were engaged in, we may not have done so,” she said.

Mrs Murray claimed there had been discussions with a planning officer, that they were told there would be no objection in principle, and that they had never been made aware of the sterilisation agreement.

Mrs Murray said her husband was now working in the UK three days a week because of the downturn in the economy and said to lose the house would place them in great financial difficulties, forcing the entire family to emigrate or else to seek social housing from the council. They had been willing to modify the house to appease the council but this offer was rejected.

“There appears to be a view that because we have made some bad and stupid decisions in the past that that is going to determine the manner in which all future applications will be considered. I believe that the decisions both of the council and of the board [An Bord Pleanála] reflect no legitimate planning objection but a view that we should be punished to the maximum extent for our past indiscretions and I say that I even understand the approach of the council and the board in this regard,” she said.

Mrs Murray urged the judge to think of the children. “There must be other ways that we could be punished for mistakes that were made without affecting innocent parties who don’t deserve this level of retribution for mistakes that their parents have made.”

She did not, however, address the elephant in the room, or rather the mini-mansion in the field. No explanation was offered for why the couple had not only flouted the planning law but had done so in spectacularly provocative fashion.

Very great regret

Mr Justice Edwards was sympathetic to a degree and prefaced his judgment by saying he delivered it “with very great regret” but that he had to agree with Meath County Council and grant the order for demolition of the house.

“This is not a case of a minor infraction, or of accidental non-compliance, or of non-compliance with some technicality,” he said.

“The unauthorised development carried by the respondents was indeed a flagrant breach of the planning laws and completely unjustified.

“They have sought to drive a coach and four through the planning laws and that cannot be permitted no matter how frustrated they may have felt on account of earlier refusals.”

He put a two-year stay on the order, meaning it would have to come down by the end of June 2012.

The Murrays lodged an appeal to the Supreme Court in March 2011 but the case was only determined in May of last year.

They relied heavily on the Constitution and the rights enshrined in Articles 40.3, 40.5, 41, 42, and 43 — namely protection of the person, inviolability of the dwelling, protection of family life, the education and protection of children, and the protection of private property.

They also added in Article 8 (1) of the European Convention on Human Rights which declares that everyone has the right to respect for his private and family life, his home, and his correspondence.

The five judges of the Supreme Court noted that none of these arguments were raised in the High Court and it was only in exceptional circumstances that new arguments could be entered at this stage. They said the Murrays had not made a case for exceptional circumstances.

The Murrays continued to push their claim that the house was an exempted development and that the council had a predetermined view of their case from the outset. They argued that Mr Justice Edwards had failed to give adequate weight to the disproportionate harm that would be caused to the family if they were forced to demolish their home.

Little comfort

The judgment delivered ran to almost 40 pages but there was little of comfort to the Murrays in it. While the judges acknowledged the difficult situation the family were going to be left in, they could not ignore the central issue in the whole case.

“To have constructed the size and scale of the structure which they did is, in such circumstances, difficult to comprehend. A more reckless disregard for the rule of law is difficult to discern,” they said.

They dismissed the appeal and upheld the order for demolition, putting a stay of one year on it, which expired last Wednesday.

Not to be defeated, the Murrays lodged an application to the European Court of Human Rights last November. The next month, after initial analysis of its merits, it was declared inadmissible and the file closed.

The Murrays were approached for comment through their solicitors and by letter but declined to respond. Meath County Council said it was consulting with its legal advisers.

Retention not only for unauthorised developments

All planning applications are publicly available.
All planning applications are publicly available.

Just how widespread the use of retention applications are is hard to determine.

All planning applications are recorded and publicly available but neither the Department of Housing, Planning and Local Government nor the Central Statistics Office were able to provide figures for those relating specifically to retention.

A few local authorities were able to compile data when requested but it comes with the warning that not all retention applications are for unauthorised developments as retention is also used for legitimately erected installations such as communications masts.

Masts are often erected on planning permission for a set period of time and then when the operator seeks to extend their use, they apply to retain the structure.

Retention applications can also be used when seeking to modify a condition attached to a development that already has permission.

And all said that the most likely developments to require retention were domestic extensions, agricultural sheds and storage facilities, and modifications to previously approved plans.

Those reservations aside, the figures from those local authorities make for interesting reading.

Cork County Council granted retention in 1,558 cases between 2014 and 2016, with just 46 retention applications being refused — an approval rate of 97%.

Dublin City Council said that retention applications made up almost 17% of all the planning applications that received decisions in 2013 and between 12% and 14% from 2014-2017.

Approval rates were high in all years, 80%-85%, which is only slightly lower than the 88%-90% of applications for permission that were approved.

Retention applications made up 7.5% to 13% of all applications to Longford County Council from 2013 to 2017. Comparative grant and refusal rates were not possible to determine.

Similar figures came from Tipperary County Council which had retention applications making up between 12% and 14.5% of all applications in the years 2013-2017. They had a very high chance of success with the proportion being approved ranging from 96% to 98%.

Dún Laoghaire-Rathdown County Council had proportionately fewer retention applications, making up between 8.5% and 10% of all planning applications each year from 2013 to 2017, but again they had a high approval rate with between 85% and 99% getting the go-ahead.

Retention applications to Leitrim County Council also had a very high success rate with just four of the 162 received between 2013 and 2017 being refused. Over that period, retention applications made up between 16% and 25.5% of all planning applications.

Carlow County Council said retention applications made up 11% of all planning applications it received from 2012 to 2017 and 85% of those were successful.

In Offaly, 19% of all planning applications granted from 2012-2017 involved retentions. Retentions made up 11% of all applications refused. As with the others who responded, Offaly County Council said the vast bulk of retention applications were for domestic extensions and alterations.

However, a glance at Offaly’s planning lists for 2017 show there were also very substantial developments that required retention. In one case the applicants were seeking to regularise their demolition of a house and the partial construction of a new house and garage.

Another had built a full house while another sought to retain a two-storey extension consisting of a kitchen, dining room, utility room, toilets, stairs, landing, two bedrooms and a bathroom.

An office building featured in another case and, while agricultural buildings can be exempted developments, there were some very large structures in need of retention permission.

In another case, an applicant had built stables at the back of their house without permission while another had turned a pub into a physiotherapy and sports injury clinic.

Breaking planning laws can lead to prison terms

Many people misunderstand the law surrounding planning permission.
Many people misunderstand the law surrounding planning permission.

Anyone thinking of building a non-exempted development without planning permission risks incurring serious penalties.

Planning breaches can end up in the criminal courts where a fine of up to €12m and a prison sentence of up to two years can be imposed. So why would anyone take the chance?

Joe Miller, practice director with the Royal Institute of the Architects of Ireland, says the intricacies of the enforcement process that planning departments must go through may have something to do with it.

“Building first and seeking retention afterwards is not as common as it used to be because the local authorities are more vigilant and more ready to act on complaints now,” he says.

“But the problem for them is that they have to go to the courts eventually and that can take three or four years.”

Cases of people being jailed for planning breaches are few so it might seem worth it to build first and use retention to regularise the situation afterwards but Mr Miller said it would be foolish to presume using retention to stave off enforcement proceedings will be plain sailing.

“If you’re going through retention, you’re in the planning process and you are open to objections from the public so it’s not just a case of placating the local authority. And you can end up in An Bord Pleanála.

“And in terms of conveyancing there can be issues. Under the new building regulations, you need a commencement notice and it’s not retrospective so there may be problems squaring that. The value of a property will be affected if everything is not in order.”

There may also be a question mark over the quality of the work to begin with as it may prove tricky to get an architect involved in the plans.

“Most of our members will not get involved in unauthorised developments. They may come in when the development exists and act as consultants to try to remedy the situation as part of negotiations with the local authority or a retention application, but at the outset, when it’s obvious the client is chancing their arm? No.”

Joe Corr, president of the Irish Planning Institute, says there are myths around what people can get away with when it comes to building without permission.

“A lot of people think if seven years have passed after they build, the council can’t do anything. That’s correct to a point. If you’re there for seven years or more, they can take no enforcement proceedings,” he says.

“However, if there are environmental issues arising — from sewage, oil, other forms of waste — or anything that’s a public health issue, the council have a duty to take action so you can end up in difficulties that way.”

He says there can be genuine misunderstandings that lead people to build without permission but risk-taking is also a factor.

“There is a lot of free advice to be had from the guy sitting on a bar stool. There are people who will take that over paying for professional advice. I think there is also an element of, it’s my land and I should be able to do what I want with it.”

Even if you are absolutely sure that what you plan to build is exempted from the requirement to apply for permission, he says it’s still wise to talk to your council.

“It’s as well to get a certificate of exemption. If you sell, the purchaser will want proof that everything is in order so it saves work down the line.”

An Bord Pleanála sees its fair share of cases involving unauthorised develoments, not just because of appeals against decisions in relation to applications for retention, but because the board gets asked to adjudicate on whether a development is exempted.

“If somebody is in a situation where they know they have an unauthorised development which will not receive planning permission, a planning application will only postpone the inevitable,” says secretary, Chris Clarke.

“So they try to argue instead that it’s not something they need planning permission for.”

He highlights another problem that people with unauthorised developments run into — since 2008 they can not even apply for retention if the development is something that required an environmental impact assessment.

“Retention is not a cure-all, and I think it’s something that has probably reduced significantly from where it would have been 10 years ago.

“After 2009 when the crash happened a lot of local authroities were left with a planners who had very little to do so they moved them from planning projects to planning enforcements work.

“That in turn means that from 2008 to 2013/14, before things got busy again, there probably would have been a national spike in retention applications.

“But even without the boom and crash cycles, the regulatory system is better policed than it use to be. In the 1980s, it was common for people coming back from abroad with a wad of cash to just start building — particularly west of the Shannon.

“The local advice was build and be damned because who’s going to stop a returning emigrant providing a home for himself? That’s changed. That story won’t work now.”

Taking a chance

Joe McNamara argued unsuccessfully that ‘Achill-henge’ was a place of reflection and therefore exempt from planning permission.
Joe McNamara argued unsuccessfully that ‘Achill-henge’ was a place of reflection and therefore exempt from planning permission.

The Murrays may be one of the more extreme examples of chance-taking when it comes to planning but they aren’t the only one.

Jim Mansfield, the late developer, practically made “build first, ask for permission later” his business model in the 1990s.

He fought a lengthy battle to retain his massive Citywest convention centre in Co Dublin after beginning construction without permission, and continued work while under an enforcement order to cease.

He also undertook extensive expansion works at his Weston aerodrome and built a golf course at his Palmerstown House demesne without permission. All were eventually granted retention.

Another developer, Joe McNamara, hit the headlines in 2011 when he was jailed briefly for ignoring a High Court order to tear down his concrete monument dubbed “Achill Henge” on Achill Island in Co Mayo.

Modelled very loosely on Stonehenge, the 30m-wide circle of concrete columns was, McNamara unsuccessfully (and some would say facetiously) argued, an ornamental garden and place of reflection and was therefore exempt from planning permission.

The structure remains standing despite having no permission, and it has become an odd and still divisive tourist attraction.

Some unauthorised developments cause serious hardship for unintended victims. A current case involves the conversion of a former gym in Clondalkin in Dublin to apartments. The developers got permission for 27 apartments but built 47, making them all in breach of planning. Retention was refused and all the renting occupants are under notice to quit.

Most retention developments are more modest, but that doesn’t guarantee their success when seeking retrospective approval.

Two cases in Co Wicklow illustrate the uncertainty surrounding the issue. In 2013, Katie Fortune, who had been living with her family in a timber chalet she built without permission on the shores of Lough Dan for 14 years, beat the odds, and a demolition order, and was told by the High Court that she and her house could stay put.

In 2013, Katie Fortune, who had been living with her family in a timber chalet she built without permission on the shores of Lough Dan for 14 years, beat the odds and a demolition order and was told by the High Court she and her house could stay put.
In 2013, Katie Fortune, who had been living with her family in a timber chalet she built without permission on the shores of Lough Dan for 14 years, beat the odds and a demolition order and was told by the High Court she and her house could stay put.

But just two years later, Gary Kinsella and his family lost their High Court bid to keep the timber chalet home they built without permission in Blessington in the same county. The judge in the later case said in no uncertain terms that he disagreed with the reasoning and ruling of the judge in the first case which makes banking on precedent a risky business.

Not all developments are for personal gain. Ballyheigue Athletic FC fell foul of Kerry County Council for creating a soccer pitch without planning permission which it was judged encroached on sensitive sand dunes.

The fact that the facility was used extensively for local children and young people carried little weight with the council, or with An Bord Pleanála which refused it permission.

Nor is it always clear who is responsible for an unauthorised development, as was the case in Co Meath in 2010 when the council discovered a playground and pet farm operating without planning permission on a green area in an estate in Kentstown near Navan.

After more than a year of written inquiries and warnings to residents, staff moved in to dismantle the facility at 7.30am, leading to the awkward sight of gardaí providing security while pet rabbits and chickens were rounded up in cages to be taken away. The animals were later handed over to residents to be cared for.

In one of the more unusual examples of a retention application backfiring, the owners of a protected structure in Dublin who knocked it without permission were ordered to rebuild it.

Archers Garage, a 1940s art deco building on Fenian St, disappeared over the June bank holiday weekend in 1999. Developer Noel O’Callaghan fought to retain the site clearance but eventually agreed to restore the building. It was rebuilt in 2004 in what is a fairly faithful reconstruction of the original although it is now incorporated into a wider office complex and houses a financial institution.

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