Judicially favoured peace talks are to take place in a planning dispute in which a 70-year-old Dublin businessman faces an order to demolish almost half of his home as a result of an alleged breach of planning laws.
Judge John O’Connor has agreed to a suggestion by the opposing parties in a six-years-long litigation that he would not write up a reserved judgment until both sides had had an opportunity to exchange views on a mutually acceptable outcome.
Talks are now to take place in a bid to find a way out of what had been described in court as “harsh” and “dramatic” demands by Fingal County Council for the tearing down of a two-storey house extension and full restoration of the site.
Judge O’Connor had been told in the Circuit Civil Court today that there was no question of businessman Philip Farrelly, of Burrow Road, Sutton, Dublin, having deliberately breached planning laws in order to turn his Victorian home into a two-family residence to facilitate his live-in son and his wife.
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Oisín Collins, counsel for Mr Farrelly, said this had never been the case. Mr Collins, who appears with barrister Cathal Lenaghan and McKeever Tallan Solicitors, said that although Mr Farrelly’s son and wife lived in the same property, there had never been any division of the house planned or carried out.
Mr Farrelly had brought an application for permission to retain the extension five years after Fingal County Council had issued an enforcement order seeking its demolition. Mr Collins said it was Mr Farrelly’s belief at all times that the replacement of a dangerous existing extension was an exempted development.
“He had repeatedly been assured by one council engineer that the development was exempt until receipt of the enforcement notice from the local authority demanding that he pull it down and restore and re-grass any changes,” Mr Collins said.
Mr Collins said Mr Farrelly had built a smaller replacement extension to the existing and much older and unsound version. The new building had been reduced in size and was a metre off the original foundations in ease of neighbours who had complained about the development.
Counsel said Mr Farrelly would be entitled, if forced to demolish the new extension, to rebuild an almost exact replica of what had existed but at very significant extra cost.
“While the council is looking for an ‘all duck or no dinner’ outcome, there has to be a happy medium and, even if the court finds there has been a breach of planning laws, it has a discretion to not order demolition,” Mr Collins said.
He said that if Mr Farrelly had made a mistake, it had been a genuine one and any deviation had been technical and had not caused any serious environmental impact. To grant the council its demolition and restoration order would have devastating consequences for Mr Farrelly and his family, grossly devaluing his property.
Barrister Tim O’Sullivan, counsel for the local authority, replying to submissions by Mr Collins, said Mr Farrelly had proceeded with the development despite having received a warning letter following a complaint from a neighbour. “Something was knocked and something then put in its place which had no comparison with what it replaced,” Mr O’Sullivan said.
When it came to discussion regarding what order the judge might make, in the event of his siding with the council, Mr O’Sullivan said there were “practical” orders that could be made involving changes which may be more practical than demolition.
Judge O’Connor, stating that he had not decided anything in the case and did not want to give the impression he had come down on one side or the other, said Mr O’Sullivan’s last point merited consideration and, while he would reserve his judgment in the case, put the matter in for mention on November 11th.
Mr Collins said that even if the parties did not agree on a solution, they might agree on a practical approach for the court to consider.
