Permission for five apartments overturned due to effect on neighbour’s kitchen

Permission for five apartments has been overturned by the High Court on the application of a neighbour who claimed his kitchen door, which forms part of an extension that did not have planning approval, would be blocked by the proposed development.

In a recent ruling, Ms Justice Niamh Hyland said it was “entirely appropriate” for An Bord Pleanála’s inspector to consider the lack of permission and refusal of retention permission for Gary Solan’s kitchen extension at his home at Rutland Place North, North Circular Road, Dublin

However, she decided to overturn the permission because, she said, the appeal board’s inspector failed to consider the enforcement history of the kitchen extension when adjudicating his objection submitted to the board.

This was in circumstances where the inspector decided to make the planning status of the extension a determining factor in considering Mr Solan’s objection to the proposed apartment block, she added.

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Mr Solan claimed the extension was built in the 1970s and was below the limit requiring planning permission at that time. He said Dublin City Council and An Bord Pleanála’s inspector concluded in 2017 that works being carried out were exempt development.

Mr Solan brought a High Court judicial review action over An Bord Pleanála’s grant of planning permission for a development next to his home.

In the High Court he argued the proposal, comprising five one-bedroom apartments, would include construction of a solid wall within millimetres of his kitchen door, blocking access, light and ventilation, the judge said.

He said the board’s inspector should have considered the enforcement history of his property, the age of the extension and the fact the development was exempted.

Drainage issues

Mr Solan also made arguments about his concerns the development would negatively affect drainage issues at his property and, as the block would be higher than his chimney, cause smoke from his chimney to be pushed back down.

Ms Justice Hyland said the board submitted that the drainage issue is denied. The board’s inspector also considered the impact of the development on residential amenities and concluded it would not seriously injure nearby properties.

While Mr Solan submitted that his ground floor extension, in place for more than 40 years, was exempt from requiring planning permission, the board argued he failed to provide evidence for this assertion in his objection.

The judge said Mr Solan said the 2016 refusal of retention of the extension is not determinative of the planning situation because it might be exempt even if retention is refused.

He exhibited to the court an enforcement report from 2017 that concludes that the works undertaken at the time of inspection of his property did not require the benefit of planning permission and no further enforcement action was warranted, he submitted.

Ms Justice Hyland said the board’s counsel accepted that even where a retention application is refused, a development may not be unauthorised as it is exempted.

The inspector, she said, arrived at a negative view of the planning status of the door without having considered the 2017 enforcement file and the question of exemption. Had he done so, he might well have concluded that the extension was not unauthorised, and this may have had implications for his decision on the relevance of Mr Solan’s objection, she added.