Estate of 28 homes may have to be demolished because they have been built too high

Lawyers for Cosmo Development Kilmeadan Ltd said this week the development is being built for Waterford City and County Council as social housing – but the enforcement order issued by the local authority in May deems it to be an unauthorised development, because the dwellings sit at an elevation 3 to 4 metres higher than permitted.

Cosmo Development, with a registered address in Kilcock, Co Kildare, wants the court to quash the order, which directed the developer to cease works on the development in Kilmeaden, Co Waterford, and bring the finished floor levels (FFL) of the dwellings into compliance with the development’s planning permission grant.

FFL refers to the elevation of a building floor after all flooring material has been installed.

According to Cosmo Development, compliance with the order would require the demolition of the houses, the excavation of nearly 4 metres of material “equating to thousands of truckloads”, and the reconstruction of the houses at that lower level.

The order says the FFL of the units under construction are not in accordance with the development’s planning permission when measured against a temporary benchmark on the construction site.

In planning applications, applicants typically include a temporary local benchmark or an Ordnance Survey Ireland (OSI) datum point – the national standard benchmark – as a reference point for measurements within the proposed development.

In its court documents, Cosmo Development says the development’s original planning application – compiled by an architecture firm not a party to the action – mistakenly did not include either a temporary local benchmark or an OSI datum point.

The temporary benchmark referenced in the council’s enforcement order was introduced “arbitrarily and without any explanation” by the architecture firm in a compliance submission, after permission had been granted for the development subject to certain conditions, according to the developer.

The planning permission for the development was initially granted in April 2022 to a previous owner of the Kilmeadan site.

“[The temporary benchmark’s] retrospective use amounts to the imposition of an entirely new level regime after the grant of permission,” the developer’s court papers say.

Cosmo Development’s position is that the planning permission intended for the houses to be constructed “relative to the existing topography”, and not “under the existing ground level with extensive excavations required”.

The developer says the order should be quashed for a number of reasons, including that work directed by the order is based on a mistaken interpretation of the grant of planning permission.

This week, John Kenny BL, appearing for the developer, said the development was being built for Waterford City and County Council as social housing.

Mr Justice David Holland said he was satisfied to give permission to the developer to bring judicial review proceedings against the council.

The judge also granted a temporary stay on the enforcement order, until the case returns later this month.