Severability

Partially Completed Permissions

What follows is an abbreviated summary of a complex topic. Severability is a narrow exception (which may become narrower) to a default position. The application of severability will always be dependent upon the terms of a planning permission, the nature of the development and the other facts of the case. When considering any particular situation, specific legal advice should always be sought. What follows is generic information, not advice relevant to any particular situation. Most of this post is available only to paid subscribers.

Is it ever permissible to only partially complete a permitted development. If so, in what circumstances?

In 2023 I was asked to advise on this question, in respect of a specific development. I was asked to advise in a similar matter in the last few weeks. It was interesting to place the Opinions side by side and see to what extent the case law has moved on, albeit simply to confirm the law. Having said that, there is a possibility of change on the horizon from across the Irish Sea.

The General Legal Obligation and Severability

We have heard much recently about the length of time between conceiving the idea for a development, to making a planning application, to commencing construction and finally to completion. Much can change in that time, both for the developer and in the economic context. Despite this reality for developers, “the general legal obligation” is that developments should be completed in the entirety envisaged by the permission (Humphreys J, Leitrim County Council v Dromaprop Ltd [2024] IEHC 233 §48).

Humphreys J referred to Horne v Freeney (Unreported, High Court, Murphy J, 7 July 1982) in which it was alleged that the development deviated from the permission granted.

Murphy J held that;

“Planning Permission is indivisible...it authorises the carrying out of the totality of the works for which approval has been granted and not some of them only. A developer cannot at his election implement a part only of the approved plans as no approval is given for the part as distinct from the whole.”

In Dwyer Developments Ltd v Dublin City Council [1986] IR 130 Carroll J had to decide whether access arrangements provided for by one planning permission could be “grafted onto” and used in order to facilitate a later permission. Carroll J said that the point was undecided in Ireland and referred instead to the English case of Lucas (F) and Sons Ltd v Dorking and Horley RDC (1964) 62 LGR 491 which she described as “authority for the proposition that permission does not have to be implemented in its entirety unless the planning authority imposes a condition to that effect.” Carroll J agreed with the decision in Lucas and stated that “partial development is authorised development provided it can be regarded as severable”.

In effect, according to Carroll J, “the basic point at issue [is] whether planning permission is severable”.

'Severability' has been the key to deciding whether or not it is permissible to build only part of a permitted development since at least 1986.

The point was more recently stated in Moore v Minister for Arts, Heritage and the Gaeltacht [2016] IEHC 150 which concerned the possibility of severing permission to demolish non-original parts of buildings in central Dublin associated with the Easter Rising from a wider redevelopment permission. Barrett J said that;

“A planning permission must generally be completed in its entirety except where any particular development is severable from the rest.” (§455)

(The decision in Moore was overturned by the Court of Appeal at [2018] IECA 28 but not in this regard.)

Thus stood the case law in 2023.

The Recent Case Law

I looked at Donegal County Council v Planree [2024] IEHC 193 in my post of 22 April 2024. A wind farm had been constructed in breach of its planning permission. The Planning Authority sought a s160 PDA 2000 'planning injunction' in respect of the entire development. The developer argued that even if parts of the development were unauthorised that did not render the entire development unauthorised.