Developer alleges ‘astounding’ conflict of interest from consultants

A consultancy firm retained to help prepare a report supporting a developer's successful bid for planning permission for a €650 million development of more than 1,000 apartments on the outskirts of Dublin has provided another report to a company appealing against the permission, it has been claimed at the High Court.

Shorevale Investments Ltd, part of the Allied Real Estate Investment Group, is seeking injunctions against AWN Consulting Ltd over what its counsel Rossa Fanning SC described as a "manifest", "astounding" and "wrongful" conflict of interest.

AWN had in correspondence disputed any conflict and maintained the two reports concerned different issues, the court heard.

Shorevale insists the reports concern the same matter and claims AWN’s position reveals a “complete misunderstanding” of the law on conflicts of interest, Mr Fanning said.

Mr Fanning, with Joe Jeffers BL, instructed by Gavin Simons of Amoss Solicitors, secured leave ex parte ( one side only represented) from Mr Justice David Keane on Friday to serve short notice of injunction proceedings on AWN.

The matter was returned to Tuesday when an urgent hearing date will be sought.

Retained

The court was told Shorevale, of Mount Street Crescent, Dublin 2, had retained AWN, of Clonshaugh Business & Technology Park, Dublin 17, to provide material, some of which was used in a lengthy report provided in support of Shorevale’s application for planning permission for the development on the Royal Liver Assurance Retail Park on the old Naas Road, Dublin.

Dublin City Council last July granted permission for development of 1,102 residential units, comprising 992 build to rent apartments and 110 apartments. It includes an 18 storey tower for offices.

Last month, BOC Gases, the main supplier of oxygen to the HSE and based some 300 metres from the development site, appealed the grant of permission to An Bord Pleanála.

Mr Fanning said Shorevale had retained AWN from about July 2019 to assist in preparing an Environmental Impact Assessment Report (EIAR) required as part of its planning application.

AWN, a firm of environmental and acoustics advisers, sought fees of €18,000 and provided detailed material on matters including air quality and climate and waste management and human health in the EIAR, submitted in October 2019.

Shorevale was “astounded” when it learned AWN had provided material to BOC for use in the latter’s appeal against the permission. It says BOC told An Bord Pleanála AWN had provided a report which concluded the development proposals at the Royal Liver site are incompatible with the individual risk based land use planning contours arising from major accident hazards at the BOC Gases establishment at Bluebell. That report also criticised the EIAR submitted by Shorevale in support of its bid for permission.

‘Play on both sides’

Mr Fanning said AWN was seeking to “play on both sides of the pitch” but could not do so and his side would be seeking injunctions compelling AWN to terminate its agreement with BOC, preventing it advising BOC in its appeal before ABP and preventing the material supplied by AWN to BOC being used in that appeal, counsel said.

Shorevale’s proceedings are very urgent because they may affect what material the board can reasonably consider in the appeal, he said.

Shorevale is very anxious to get clarity on the net issue in its case, whether AWN had acted properly in accepting a retainer from BOC and, if not, whether material supplied by AWN should be before An Bord Pleanála in the appeal, he said.