Developer takes constitutional challenge over decision to dezone land

The Government is facing a constitutional claim against a vote by Dublin City Council to block housing on a big north city land bank in a case that will test the limits of local authority powers to intervene in property rights.

The high-stakes action by developer Pat Crean, chief of the Marlet group, will draw the Attorney General into a bitter legal saga over the future of his multimillion-euro site next to St Anne’s Park in Raheny.

The case initiated in recent days by one of the largest property investors in the State will challenge a recent city council vote to strip the site of zoning that allows housing.

Mr Crean is understood to be preparing to tell the court the vote was an unjust and disproportionate attack on his constitutionally-protected property rights at a time of crisis in the housing market in the State and Dublin particularly.

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Permission overturned

The action escalates a long confrontation over housing proposals on former playing fields used by St Paul’s College that have already been subject to 10 sets of legal proceedings and four An Bord Pleanála rulings.

In 2021 the High Court overturned fast-track permission for a 657-apartment complex on the site. In November the group lodged an appeal with An Bord Pleanála against the council’s refusal of permission for 580 apartments because of concerns about light-bellied Brent geese that use the land. That scheme drew more than 230 objections.

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Councillors voted to dezone the land in November, setting aside the site for open space only in the new city development plan, for 2022-2028. Residential development was open for consideration in the two previous plans, the first of which took force in 2011.

The move came in defiance of recommendations from council chief executive Owen Keegan that the site be zoned for a mixture of social and community infrastructure use and open space use, and his earlier recommendation for a mixture of residential and open space use.

Mr Crean has told the High Court he will seek leave in January to initiate judicial review proceedings against the decision. A judicial review is a mechanism for people to go to court to challenge the decision-making process of a public body.

The developer wants to take his case against the council and An Bord Pleanála as well as against Ireland and the Attorney General.

He is understood to be challenging the constitutionality of one part of the Planning and Development Act of 2000. At issue are measures saying “there shall be no presumption in law that any land zoned in a particular development plan … shall remain so zoned in any subsequent development plan”.

He is also preparing to say he will suffer serious financial loss due to the dezoning, arguing the move means it will be impossible to use the lands for any form of development which would generate a commercial return.

Lands dezoned

He will also argue the market value of the site reserved for open space use only would be a fraction of its value with residential development potential, it is understood.

He is also likely to say councillors have not provided proper or lawful reasons for dezoning the lands in their entirety or their rejection of Mr Keegan’s recommendations. In November correspondence with Mr Keegan, Mr Crean said the dezoning breached ministerial guidelines on planning.

The policy and objective of such guidelines was “that zoned housing land in an existing development plan, that is serviced and can be developed for housing … should not be subject to de-zoning”.

He made the same point to councillors, saying in correspondence it was “contrary to the guidelines” to dezone these lands.

“As private landowners, it is regrettable that unless this is rectified, we will be compelled to bring legal action which will consume valuable court time and resources and cost the taxpayer hundreds of thousands of euros in legal costs.”