Application is `predicated on a fundamental illegality'

The Spencer Dock planning application is "predicated on a fundamental illegality" and is therefore "fundamentally flawed", according to Mr Michael O'Donnell, legal adviser to the financier Mr Dermot Desmond.

In a written submission on Mr Desmond's behalf to An Bord Pleanala, Mr O'Donnell argues that there is no legal basis for the developers making a planning application for a master plan for a development that requires an environmental impact statement (EIS).

"It is submitted, therefore, that the board cannot consider the application lodged," he says.

He adds that the correct course of action for the board would be to require that the application be withdrawn, not least because the plans were "so vague and ill-defined".

In what may be a precursor to a future move by Mr Desmond to seek a judicial review of the board's decision if it were to grant planning permission for the scheme, Mr O'Donnell says his client is "very concerned" that his rights are being "prejudiced".

Mr Desmond's barrister also argues that in deciding to grant planning permission for the Spencer Dock scheme Dublin Corporation contravened its development plan by sanctioning the demolition of a listed building - Campion's pub on North Wall Quay.

Referring to the proposed removal of some 500,000 cubic metres of soil on the site, some of it contaminated by arsenic, cadmium, copper, lead, zinc and selium, Mr O'Donnell said this had "clear implications" for people living in the area and for the River Liffey.

Evidence was given to the inquiry yesterday that samples of soil on the site exceeded Dutch intervention levels, particularly in a number of "hot spots".

But with so much of the soil being removed to allow for basement parking this would not impede development.