Legal action over refusal to allow crematorium
A REFUSAL by An Bord Pleanála to grant permission for a crematorium and burial grounds in south Co Dublin is being challenged in the High Court.
Hantise Ltd and Ashman Properties Ltd sought permission for a crematorium and cemetery at a 3.64 hectare site they own at Kilternan. In June, An Bord Pleanála upheld a decision by Dún Laoghaire-Rathdown County Council to refuse permission for it.
The proposed development includes more than 1,600 burial plots, a building with two cremators with a place for prayer, an urn and ash burial area, and remembrance walls.
The board found that it was contrary to the proper planning and sustainable development of the area.
The developers, represented by barrister Eamon Galligan, say the board did not afford them fair procedures in arriving at its decision.
They claim they were not allowed to comment on, or make submissions on, two reports that, they say, were relied on by a senior planning inspector with the board in refusing permission.
They also allege the inspector’s findings are not fair or accurate and contain errors.
The companies, both of Herbert Building, The Park, Carrickmines, Dublin 18, are seeking orders from the court quashing the board’s decision of June 29th refusing permission for the development at Ballycorus Road, Kilternan.
They also want its application to go back to the board and be assessed by a senior planning inspector. They want that application heard by people who were not involved in the refusal of their application. Dún Laoghaire-Rathdown Council is a notice party to the proceedings.
The developers sought permission to bring their legal challenge on an ex-parte (one side only) basis. But at the High Court yesterday, Mr Justice Kevin Feeney directed that application for permission to bring the challenge be made in the presence of legal representatives of the board. He adjourned the case to October.
Mr Galligan said the council rejected the application in 2011 because the crematorium was not permitted on lands zoned rural amenity/agricultural and that insufficient information had been submitted about drainage.
The developers appealed that to An Bord Pleanála, which also refused the proposed crematorium for two reasons. The first was because the project is not permitted on land that is zoned agricultural/rural. That reason for refusal is not being challenged.
The second reason, which counsel said is being challenged over fears “it may set a precedence”, is that the board considered the proposed development posed an unacceptable risk of environmental pollution and to public health. This, the board said, was due to inappropriate ground and geological conditions, including shallow soil cover over bedrock at the site.
The board appointed a senior planning inspector to prepare a report on the appeal. This formed the basis of the board’s decision, it is claimed.
The board, it is claimed, “decided unanimously” to refuse permission generally in accordance with the inspector’s recommendations. The report refers to two documents that were raised by parties who made observations on the appeal. The developers say these documents formed the basis for the inspector’s recommendation that permission be refused.
The companies dispute the findings in the report and argue that the board has breached the 2000 Planning and Development Act because the developers were not allowed to reply to, or make submissions on, the two reports.