Court proposes to overturn permission for apartment development in Howth

A High Court judge has said he proposes to overturn planning permission for a large apartment development in Howth, Co Dublin.

Balscadden Road SAA Residents Association Ltd brought proceedings over a permission granted last March by An Bord Pleanála to Crekav Trading for the development on a site at the former Bailey Court Hotel and adjoining lands south of the Martello Tower on Balscadden Road.

A separate challenge was taken by another local resident, Christian Morris, and both were heard together. The permission was for 177 residential units in three apartment blocks and one mews building, ranging in height from three to five storeys along with car parking and bike spaces. The development was classified as a strategic housing development, with the effect the developer bypassed the local planning authority and sought permission directly from the board.

Among their grounds of challenge, the residents claimed the board and its inspector failed to adequately address concerns about risk of subsidence and landslide on the site, already subject to land slippage. In his judgment this week, Mr Justice Richard Humphreys said both cases relate to a significant development on Howth head in proximity to areas of natural and built environmental significance.

The development would involve excavation of an Ice Age esker which the developer estimated would involve removal of some 78,000 cubic metres of soil, sand and gravel but the residents estimated the figure at 90,000 cubic metres.

Having considered the evidence and the law, he said he proposed to quash the permission on two grounds.

The first was the board took irrelevant considerations into account in relying, in its decision, on a previous permission granted by it but quashed by the High Court in other proceedings.

The second ground arose from the residents’ claims of inadequate plans for the development.

The judge said there are no construction drawings for the largely underground sheet piling structures consisting of five “huge” structures up to 15 metres high and the only drawings were sketches with incomplete dimensions.

The relevant regulations specifically require the distance of the structure to the boundary but none of that information was provided in the legally binding plans and drawings submitted, he said.

The lack of formal drawings showing the dimensions and location of the sheet piling breached the requirement to submit drawings in accordance with the regulations.

It also rendered the permission “devoid of meaning” because the permission was to construct the development in line with the plans submitted but those plans did not include adequate details of the location and dimensions of the sheet piling.

An argument on behalf of the board that the regulations do not say descriptions of structure should include a subterranean structure “doesn’t hold water”.

The 2016 Act providing for strategic housing development applications to come before the board did not provide for a “blanket” setting aside of mandatory statutory requirements at the discretion of the board. To read the provisions that way would effectively create “a Henry VIII clause” allowing normal statutory provisions “to be set at naught at the discretion of the decision maker”.

He did not accept arguments for the developer that requiring drawings to give the dimensions of underground structures was “quite radical” and would have a “floodgates” effect.

The “real problem” was the sheet piling structures are not a small subterranean structure but are “quite massive, up to 15m in height”. Their precise location was of “critical importance” to the objectors and would determine the slope concerned, the impact on neighbours properties and on the overall environment.

The judge said he would not remit the matter to the board because the inadequacy of the drawings affected all subsequent steps in the planning process.

He said he proposes to make an order, in the Balscadden group’s case, quashing the permission. While that effectively rendered Mr Morris’s case moot or pointless, he said he would be inclined to make no order in that case, and consolidate it with the residents’ case, in case the matter went further. Final orders will be made on a later date.