Developer can appeal to Supreme Court against strike-down of permission for nearly 1,600 Dublin homes

The Supreme Court has agreed to hear a developer’s appeal against the High Court’s decision to strike down planning permission for 1,592 apartments in north Dublin’s inner suburbs.

A partner fund of developer Hines received fast-track approval in November 2021 to build its €602 million build-to-rent scheme on the site of the former Holy Cross seminary on Clonliffe Road in Drumcondra.

The 12-block apartment project was judicially challenged by Fionnuala Sherwin, a resident of Foxrock, south Co Dublin, who describes herself as a practising Catholic.

The High Court’s Mr Justice Richard Humphreys overturned the permission last January after finding An Bord Pleanála failed to follow the required approach to assessing a development’s impact on a protected structure.

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The judge held that the board did not sufficiently engage with Dublin City Council’s serious concerns about how mature trees and the “historic landscaping” would be affected by a significant basement development.

He found further flaws in the board’s “extremely vague” approach to balancing the need for development and compliance with national policy on the one hand and, on the other, preserving the character and setting of the site and historic structures.

The developer’s application for leave to appeal to the Court of Appeal was refused by Mr Justice Humphreys.

However, in a determination published this week, a Supreme Court judging panel found issues of general public importance that warranted a direct appeal to it.

Ms Justice Iseult O’Malley, Ms Justice Marie Baker and Mr Justice Gerard Hogan acknowledged the “obligation for expedition” placed on the court by the 2000 Planning and Development Act and said the court will work to accommodate an early hearing date.

The appeal will consider requirements under the 2000 Act and development plans to assess protected structures.

The developer, a notice party in the judicial review, submitted in its leave application that the High Court’s decision will have wider implications for the construction of development plans. It also stressed the volume of housing at stake.

Although An Bord Pleanála did not seek to appeal the judgment itself, it was supportive of CWTC’s application.

Ms Sherwin, of Knocksinna Grove, opposed the move, submitting that no points raised meet the constitutional threshold permitting a Supreme Court appeal.

The contentious build-to-rent development posed by the developer (CWTC Multi-Family ICAV) attracted more than 120 submissions, including from Sinn Féin leader Mary Lou McDonald, who stated that approval would only exacerbate the housing crisis.

If built, the apartment blocks would range in height from two to 18 storeys.

Dublin City Council’s conservation officer recommended refusing the project, saying: the height, scale and massing of the 18-storey block is “excessive in this context ‚and will entirely dominate and seriously injure the architectural setting of the protected structures”: the former seminary and the 18th-century Fortick’s Alms House, known as the Red House.

The officer also recommended omitting the tower from the development as he felt this block would injure the surrounding environs of Drumcondra and would be “clearly visible in long-range views from other parts of the historic city”.

The board’s inspector considered the removal of the 18-storey block unnecessary and said it could sit side by side with existing protected structures without detriment.