Developer Michael O'Flynn accused Dún Laoghaire-Rathdown County Council of bias in refusing his company planning permission for a €70 million housing development in south Dublin.
The High Court yesterday gave O'Flynn Capital Partners (OFCP) the go-ahead to challenge the local authority's recent decision to refuse it permission to build 164 homes in Cabinteely, Co Dublin.
Dún Laoghaire-Rathdown maintained that the proposal contravened a planning scheme for the area, posed a flood risk and would affect the use of the nearby N11 dual carriageway connecting the capital with the south east.
However, Mr O’Flynn told the court in an affidavit that the council was “biased and had predetermined or prejudged the planning application” because of a dispute over a road leading into the proposed development.
The case could break new ground in Irish planning law as the road is part of a strategic development zone outlined in the council's scheme for the Cherrywood area. Disputes involving such zones cannot be appealed to An Bord Pleanála.
Mr O'Flynn and his company argue that the council wanted OFCP to build the proposed Druid's Glen Road from a junction with the N11 to give two rivals, Tudor Homes and the receiver of Benreef Ltd, Declan McDonald of Pricewaterhousecoopers, access to land that they own.
Mr O'Flynn and OFCP's adviser, town planning consultant Tom Phillips, told the court that the company was not obliged to do this and that the strategic plan for the area provided that the road would be built by each of the companies whose land it crossed.
The developer maintains that the council has no power to demand that any planning applicant give owners of adjoining land access over their property or to require all landowners involved to make a joint application.
It is understood that OFCP and Mr O’Flynn would be prepared to negotiate access with other developers.
Apart from that, the only other option open to the council is buy the land designated for the road compulsorily and seek planning itself.
OFCP wants the court to quash the planning decision, made on July 31st, and to send it back to Dún Laoghaire-Rathdown so it can adjudicate on it again.
It is also seeking a declaration that the elements of the application that fall within the strategic development zone are consistent with the Cherrywood planning scheme.
Mr Justice Anthony Hunt gave permission to have the planning decision judicially reviewed on the basis that the developer had made an arguable case. The issue is due back in court in November.
Mr O’Flynn welcomed the ruling afterwards. “Our objective is to be allowed, in an appropriate and fair way, to proceed with the development of 164 high quality houses involving an overall development cost of approximately €70 million,” he said.
“There is an acute need for new homes in the Dublin area and in relation to this development we already have a list of people who are interested in our development.”
Dún Laoghaire-Rathdown County Council was not available for comment.