Developer Michael O’Flynn wins appeal against council

Developer Michael O’Flynn said he felt “vindicated” after his company won a significant planning case against Dún Laoghaire-Rathdown County Council that could spark similar actions against other local authorities.

The High Court ruled that the council's decision to refuse O'Flynn Capital Partners (OFCP) permission to build 164 homes near Cabinteely, Co Dublin, was unlawful. It allowed the developer to submit a fresh application for the €70 million project.

Sources suggested afterwards that other county councils could face similar actions as other builders could follow OFCP’s example.

Mr O’Flynn said the court vindicated the firm’s position.

“It dealt with very significant issues that arose during the planning process that we felt strongly enough about to go for a judicial review,” he said.

Cherrywood area

Mr O’Flynn the case would have clear implications for the Cherrywood area, where a number of developers hope to press ahead with large-scale housing schemes. He said his company was preparing to make a new planning application to the council.

The High Court case centred on the proposed Druid's Glen Road, which leads to OFCP's site from the nearby N11. The company said the council wanted it to build the proposed road in order to give rivals, including Tudor Homes, access to its land.

OFCP argued that it was not obliged to do this and that Dún Laoghaire Rathdown’s strategic plan for the area provided that all developers involved should build their own sections of the road.

Mr Justice Robert Haughton ruled that the council misconstrued and misapplied the terms of its own planning scheme. He said it either had an improper motive for doing this, or had taken irrelevant matters into consideration, and failed to give adequate reasons for part of its decision.

Apply jointly

On the basis of the evidence, the judge found that the council’s “real motive” for refusing permission was either to oblige OFCP to apply jointly for permission to build the entire Druid’s Glen Road with other developers affected, or to force it to reach agreement with other landowners on how they could access their properties.

The court also found that the ecological grounds for refusing permission were invalid because the council failed to give the reasons and considerations behind this, which planning law obliges it to do.

OFCP sought planning permission for the development two years ago; the council refused it in July 2015. The High Court gave it permission to challenge the decision last September.

The case went ahead earlier this year after mediation failed to find a resolution.