Developer seeks injunction to prevent planning challenge by Killiney residents

A developer is seeking a High Court injunction preventing several south Co Dublin residents from bringing a legal challenge against a proposed development in Killiney.

The injunction, which has been described as extraordinary and unique, is being sought by Atlas GP, which is part of the Marlet group. The company has secured planning permission to build residential units and a childcare facility at Church Road in the south Dublin suburb of Killiney.

The residents oppose the injunction, which they say amounts to an “abuse of process” and is an example of what is known as “strategic litigation against public participation”.

Some eight residents, who live in properties located at Church Road and Watson Road in Killiney, are seeking to prevent An Bord Pleanála’s decision of July 8th last giving Atlas the green light to construct the development, which has been deemed a Strategic Infrastructure Development.

While the residents say they do not oppose development on the site, they claim the planning permission granted amounts to an overdevelopment. Their application for permission to bring a judicial review action against the board and the State challenging that permission is pending before the courts.

Atlas, which is a notice party to the residents’ action, has in separate proceedings sought orders including an injunction restraining the residents from taking any steps including making an application to the court.

Atlas claims that the residents have broken what is known as the rules of “champerty and maintenance”, which means that a third party is supporting litigation without just cause or without having a legitimate interest in the action.

Atlas also wants orders that would include directing the residents to provide the names, addresses and a description of all persons it claims are funding the judicial review action.

Atlas says it has brought the proceedings after becoming aware last September of a flier which it claims was widely circulated in the local community. The company says this was done with the clear purpose of motivating third parties to fund the legal costs of the challenge against the grant of planning permission. It also claims that it was defamed in the flier.

Atlas, represented in court by Paul McGarry SC, instructed by Leman Solicitors, also claims that contrary to law the action is being funded by third parties, and it should be granted the orders it seeks.

In its action Atlas further seeks damages and a declaration that proceedings have been funded by third parties with no legitimate interest in them, contrary to law.

Right of access

Stephen Dodd SC, instructed by solicitor Eoin Brady, for the residents, claimed the injunction was the first attempt before the Irish courts of what is known internationally as "strategic litigation against public participation",and it would prevent them from exercising their right of access to the courts.

His clients say that the court should not grant Atlas what would be an extraordinary injunction. Counsel said his clients, who reject the claims made by Atlas, have brought a motion before the court seeking to have the injunction proceedings set aside on the grounds that it amounts to an abuse of process. Counsel said it, and other proceedings brought by Atlas, were attempts to exert pressure on his clients, and the injunction was sought for improper purposes.

Counsel said that if Atlas wished to stop his clients from seeking to have the planning permission quashed then the proper way to do so was to bring a motion seeking to set aside any decision by the court to grant the residents leave to bring their challenge.

Counsel said that in addition to the injunction, the developer has brought other proceedings against his clients, including proceedings alleging that Atlas has been defamed by them. These were further attempts to exert pressure on the residents, the court heard.

Mr Justice Allen, who noted that the judicial review proceedings are to go before Mr Justice David Holland later this month, said he was adjourning the injunction application for a week. The judge said when the matter returns before him he hopes to fix a date for the hearing of both the injunction application and the residents' motion seeking to strike out that action.