Killiney residents secure permission to bring judicial review proceedings

A High Court judge has dismissed an application to set aside his earlier decision allowing several Killiney residents to challenge the granting of planning permission for 255 residential units near their South Dublin homes.

The residents secured permission to bring judicial review proceedings taken against An Bord Pleanála’s decision to grant permission for the units off Church Road in Killiney.

Permission was granted by the board for the strategic infrastructure housing development to Atlas GP Limited, a subsidiary company within Pat Crean's Marlet Property Group.

The residents’ action, against the board and the State, is aimed at setting aside the decision to give the proposed development the go-ahead.

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Requirements

They claim the development does not meet public space requirements dictated by the local development plan and the board acted outside of its powers by granting permission.

They also claim that the board relied on “inadequate” environmental screening surveys and that the decision to grant permission breached the European Union environmental impact assessment directive and the habitats directive.

Atlas is a notice party to their action.

In pretrial motions, Atlas sought to have last December's decision by Mr Justice David Holland to grant the residents leave to bring their challenge set aside.

The application was made on grounds including that there was a lack of sincerity in some of the grounds they had raised in their challenge against the decision.

The residents, represented by Stephen Dodd SC, instructed by Eoin Brady of FP Logue Solicitors, opposed the motions,

In his judgment dismissing that motion Mr Justice Holland said the applicants did not need to show that they were personally affected by each individually of the grounds on which they were relying.

He said that once they had shown standing in the general sense and prior participation, their standing “is not delegitimised by reference to their subjective attitude to – how much they subjectively truly, really care about” – the specific grounds supporting their claims.

He said while their case might ultimately fail, it did not make them “illegitimate in the sense for which Atlas contends, such that leave should be set aside in whole or in part”.

Motion

The judge also dismissed a further motion by Atlas seeking to prevent the applicants from amending the grounds of their challenge.

The court in its judgment also noted that Atlas has issued separate proceedings seeking an injunction restraining any steps in the judicial review aimed at preventing a disinterested party involving itself in litigation.

The residents' judicial review application is against An Bord Pleanála, Ireland and the Attorney General, while Atlas is a notice party.

Among the applicants’ core grounds of challenge is a claim that the development does not meet public space requirements dictated by the local development plan and the board acted beyond its authority by granting permission without considering if such a contravention could be justified.

The planning application allegedly relied on “inadequate” environmental screening surveys and that the correct legal test in relation to bat fauna was not applied as required under the EU’s environmental impact assessment directive and the habitats directive, it is further claimed.

Atlas has issued separate proceedings seeking an injunction restraining any steps in the judicial review aimed at preventing a disinterested party involving itself in litigation.

Atlas claims the judicial review challenge is being funded by third parties with no legitimate interest in the proceedings.

The residents want that action, which they claim is an “abuse of process” struck out.

Flyer

Atlas has also issued proceedings seeking damages and other orders against all eight residents over alleged defamation of the company in a flyer, published by “Watson Killiney Residents Association” seeking contributions from local people to help raise €60,000 towards legal costs of the judicial review.

The company claims the residents are the authors, or are connected to the authors and/or are responsible for the publication and distribution of the leaflet, which it claims contains false and inaccurate statements about Atlas.

Atlas has also sued two of the residents where it claims that a restrictive covenant of November 2000 prevents those two individuals from challenging the permission.

In his decision the judge noted that the residents claim those proceedings amount to SLAPP litigation, which is a strategic lawsuit against public participation, where cases are brought in order to silence critics until they abandon their claims.

Atlas, he said, denies this.

However, the judge said that he could not , on the evidence before him, make a finding whether Atlas is engaging in SLAPP litigation or if the motions ruled on in the judgment form part of a campaign of SLAPP litigation by Atlas.