Ten residents have won their High Court challenge against planning approval for a proposed development of 299 housing units on a site owned by the Christian Brothers in south Co Dublin.
Ms Justice Emily Farrell, having found several errors in An Bord Pleanála’s approval decision of December 2021, said she intends to make orders overturning the permission for the development by Clonkeen Investments DAC on lands adjoining Clonkeen College, Deansgrange, Co Dublin.
She adjourned making final orders to allow lawyers for the residents and the board consider her judgment, delivered on Friday.
The judicial review challenge was by Paul Murphy, with an address in Blackrock, and nine other residents – Connor Richardson, Barbara Scully, Ann Lehane, Anne Marie Keady, James Hedderman, Colin Riordan, Ted McEnery, Ronnie Hay and Harry Crowe. They were represented by Stephen Dodd SC, with barrister Conor Sheehan, instructed by Christine O’Connor of BKC Solicitors.
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The 2021 planning application was made and determined under the Strategic Housing Development fast-track procedure, since repealed.
Permission was sought for 299 units, comprising 60 duplexes in six three-storey blocks, 239 apartments in four six-storey blocks, and a single storey childcare facility on a site owned by the Christian Brothers but subject to a contract for sale to Clonkeen Investments, the completion of which depended on planning permission.
The chief executive of Dún Laoghaire Rathdown County Council had recommended refusal of permission but the board adopted its inspector’s recommendation that permission be granted, subject to more than 20 conditions.
The board determined the application under the Dún Laoghaire Rathdown County Development Plan 2016-2022. It agreed with the inspector the development would not materially contravene the plan in respect of height, car parking, dual aspect, density or institutional lands.
In her 77-page judgment, Ms Justice Farrell found errors in how the board interpreted the development plan, particularly in relation to the application of policies for lands in institutional use.
The existing use of the site, when the development plan had been made, was sporting and recreational use ancillary to Clonkeen College, she said.
The fact the relevant “INST” symbol or designation – meaning to protect and/or provide for institutional use in open lands – was not on the site in the zoning map did not render the policies for institutional lands inapplicable, she said. Where distinct land parcels in institutional use are proposed for redevelopment, the council’s policies provided for retaining the open character and/or recreational amenity of these lands wherever possible.
The board, the judge held, was not entitled to rely on the previous development plan, or on construction of a fence in August 2019 between the site and the lands, to find the site was no longer covered by the institutional land policies. The lands were used as sports fields by the school and community until the fence was erected.
In interpreting and applying the development plan, the relevant use is the use of the land when the plan was made in 2016, which was as playing fields by the school and the community, she said.
The board’s conclusion that the permission did not materially contravene the development plan in respect of institutional lands was made in excess of its powers and is invalid, she ruled.
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The error about the absence of an INST designation on the zoning map also influenced, and invalidated, the board’s decision that the 90 units per hectare density of the development did not materially contravene the development plan, she held.
Errors in how the board determined the development did not materially contravene the plan in relation to height and car parking spaces also rendered its decision invalid, she held. The residents had complained the proposed 248 car parking spaces was 40 per cent below the guidance in the development plan.
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