The Presentation Brothers are challenging a local authority decision aimed at preserving land adjoining the order's former secondary school at Glasthule, Co Dublin, for use as a sports field.
Mr Justice Peter Kelly yesterday admitted to the list of the Commercial Court the proceedings brought by the trustees of the Presentation Brothers against Dún Laoghaire-Rathdown County Council.
The Brothers are seeking leave from the court to challenge a decision of the council's elected members to approve a variation in its development plan providing for the preservation of the 4.5 acres of land at Hudson Road, Glasthule, as a playing field.
The council is to inform the court later this week if it intends to oppose the application for leave.
The Brothers say they want to sell the lands to raise funds to support their mission, their schools and their elderly members and that the council's decision severely reduces the value of the lands. They also say the council has refused to acquire the lands and has sought only to discuss leasing them.
They claim that a development objective which restricts the use of lands of a religious order to be maintained and used only as a playing field or for sports use is inconsistent with article 44 of the Constitution, which provides that the property of any religious denomination or educational institution cannot be diverted except for works or public utility and on payment of compensation.
They say the council's decision amounts to a taking of their lands in circumstances where, as the lands are currently unused, no beneficial use attaches to the lands.
They also want a declaration that the restriction is not a bona fide development objective under the Planning and Development Act 2000 in circumstances where the development objective is "entirely negative" in character.
The dispute centres on some 4.5 acres of lands adjoining the secondary school operated by the Brothers until numbers began to decline in the late 1980s. The lands are walled with entrance gates at Hudson Road and are laid out but not maintained as playing fields. The school building has been zoned in the county development plan to provide for residential amenity.
The trustees agreed to sell the school building to the Department of Education for educational use.
