Court quashes exemption status for €200m project

 

DUBLIN DOCKLANDS Development Authority acted outside its powers and breached fair procedures in how it certified that a €200 million development on Dublin's north quays, on which work is already under way, was exempt from planning permission, the High Court ruled yesterday.

It granted an order to rival developer Seán Dunne quashing the certificate.The nature of a confidential agreement reached in May 2007 between the docklands authority and the developer, North Quay Investments Ltd (NQI), before the exemption was issued in July 2007, also gave rise to a "reasonable apprehension of bias" by the authority in reaching its decision, Ms Justice Mary Finlay Geoghegan found.

Under the May 31st agreement, the developer agreed to cede free of charge certain land to the authority for use as public open space if the exemption certificate was granted.

The agreement provided either the authority or its executives would recommend to its board the certificate should be granted and also noted the current North Lotts planning scheme would not permit a development of the nature contemplated by NQI.

The judge said the agreement meant there was a direct relationship between the decision to grant the certificate under section 25 of the Dublin Docklands Development Authority Act, 1997, and the obtaining by the authority of the lands for public space.

The fact the docklands authority had stated it had a well-known practice of entering into agreements with developers, and that these were necessary on a practical basis, did not alter her conclusion on bias, the judge said.

The authority had very wide power to secure the development and regeneration of the docklands area and was obliged to have a procedure preventing its executives or board members giving any commitment on a certificate prior to the board deciding that application.

While pre-certificate discussions could be entered into, no commitment could be given that a certificate would issue, she said. "What is permissible falls short of what was done in this instance."

Ms Justice Finlay Geoghegan was giving her reserved judgment on proceedings by Mr Dunne and his North Wall Property Holding Company (NWPHC) against the docklands authority over its decision of July 2007 that the proposed NQI development on the former Brooks Thomas site, bounded by North Wall Quay, New Wapping Street, Mayor Street and Castleforbes Road, was exempted development.

The NQI project surrounds on three sides development lands owned by Mr Dunne.

In a decision with far-reaching implications for the docklands authority, the judge ruled it was only empowered by the DDDA Act, 1997, to grant section 25 certificates for exempted development if that proposed development was consistent with the planning scheme.

If a proposed development was inconsistent with the planning scheme, the authority could not issue a certificate with conditions aimed at ensuring compliance in the future.

The judge ruled the proposed NQI development was inconsistent with the planning scheme for the North Lotts area of the docklands in relation to the proposed commercial use of the buildings and their height.

The authority was not entitled to grant - as it had in this case - certificates for such "fast-track" development on the basis of 22 conditions which had the intended effect of permitting a development, now inconsistent with the planning scheme, to be modified in the future so as to comply with the scheme, the judge ruled. The docklands authority had no power to enforce compliance with a section 25 certificate, she noted.

The judge stressed that her conclusion did not preclude the authority, in relation to developments considered consistent with the planning scheme, directing those developments be carried out with certain variations.

She also found the authority breached fair procedures in not permitting Mr Dunne, whose property would be affected by the proposed development, to make submissions on the proposed development and to have those considered prior to making its decision.

In granting the quashing orders to Mr Dunne, the judge said it was surprising and regrettable that the 1997 Act was silent about what procedure the authority should adopt for deciding whether section 25 certificates should be issued.

It was not disputed the North Lotts planning scheme was the blueprint for development of that area and was similar to a development plan under the planning Acts, she said. The planning scheme was in the nature of a contract between the docklands authority and, if not the public, at least the property owners within the area.

Those property owners were entited to expect any development undertaken in the area would only be exempted by the docklands authority if it was consistent with the scheme.