The High Court has overturned a fresh planning permission for a controversial development of 657 dwellings on lands near St Anne’s Park in Raheny. The proposed development has so far clocked up four decisions by An Bord Pleanála and ten sets of legal proceedings “and counting”, Mr Justice Richard Humphreys noted.
In a judgment on Friday, he quashed the board’s third permission, dated August 2020, for the proposed development on former lands of St Paul’s College, Sybil Hill Road, Raheny, by Crekav Trading GP Ltd, part of Pat Crean’s Marlet group.
In 2018, the board granted its first permission, for 536 dwellings on the site, but that was overturned by the High Court and remitted for reconsideration.
On reconsideration, the board refused permission but the High Court upheld Crekav’s challenge over that refusal and again remitted the matter.
The board then granted permission in February 2020 for a revised development. That second permission was also challenged and was overturned on consent on the basis of failure to meet requirements of the European Union’s Habitats Directive in relation to an Appropriate Assessment (AA) of the impact of the development on feeding grounds of the light-bellied Brent goose and other protected bird species in Dublin Bay.
The matter was again remitted to the board which granted permission in August 2020.
Three legal challenges were then taken over that permission.
One was by a local residents group, Clonres CLG, represented by Alan Doyle SC, and a second was by John Conway, an environmentalist from Dundalk, Co Louth, and the Louth Environment Group (LEG), represented by Stephen Dodd SC, instructed by BKC Solicitors.
Because the judge decided he would first address issues of domestic law, the third case, by environmentalist Peter Sweetman, was deferred because it raises issues of EU law.
Institutional and community use
A core issue in the challenges arose from the lands having being zoned Z15 “to protect and provide for institutional and community use” in the Dublin City Development Plan 2016-2020.
Crekav had terminated the use by local sports clubs of five pitches in late 2017 and ceased cutting the grass on those pitches in August 2018. Dublin City Council refused to permit a sixth pitch, retained by St Paul’s school, be converted to an AstroTurf pitch.
Mr Justice Humphreys said the request in the Z15 zoning is mandatory, the developer is “required to demonstrate” the criteria are met and that “certainly has not been done”.
The board’s inspector, and the board, erred in how they approached this matter and the inspector’s analysis was fundamentally flawed, he held.
The inspector took into account an irrelevant consideration, that the lands had been sold by the Vincentian Fathers religious order to Crekav, in deciding the lands “are no longer available for community use”.
A change in ownership does not in itself alter the interest to be protected by the zoning, the judge said. The change of ownership had already occurred when the development plan was adopted and the planning map identified the site as including a sports ground, notwithstanding the ownership change had already occurred.
The inspector also erred in her lack of regard to possible forward looking community use of the green space and by assuming the word “use” in the development plan means the de facto existing use on the ground, he held.
Existing use should be interpreted as a previously established use until a planning permission for a new use is granted, he said.
Birds’ flight lines
He also found the board was required to consider evidence concerning the impact of the height of the development on birds’ flight lines before deciding whether to allow a material contravention of building height guidelines.
On that basis, he found the board’s conclusion allowing material contravention regarding building heights was invalid.
He further held there was no material on foot of which the board could have held the proposed development to be of strategic or national importance. It was simply “one of many high density housing developments”.
The board further erred in relying on a provision which requires local authorities to vary their development plans to give effect to ministerial policy, he found.
On foot of his findings, he said the appropriate order was to quash the permission. As he had decided the cases on domestic law, the EU law issues do not arise, he added. Final orders will be made later.
