Two local residents have secured permission to bring a High Court challenge aimed at overturning permission for 482 apartments in blocks up to 22 storeys on a site in Carrickmines in Co Dublin.
The challenge by Ultan O’Brien and Edel O’Brien concerns An Bord Pleanála’s April 21st strategic housing permission, granted to Bowbeck DAC, for the development on a site at Golf Lane, off Glenamuck Road, Co Dublin.
The applicants, of Knockree, Golf Lane, Carrickmines, say they are not opposed to development on the site but believe the permitted development represents “significant overdevelopment” with “profound consequences for biodiversity and environmental protection”.
Challenge
The grounds of challenge include claims the board erred in how it permitted a development in material contravention of building height guidelines, the Dun Laoghaire Rathdown County
Development Plan 2016-2022, the Ballyogan and Environs Local Area Plan 2019-2025, and a zoning objective in the 2016 Act governing strategic housing developments.
John Kenny BL, instructed by F.P. Logue Solicitors, for the applicants, told Ms Justice Niam Hyland on Wednesday that the 2016 Act allows the board grant permission for developments in contravention of fully assessed local area and county development plans.
“What is the point of formulating such elaborate plans if the board can grant permission in breach of those and effectively set them aside?” he asked.
That is incompatible with the purposes of the Directives on Environmental Impact Assessment and Strategic Environmental Assessment, he said.
Other grounds of challenge include the board failed to take into account public transport capacity and to have adequate regard for the protection of bat fauna as required under European Directives.
It is further claimed a board inspector wrongly concluded that a zoning objective to protect and preserve trees and woodlands did not extend across the site of the development.
Objective bias
The applicants also allege objective bias by the board arising from allegedly indicating, when earlier refusing permission for a proposed development of 250 units for reasons including that did not include a “landmark” building of "much greater height", that it considered a landmark building on this particular site would be appropriate.
The disputed permission concerns a landmark structure of 22 storeys, Mr Kenny said. A reasonable person reading the board decision would assume the board was predisposed to grant permission for a landmark structure and that “the dice was loaded” against objectors in favour of the developer.
The board’s role is to identify if a proposal is proper planning and development and its permission was vitiated because it acted outside its jurisdiction as it has no role in directing planning policy or in identifying what it wishes to be built, counsel argued.
The applicants are not alleging sibjetcive bias or any impropriety against the board.
The challenge also includes claims the pre-application consultation procedure in the 2016 Act governing strategic housing developments is inconsistent with EU law concerning public participation in planning matters.
Consultation
The tripartite pre-application consultation involves the board, the developer and the planning authority with the public excluded until after that procedure, Mr Kenny said. His objection was, once public participation occurs, the board has no opportunity to request further information from the developer or planning authority arising from issues raised by the public.
Ms Justice Hyland was satisfied to granted leave for judicial review of the board’s permission decision and also granted a stay on further works on foot of the permission. The developer has liberty to apply to vary or lift the stay.
Mr Kenny said he wanted a stay because of plans to remove some 90 per cent of existing trees and hedgerows from the development site.
A hearing date will be fixed later.
