Property developer successfully challenges planning decision regarding €75m South Dublin housing scheme

About this case:

• Judgment:
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The property development company had applied for planning permission for the €75m development in 2015, which was rejected largely due to an issue with one of the access points, which fell within a Strategic Development Zone.

In June 2015, O’Flynn Capital Partners (OFCP) applied to Dún Laoghaire-Rathdown County Council for planning permission for 164 residential units to be called Beech Park on a 5.3 hectare site

As part of the proposed development, OFCP also sought planning permission for the construction of a 150m section of roadway called the Druid’s Glen Road, linking with a planned signalised junction on the N11 – which would fall within a Strategic Development Zone, a planning scheme for the Cherrywood area.

When constructed, the road would give critical access for extensive new development on lands to the west of OFCP’s site owned by third parties and falling within the Strategic Development Zone.

The bulk of OFCP’s development site, upon which all of the residential units of Beech Park would be constructed, lies alongside the N11 but outside the Strategic Development Zone.

The application also sought permission to construct a spur road within the Strategic Development Zone to connect Beech Park to the Druid’s Glen Road as access onto the N11 would not otherwise be permitted

Strategic Development Zones

On 25th May 2015, Part IX of the Planning and Development Act 2000 introduced the new concept of Strategic Development Zones into Irish planning law.

Under section 166 these may be designated by the government to facilitate specified development of economic or social importance to the State.

The Cherrywood Planning Scheme

In 2008 the Government was requested by the Council to consider designating Cherrywood as a Strategic Development Zone, and in 2010, Cherrywood became so designated by government order (S.I. No. 535 of 2010).

The Cherrywood Planning Scheme encompasses approximately 360 hectares of largely undeveloped land situated between the M50 and the N11, and plans for extensive mixed development including residential, business, retail and recreational, to be served by a road and cycle network, as well as the Luas.

Part of the site on which OFCP sought planning permission, falls within the Planning Scheme site in “Development Area 5: Druid’s Glen” – the rest of OFCP’s site is located outside the Planning Scheme area.

Therefore, the OFCP planning application, insofar as it concerned property outside the Planning Scheme area, fell to be determined in accordance with the Dún Laoghaire-Rathdown County Development Plan 2010 – 2016.

On the other hand, the application for development of the 0.7892 hectares to construct part of the Druid’s Glen Road, fell to be determined under section 170(2).

Central to OFCP’s case was that its planning application in relation to the 0.7892 hectares was consistent with the Planning Scheme, and that, accordingly, the Council was obliged to grant permission subject to such conditions as it might attach, and that the reasons given for refusal in relation to the 0.7892 hectares were invalid.

Conclusion

In his extensive 40,000 word judgement, Justice Haughton considered Talbot v An Bord Pleanála 1 IR 375, and stated that the ‘entire decision should be quashed and the matter remitted’ to the Dún Laoghaire-Rathdown County Council.

Amongst the 31 findings of the court, Justice Haughton stated that ‘improper motive, taking into account irrelevant reasons, or objective bias, would taint the entire decision’ by the Council – therefore OFCP was entitled to challenge the reasons given.

Additionally, following Tennyson v Corporation of Dún Laoghaire 2 IR 527 and North Wall Property Holding Company Ltd and Ors v Dublin Docklands Development Authority and Ors IEHC 305, the interpretation of a Planning Scheme in respect of Strategic Development Zone made under Part IX of the Act of 2000 was a matter of law within the exclusive jurisdiction of the court.

Finally, Justice Houghton stated that his intention in ordering the matter to be remitted, was

(1) to enable the Council to consider its decision on the planning application based on the observations and submissions in the original application, as well as the conclusions in his judgment; and,

(2) so far as the Planning and Development Act 2000 and Planning and Development Regulations 2001 (as substituted by the 2006 Regulations) permit, to afford sufficient time, should the Council see fit, for the Council to raise with OFCP a request for further information and/or a request to produce evidence in accordance with Article 33 of the Regulations, and/or an invitation to the applicant under Article 34 to submit revised plans or other drawings or other particulars providing for modification of the development to which the application relates.