A developer’s constitutional challenge to what it says was an “irrational” vote by Dublin City councillors to block housing on its north city site has been entered into the High Court’s fast-track commercial planning list.
The action is being brought by two subsidiaries of Patrick Crean’s Marlet group, Raheny 3 Limited Partnership and Raheny GP3 Limited, which own the large land bank formerly part of St Paul’s College, next to St Anne’s Park in Raheny.
In an affidavit, Mr Crean said the council vote last November to strip the site of zoning that permits large-scale housing amounts to an “unjust and disproportionate attack” on the companies’ constitutionally protected property rights.
The new zoning only allows for recreational and open space developments, and a limited degree of residential or commercial building that must meet criteria that Mr Crean said “will not be possible to satisfy”.
The companies will suffer “serious financial loss” as a result of the decision, which Mr Crean said is unlawful, irrational, unreasonable and made beyond the powers of Dublin City Council.
The vote is also contrary to the “common good”, he added, considering it went against the advice of the council’s chief executive, who said an alternative mix of zoning struck an appropriate balance between ecological protection and the provision of housing when Dublin and the State is in the midst of a housing crisis.
Last October, Dublin City Council refused Raheny GP3 permission for 580 residential units, a 100-bed nursing home, creche and six playing pitches.
Mr Crean’s group has lodged an appeal with An Bord Pleanála over this refusal, which was grounded in the council’s concern that the developer’s Natura Impact Statement did not demonstrate that the development would not affect protected Brent geese in Dublin Bay.
At the developer’s request, Mr Justice Richard Humphreys granted a stay on determination of that appeal until this zoning challenge is resolved. The Raheny subsidiaries believe any decision by An Bord Pleanála would have to comply with the policies and objectives of the Dublin City Development Plan 2022-2028, which cemented the new zoning.
Lawyers for the council, State and An Bord Pleanála indicated they had no objection to an application by Declan McGrath SC, for Raheny, for the case to be entered into the expedited commercial development list.
Mr Justice Humphreys admitted the matter into the list before adjourning it for four weeks.
The Raheny firms want the court to quash the council’s decision to adopt the Dublin City Development Plan or the decision relating to their lands.
The Raheny site has already been the subject of four decisions by An Bord Pleanála and 10 sets of legal proceedings.
Planning permission given in 2018 to another Marlet group subsidiary, Crekav Trading GP Ltd, for 536 homes on the site was also overturned on consent by the High Court and remitted for reconsideration. On reconsidering, the board refused permission, but the High Court upheld Crekav’s challenge to the refusal.
The board then granted fresh permission in February 2020 for a revised development of 657 apartments. A High Court challenge to that decision was overturned on consent, on environmental assessment grounds. With the matter remitted again to the board, permission was once again given in August 2020 and then quashed by the court in May 2021.