The High Court has over turned a refusal by Dun Laoghaire Rathdown County Council to grant planning permission for a €75 million residential development on the Cherrywood site in south Co Dublin.

O'Flynn Capital Partners (OFCP), whose founder is property developer and investor Michael O'Flynn, had sought a judicial review of the Co Council's July 31st, 2015 refusal for 164 residential units at Beech Park, Bray Road, Cabinteely/Loughlinstown.

This is part of the Cherrywood site, which encompasses 360 hectares and is the single largest undeveloped landbank in Dún Laoghaire-Rathdown. In recognition of its strategic importance, the council successfully applied to the then government for Strategic Development Zone status, which was granted in 2010.

The main pillar of contention in this case centred on a small tract of land, owned by O’Flynn’s firm, that is outside the designated zone but which provides access to the N11.

It is one of three access points to the Cherrywood site and is considered crucial to the entire development of the zone, which has capacity for almost 7,500 housing units.

Judgment

The Council, which had opposed the application by Mr O’Flynn, had refused permission on a number of grounds including that it contravened the area’s planning scheme.

In a lengthy and detailed judgment on Wednesday Mr Justice Robert Haughton quashed the council's decision "in its entirety."

The judge remitted the matter back to the Council for a fresh determination after finding that reasons given by the local authority for refusing permission were invalid and that irrelevant matters had been taken into consideration. The council’s refusal was tainted and in the circumstances the whole decision should be quashed, he said.

Claim of bias

In his action Mr O’Flynn had claimed the council was “biased and had predetermined or prejudged the planning application” because of a dispute over a road leading into the proposed development.

OFCP and Mr O’Flynn have said that they would be prepared to negotiate access with other land owners in respect of the road.

OFCP's plan involves the demolition of 11 existing dwellings and the construction of a 158 metre section of the Druid's Glen Road linking the proposed development to the N11 road.

Mr O’Flynn had claimed the potential sales value of the developed land should exceed €75 million. The proposal will also create around 100 full time construction jobs. The land was acquired for more than €12 million.

Council planners had refused permission on grounds including the development failed to provide a “high quality site-specific design response for the site” in relation to layout, ecology and landscape design.

It would seriously injure the amenities or depreciate the value of property in the vicinity, was contrary to proper planning and is not consistent with the Cherrywood Planning Scheme in regard to its design and sequencing, the council said.

Mr O’Flynn had argued the refusal of permission for the section of the Druid’s Glen Road which traverses OFCP’s land “will likely pose significant difficulties” for the delivery of any development in the area.

He said that until the dispute has been resolved it seemed likely none of the development proposed for a 36-acre area within the Cherrywood scheme could be built, including at one residentially-zoned area which could provide up to 543 new homes.

He also argued the planning authority is obliged by law to grant permission where it is satisfied the proposed development is consistent with the local planning scheme.

Strategic development zone

The High Court action was brought because the proposal is located within a strategic development zone and a local area planning scheme. As a result the council's refusal could not have been appealed to An Bord Pleanála.

In his judgment the judge said one of the reasons the council had refused permission in respect of the Druid Glen Road was to avoid creating a ransom strip. This was to effectively oblige the OFCP to make a joint or coordinated application with adjoining landowners in respect of that entire road.

This was an improper motive and involved the taking into account of irrelevant considerations, the judge said.

Judge Haughton said he was remitting the application back to the Council so it could make its decision based on submissions already before it and the conclusions in the court’s judgment.

In addition the remittal order was to allow Council to either request further information about the proposal from the developer and ask OFCP if it wishes to submit any revised plans or modifications concerning its planning application.