Second court challenge taken over permission for Phibsborough apartments

A second High Court challenge has been taken over a proposed development of 205 build-to-rent apartments in blocks ranging from three to 12 storeys on a site in Phibsborough, Dublin 7.

The court last week granted permission to two residents’ groups, representing residents of Leinster Street North and Shandon Park, to challenge An Bord Pleanála’s strategic housing permission for the development on the Old Bakery site on Phibsborough Road near Cross Guns bridge.

This week Mr Justice Richard Humphreys granted leave to Stephen Dodd SC to bring a second challenge on behalf of an environmentalist, John Conway, with an address in Dundalk, Co Louth, and the Louth Environmental Group (LEG), whose objectives include protecting Ireland’s coastal areas.

The challenge is against the board and the State. The developer, Bindford Ltd, is a notice party.

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The grounds of challenge include claims the board did not have proper regard to guidelines concerning sustainable residential development.

It is also claimed the board erred in law and failed to provide adequate reasons when justifying a permission in material contravention of the Dublin City Development Plan 2016-2022, including concerning provision of public open space, on the basis the development is of strategic and/or national importance.

The applicants say Irish Rail and Dublin City Council considered permission should be refused because of the level of redesign they considered the development would require in order to adequately address potential noise issues given the proximity of the local Luas station.

It is claimed a board inspector, when attaching a permission condition concerning noise mitigation measures, had failed to provide evidence for, or adequately explain her view, that such measures were unlikely to change the development to such a degree that others would be deprived of a right to consultation.

Otters

Other grounds include the board failed to adequately justify why it rejected recommendations of the council, and of the Department of Tourism, Culture, Arts, Gaeltacht, Sports and Media for alterations to the proposed development as to avoid disturbance of otters, a protected species.

The claims against the State respondents include that certain provisions of the planning Acts are unconstitutional.

It is claimed the disputed provisions confer on the Minister for Housing the power to make specific planning policy requirements, including concerning building heights, with which the planning authority and the board must comply without the legislation specifying principles and policies which limit, or sufficiently limit, the Minister’s power to formulate policies.

It is also claimed the State has not properly transposed the Habitats Directive because there is no system under planning laws requiring the board, when deciding whether to permit developments, to take requisite measures to ensure strict protection of various species.

The proposed development will disturb otters, a protected species, and the board failed to take measures which would sufficiently protect otters, it is claimed.

Other claims include the board failed to assess the potential impact of the proposed development on the Royal Canal proposed Natural Heritage Area.

A hearing date will be fixed later.