Ruling could hit country's planners

A landmark decision by An Bord Pleanala last week may have serious repercussions for planning authorities throughout the State. The Bord decided in an arbitration case between builders McInerney Construction and Bray Urban District Council in Co Wicklow that the builders should not have to bear all the cost of road or associated site works, where those works provided a benefit to the general community.

In the McInerney case, the property developers were given planning permission on condition that they make a financial contribution to the Council for road, and water facilities. The builders had asked for permission for road improvements at the entrance to their Briar Wood estate at the foot of Bray Head, on the Bray to Greystones Road.

Permission was granted on appeal to An Bord Pleanala, which imposed the condition about financial contributions. Such conditions are well-known and widely applied by local authorities in the Republic, where some of the most obvious examples include Dun Laoghaire-Rathdown County Council's stipulation that the developers of a new shopping centre in Dundrum should provide a section of the Dundrum bypass.

Dun Laoghaire-Rathdown County Council has also imposed conditions on the Central Park development at Leopardstown that provision be made for LUAS. Part of the Leopardstown Road dual carriageway was also developed following similar conditions.

However, in the recent case in Bray, McInerney Construction availed of a clause inserted by An Bord Pleanala that should the company not be able to agree the level of financial contribution with Bray UDC, then the Bord would adjudicate.

McInerney Construction duly applied to An Bord Pleanala to adjudicate after negotiations with the Council were unsuccessful. The Bord then responded with a calculation taking into consideration the sums demanded by the Council and the cost of work already carried out by the company and effectively came up with a bill of just under £159,000 (#202,000) which the Bord said the council should pay to McInerney Construction.

It is understood that the Bord worked on a "proportionality" basis in reckoning up the cost of road works including a roundabout, based on who benefits from the improvements. As the town of Bray would benefit from the roundabout and road improvements, so it should bear a proportion of the costs. However if the same logic was to be applied across the State, the construction of the Dundrum bypass, the LUAS extension and much, much else could be threatened.

In north Wicklow alone, the County Council is currently considering draft plans for Newtownmountkennedy based on assumptions that property developers could be asked to link the town into the main sewerage system in Greystones, about four miles away. However using the proportionality assessment of who benefits from such an arrangement, the Council could find itself in receipt of a hefty bill from a property developer.

The decision has the greatest implications for the way An Bord Pleanala is perceived to do its business, according to Wicklow TD Liz McManus. Ms McManus said she was "horrified" by the original decision to grant planning permission for Briar Wood, in which the Bord overturned the decision of its inspector, to refuse permission for the houses.

Speaking to The Irish Times last week, Ms McManus said the Bord had given a "two-line permission without explanation" in the case. The recent decision that Bray UDC should pay McInerney Construction £159,000 (#202,000) was she said, also made without any explanation.

"I am sure they are all honourable people at Bord Pleanala and they had their reasons but Bord Pleanala is not accountable to anyone and we have no automatic right to see what those reasons are. The perception of Bord Pleanala must not be tarnished in people's minds, particularly in the current climate, and I would like to see the Minister for the Environment Mr Dempsey seeking answers," she said.