Planning permission for 134 homes on part of a former school site in Goatstown, south Dublin, has been quashed by the High Court.
Mr Justice Garrett Simons found An Bord Pleanála erred in law in approving Durkan Estates Clonskeagh Ltd’s plan for a residential development on around five acres it bought in 2017 from the Congregation of Religious of Jesus and Mary who operate two schools on adjoining lands.
The five acres included the school hockey pitch, since replaced elsewhere on the school campus lands which were originally some 16 acres.
The congregation runs the Jesus and Mary College secondary school and Our Lady’s Grove Primary School. There is also a four-storey convent, an all-weather hockey pitch and tennis courts on the campus.
Durkan applied for permission directly to Bord Pleanála, bypassing the normal planning process because it involved more than 100 houses and is therefore entitled to a “fast track” consideration as a strategic housing development.
Dún Laoghaire-Rathdown Council was consulted, however, as part of this process. The council’s chief executive recommended permission be refused on grounds including that it would mean the school would be operating on sites smaller than an area recommended by the Department of Education.
The board granted permission last May and local objector Michael Redmond brought a High Court challenge to the permission. Durkan and the county council were notice parties.
On Tuesday, Mr Justice Garrett Simons found the board had erred in its interpretation of the local development plan in relation to what are “institutional lands” under the council’s county development plan for 2016 to 2022.
As of the date of adoption of that plan, March 2016, the land in question was in the ownership and occupation of the religious congregation. Part of it accommodated the old hockey pitch used by the secondary school as well as open lands in institutional use, the judge said.
The board itself had, when granting permission for the new all-weather pitch in another part of the school lands, recognised this, he said.
The policies and objectives of the development plan “cannot be bypassed by the simple expedient of the sale of he lands”, the judge said. They remained “institutional lands” notwithstanding the transfer to of ownership to Durkan.
The Durkan development involved a material contravention of the development plan policies and objectives in relation to the housing density and public open space, he said.
The decision to grant permission was invalid in circumstances where the board did not seek to invoke a power it has under the Planning and Development (Housing) Act of 2016 which permits it to contravene the local development plan.
The board inspector did not engage with the reasons for refusal recommended by the council’s chief executive, he said.
There was also a breach of the planning legislation because the board failed to explain in its decision what approach it took to possible future expansion of the school, he added.
The judge adjourned the question of costs and a possible appeal to later this month.
The adjournment is also to allow Eamon Galligan SC, for Durkan, to take instructions on whether to seek to have the matter sent back to the board for reconsideration rather than it be quashed entirely and a new planning application submitted.