Judge to rule on correcting invalidity in Ballsbridge development order

A High Court judge will decide later whether an invalidity identified by him in An Bord Pleanála's permission for a development in Ballsbridge can be corrected by the board as an alternative to a court order.

Mr Justice Alexander Owens, in a judgment on Wednesday, agreed with one ground of the challenge advanced by Pembroke Road Association over the fast-track permission for 105 apartments, including a block 12 storeys high, and 10 new aparthotel bedrooms, on a site at Herbert Park Road.

The site includes the demolished former home of the 1916 Rising leader Michael Joseph O’Rahilly, known as The O’Rahilly, the only leader killed while fighting. No 40 was constructed after the 1907 Exhibition and featured in the formation of the Irish Volunteers and the planning of the 1916 Rising.

Derryroe Ltd, owned by the McSharry and Kennedy families, owners of the Herbert Park Hotel, secured the permission for the development at 36, 38 and 40 Herbert Park Road.

At the outset of his judgment, Mr Justice Owens said the courts must evaluate in judicial review applications whether any non-conformity with a rule relating to procedural matters is “sufficiently serious” to justify intervention. “Some legal rules are more important than others.”

It “remains to be seen” whether the appropriate order arising from his judgment is to quash the permission and remit the matter to the board for reconsideration, he said.

An alternative to invalidating the permission might be to adjourn granting judicial review to the residents so as to enable the board revisit the invalid element of its decision by amending the permission, he observed.

The matter will return before him in two weeks when the sides will outline their views concerning what orders should be made.

The PRA, represented by James Devlin SC, instructed by solicitor Fred Logue, argued, among several grounds, the board incorrectly concluded the development did not materially contravene the Dublin city development plan due to not providing 10 per cent of the site area as public open space.

Public space

The judge rejected that argument but upheld the PRA's claim the board was not entitled to impose a condition, condition 26, under section 48.2 of the Planning & Development Act 2000, requiring the developer to pay a financial contribution to Dublin City Council as a "special contribution" in lieu of providing public open space within the site.

There has been no input by the council into what, if any, specific exceptional costs within section 48.2.c not covered by the development contribution scheme will be incurred by the council in respect of infrastructure and facilities which will benefit the proposed development, he said.

There may not be any such costs and the result is it is not possible to give effect to condition 26 under section 48.2.c, he held.

The thinking in the Dublin city development plan is that the provision of public open space as part of a development may not be appropriate in some cases, he said.

In such cases, the developer will provide a financial contribution as well as a public infrastructure contribution, he said. A general levy of €4,000 per unit is imposed as a development contribution towards inter alia, enhancement of local amenities, he noted.

Condition 26 is an unsuccessful attempt to “shoehorn” this financial contribution into the framework of section 48.2.c, he held.

In rejecting other grounds, he disagreed with the views of another High Court judge relating to how analytical materials considered by the board should be presented.

He dismissed another ground claiming the board erred in how it permitted a material contravention of building height limits in relation to the development. The 45 metre height of the proposed development is some 29 metres above the permitted 16 metre height for the area.

The board was entitled to find the development would materially contravene height provisions in the city development plan but permission should nonetheless be granted because of the development’s strategic or national importance and having regard to ministerial guidelines concerning building heights.

A further claim that the board failed to adequately consider the impact of the proposed demolition of 40 Herbert Park and that property’s cultural significance was also rejected. There was no evidence the board failed to have regard to environmental issues relating to the house at No 40 and material in the Environmental Impact Screening Report specifically dealt with the architectural and cultural significance of No 40 in the context of its proposed demolition, he said.