Court overturns permission for 300 Dublin housing units

Permission had been granted to Lulani Dalguise Ltd to build 276 apartments across eight blocks and 22 houses on a 3.6 hectare site at Dalguise House

The High Court has overturned An Bord Pleanála's decision to grant planning permission for 300 apartments and housing units in Monkstown in south county Dublin.

In a judgment, Mr Justice David Holland said that he was satisfied to quash the permission on grounds including that the board was wrong to find that an Environmental Impact Assessment (EIA) Screening Report submitted as part of the application for permission, identified and described adequately the effects of the proposed development on the environment.

Mr Justice Holland added that by adopting a report which did not describe those effects adequately, and could not of itself, in law, provide an adequate basis or determination that an EIA was not required, the permission granted by the planning authority must be quashed.

Monkstown Road Residents Association and three individual residents; James Barry, a retired Dublin city sheriff, of Richmond Park; Bairbre Stewart, a chartered accountant of Clifton Terrace and Christopher Craig, a social entrepreneur, of Belgrave Terrace had brought judicial review proceedings challenging the permission granted by An Bord Pleanála in August 2020.

Permission had been granted to Lulani Dalguise Ltd to build 276 apartments across eight blocks, ranging from five to nine storeys, and 22 houses on a 3.6 hectare site at Dalguise House.

The developer, which was a notice party to the proceedings, had also planned to convert the house into two separate dwellings and a creche.

The residents' action was against the board, the Minister for Housing, Local Government and Heritage, the State and Irish Water.

Dun Laoghaire-Rathdown Council was also a notice party to the proceedings.

In their action the residents had claimed that the permission granted was invalid on various grounds including that the board had erred in its application of provisions of the EU Habitats Directive.

The board, it was claimed, erred in screening out the proposed development for an EIA, contrary to the EIA directive, and in also screening out an Appropriate Assessment (AA), contrary to Article 6 of the Habitats Directive, and had not properly applied provisions of a 2006 Directive on bathing water quality.

The board also erred in accepting the developer's assertion that no wintering birds were found on the site when that assertion was based on a survey not carried out during the wintering bird season, it is claimed.

It was also claimed that the board lacked sufficient scientific expertise to adequately, objectively and scientifically evaluate the proposal before it and failed to carry out an independent scientific review for the purposes of Article 12 of the Habitats Directive.

The board, it was claimed, failed to ensure the proposed development would prevent deliberate disturbance of bats and deterioration or destruction of their breeding sites or resting places.

The board, it was further claimed, failed to have proper regard to the relevant area development plan and architectural heritage guidelines and failed to determine the curtilage of Dalguise House.

Other grounds concern the board's interpretation of building height guidelines and its approach to a material contravention of the development plan in relation to the height of the development.

The residents' action was opposed.

In a detailed and lengthy judgment Mr Justice Holland, who is one of the judges designated to hear actions against strategic housing developments, said that in this case the planning permission granted by the board must be quashed.

The judge said that the board had erred by finding that the developers EIA Screening report adequately described the effects that the proposed development would have on the environment.

He also held that the board had not given adequate reasons for its EIA Screening decision that the proposed development would have an insignificant effect on cultural heritage.

The judge further held that in its decision to grant permission the board erred by relying on a Specific Planning Policy Requirement concerning building height guidelines, that he said it was not entitled to do.

There was no question, he added, that the height of the proposed development did materially contravene Dun Laoghaire Rathdown's building height policy.

All other grounds of the challenge were dismissed by the court.