Supreme Court to hear with ‘expedition’ appeal over 2020 permission for 416 Dublin homes

The Supreme Court has agreed to hear with “expedition” two locals’ appeal against the dismissal of their challenge to 2020 permission for the construction of 416 homes off Dublin’s South Circular Road.

A panel of three judges noted the obligation on the court to deal swiftly with large development appeals.

The planning permission, granted to a subsidiary fund of US property group Hines in September 2020, is for five years, so there is a “real risk” it will be undermined by further delay, the developer, An Bord Pleanála and State parties submitted to the court.

The judicial review initiated in November 2020 by Sinéad Kerins and Mark Stedman, who are local to the proposed build-to-rent scheme, has been the subject of five High Court judgments and a reference to the Court of Justice of the European Union (CJEU).

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Ms Kerins and Mr Stedman previously received permission to appeal to the Court of Appeal against the dismissal of their challenge. However, in a determination published this week, the Supreme Court said they can bypass the intermediate court and turn directly to it.

The Hines subsidiary fund (DBTR-SCR1 Fund) also sought leave from the Supreme Court, saying it had “no option” but to have the appeal determined urgently.

In pre-appeal submissions, the developer said that, despite a High Court and CJEU judgment in its favour, the “ongoing delay” in the case gives rise to a “very significant risk” it will be unable to implement the planning permission.

An Bord Pleanála submitted that the High Court dismissed all of the applicants’ domestic law grounds of challenge in May 2021, while the CJEU ruled last March in line with the board and opposing parties.

The High Court went on to hear further arguments from the parties on outstanding issues and dismissed the challenge last April. It then certified an appeal to the Court of Appeal for legal questions that were not previously addressed by the parties, the board alleged.

Given it has taken so long for the proceedings to be determined by the High Court, the board was supportive of a single appeal directly to the Supreme Court.

The State parties – Ireland and the Attorney General – are “very concerned” that a developer could be deprived of its planning permission for strategic housing due to time passing. This, the State parties said, “is contrary to the public interest”.

Ms Kerins, of Rehoboth Place, Dolphins Barn, and Mr Stedman, of Elmore Terrace, Donore Avenue, claim the planning board’s decision to allow the developer to make a financial contribution in lieu of providing open space required by the Dublin City development plan was based on a reference to a master plan that the High Court has found was not binding.

They maintain that this undermines a core principle of planning law.

The “strategic development and regeneration area” master plan for an area that encompasses the development site was jointly prepared by Dublin City Council and Hines.

The applicants also object to conditions imposed by the board that they say infringe a core property right.

The Supreme Court’s Ms Justice Iseult O’Malley, Ms Justice Marie Baker and Mr Justice Gerard Hogan agreed the appeal contains issues of general public importance regarding the interpretation of development plans and their interaction with a master plan.

It is also in the interests of justice that there is a single appeal against the High Court decision, they said.

The “Bailey Gibson” five-block build would range in height from two to 16 storeys, with 10 per cent of the stock going to social housing in line with statutory requirements.

The development site adjoins lands of the former Player Wills factory, which has approval for 732 apartments across four blocks, including one with 19 floors. Legal questions concerning this section have been referred to the CJEU for a determination.