Developer fails in bid to save one of two planning permissions for 208 apartments in Kimmage

A developer has failed to prevent the High Court overturning one of two planning permissions it has for 208 apartments on an L-shaped site in Kimmage, southwest Dublin.

An Bord Pleanála, as the defendant decision-maker, had conceded it erred in how it applied a section of urban development guidelines in making its decision. It did not contest Kimmage Dublin Residents’ Alliance’s application to quash the approval granted in September 2022 under a now-expired fast-track mechanism for strategic housing developments (SHDs).

Opposing the application was developer 1 Terenure Land Limited, a subsidiary of Lioncor Developments. It has a second, more recent alternative planning permission for a “large-scale residential development” scheme with the same number of apartments on the plot next to a gym. This approval stands but is the subject of a separate High Court challenge brought by the same residents’ group.

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Ms Justice Emily Farrell noted that the Supreme Court recently ruled that a developer – which is generally a notice party in challenges to planning permissions – is entitled to defend a case the planning board has conceded. She said the onus remains on the challenger to persuade the court that the board’s decision is invalid and should be quashed.

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Her judgment considered the validity of the legal ground the board conceded.

The board admitted failings in how it interpreted and applied section three of the Urban Development and Building Height Guidelines of 2018 regarding local public transport capacity and in its reasoning for rejecting submissions identifying an absence of public transport capacity.

In considering the application, An Bord Pleanála’s inspector had concluded the site is well-served by high-capacity public transport options in the form of bus routes.

However, the judge found that the developer did not demonstrate that the site was well-served by high-capacity public transport and the board could not reasonably concur with the assertion that the site was well-served with high capacity.

It is for this reason that the board was no longer entitled to rely on a government policy exception to local maximum height requirements, she held.

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The judge said the board had permitted the project even though it materially contravened the Dublin City Development Plan’s 16m-height maximum for the area. A material contravention can be justified only for a strategic housing development project that is well-served by public transport with high-capacity, frequent service and good links to other modes of public transport.

Had the Oireachtas intended that permission could be granted in material contravention of the development plan for every strategic housing development, no doubt the relevant Act would have stated this, she said.

She said the height of the five blocks was one of the main concerns raised in observations lodged about the planning application. There were also submissions alleging there was insufficient capacity within the local transport system to absorb the residents of the proposed build, she said. Some complained that buses are operating above capacity, with many already full before they reach the bus stops on Kimmage Road West, she added.

[ Council refuses planning permission for Conor McGregor hotel in Howth ]

The judge found that the board failed to provide adequate reasons for rejecting those submissions.

The board was not entitled to conclude that there was high capacity solely from the evidence of frequency and the potential capacity of a theoretically empty bus, given the capacity concerns raised in local objections, she held.

She granted Kimmage Dublin Residents’ Alliance, represented by FP Logue solicitors, an order quashing the permission.