A company involving Cork property developer Mr Owen O'Callaghan has lost its High Court challenge to a decision of An Bord Pleanála to invite a Treasury Holdings company to submit revised plans for a new town centre to be built at Balgaddy, west Dublin. Mary Carolan reports.
Dietacaron Ltd, of Davitt's Quay, Cork has lands adjacent to those held by Everglade Properties Ltd, the company behind the proposed development.
Everglade's initial application of June 2002 was for a mixed use, phased urban development with covered pedestrian main street and connections to a proposed new rail station and future metro interchange. It proposed construction of a seven-storey 252-bedroom hotel, 1,029 apartments, 17,000 square metres of office space, some 26,000 square metres of retail floor space; a 10-screen cinema complex and leisure facilities.
In August 2002, South Dublin County Council refused permission for the development and Everglade appealed to An Bord Pleanála (ABP) against that refusal. Dietacaron objected to the initial planning application and also lodged an appeal as did Quarryvale Two Ltd and Quarryvale Three Ltd (owners of Liffey Valley Shopping Centre).
ABP began an oral hearing on the appeals in May 2003. In September 2003, ABP issued a notice deferring the oral hearing and a decision on the appeals and invited Everglade to submit revised drawings and other particulars modifying the proposed Everglade development. The notice outlined the main problems with the Everglade proposal and suggested a list of modifications. Everglade submitted revised proposals.
Dietacaron then applied to the High Court for leave to seek, by way of judicial review, orders and declarations opposing the ABP notice. It alleged that ABP had effectively invited Everglade to submit a new planning application for a fundamentally different development and that the decision to defer consideration of the appeals was unlawful.
In his decision yesterday refusing leave, Mr Justice Quirke said the issue was whether the bord was empowered and entitled in September 2003 to defer consideration of Everglade's planning application and to invite Everglade to submit revised drawings and other particulars in accordance with the 2001 planning regulations.
He had concluded the bord was so entitled and therefore Dietacaron's claim failed. The judge said the bord had made a lawful decision regarding the basis upon which the appeal should be determined and also lawfully concluded the development, as then designed, was not acceptable and required modification. Having so decided, the bord was entitled to exercise its powers under the 2001 regulations to invite Everglade to submit revised proposals.
It remained open to all of the participants within the planning process to make submissions to ABP challenging Everglade's revised application on grounds that it did not come within the terms of that notice and on grounds that the proposed changes could not be described as "modifications".
However, Dietacaron was inviting the court to make a finding of fact inconsistent with the view of ABP as expressed in its notice. It was not the court's function to conduct the kind of examination or assessment sought by Dietacaron of the revised Everglade proposals.
It had repeatedly been stated by the courts that decisions to grant or refuse planning permission were administrative decisions reviewable, not on the merits of the decisions, but in relation to how the decision makers had exercised their powers. In general, courts should be reluctant to interfere with the decisions of experts on planning matters.
While circumstances could arise where it was appropriate to interfere with a decision made by ABP, pursuant to its statutory powers, in the planning process, no such circumstances arose in this case, the judge said.