The High Court has quashed a new building permit for a controversial 657-home development on land near St Anne’s Park in Raheny. The proposed development has so far recorded four An Bord Pleanála decisions and ten court cases “and counting,” Judge Richard Humphreys noted.

In a judgment on Friday, he quashed council’s third authorization, dated August 2020, for the development project on the former grounds of St Paul’s College, Sybil Hill Road, Raheny, by Crekav Trading GP Ltd, which is part from Pat Crean’s Marlet group.

In 2018, the council granted its first authorization, for 536 housing units on the site, but this was overturned by the High Court and returned for reconsideration.

After reconsideration, the council refused the leave, but the High Court allowed Crekav’s challenge to the refusal and again sent the case back.

The board then granted permission in February 2020 for a revised development. This second authorization was also contested and was revoked on consent on the grounds of non-compliance with the requirements of the European Union Habitats Directive with regard to an appropriate assessment (AA) of the impact of development on areas of land use. feed for the Light-bellied Brent’s Goose and other protected bird species in Dublin Bay.

The case was again referred to the board of directors which granted the authorization in August 2020.

Three legal challenges were then taken in charge of this authorization.

One was by a group of local residents, Clonres CLG, represented by Alan Doyle SC, and the other by John Conway, an environmentalist from Dundalk, Co Louth, and the Louth Environment Group (LEG), represented by Stephen Dodd SC , charged by BKC Lawyers.

Because the judge ruled that he would address domestic law issues first, the third case, by environmentalist Peter Sweetman, was adjourned because it raises issues of European law.

Institutional and community use

A central issue in the challenges arose as the land was zoned Z15 “to protect and provide institutional and community use” in the Dublin City Development Plan 2016-2020.

Crekav had ended local sports clubs’ use of five pitches at the end of 2017 and stopped mowing these pitches in August 2018. Dublin City Council refused to allow a sixth pitch, which was retained. by St Paul’s school, to be converted into AstroTurf land.

Justice Humphreys said that the Z15 zoning application is mandatory, that the developer is “required to demonstrate” that the criteria are met and that “it certainly has not been done.”

The commission inspector and commission erred in the way they approached this issue and the inspector’s analysis was fundamentally flawed, he concluded.

The inspector took into account an irrelevant consideration, namely that the land had been sold by the religious order of the Vincentian Fathers to Crekav, ruling that the land “is no longer available for community use”.

A change in ownership does not in itself change the interest to be protected by zoning, the judge said. The change of ownership had already taken place when the development plan was adopted and the planning map identified the site as including a sports field, even though the change of ownership had already taken place.

The inspector also erred in disregarding a possible prospective community use of the green space and in assuming that the word ‘use’ in the development plan means the de facto existing use on the ground, he maintained.

The existing use should be interpreted as a previously established use until a building permit for a new use is granted, he said.

Birds flight lines

He also found that the board should consider the evidence regarding the impact of development height on bird flight lines before deciding whether or not to allow a material violation of the building height guidelines.

On this basis, he concluded that the council’s finding authorizing a material contravention of building heights was invalid.

He further argued that there was nothing on which the Board could have considered the proposed development to be of strategic or national importance. It was simply “one of many high density housing estates.”

The council further erred in relying on a provision that requires local authorities to change their development plans to give effect to ministerial policy, he concluded.

Based on his findings, he said the proper order was to revoke the authorization. As he had decided cases in domestic law, questions of EU law do not arise, he added. Final orders will be made later.