An Bord Pleanála has conceded in a High Court challenge to its permission for a lawyer to build a 373sq m (4,014sq ft) home overlooking Vico Road and Killiney Bay in Dalkey, Dublin.
The approval granted to Alannah Smyth, corporate counsel at Fitzwilliam Real Estate, which is owned by her solicitor and developer father Noel Smyth, was challenged by the management firm of residences on the nearby Mount Salus Road.
In a judgment, Mr Justice David Holland noted the planning authority offered to reconsider Ms Smyth’s application for a contemporary three-bedroom home on Torca Road after conceding it erred in interpreting parts of the local development plan. The challenger, Mount Salus Residents Owners Management Company, agreed to this approach.
Ms Smyth was initially refused planning permission by Dún Laoghaire Rathdown County Council in 2022 on the basis that its local development plan provided that “no increase in the number of buildings will normally be permitted” in specified locations in Dalkey, Killiney and Sandycove Point, particularly along the coastline.
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However, noting many of the areas are near to the Dart line, the plan made exceptions for “small scale, sensitive infill development may be considered in these areas on suitable sites where such development would not detract from the character of the area either visually or by generating traffic volumes that would cause congestion issues which would, in turn, necessitate road widening or other significant improvements”.
By the time An Bord Pleanála dealt with Ms Smyth’s appeal of the refusal in November 2022, the local planning regime had changed.
Following a recommendation from the Office of the Planning Regulator (OPR), the Minister for Housing directed the council to alter its development plan by removing the partial ban on new buildings in the area. The direction, made in September 2022, was based on a conclusion that the development restriction was not consistent with national planning objectives to build in the Dublin suburbs along high-capacity public transport corridors.
As well as challenging An Bord Pleanála’s now-quashed approval of Ms Smyth’s application, the Mount Salus firm sought an order declaring that the OPR’s recommendation and the ministerial order are invalid. The validity or otherwise of these would determine their influence over the board’s reconsideration of the planning application.
The Minister and the OPR contested Mount Salus’s request for an invalidity declaration.
In his judgment this week, Mr Justice Holland held that the Minister and the OPR “misdirected themselves in law” on how to judge whether objectives of a local development plan are consistent with national policy goals.
He declared that the OPR’s recommendation was invalid and, by “domino effect”, the Minister’s direction was too.
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