A developer can carry out certain clearance works on a site for a €160 million student accommodation project near University College Dublin pending the hearing of a challenge to its planning permission, the High Court ruled.
Mr Justice David Holland vacated a stay he had imposed last October on the removal of trees from the former site of Our Lady's Grove school in Goatstown, about 850m from UCD, by the developers Colbeam Ltd.
Two local residents had brought the judicial review case over An Bord Pleanála’s permission for the 698-bed eight-block development.
Wendy Jennings and Adrian O’Connor, residents of The Grove, Goatstown, say they are not opposed to a development at the location, but believe this represents a “significant” over-development of the site.
Among their claims is that the permission contravenes requirements for open spaces, building heights and provision for social housing.
They also claim it breaches EU law on protection of habitats.
Colbeam, which is a notice party in the case, has claimed a delay to the completion of the build past the summer of 2024 would make the company vulnerable to a €10.5 million loss, due to potentially missing the start of the next school year.
Colbeam asked the court to vary a stay which the court placed on development works as part of granting leave to the residents to bring the challenge.
The residents opposed it arguing primarily, that the removal of trees from the site would cause irreparable environmental harm due to the loss of the intrinsic value of the trees and of their value as a bat and bird habitat.
If these works went ahead, their proceedings would be rendered moot and they would be deprived of effective remedy in their challenge, they said.
Mr Justice Holland said he would vacate the stay only as to those elements of the programme for works on the property that precedes the handover of the site to the main construction contractor.
The stay remains in place as to all works from that handover.
He said he found neither side’s “dire predictions of the consequences of an adverse outcome on the issue of a stay very convincing”.
On balance, and against the background of a presumptively valid permission, he did not think Colbeam should be put to appreciable risk of large losses by reason of the prospect of tree loss in the context of the mitigation, including the prospect of replacement of at least some of the existing “early mature” oaks by “semi-mature” oaks.
He considered strict protection of bats will be achieved if bats are found on-site, by the other means as described in expert evidence and will not be imperilled if a stay is refused.
He said he was also significantly moved by the public interest considerations that presumptively lawfully permitted development of strategic housing identified by statute, as urgently required to address a housing crisis, should not be delayed.
While the countervailing public interest in environmental protection may well outweigh (the housing crisis issue) that was not so on the facts of this case – at least for purposes of the limited lifting of the stay, he said.
Other issues in relation to an undertaking as to damages by the residents and their application for a protective costs order, as well as Colbeam’s application to identify and have joined to the case “supposed supporters” of the residents, will be dealt with later.