Tuesday 20 March 2018

O'Flynn given leave to challenge Dublin planning refusal

Developer wins court date after bid to deliver housing project is hit by delays, writes Ronald Quinlan

Developer Michael O’Flynn. Photo: INM
Developer Michael O’Flynn. Photo: INM
Ronald Quinlan

Ronald Quinlan

Developer Michael O'Flynn has been granted leave by the High Court to bring a judicial review against An Bord Pleanala over its rejection of his company's plans for the development of housing in south Dublin.

O'Flynn Capital Partners (OFCP) is seeking a determination from the courts on a recent decision by the board in which it was refused planning permission for the development in Cabinteely in south county Dublin.

The judicial review, which is due to come before the High Court on October 3 next, will consider whether or not An Bord Pleanala erred in its decision by examining issues relating to a part of the site which sits within the Cherrywood Strategic Development Zone (SDZ).

The lands at issue in the case had been intended by O'Flynn to accommodate a new access road to the 34-house site. The road would also provide access to an adjacent site at Cherrywood for which the Cork developer is seeking permission for the construction of 164 houses from Dun Laoghaire Rathdown County Council.

Although the board was entitled to consider and rule on the appeal against the development of the 34 houses owing to the fact that they would be located outside the boundaries of the SDZ, lawyers for O'Flynn will argue that it had no jurisdiction to rule on the provision of the proposed access road as it falls within the area of the SDZ.

While neither party was prepared to comment when contacted by the Sunday Independent, the requirement for a judicial review to clarify the issue of whether or not An Bord Pleanala went beyond its remit is understood to be a source of deep frustration for O'Flynn Capital Partners.

A key consideration in the designation of an area as an SDZ is to accelerate the decision-making process.

O'Flynn's efforts to progress with the delivery of the 164 houses his company has planned for its adjacent site at Cherrywood are already the subject of a renewed planning application with Dun Laoghaire Rathdown County Council.

The proposed delivery of the access road at the centre of the upcoming judicial review is also being looked at by the council's planners as part of its considerations. The current planning application was submitted to the council following a High Court ruling last year overturning its decision to refuse permission for the development in 2015.

Mr Justice Robert Haughton quashed the council's decision "in its entirety" and sent the matter back to the council after finding that the reasons it had given for refusing permission were invalid and that irrelevant matters had been taken into consideration. The council's refusal was tainted and in the circumstances, the whole decision should be quashed, he said.

Judge Haughton said one of the reasons the council had refused permission in respect of the Druid's Glen access road was to avoid creating a "ransom strip". This would effectively oblige O'Flynn Capital Partners to make a joint or coordinated application with adjoining landowners in respect of the entire road.

This was an improper motive and involved the taking into account of irrelevant considerations, the judge said.

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