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Developers lose court ruling challenge over €16m levy

DEVELOPERS Sean Dunne and Sean Mulryan have lost a High Court challenge to a Bord Pleanala ruling that they pay €16m towards roadworks to facilitate a shopping centre which opened six years ago.

Mr Dunne, of Merrion Square, Dublin; and Mr Mulryan, of Fonthill House, Old Lucan Road, Palmerstown, Dublin, sought permission to challenge, as well as orders quashing, decisions made by An Bord Pleanala in July 2010, in relation to planning conditions for the Whitewater Shopping Centre in Newbridge, which opened in 2006.

The board determined, in decisions made in July 2010, that the developers make a contribution of more than €16.1m to pay the costs to facilitate the shopping centre.

These included the costs of building new roads, improving existing roads around the development and the provision of a public bus service linking the shopping centre with Newbridge town centre and the town's train station.

In his judgment yesterday, Mr Justice John Hedigan dismissed the developers' case against the board, and held that their determination that the developers pay the €16m levy was valid.

In 2003, planning permission was granted by Kildare County Council to Newbridge Investments Ltd, a company controlled by the developers to build the shopping centre.

The permission included a requirement that new roads be built to carry the extra traffic, while a traffic management plan for Newbridge also had to be paid for.

The planning permission stated that both conditions had to be complied with "before development commences", but this was not enforced.

The roads were built by the developers. After unsuccessful negotiations, the matter was referred to An Bord Pleanala by the developers.

The developers disputed the legality of the board's determination of the amount payable.

They also argued that the board's determination was invalid, and that the planning authority exceeded its jurisdiction.

In his decision, Mr Justice Hedigan said, in his view, the developers lacked the legal standing to bring the action.

This was because they had not been disadvantaged by the board's decision, which the court noted had reduced the amount of the original levy sought by €3m. The decisions, he said, were perfectly rational.

Irish Independent