Permission for 336 apartments in Dublin’s docklands overturned

A High Court judge has criticised An Bord Pleanála for “a certain laxity” in its scrutiny of a developer’s documents in his judgment overturning the board’s permission for a strategic housing development of more than 300 apartments in Dublin’s docklands.

Mr Justice Richard Humphreys said, given his findings, it would not be appropriate to remit the planning application for reconsideration by the board, with the effect a new planning application will have to be made.

Atlantic Diamond Ltd challenged the August 2020 permission for what it described as a “factory-cum-apartment” development of 336 apartments, in six blocks ranging in height from four to ten storeys, childcare facilities and associated works, to replace most of the existing commercial units at Docklands Innovation Park, East Wall.

Its case was against the board. EWR Innovation Park Ltd, the developer, was a notice party.

Atlantic, represented by Micheál O'Connell SC, with Niall Handy BL, instructed by Kane Tuohy solicitors, was incorporated in 1990 for purposes including industrial diamond tooling. It had entered in 1994 into a 35 year lease with Forfás in respect of Unit 11 in the park. EWR is successor in title to Forfás.

Atlantic is one of the few remaining lease holders in the park, originally zoned for industrial use and currently zoned for strategic development and regeneration of the area in the Dublin City Development Plan 2016-22. Apart from its unit, and two other units, the remaining buildings and lands are subject of EWR’s proposed development.

The board had concluded the development would contravene the area development plan in relation to building height guidelines but it held that departure was permissible under the Planning and Development Act 2000 having regard to various matters.

In its judicial review challenge, Atlantic claimed the board failed to give adequate reasons for permitting 336 apartments in an industrial estate which it claimed, was “a grave planning error”.

Parents would not let children play unattended for fear of being run over by a lorry or truck, it claimed.

The board, it argued, failed to have adequate regard for the company’s submissions on the alleged unprecedented nature of the development. It had cited issues in relation to traffic and pedestrian safety, access for HGVs and unworkability of an asserted internal roadway within the development site.

The judge quashed the permission on several grounds, including the board’s failure to provide a clear reason why the alleged unprecedented nature of the development was not a countervailing consideration to the grant of permission.

He held Atlantic was not provided with the main reasons for decisions reached with regard to the main issues raised by it, including why its submissions about movements of heavy vehicles and the use of outdoor equipment were rejected.

He also found the board failed to apply the correct test concerning the applicable standard for daylight and sunlight for the development for the purposes of residential amenity.

The board failed to identify that the living room in every apartment has a shared use with a kitchen, with the effect the higher minimum ADF (average daylight factor) value of 2 per cent should apply, not 1.5 per cent, he said.

The board and its inspector accepted documents from the developer concerning light guidelines for kitchens and living rooms which failed to reflect what was being dealt with were combined kitchens and living rooms.

Had the board properly addressed these matters, the problem would have come to light and this illustrated “a certain laxity in scrutiny, involving, in effect, the cutting and pasting of the developer’s materials, without adequate critical interrogation”.

The 2018 building height guidelines for planning authorities are not permissive, as argued by the Board, but are mandatory statutory guidelines which require the decision maker to have appropriate and reasonable regard to identified standards, he held.