A High Court judge has declined to overturn a fast-track permission for 105 apartments on Ballsbridge site despite identifying an invalidity in that permission.
The site at Herbert Park Road includes the demolished former home at No 40 of the 1916 Rising leader Michael Joseph O’Rahilly, ‘The O’Rahilly’, the only leader killed while fighting. No 40 featured in the formation of the Irish Volunteers and the planning of the 1916 Rising.
Mr Justice Alexander Owens said on Thursday “only a small part” of the planning process "miscarried" as a result of an error by An Bord Pleanála when granting permission.
He was satisfied planning law permits the board to “cure the legal defect” and adjourned the proceedings to October to enable it do so.
He said “no useful purpose” would be served by an order quashing the permission, as sought by the Pembroke Road Association (PRA) arising from his judgment last month identifying an invalidity in it.
He was also not satisfied issues raised by the PRA concerning the manner in which No 40 was demolished required the permission to be quashed.
The issue of whether the demolition involved unauthorised development was not something he could decide in this case, he said. No 40 was not a protected structure when the board granted permission and “any manoeuvrings” by interested persons with a view to either securing or preventing its inclusion on the record of protected structures during the planning application were not relevant to the exercise of his discretion. No 40 cannot be designated a protected structure now as it no longer exists, he added.
The permission is for 105 apartments, including a block 12 storeys high, and ten new aparthotel bedrooms, by Derryroe Ltd, owned by the McSharry and Kennedy families, owners of the Herbert Park Hotel.
In his June judgment, Mr Justice Owens upheld the PRA’s claim the board was not entitled to impose a condition, condition 26, under section 48.2 of the Planning & Development Act 2000, requiring the developer to pay a financial contribution to Dublin City Council as a “special contribution” in lieu of providing public open space within the site.
He later heard arguments concerning the orders to be made arising from his judgment.
The PRA argued the entire permission must be treated as invalid and the matter remitted to the board for reconsideration.
The normal procedure when an invalidity is identified is to either quash the permission simpliciter, with no remittal to the board, or quash and remit, it said. The Supreme Court has indicated an order setting aside an invalid decision should result in all but exceptional cases, it argued.
It submitted section 146A of the 2000 Act, which provides for the board to amend decisions made by it for purposes, inter alia, of correcting “a clerical error” did not permit the board to revisit condition 26. The substitution of a new condition 26 would result in a “material alteration” of the terms of the development, it said.
The board and Derryroe asked the judge to adjourn the proceedings to enable the board to process a request by Derryroe to “alter the terms of the development” under section 146B of the 2000 Act.
On Thursday, the judge section 50A(9) of the 2000 Act allows the courts, in appropriate cases, to disregard the “conceptual position” in judicial review that an invalid decision must be treated as void for all purposes or which usually prevent such a decision from ever being treated as “good in parts”.
While the courts cannot rewrite planning permissions, except to the limited extent permitted by section 50A(9), the situation here is different, he said.
There is no issue the permission should be regarded as capable of existing independently of the condition obliging the developer to pay the financial contribution to the council in lieu of providing public open space. It was always clear a condition of the permission would require such a contribution.
Judicial review is a discretionary remedy sometimes granted to ensure an administrative body revisits some aspect of a decision and make a decision in accordance with law, he said.
Section 146A is wide enough to permit the board to correct the mistake in condition 26 and the correction would not involve “a material alteration” of the terms of the development, he held.