Supreme Court clears way for homes to be built in industrial area in Dublin

High Court Reporters

The Supreme Court has cleared the way for a rezoning which will see new homes being built in an area of Dublin which was mainly used and zoned for enterprise/employment.

The court found that planning requirements were not breached when the name of an agent for an objector to the rezoning, rather than the name of the objector itself, was listed in a report before the rezoning decision was taken.

The decision concerns what was formerly the Uniphar healthcare premises in what is a small area with warehouse/employment units just off the Chapelizod Bypass in Dublin.

The 1.82 hectare Uniphar site has largely been unused since 2017.

Dublin City Council decided in its 2022-28 Development Plan to rezone the land from its "enterprise/employment" zoning to "inner city sustainable mixed uses" with a focus on residential and commercial uses.

Pat O'Donnell & Co, a supplier of heavy construction plant, machinery and equipment, is next door to the Uniphar site.

The company moved there in 2005 because of noise complaints from local residents in Fairview, where its premises was previously, and because of severe restrictions on what it says is a 24-hour-a-day business.

It said if houses are built next to its current premises, it will be in the same position once again.

It cost €7 million to move in 2005 and will cost more than double that to move again, it claimed.

In November last year, the High Court quashed a Dublin City Council decision to rezone the site in its new plan.

This was because the council's chief executive listed in a report on the rezoning a submission from Pat O'Donnell's planning agent, rather than Pat O'Donnell & Co itself.

Following the High Court decision, the council was granted an appeal to the Supreme Court.

On Thursday, a five-judge Supreme Court unanimously allowed the council's appeal.

Judge Seamus Woulfe held it could not be that the legislature intended in planning law that total invalidity (of a development plan) would result from any failure to comply with a statutory requirement.

In this case, the consequences of a breach are not provided for in the legislation, he said. He also held that any breach of the listing (of the Pat O'Donnell name) was merely trivial or technical.

He held Pat O'Donnell had not demonstrated that any prejudice had been caused to it or to the public by listing the name of the agent.

He accepted the council's submission that there was no evidence that such a listing had any effect on the development plan process or on the decision to rezone itself. As a result, even if the listing was a breach of statutory requirement, it could be viewed in terms of it being a "harmless error", he said.

In a separate concurring judgment, Judge Gerard Hogan agreed with Judge Woulfe's construction of the relevant provisions of the 2000 Planning Act.

While the courts should not countenance any deviation which affects the integrity of a decision, it cannot be supposed the Oireachtas intended that administrative decisions should be invalidated on purely technical grounds which did not affect the integrity of the decision or potentially disadvantage third parties, he said.