The High Court has upheld a planning condition restricting 43 Ailesbury Road in Dublin 4 to use as an embassy unless another use is separately authorised by planning permission.
Property owner Derek Quinlan had applied to Dublin City Council for two permissions covering refurbishment works and a single-storey rear extension to the protected structure. Both applications described the property as “existing offices”.
The council granted permission in January 2008 but imposed a condition requiring the entire premises to be used solely as an embassy. Quinlan appealed that condition to An Bord Pleanála.
The property had been occupied by the German Embassy from before the introduction of the planning system in 1964 and was later used by the Mexican Embassy. Quinlan argued that its established use was effectively office use and therefore fell within the office category in the Planning and Development Regulations.
The Board’s inspector agreed and recommended removing the condition. The Board did not accept that recommendation. It concluded that the established use was as an embassy, that embassy use did not fall within the relevant office-use class and that the condition was justified by the property’s location in a Z2 residential conservation area.
Ms Justice Dunne held that identifying the established planning use and deciding whether embassy use fell within a particular use class were matters properly entrusted to planning authorities and An Bord Pleanála, rather than for the High Court to determine afresh.
She also rejected Quinlan’s argument that a condition regulating use could not be attached to permissions concerning physical works. The legal test was whether the condition fairly and reasonably related to the permitted development.
The judge found that the embassy-use restriction was relevant, reasonable and proportionate. Applying it to the entire property, rather than merely the new extension, was also justified because the extension formed part of the overall structure.
The court further rejected arguments that the Board had improperly relied on the Dublin City Development Plan or imposed the condition for an ulterior enforcement purpose.
The judicial review application was therefore refused and the planning condition remained in place.