The High Court has quashed An Bord Pleanála’s permission for a major residential development at Heuston South Quarter after finding the Board failed to follow the statutory procedure for granting permission in material contravention of the Dublin City Development Plan.
Ms Justice Emily Farrell ruled that the Board’s decision of 31 March 2022 was unlawful because the approved scheme would adversely affect a protected view between the Royal Hospital Kilmainham and the Phoenix Park, yet the Board did not apply section 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016.
The proposal, brought by HPREF HSQ Investments, comprised five blocks of three to 18 storeys, with 399 build-to-rent apartments, a retail unit, a double basement, public space and other amenities. The site is within the Heuston South Quarter and shares a boundary with the Royal Hospital Kilmainham. Part of the development, including all of Blocks D and E and part of Block A, lies within the designated cone of vision.
The court noted that the Development Plan allows development within the cone, but says it must not adversely affect the view. The Board’s inspector considered that Blocks D and E should be reduced in height and moved five metres east, away from the Royal Hospital’s gardens. The Board imposed some changes, including reducing Blocks D and E by two floors and removing an arch between Blocks A and C, but did not require the five-metre relocation or cap their height at the garden wall.
Justice Farrell concluded that the inspector’s findings, which the Board adopted, indicated an adverse effect on the protected view, even if the impact was not considered serious enough to refuse permission. The court said that finding required the Board to consider whether there was a material contravention and, if granting permission despite it, to use the statutory procedure. The judgment does not decide whether the development should ultimately be permitted or express the judge’s own view on the visual impact.
The court separately rejected the applicants’ argument that the site’s Z5 zoning, which provides for mixed use including residential development, prevented the application from being considered under the strategic housing development process. It also found the cone-of-vision ground had been pleaded with adequate particularity.
Other issues, including challenges concerning European law, were left undecided because they were unnecessary to determine the case. The court granted certiorari quashing the permission. The judgment does not state what decision will follow on any future planning application.