The High Court has granted a Dalkey homeowner leave to bring judicial review proceedings over Dun Laoghaire-Rathdown County Council’s approval of a tree-planting submission connected with development on a neighbouring property. The court’s decision allows the challenge to proceed; it does not determine whether the approval was unlawful or whether the trees were felled before or after the submission was made.
The application concerns the council’s decision of 3 September 2009 to accept a landscaping plan submitted by the neighbouring owners under condition 5 of a planning permission granted by An Bord Pleanála on 24 August 2007. That condition required replacement tree planting after construction, with details submitted to and agreed in writing by the planning authority before development began.
The applicant argued that the plan did not comply with the permissions or the Murray landscape plan, which she said required certain trees to be retained and replacement planting where possible. Her grounds also included claims that the plan related to an unauthorised entrance and failed to provide for required replacement and additional planting. She sought leave to add a ground alleging that the council’s decision was based on a serious misrepresentation or significant mistake of fact about the retention of a group of trees.
There was a significant dispute about when those trees were removed. The judgment records that the applicant’s arborist said they had been removed by the time he inspected the site on 16 March 2010. The notice parties’ counsel said in court in June 2010 that they had been removed on some date in June 2009. The council’s counsel said she understood they were felled after the council’s September 2009 decision. The judge said the timing issue would matter if the applicant succeeded in the application to amend her grounds; the leave decision did not resolve it.
The council and the neighbouring owners opposed leave, arguing, among other points, that the applicant lacked a substantial interest and had not shown substantial grounds. They maintained that the planting details had been accepted under condition 5 and that the challenge concerned the merits of the council’s decision. The council also cited later planning permissions as amending or superseding the permission at issue.
Mr Justice Hanna rejected the objection that the application was out of time and found that the applicant had a substantial interest because the development was beside her home and could affect its privacy and visual amenity. He also held that the alleged failure to comply with condition 5 raised grounds that were neither trivial nor tenuous. Whether there was a breach, and whether the applicant’s arguments would ultimately succeed, were matters for a substantive hearing.
The court granted leave to bring judicial review proceedings. The judgment does not record a final ruling on the lawfulness of the council’s approval or an order quashing it.