The High Court found that a condition requiring a financial contribution in lieu of public open space was invalid in a challenge to planning permission for a development at Herbert Park, Dublin 4. It rejected the other grounds of challenge and had not yet decided whether to quash the permission or allow An Bord Pleanála to amend the condition.
Pembroke Road Association brought judicial review proceedings against An Bord Pleanála and the Minister for Housing, Local Government and Heritage. Derryroe Limited and Dublin City Council were notice parties. The permission, granted by the Board, allows a strategic housing development that includes an apartment building of up to 12 storeys over a basement.
The association argued that the application should have been rejected because Derryroe was not the same entity as Lordglen Limited, which had taken part in the statutory pre-application process. Justice Alexander Owens rejected that challenge. He found that both companies had sufficient interest in the site and a common interest in pursuing the application; the change did not undermine the purpose of the statutory process or affect the site owners’ property rights.
The court also rejected arguments that the application lacked required environmental screening material, that the Board had failed to address ministerial building-height guidelines, and that it had not properly considered the cultural and architectural significance of a house at 40 Herbert Park proposed for demolition. On height, the Board had treated the proposal as a material contravention of the city development plan and granted permission under the statutory route for such cases. On environmental screening, the court found sufficient material before the Board and no basis to conclude it failed to consider the house’s significance.
The court did not find that the development materially contravened the development plan’s public open-space provisions. It accepted that the plan allowed a financial contribution in some circumstances where on-site open space was not feasible or other local provision better served residents.
But condition 26 described the payment as a special contribution under section 48(2)(c) of the Planning and Development Act 2000. The court found that this route required the condition to specify the particular works to which the contribution related. It did not do so, and the record did not establish that the council would incur specific exceptional costs not covered by its contribution scheme. The condition was therefore invalid.
Justice Owens said the Board would not have granted permission without a contribution in lieu of open space, so the invalid condition could not be severed from the permission. He left the consequential question open, including whether the permission should be quashed and reconsidered or whether the Board could revisit the condition under section 146A(1)(b).