Monday, March 06, 2023

High Court reporters

A developer recently refused permission for 364 rental apartments on former school playing fields in Dublin is looking to quash the city council’s decision to restrict build-to-rent housing schemes.

Dublin-based Lioncor Developments Limited says the council’s decision last November to limit numbers of rental-only apartments to a maximum of 40 per cent of any complex is a departure from national policy without coherent or rational justification. It claims the restrictions are predicated on an “apparent negative bias” against build-to-rent developments.

The adoption of the Dublin City Development Plan is irrational and unreasonable and should be quashed, Lioncor argues. Alternatively, it says the court should quash the section of the plan relating to the zoning of the Fortfield Road site in Terenure, which is owned by the Carmelite Order.

The site is zoned for community and social infrastructure but, while previously it allowed residential use in exceptional circumstances, Lioncor says the latest iteration of the development plan places further restrictions on the residential development in this zoning.

Lioncor, which has offices at Iveagh Court, Harcourt Road, says the zoning places a “disproportionate burden” on certain private landowners to provide a public benefit “in perpetuity” or at least for the duration of the six-year plan.

The Carmelite Order runs Terenure College and has stated that the proposed 364-unit build-to-rent development would help secure the future viability of the school.

Planning refused

Last month An Bord Pleanála upheld Dublin City Council’s decision to refuse permission for the seven-storey residential scheme, which was to include 15 studios, 166 one-bed apartments, 174 two-bed apartments, nine three-bed units and 21 houses.

An Bord Pleanála found it had not been demonstrated that the site was not required for its established educational and recreational use. It concluded that the proposed residential development materially contravenes the zoning of the site. Located within a flood risk zone, the proposed build would be contrary to the development plan.

The scheme also exceeded the development plan’s recommended density for outer suburbs, the board said.

In its judicial review action, Lioncor, along with its subsidiary 1 Celbridge West Land Limited, which has an address at Merrion Square North, Dublin, claims the decision to adopt the new development plan, particularly the parts restricting build-to-rent development, was made in breach of a section of the 2000 Planning and Development Act.

It also points to what it says is a “discriminatory” distinction between institutional landowners and other private landowners in the zoning of lands. The zoning of these Carmelite lands constitutes an “unjust attack” on constitutional property rights, as it imposes an effective restriction on the Carmelites’ right to develop their lands.

On Monday, Mr Justice Charles Meenan said he was not prepared to grant permission to the developer for the case to proceed when the council has not been formally notified of the action.

He adjourned the application for leave, which will return to court next month after the council has been formally notified.

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