The Supreme Court is set to hear an appeal over the quashing of a decision to rezone land for homes in a Dublin area which has mainly been used and zoned for enterprise and employment uses.
In November last year, the High Court quashed a Dublin City Council decision to rezone a site near the Chapelizod Bypass, to allow for mixed residential and commercial uses.
The court said this was by reason of the failure of the council’s chief executive to list in a report a submission from an objector who owns a plant supplier firm next door to the site.
Construction plant and machinery supplier, Pat O’Donnell & Co, owns and operates a business next to the site which was formerly the Uniphar healthcare premises in an area known as the “California Hills” on the Ballyfermot side of the bypass. The 1.82 hectare Uniphar site has largely been unused since 2017.
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Pat O’Donnell & Co said it was formerly based in Fairview but had to move to the California Hills premises in 2005 because of noise complaints from local residents and severe restrictions on what is a 24-hour a day business.
It said if houses are built next to its premises, it will be in the same position once again. It cost €7 million to move in 2005 and will cost more than double that to move again, it claimed.
In its 2022-28 Development Plan, the city council decided to change the zoning of the Uniphar site from its “enterprise/employment” zoning to “inner city sustainable mixed uses” with a focus on residential and commercial uses.
This proposal had the support of Uniphar which had been contemplating redevelopment for a number of years.
Pat O’Donnell & Co objected but the council went ahead with the rezoning. The company then brought a High Court judicial review challenge. The council opposed the challenge.
Quashing the rezoning, the High Court’s Mr Justice David Holland found the council chief executive’s report on the matter did not list the applicant company as having made submissions on the material alterations to the development plan, but instead listed the company’s planning agent, who had prepared and made the submissions for the applicant.
The council sought an appeal and the Supreme Court has agreed to hear it as a direct “leapfrog” appeal, meaning it did not first have to go through the Court of Appeal.
A three-member panel of the Supreme Court was satisfied that the matters raised in three questions proposed by the council constitute matters of general public importance.
In particular, the question of what principles are to be applied in assessing whether a breach of a statutory requirement under the 2000 Planning and Development Act is to be treated minimally (as de minimis) has potentially far-reaching implications for the planning process, as it is likely to impact upon future planning decisions which contain errors similar to the one in question in these proceedings.
A date for hearing of the appeal has to be set.
