A 'fatally flawed' application for 134 homes on part of a former school site in south Dublin, which was quashed by the High Court, cannot be reconsidered by An Bord Pleanála, a judge ruled.

It would be more streamlined and less prejudicial for Durkan Estates Clonskeagh Ltd to submit a plan for the Goatstown site again to the board rather than have the board reconsider the current plan which the court had found was fatally flawed, Mr Justice Garrett Simons said.

In March the judge found the board erred in law in approving Durkan’s plan for a residential development on around five acres bought by the developer in 2017 from the Congregation of Religious of Jesus and Mary who operate two schools on adjoining lands.

The five acres included the school hockey pitch, since replaced elsewhere on the school campus lands, which were originally some 16 acres.

The congregation runs the Jesus and Mary College secondary school and Our Lady’s Grove Primary School. There is also a four-storey convent, an all-weather hockey pitch and tennis courts on the campus.

Durkan applied for permission directly to An Bord Pleanála, bypassing the normal planning process. Because it involved more than 100 houses, it was entitled to a “fast track” consideration as a strategic housing development.

The board granted permission last year and local objector Michael Redmond brought a High Court challenge to the permission.

Mr Justice Simons found the board erred in its interpretation of the local development plan in relation to what are “institutional lands” under the local council’s county development plan for 2016 to 2022.

The Durkan project involved a material contravention of the development plan policies and objectives in relation to the housing density and public open space, he said.

Following his decision, Mr Justice Simons adjourned the matter for argument on whether leave should be given to appeal his decision or whether the plan should be remitted to the board for reconsideration.

An application to appeal was not made but Durkan, which was a notice party in the case, asked that the plan be remitted to the board for reconsideration.

On Wednesday, the judge ruled it was not a suitable case for remittal.

Principal objective

He said the principal objective of the court’s jurisdiction was to remedy the error in the earlier decision-making, in as clinical a manner as possible, by allowing the decision-making process to resume from a point in time before the error first occurred. By remitting it, this objective cannot be achieved, he said.

On the facts of this case, the planning application was fatally flawed from the outset, he said.

A remittal would not allow for any further public participation or observations, he said.

The judge also said he had exercised his discretion against remittal because the board was opposed to remittal and because there was less prejudice to Durkan in doing so given that a fresh application has to be dealt with within 16 weeks.

It was agreed between the parties that Mr Redmond, who represented himself, is to recover costs of €3,959 from An Bord Pleanála, he noted.