A residents’ management company has brought a High Court challenge over the granting of permission to a lawyer for a 373sq m home overlooking Vico Road and Killiney Bay in Dalkey, Dublin.
Alannah Smyth, corporate counsel at Fitzwilliam Real Estate, which is owned by her solicitor and developer father Noel Smyth, was granted permission by An Bord Pleanála for the contemporary two-storey, flat-roofed home at Torca Road, Dalkey, last year.
Ms Smyth had appealed Dún Laoghaire Rathdown Co Council’s 2020 refusal for the four-bed house for reasons including that the local development plan contained an objective for the site which meant there could be “no increase in the number of buildings permissible”. There was strong local opposition to Ms Smyth’s plan.
Her father had also failed 14 years ago to get permission for a larger house on the site and that application was also strongly opposed by locals.
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The background planning regime has also changed since then. Following the council’s consideration of Ms Smyth’s application, a ministerial direction required the council to remove the objective for “no increase in the number of buildings” from its 2022-28 development plan.
That direction followed a recommendation from the Office of the Planning Regulator (OPR) that it should be removed.
As a result of the planning appeals board’s decision, Mount Salus Residents Owners Management Company Ltd, which manages residences on Mount Salus Road, Dalkey, brought a High Court challenge against the board, the Minister for Housing, Local Government and Heritage and the State. Ms Smyth and the council were notice parties.
Mount Salus argued the Minister and the OPR exceeded their respective statutory powers in ordering the removal of the objective. Among its original objections to the plan was that the site is accessed by a public pedestrian right of way between Knocknacree Road and Torca Road and overlooks the Vico Road Architectural Conservation Area and Killiney Bay.
The respondents oppose the challenge.
The case came before Mr Justice David Holland on preliminary pre-trial issues relating to amendments to the Mount Salus statement of grounds and over a “notice for particulars”.
Ms Smyth, who the judge praised for her “sensible pragmatism”, agreed to the amendments of the statement of grounds and replied to the notice for particulars issued to her.
The other parties who were affected by these matters declined to reply to the notices for particulars and refused consent to the amendments. As a result, Mount Salus brought applications to the court requiring them to do so.
In his decision, the judge said as a result of matters dealt with as part of the preliminary hearing, Mount Salus had got much of the information it sought. He refused to grant relief related to an outstanding item on particulars.
He also said it became apparent early in the preliminary hearing that both the State and the OPR were happy the amendment application no longer needed to be determined by the court.
He also said it was unclear to him as to why this position was not reached prior to the hearing of the preliminary application hearing.
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