A developer’s last-ditch bid to appeal an order overturning permission for 399 rental apartments near the Royal Hospital building in Kilmainham, Dublin, has been rejected by the Supreme Court.
The disputed permission for five blocks, including an 18-storey tower, was granted, subject to 31 conditions, by An Bord Pleanála in March 2022 under the since-dismantled Strategic Housing Development procedure.
The site of the proposed development by HPREF HSQ Investments Ltd in Heuston South Quarter shared a boundary with the gardens of the 17th-century Royal Hospital Kilmainham (RHK), a protected structure.
In their High Court case against the board and the State, with the developer a notice party, architect Paul Leech and former Irish Times journalist Frank McDonald, argued that the proposed development would impinge upon a protected view from the RHK to the Phoenix Park.
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This “cone of vision” was designated in the Dublin City Development Plan to protect the setting of the RHK and would be adversely affected by the high-rise apartments intruding into it and overlooking the hospital’s formal garden, they argued.
Last November, the High Court’s Ms Justice Emily Farrell upheld the challenge by the applicants, represented by barristers Oisin Collins and Michael O’Donnell, instructed by O’Connell Clark solicitors.
She said the board failed to consider that the proposed development was a material contravention of the city development plan 2022-2028.
Last March, the judge refused to allow the developer to appeal her decision to the Court of Appeal. The developer did not meet the criteria for permission to appeal because it had not shown the decision raised a point of law of exceptional public importance or was desirable in the public interest, she held.
The developer then sought a “leapfrog” appeal directly to the Supreme Court.
Its grounds included that the High Court misinterpreted the board’s permission decision. It argued an appeal was in the interests of justice and that clarification of several issues raised would benefit other litigants in judicial reviews of planning decisions.
The board took a neutral position on the application for an appeal, while Mr Leech and Mr McDonald opposed any appeal because no issues of general public importance were raised.
In a recently published determination, a panel of three Supreme Court judges refused leave to appeal.
While the proposed development was “substantial” and its location important, the case was resolved by the High Court in a “clear and comprehensive” judgment, supplemented by further consideration when leave to appeal was sought and refused, the judges said.
The High Court applied “clear legal principles” to the facts, they added.
