BORD PLEANÁLA cannot grant permission to Seán Dunne for a 37-storey tower at the centre of his plans for Ballsbridge because it was refused permission by Dublin City Council, counsel for billionaire businessman Dermot Desmond has said.
The scheme was a “doomed development” because the planning board did not have the legal power to reverse the council’s decision on the tower, barrister Michael O’Donnell said.
The council earlier this year granted permission for the bulk of Mr Dunne’s development, but refused to allow the 37-storey element of the scheme because it was a “material contravention” of the city development plan.
Mr Dunne is appealing to Bord Pleanála to reinstate the tower, which he says is essential to his plans for the development on the site of the former Jurys and Berkeley Court hotels.
Mr O’Donnell, who is representing Ailesbury Road resident Mr Desmond in his appeal against the development, said the board cannot give permission for the tower because the council has determined it to be a material contravention of the plan.
“Once a planning authority decides that there has been a material contravention of the development plan, the board has no jurisdiction but to refuse,” he said.
There were only four instances where the board could override the council’s decision in such a case, Mr O’Donnell said.
These were, where a development was of strategic or national importance; where there were conflicting objectives in the development plan; where regional planning guidelines supported the application; or where the development was clearly compatible with the pattern of development in the area.
Mr Dunne’s development failed all these tests, Mr O’Donnell said. It seemed particularly “perverse” for his representatives to suggest the development was of strategic or national importance.
It was “extraordinary that the development should have proceeded this far”, Mr O’Donnell said, given the flaws in the plans.
The inclusion of embassy buildings was “clearly a device to increase floor space” for offices, the removal of trees was “almost incredible” in an architectural conservation area, and the apartments in the development did not meet minimum standards for sun and daylight.
Barrister Colm McEochaidh, who is representing 22 objectors at the hearing, said the council’s decision to grant permission for the bulk of the development but to refuse permission for the 37-storey tower was unlawful.
Mr McEochaidh, who is representing local residents and residents’ associations, said he agreed with Mr Dunne’s representative that it was “an all or nothing” scheme.
There was “no statutory basis” for the council to grant part of the development but refuse another, Mr McEochaidh said. He warned the hearing’s inspector, Tom Rabbette: “The board must not repeat the error of the planning authority.”
The council had used the city development plan to justify the decision to grant permission, without referring to specific provisions of the plan.
It had “side-stepped, dodged and avoided” the provisions of the plan.
To grant permission would be to “reward” the “wrongdoing” of the council, he said.
“The board has the power and the duty to correct the error of the local authority. That is what must happen in this case.”
