Eight Killiney residents who will this week ask the High Court for leave to pursue a legal challenge aimed at overturning permission for a strategic housing development have alleged that three actions by the developer against them are an "extraordinary" attempt to intimidate them.
Atlas GP, the company of developer Pat Crean, rejects those claims and maintains its High Court actions are legitimate and have been taken for reasons including to protect its right to its good name.
The firm has taken three cases since the residents initiated their challenge last September against An Bord Pleanála over its grant of permission in July for a 255-unit development at Church Road, Killiney.
Atlas, a notice party to the residents’ action, has issued proceedings seeking damages and other orders against all eight over alleged defamation of the company in a leaflet seeking contributions from local people to help raise €60,000 towards funding litigation over the development.
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The flyer, published by “Watson Killiney Residents Association”, contained false and inaccurate statements about Atlas which meant, among other things, it was an irresponsible developer, the company has claimed. The eight residents, it alleges, are the authors, or are connected to the authors and/or are responsible for the flyer’s publication and distribution.
In its second case, also against all eight, Atlas wants injunctions restraining any steps in the judicial review because of alleged breach of the medieval doctrine of champerty and maintenance (aimed at preventing a disinterested party getting involved in litigation). The judicial review is being funded by third parties with no legitimate interest in the proceedings, Atlas claims.
Its third case, against two of the eight, alleges that a restrictive covenant of November 2000 prevents those two from challenging the permission and seeks damages over alleged breach of the covenant.
‘Strategic’ action
FP Logue Solicitors, representing the residents, claim Atlas’s litigation is strategic and an example of “strategic litigation against public participation” (Slapp), used in the US and elsewhere to discourage environmental and other challenges.
Solicitor Eoin Brady, of the firm, said in affidavits he believed the "extraordinary" litigation had been issued "with the sole purpose of seeking to intimidate my clients because they are pursuing their judicial review proceedings".
Leman Solicitors, representing Atlas, have strongly rejected that claim.
The eight residents, including a woman in her 90s, live on Church Road and Watson Road in Killiney. They did not oppose an earlier permission obtained by Atlas in 2018 for a smaller development of 102 units, but they object to the larger 255-unit development now granted permission.
Their application for leave to bring their judicial review challenge is due to be heard in the High Court on Tuesday. Atlas’s application for injunctions to halt their case will be heard in February, and the residents will also seek to strike out Atlas’s proceedings on grounds including alleged abuse of process.
In court documents, Mr Crean said the “important background” to the judicial review was “a housing crisis which can only be resolved by increasing the supply of housing in the State”.
The ability to supply housing “is entirely undermined if decisions of the planning board are readily set aside by applicants relying on legal points which have little or no bearing in relation to their actual complaints”, he said.
The residents say they are happy for the development to proceed in line with the 2018 permission, but some grounds of their judicial review apply to the 2018 permission while other grounds are “generic” in nature and have appeared in other judicial reviews, he said.
