Key legal questions surrounding a proposed 416-dwelling “build to rent” development have been referred to the Court of Justice for the European Union.
he referral was made by Mr Justice Richard Humphreys who has been hearing High Court proceedings taken by two local residents against An Bord Pleanála.
The planning board last year granted approval for the development at the Bailey Gibson site off the South Circular Road in Dublin 8, a joint venture between US real estate group Hines and Dutch joint venture partners APG Asset Management.
Apartments would make up the vast majority of the proposed development, which would comprise of several blocks ranging in size between two and 16 storeys.
The board’s decision went against the recommendation of its senior planning inspector, who believed the application should be refused.
Local residents Sinead Kerins and Mark Stedman issued judicial review proceedings seeking to have the board’s decision quashed.
They are also seeking a declaration Section 28 of the Planning and Development Act 2000, which relates to the issuing of ministerial guidelines to local authorities, is invalid and contrary to EU law, specifically the Habitats Directive and the Environmental Impact Assessment Directive.
They argue mandatory guidelines interfere with the process of appropriate assessment or environmental impact assessment.
In a ruling referring three legal questions to the European court, Mr Justice Humphreys noted a non-statutory development framework plan was prepared by the city council in July 2017 to implement a Strategic Development and Regeneration Area plan for the area.
This included a proposed park measuring 0.2 hectares within the Bailey Gibson site.
The judge said a masterplan for the area was later prepared jointly Hines and Dublin City Council in January 2020. It was not subjected to a Strategic Environmental Assessment.
The masterplan included the removal of the public open space from the Bailey Gibson site to be provided elsewhere at a later stage of development with a financial contribution from the developer.
The questions the judge referred to the European court relate to complex legal issues regarding what is permitted under the directives.
Reacting to the referral, Mr Stedman said: “As one of the two plaintiffs in the High Court case, I couldn’t be prouder of our community for how we have come together to stand up for proper planning, much needed quality housing and the democratic processes which are protected by the Irish Constitution and maintained by our elected representatives.”
The Dublin 8 Residents Association welcomed the decision to refer the matter to Europe.
In a statement it said the masterplan agreed between the council and the developer was never voted on by local councillors and was allowed to supersede the official council development plan which had been democratically adopted.
The group’s spokesman Joe Clarke said the case could have been avoided had there been appropriate consultation.
“It is our hope that this issue can be resolved as quickly as possible and homes that people can afford, with appropriate density, height and amenities can be delivered for the people of Dublin,” said Mr Clarke.