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Published in Construction on 01/06/2021

Dublin Height Guidelines Referred to European court

CNI Editor reports

Plans for 1,500 homes in Dublin could be delayed for up to 18 months after the High Court decided to refer a legal challenge to the European Court of Justice.

The ECJ will be asked to consider the new height guidelines brought in in 2018 which allows developers to exceed limits set in development plans.

Local residents objected to the plans by international real estate company Hines for 1,500 build-to-rent units, including 240 co-living spaces, on the Player Wills/Bailey Gibson sites off the South Circular Road.

They would include three blocks around the size of Liberty Hall and when combined with the regeneration of St Teresa’s Gardens and Phase 3 of Hines’ development would involve 2,300 new homes.

An Bord Pleanála gave permission for both the Player Wills and Bailey Gibson sites as Strategic Housing Developments under fast-track planning regulations that bypass local authorities.

However, these projects were the subject of a master plan agreed by Hines and Dublin City Council which specified higher and denser development.

The Bailey Gibson decision was challenged in a High Court action taken by residents and while Mr Justice Richard Humphreys rejected the challenge under Irish law, he decided that three questions should be sent to the Court of Justice of the European Union.

A local group, Dublin 8 Residents Association, said the decision is “great news for democracy and for Ireland”.

“We have been asking for months how a secret, undemocratic plan concocted between Dublin City Council and a private developer could overrule the statutory development plan our elected representatives had approved.

“It potentially exposes as quicksand the foundations on which all of this excessive height, build-to-rent and co-living have been constructed,” said Dublin 8 Residents spokesman Joe Clarke.

Mr Clarke said the decision could delay housing for up to 18 months but said residents hope that the issues can be quickly resolved and that appropriate development can go ahead.

The issues being referred to Europe concern directives designed to ensure that development plans and regulations are subjected to environmental assessment.

The European court will be asked if the master plan agreed between Hines and Dublin City Council should be subject to an environmental assessment.

It will also be asked to consider whether the increased heights for buildings brought in by the Government in 2018 comply with the environment protection directives.

In his judgment Mr Justice Humphreys said the Urban Development and Building Height Guidelines for Planning Authorities state that “it is Government policy that building heights must be generally increased in appropriate urban locations”.

He said that the objectors claim this means the outcome is “predetermined” and the judge commented “that might be over-cooking the point a little, but maybe not by much”.

The European Court will be asked whether a planning authority here is being prevented from refusing planning to high rise buildings on environmental grounds.