DEVELOPER DEREK Quinlan has lost his High Court challenge to a planning condition stipulating a protected property on Dublin’s Ailesbury Road bought by him for €8.5 million may only be used as an embassy.
Dismissing the challenge on all grounds yesterday, Ms Justice Elizabeth Dunne ruled the condition was necessary and relevant to the permitted development and proper planning of the area and was also reasonable.
The condition was attached to a planning permission for a small extension and refurbishment works at the property but An Bord Pleanála said it also applied in the context of the entire property. Imposing the condition on the entire property was “not disproportionate”, the judge said.
The property at 43 Ailesbury Road was the home of the German embassy from 1962 until the mid-1990s when the Mexican embassy took over residence. Part of it was used from time to time as offices by non-embassy users.
Mr Quinlan bought the property in October 2007 and shortly afterwards applied to Dublin City Council for permission to refurbish and extend the existing offices in the premises. He said he intended to use the premises as offices and the property represented “a very significant investment” by him, including €1.67 million for the proposed works.
The council granted permission in January 2008 on conditions, including the entire premises “shall be solely for use as an embassy” as defined in the 2005-2011 Dublin City Development Plan (DCDP) and shall not be used for general offices or any other uses unless authorised by a prior grant of planning permission.
Mr Quinlan unsuccessfully appealed the condition to An Bord Pleanála. The board said the established/permitted use of the site was as an embassy and such use was not within the meaning of office use as defined in the 2001 planning regulations.
The site was in a residential conservation area and the condition was in accordance with the development plan for the area.
Counsel for the board also said the fact there was embassy use was not “a springboard” to a different use that could have a greater impact on a residential area.
In her judgment, Ms Justice Dunne ruled the condition was relevant to the proper planning of the area and was necessary for clarifying and regulating the use of the property, particularly in the context of planning applications which described the property as “existing offices”.
She rejected claims a condition relating to “use” of the premises could not be attached to a planning permission for “works”.
A central issue in the case was whether embassy use is the same as office use within the meaning of 2001 planning regulations, she noted.
While the planning legislation and the 2001 regulations made under it did not expressly refer to embassies, the issue of what does or does not come within the scope of office use was quintessentially a matter for the planning authorities and not the court, she said.
In this case, the board was entitled to conclude the established use of the property was as an embassy and that such use did not come within the meaning of office use as defined in the regulations. It was also entitled to have regard to the DCDP and the objectives regarding embassy use.
No grounds had been advanced upon which she could find the board’s decision invalid, she concluded.