Hines student accommodation leases in Dublin jump to 51 weeks, at a cost of €13,620

Few in my years in college back in the 1990s could have afforded to pay for a de facto year long lease for student accommodation. These student units are being treated as mini apartments for the few. Planning conditions need to be tightened up on permissions and development plan policies around student accommodation planning requirements revised. Hines decision will cause all future student accommodation planning applications to be treated with suspicion by planners.

One of the biggest private student landlords in Dublin is increasing lease lengths for the 2024-2025 academic year, meaning students will now have to sign up for a 51-week tenancy, some 10 weeks longer than the typical lease for this year. This is despite the fact that many students living in the city during the academic year do not require accommodation over the summer months. The least expensive rate available for next year on Aparto’s website at the time of writing was €260 per week for a one-bed ground-floor en-suite room at its Dorset Point location in Dublin 1. Assuming constant prices, the longer lease means that student will be paying €13,620 for their room next year compared with €10,660 this year, a more than 27 per cent increase. The lease length, meanwhile, will have increased by 24 per cent, from 41 weeks to 51 weeks.

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Reasons must be given for planning conditions

HIGH COURT Title: Weston -v- An Bord Pleanála Judgment was given by Mr Justice MacMenamin on March 14th, 2008

JUDGMENT
There was an obligation to state reasons for a condition attached to permission to retain a development, in a manner to eliminate a reasonably held doubt as to whether there had been an error in law, a misunderstanding or other unlawful basis for the condition.

BACKGROUND
This was a judicial review of the imposition by An Bord Pleanála of a condition attached to a decision to grant planning permission. Weston Aerodrome, the applicant, alleged the condition was unlawful and sought orders removing it.

In May 2005, Weston made a planning application to South Dublin County Council seeking retention permission for a development that included revision and alteration, and retention, to approved office/clubhouse, hangar and car park at Weston Aerodrome.

The purpose of the development was to allow air traffic controllers, in a tower on top of the club-house, to have a full view of the runway and taxiways

The county council granted permission and retention, subject to a number of conditions. One of those was that a specified development could not be carried out on the aerodrome without a prior grant of planning permission from the planning authority or from An Bord Pleanála on appeal. The reason give for this condition was "in the interest of orderly development".

A third party, Combined Action on Weston Aerodrome, appealed the county council decision to An Bord Pleanála, where it was upheld, with a similar condition.

Weston stated that the effect of this condition would be to make further development at the aerodrome susceptible to ordinary planning processes, thus stifling its development. It said that this condition negated an exemption, as set out in the Planning and Development Regulations 2001, for the development of "aerodromes".

The first question raised in the judicial review was whether the condition and the regulations under which it was made were ultra vires.

Weston argued that An Bord Pleanála was impermissibly seeking to reinterpret primary legislation (the Planning and Development Act 2000) in the light of a provision contained in secondary legislation (the regulations).

Weston also challenged the condition imposed on the permission on the basis that it failed to provide a reason, other than "in the interest of orderly development".

It also claimed that the condition was not proportionate in the context of the European Convention on Human Rights.

DECISIONS

After extensively considering the case-law and the statute, Mr Justice MacMenamin concluded that An Bord Pleanála did have statutory authority to impose a condition on such a development.

"The statutory intent stated in the preamble of the Act is to provide, in the interests of the common good, for proper planning and sustainable development including the provision of housing; it is profoundly informed by the idea and concept of sustainable development which is central to its objectives," he said.

While exceptions are permitted, "this is restricted to authorised developments."

"The Act provides for a heightened level of scrutiny by the planning authority in the case of an unauthorised development which (as here) is the subject matter of a retention application. The rationale is obvious. It is to ensure that unauthorised development cannot be achieved by the back door.""The intent of the Oireachtas is clear," he said. "In the case of a retention permission, conditions may be imposed even in the circumstances of an exempted development."

Turning to the question of reasons for the condition, he pointed out that a "record of executive business and manager's order" in South Dublin County Council included a statement that there should be a condition "preventing any further development and extinguishing the applicant's exemption rights on the land holding . . . due to past failure to comply.

"I am far from concluding that the imposition of the conditions in question were in any way actuated by an improper motive," Mr Justice MacMenamin said. "I emphasise I make no such finding. However . . . in the circumstance where the condition is not one of those generally envisaged in S. 34, there is an enhanced obligation to provide reasons which come within the requirements outlined in the judgments in O'Donoghue and Mulholland. In this case, with this background, there has been an obligation to state reasons for the condition clearly, cogently and in a manner to eliminate a reasonably held doubt as to whether there had been an error in law, a misunderstanding or other unlawful basis for the condition.

"In the factual context of this case, and having regard to the unusual and evidential features identified, I do not consider the reason given for the condition was sufficient to comply with the statutory duty of the Board." On this basis he granted the judicial review sought.

Referring to the applicant's rights under the European Convention on Human Rights, he said that the finding made in the course of the judgment meant these rights were not engaged.

The court was therefore confining itself to granting an order of judicial review on the second ground, and remitted the matter to An Bord Pleanála.

The full text of this judgment is available on www.courts.ie

Garrett Simons SC and Fintan Valentine BL, instructed by Noel Smyth and Partners, Fitzwilliam Square, Dublin, for the applicant; Niamh Hyland BL, instructed by Barry Doyle and Co, Merchant's Quay, Dublin, for the respondent.

Irish Times

www.buckplanning.ie

Rogue developers get another warning

THE County Manager has warned of a get tough policy against rogue developers. Speaking this week Mr Michael McLoone said council enforcement will be stepped up and "people who didn't comply with planning conditions would suffer the full forces of the law".
Mr McLoone was speaking at Monday night's Town Council meeting in Letterkenny where four motions were tabled concerning planning problems around the town. There were claims from councillors that some developers "had the belief that they could do what they wanted and get away with it".
A number of residents from the Carolina Park area of Letterkenny attended the meeting to highlight their dispute with a local developer who has built an illegal road beside the estate , leading to flooding and damage to gardens.
It emerged that an enforcement notice was issued by the council against the developer 14 months ago and he had still failed to comply with the terms of that Notice.
The Council issued an Enforcement Notice to Dunree Construction on January 31, 2006 concerning the construction of an unauthorised roadway at Kiltoy, Letterkenny. Residents are furious the developer has failed to comply with the terms of the Notice. The matter is currently in the hands of solicitors but residents feel not enough is being done to bring the developer to task.
Mr Larry O'Neill is Chairman of the Carolina Park Residents Association.
"There is no enforcement going on here. The Manager told us tonight he was not personally aware of this case but has agreed to review the file and visit the area with his officials," he said.
Mr O'Neill said there were 54 houses in the estate and it had won numerous prizes in the past few years in the Tidy Towns.
"The place is flooded any time there is rain. We have hit a stone wall and we're here as a last resort to get something done," he said.
Councillor Jimmy Harte called on the council to pursue developers that were non compliant. In the case of Carolina Park he said: "Here we have a case where an enforcement notice was sent almost fourteen months ago and I wonder was the letter even opened. The public perception out there is that certain developers are getting away with it and we're allowing them to get away with it. We don't seem to have the powers. This developer did inform the council in July 2006 of his notice to submit retention but that has now gone on for eight months."
"The people in Carolina Park are getting a raw deal. Their gardens have been destroyed and they can't let their kids out to play. We have a developer here who is giving two fingers to the planning authority. It is a shame," Cllr Harte added.
Agreeing Cllr Gerry McMonagle said the problem was widespread over the town.
"This is not about just one developer. There are developers who are getting away with murder. We see cases where half way through a development it is
changed in style and then the developer applies for retention. This is a major issue in the town. There are developers flouting the planning laws and we need to tighten up and if that means further resources they have to be provided," Councillor McMonagle said.
Cllr Damien Blake said it was vital as a town that was benefiting from such development that the Town Council was seen to have the 'toughest regulations'.
"What is happening in some cases is shocking and residents are getting caught up in a protracted legal process. It is making a mockery of the planning process," he said.
Cllr Dessie Larkin, a resident of Carolina Park, said residents were woken at 6am, had their gardens wrecked and hedges removed.
"A massive injustice has been done to the people out in Carolina Park. Our houses are our castles but here we are when an enforcement order has been served over 14 months ago and there has been no compliance. We need more enforcement and I'm calling for the appointment of such an officer immediately in Letterkenny and our access to planning staff increased to three mornings per week. Solicitors have to be made aware of the urgency of such cases," he said.
Cllr Jim Lynch said a maximum period of eight weeks for compliance after an Enforcement Order was served needed to be introduced while Cllr Jean Crossan said it was time that 'knuckles were wrapped'. Concluding the debate Cllr Harte said: "We may have to consider injunction proceedings."
The County Manager agreed to personally review the file with planning officials. On the issue of non compliance generally he said the County Council had agreed to invest a further ¤1million in the planning service.
"We're trying to recruit planners and administrative staff to ensure all legal matters are followed up. However, the message has to go out loud and clear that we are absolutely focused on active enforcement. People who don't comply will suffer the full force of the law and the sooner the better," he said.
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