Saturday 17 January 2009

Court overturns council ban on plan by McNamara

DEVELOPER BERNARD McNamara and his company Radora Developments Ltd have secured a court order overturning a “defective” decision by Dublin City Council which prevented the demolition of nine 19th-century properties as part of a development on Dublin’s Merrion Road which was expected to achieve profits of €40 million.

The dispute between Mr McNamara and the council over the listing of the properties was settled before Mr Justice Peter Kelly at the Commercial Court yesterday on several terms.

These included the council’s concession that its decision of July 7th, 2008, listing the properties on its Register of Protected Structures, was in breach of provisions of the Planning and Development Act 2000.

The council accepted its decision was in excess of its powers under the Act because, before the decision was made, all elected councillors had not considered submissions of Radora and Mr McNamara or reports against listing the properties by two conservation experts and by the council’s own conservation officer.

On that basis, Conleth Bradley SC, for the council, did not oppose the making of an order quashing its decision.

The council was also not seeking to have the matter remitted to the full elected council, the judge was told by Eamon Galligan SC, counsel for Radora. The settlement also involves Radora and Mr McNamara withdrawing claims against the council of negligence and misfeasance in public office in relation to the listing decision.

The council is also to make a contribution to Mr McNamara’s legal costs.

Mr Justice Kelly made orders in line with the settlement and noted the council’s admission meant it accepted certain statutory procedures were not carried into effect in accordance with the legislation and the council’s decision was therefore defective.

On that basis, he was satisfied to quash the order.

The proceedings by Radora and Mr McNamara against the council were admitted to the Commercial Court last November and the action was due to be heard over six days next month.

The registered properties, known as the LLandaff properties, are at 207-223 Merrion Road beside the Tara Towers Hotel.

The properties are part of a larger site bought for €10 million between 2002 and 2004.

The Tara Towers development, known as the Elm Park development, is being carried out by another McNamara company, Woodmead Ltd.

The LLandaff properties were acquired with a view to extending the Elm Park development which, the judge noted, was expected at the time to achieve a profit of €40 million.

Radora had claimed some of the elected members of the council had voted to list the properties without addressing the issue as to whether they were of special interest and in the absence of evidence to support the listing and in the face of overwhelming evidence against it.

Submissions from local residents arguing for the properties to be listed as protected structures contained no expert evidence to support the claim the properties were of special interest, Radora also claimed.

Radora’s first planning application for the development was refused by the council and An Bord Pleanála in 2006.

Radora has since proposed a new development which requires the demolition of the LLandaff properties.

Radora: what happens next

A SPOKESMAN for Radora said the company, a partnership between developers Bernard McNamara, Jerry O’Reilly and David Courtney, would now be in a position to submit its planning application to develop the Merrion Road site.

He said Radora had only reluctantly instituted legal proceedings after the elected members of Dublin City Council had voted in favour of listing the entire terrace of eight buildings.

The council’s decision was contrary to the advice given by senior planning officials who had recommended that the terrace should not be listed in its entirety.

In May 2007, An Bord Pleanála refused planning permission for a 24-storey tower on the site. Subsequently, Bucholz McEvoy Architects prepared revised plans for an eight-storey scheme. The revised plans were drawn up in consultation with city council planners.

“Then, out of the blue, the council listed the lot,” the spokesman said. This decision had debarred Radora from pursuing its plans.

“We were left with a choice, either to live with it or challenge it, so we reluctantly challenged it.”

Irish Times

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