Tuesday 20 January 2009

Developer's demolition bid adjourned

A legal action by developer Sean Dunne aimed at having torn down a €83 million rival development on Dublin’s north quays on grounds it is unauthorised has been adjourned pending the outcome of Mr Dunne’s appeal against a decision granting retention permission for the development.

Ms Justice Mary Finlay Geoghegan was told today Dublin City Council had granted retention permission for the development by Liam Carroll’s North Quay Investments Ltd on January 2nd last and Mr Dunne has appealed that decision to An Bord Pleanala.

Pending the outcome of that appeal, Garret Simons SC, for Mr Dunne, secured an adjournment to July next of his side’s legal proceedings under Section 160 of the Planning and Development Act 2000 in which they want an order tearing down the development.

The Section 160 proceedings arise after the judge’s decision last October that the Dublin Docklands Development Authority (DDDA) acted unlawfully in how it granted “fast-track” permission for the NQI development on the former Brooks Thomas site at North Wall quay. The development is valued at some €200 million, including the €83 million building at risk.

A separate challenge by the Spencer Dock Development Company related to the same NQI development was subsequently settled.

Last month, the judge heard submissions as to what orders she should make resulting from her judgment with Mr Simons urging the court to make an unconditional order quashing the certificate as invalid from the time it was issued in summer 2007.

The DDDA and NQI appealed to the court to make a form of order which would assist them in making arguments at a future hearing that the NQI development should remain in place.

In her reserved judgment today, Ms Justice Finlay Geoghegan ruled the relief argued for by DDDA and NQI was different to a simple order quashing the certificate and the court, following its October judgment, had no jurisdiction to grant any relief which would interfere with or limit in any way the quashing order referred to in the judgment.

She said certain principles apply to the original DDDA decision granting the certificate and to the quashing order. The DDDA’s decision, being that of a public body, was presumed lawful or valid until such time as a court declared it unlawful or invalid and therefore the decision of the DDDA was, at all times prior to the judgment of October 9th last, presumed lawful.

She said the court decision of October 9th rendered, on that same date, both the DDDA decision and the certificate itself null and void “ab initio” (from the beginning).

The judge said the effect of her quashing order is to render the certificate null and void ab initio. The issue still to be decided was the status of the NQI development carried out prior to October 2008, having regard to the principles set out and the DDDA Act of 1997. That issue would arise in the separate Section 160 proceedings and she would not express any view on it, except to say it was a separate issue from the issues determined in the case before her.

The judge also rejected NQI’s argument it was entitled to its costs against the DDDA. While she accepted it was primarily for the DDDA to ensure any decision made by it was lawful, she said she had to have regard to the fact NQI, an experienced developer, applied for a certificate for a development which she had ruled was inconsistent with the relevant planning scheme.

The DDDA had earlier accepted it must pay Mr Dunne’s costs of his challenge to the certificate but had argued it should not have to pay NQI’s costs.

Irish Times


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