Sunday 8 March 2009

Challenge to student residence 'unrealistic'

PLANNING LAWS are not intended to make life impossible for developers or local authorities, the Supreme Court has said as it dismissed a local man’s challenge to planning permission for TCD’s student residences in Dartry, Dublin.

The laws are not there to “encourage fine-tooth combing or nit-picking scrutiny” of works, Mr Justice Nial Fennelly said. He was giving the unanimous judgment of the three-judge court rejecting an appeal by James Kenny over the redevelopment of Trinity College Dublin’s student residences opposite Mr Kenny’s home in Dartry for which planning permission was sought and granted nearly 10 years ago.

The Trinity Hall residences building, between Palmerston Park and Temple Road, have since been completed at a cost of €95 million and contain 180 apartments with a 400-seat dining facility.

Dublin City Council’s planning approval was appealed by Mr Kenny and Dartry Residents Association, of which he is a member. In 2000 An Bord Pleanála upheld the decision, subject to 19 conditions.

Mr Kenny contested the validity of this alleging the college was not in compliance with the conditions but the council later ruled there was compliance.

Mr Kenny then brought judicial review proceedings which were rejected by the High Court and his appeal against that decision was dismissed by the Supreme Court yesterday.

Referring to a “multiplicity” of other proceedings which Mr Kenny had brought over this matter, Mr Justice Fennelly said this was not the first “and may not be the last” case in which Mr Kenny contested the planning permission for Trinity Hall.

The judge said he needed to mention some “simple matters of common sense” as Mr Kenny had asked the court to examine, in some respects, the fine details of the development.

The judge said there will inevitably be small departures from some or even many of the plans and drawings in every development. It seemed improbable any development is ever carried out in “literal compliance” with the plans.

Where there are material departures, there are enforcement procedures open to the local authorities to deal with them, he said.

“However, planning laws are not intended to make life impossible for developers, for those executing works such as architects, engineers and contractors, or for the planning authorities in supervising them,” the judge said.

Dismissing Mr Kenny’s claim there should have been a new planning application because of the omission of one floor from one of the buildings, Mr Justice Fennelly said this was “unrealistic and pointless”. He also rejected as without merit Mr Kenny’s claim the permission did not allow for boiler facilities and other plant to be placed in roof spaces of two buildings.

Another complaint about an increase of 16 in the number of bed spaces in one building was also without merit, the judge said. These were minor adjustments and a matter of detail dealt with by the council in accordance with normal procedure.

On another complaint about the proximity of underground works to existing trees, the judge said Mr Kenny had demonstrated “a very minor, not to say trivial” discrepancy. The court would not quash the entire decision based on “such an inconsequential discrepancy”.

The judge agreed with the High Court’s finding that TCD had been prejudiced by Mr Kenny’s delay in bringing his proceedings. Mr Kenny had failed promptly to apply for judicial review proceedings in 2002, when part of the development was 100 per cent complete, even though he had with “determination and tenacity” opposed it throughout the planning stages.

Irish Times

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