Thursday 23 July 2009

Ballymore Eustace scheme cleared in court to go ahead

THE SUPREME Court has cleared the way for a development of houses, shops, a creche and a medical centre at Ballymore Eustace, Co Kildare.

The five-judge court yesterday upheld arguments by Abbeydrive Developments Ltd that it was entitled to a default planning permission for the proposed development because of the failure of Kildare County Council to decide on its planning application within the eight-week period set down by law.

Abbeydrive applied for the permission on December 2nd, 2002, and, unless there was a request served for further information, the eight-week period expired on February 5th, 2003. A notice for further information was served by the council a day later.

Abbeydrive argued in the High Court that the council’s failure to decide within the eight-week period entitled it to default permission but Mr Justice Roderick Murphy rejected that argument.

Abbeydrive appealed that 2005 judgment to the Supreme Court which yesterday allowed the appeal. It adjourned the issue of what order should be made in the case.

Mr Justice Nial Fennelly said the dispute in the appeal arose from the nature of the proposed development. While almost entirely residential, it also included a very small two-storey community facility comprising a creche, neighbourhood shops and a medical centre. That facility represented some 0.2 per cent of the total floor area of the proposed development.

The judge noted the relevant zoning area in the Co Kildare development plan 1999 was described as “solely residential” but the council’s senior planner had accepted this proposed development was “open for consideration”. The judge said Article 34.8 of the Planning Act 2000 provided a default that permission could be granted where a planning authority had failed to make a decision within eight weeks.

Mr Justice Fennelly ruled that the High Court had erred as a valid permission could have been granted through an exercise of discretion by the council in favour of Abbeydrive. It was not open to the High Court to impose a limitation on the effect of Article 34.8, except on the basis of legal power.

Irish Times

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