Friday 16 December 2022

Query on the specific proposals under the Bill pertaining to Judicial Reviews of planning decisions

 Timelines for various steps in the judicial review (JR) process will be introduced including for pleadings, hearing of cases and delivery of judgements by the Court. ABP or the local authority, as appropriate, will be able to correct an error of fact or law in a planning decision and will be able to apply for a stay on the determination of JR proceedings while doing so. Provisions regarding standing to take a JR will be updated so that environmental NGOs who meet certain criteria in relation to their establishment and purposes can also bring challenges. In addition, where an organisation, for example a resident’s association, seeks to take a JR, it will have to be taken by an individual or individuals, rather than by the association. In light of the recent ruling by the Supreme Court in Heather Hill*, the Bill will also introduce costs protection for JR cases. There will not be any order for costs unless the Court considers that the proceedings are frivolous or vexatious or an abuse of process.

*Heather Hill Management Company CLG & McGoldrick -v- An Bord Pleanála, Burkeway Homes Limited and the Attorney General, Supreme Court, Murray J, 10 November 2022, [2022] IESC 43: here it was held that all of the grounds in the proceedings challenging the validity of decisions to grant development consent should benefit from costs protection.

Query answered by Brendan Buck of BPS Planning Consultants LTD

Outline of the proposed Planning and Development Bill

The full outline of the proposed Planning and Development Bill is available at the link below:

Link to the Bill.

Among the main provisions in the Bill will be: 

- Strengthened legal status for Ministerial guidelines: Ministerial guidelines and policy directives will be upgraded to ‘National Planning Policy Statements’ and ‘National Planning Policy Guidance’. These will be approved by Government. Alignment of other planning documents with these will be mandatory. 

- Amended focus and lifespan of Local Development Plans: these will be extended from six years to ten years, with a review after Year 5. Plans will be more strategic in nature. They will give a strong sense of what is being planned for particularly areas before any planning applications emerge. This will help ensure that public engagement and major local debate is focused on the plan-making rather than planning application stage. Local Area Plans will be replaced by specific types of area-based plans to meet particular needs (Urban Area Plans; Priority Area Plans; Joint Area Plans; Strategic Development Zones/Urban Development Zones). 

- Statutory mandatory timelines for all consent processes, including An Bord Pleanála (ABP) decisions, to bring certainty to the planning consent process: timelines are being introduced for appeals and consents applications made to ABP (including Strategic Infrastructure Developments). Where ABP fails to make decisions with these timelines, it will be subject to fines. The exact timelines will be included in the finalised Bill. It is intended that the timelines for ABP will be introduced on a phased basis, starting with those for Strategic Infrastructure Developments (including energy projects). 

- Changes to Judicial Reviews (JRs) of planning decisions: there will be timelines for various steps in the Judicial Review process. ABP will be able to correct an error of fact or law in a planning decision and will be able to apply for a stay on the determination of JR proceedings whilst making such corrections. The Bill will bring clarity to the role of different parties in accessing justice. In the case of applications for JRs by an organisation, these will have to be taken by an individual or individuals. 

- A re-structuring of An Bord Pleanála: the agency will be re-named An Coimisiún Pleanála and its decision-making and governance structures separated. It will consist of Planning Commissioners (consisting of a Chief Planning Commissioner and up to 14 full-time Planning Commissioners), who will replace the Chairperson and Board Member roles. A new Governing Executive (led by a Chief Executive) will be responsible for the organisation’s governance and organisation. 

The draft Planning and Development Bill 2022, when enacted, will bring greater clarity, consistency and certainty to how planning decisions are made. It will make the planning system more coherent and user-friendly for the public and planning practitioners. Public participation, which is a hallmark of the current planning system, will remain a central component. These changes will enable appropriate development to be planned and executed with a degree of confidence and certainty about how and when a planning consent decision will be made. Where infrastructure such as housing is needed and is appropriate, it will happen with greater certainty and speed. These changes will provide greater policy certainty about the framework in which planning decisions are made. 

It is intended that from a policy perspective, this review will result in: 

- debate on the scale of housing requirements (in line with objectives of compact urban growth and environmental sustainability) happening at the plan-making rather than planning application stage. It will facilitate greater clarity and long-term visibility of planning outcomes. 

- adequate account is taken of the needs of the future population of new and expanded communities, as well as the needs of existing communities; and

- appropriate account is taken of the nature of planning decisions, which require careful balancing of public policy, public participation and environmental issues. The Draft Planning and Development Bill will be published in January and progress to pre-legislative scrutiny and enactment in early 2023. 

Summary provided by Brendan Buck, BPS Planning & Development Consultants LTD

Planning bill includes judicial-review timelines

The Government has approved the drafting of legislation that would make major changes to the way the planning system operates. The proposals have been welcomed by business group IBEC, but have drawn criticism from environmental group An Taisce. The Government says that the Planning and Development Bill 2022, if enacted, would bring “greater clarity, consistency and certainty to how planning decisions are made”. The bill, which will be published in January, would give ministerial guidelines and policy directives stronger legal status, while it would also extend the lifespan of local-government plans from six to ten years, with a review after year five.
Read the full article @ Law Society Gazette Ireland
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Planning Bill row: Greens to seek changes to proposed judicial review curbs

 The Green Party is set to seek changes to Minister for Housing Darragh O’Brien’s landmark planning Bill after divisions emerged in Government over a key plank of the reforms. It is understood that two Green Ministers, Catherine Martin and Roderic O’Gorman, raised concerns at Cabinet on Tuesday over aspects of the Bill focused on reform of the judicial review process. Under the draft legislation, the scope for judicial reviews of planning decisions is to be narrowed in an effort to streamline the planning system, which critics say sees projects bogged down for years in courtroom challenges. It is understood that both Ministers highlighted the need for amendments around access to justice and public participation in decision-making, thought to be centred on the reforms to judicial reviews.

Read the full article @ The Irish Times

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Taoiseach says overhauling planning laws 'essential' to delivering climate and housing targets

 TAOISEACH MICHEÁL MARTIN has said overhauling the planning system through new laws is “essential if we are to meet our climate change agenda”. Speaking to reporters in Brussels this morning, he said “if we are to fulfill our obligations in the draft Climate Action Plan, and also in the housing areas” the new planning laws are needed. Cabinet yesterday approved plans for new planning laws, with Housing Minister Darragh O’Brien stating that the reforms will create a “modern, efficient planning system, with coherence between policies, plans and decisions”. But a potential coalition clash is brewing, with a number of Green Party members uneasy with the proposed changes. When questioned about the potential new year clash between coalition parties, the Taoiseach said the the planning bill was approved by all three parties in Government yesterday, but it will go to pre-legislative scrutiny where it will be evaluated and examined.

Read the full article @

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Wednesday 16 November 2022

Supreme Court rules on legal costs facing litigants challenging planning permissions

 The Supreme Court has ruled that litigants challenging planning permissions on environmental grounds are entitled to a special protective costs order (PCO) for all of their grounds of challenge. The decision, which overturns a decision of the Court of Appeal, has wide-reaching consequences for judicial review planning actions that cite European law, as it means an applicant who loses their case would not be liable for the successful party's costs. The core issue in the appeal was the correct approach to be taken by the courts in determining pre-trial PCO applications in planning and environmental litigation. The appeal arose from a challenge by Heather Hill Management Company, a firm of local residents to An Bord Pleanála’s permission for a strategic housing development of 197 residential units in Bearna, Co Galway. The High Court overturned the permission and subsequently decided the applicants were entitled to a PCO under section 50B of the Planning Development Act, which concerns the entitlement to public participation in planning decisions, for all the grounds of their challenge, including points that do not relate to environmental issues. The Court of Appeal then found the PCO applied only to the applicants’ environmental grounds.

This matter has been covered by multiple Irish news outlets

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High Court to get specialist planning division

 A dedicated planning and environment division of the High Court, with specialist judges, was approved by Cabinet on 2 November. The court will operate in a similar manner to the Commercial Court, and will be established by the Department of Justice in partnership with the Courts Service and the Department of Housing, Local Government and Heritage. Justice Minister Helen McEntee said that, along with reforms to planning legislation, the court would improve case processing and reduce costs, consistent with Ireland’s obligations under EU environmental law.

Read the full article @

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New tax to activate vacant land for residential purposes

 The Government’s Housing For All – A New Housing Plan for Ireland proposed a new tax to activate vacant land for residential purposes as a part of the Pathway to Increasing New Housing Supply. The Residential Zoned Land Tax was introduced in the Finance Act 2021. Each Local Authority has published draft maps identifying lands which are subject to the tax. These are now open for consultation until the 1st of January 2023.

A supplemental map will be published on 1st of May 2023, identifying additional land considered to be in scope as a result of a change of zoning, servicing or where the local authority becomes aware of the fact that land, which didn’t appear on the draft map, may meet the criteria for being in scope, such as where this has been identified during submissions. The supplemental map will also be on public display and open to submissions which may challenge the inclusion of additional land on the map.

Land appearing on both the draft and supplemental maps, as amended to take into account the outcome of submissions made in respect of the land on these maps, will be included on the final map of land in scope for the tax in the local authority area to be published on 1st of December 2023. This land will be subject to the tax unless it is exempt as a residential property.

The objective of the tax is to activate land that is serviced and zoned for residential use or mixed use, including residential use, in order to increase housing supply and to ensure regeneration of vacant and idle lands in urban locations. These locations have been identified within statutory land use plans as being appropriate locations for housing and they have benefitted from investment in the key services to support the delivery of housing. The tax will be calculated at 3% of the market value and payable from 2024.

Article by Brendan Buck of BPS Planning & Development Consultants LTD

New Planning Permission Exemptions for Solar Panels

 The Minister for Housing, Local Government and Heritage, Darragh O’Brien, has signed into law revised planning exemptions for the installation of solar panels on the rooftops of houses and certain non-domestic buildings. The exemptions are aimed at increasing Ireland’s generation of solar energy and combating climate change. The changes take immediate effect.

Houses, regardless of location, may now install unlimited solar panels on their rooftops without any requirement for planning permission, subject to certain conditions. Solar installations will be able to cover the entire roof of a house, as the previous limits of 12sqm/50% of roof are removed. Exemptions also apply to rooftops of industrial buildings, business premises, community and education buildings, places of worship, health buildings, libraries, certain public utility sites and farms.

Certain restrictions continue to apply, including for developments which are near certain aviation sites, protected structures and Architectural Conservation Areas. Additionally, in the 43 designated Solar Safeguarding Zones, a rooftop limit remains. Solar Safeguarding Zones are areas where rooftop limitations on solar panel installations apply, to mitigate the potential impact of glint and glare near airports, aerodromes, and other sites with helipads like hospitals. The existing exemption of 50 square metres or less for the entire development has been increased to a rooftop limit of 300 square metres.

Exemptions have been introduced for the first time for the installation of solar panels on the rooftops of apartments; educational building/ health centre or hospital/ recreational or sports facility/ place of worship/ community facility or centre/ library/ certain public utility sites, subject to conditions and limitations and the rooftop area limit in solar safeguarding zones where applicable

free-standing solar panel installations for houses are exempted from the requirement to obtain planning permission subject to a 25 square metre area limit and conditions requiring a certain amount of private open space to be maintained for the use of occupants. The exempted area for all other categories except apartments is increased to 75 square metres. In addition, wall mounted solar installations of 75 square metres are exempted for industrial and agricultural.

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Emergency electricity plant receives planning permission

 An Bord Pleanála has approved Government plans for a 210 MW temporary emergency electricity generating plant, comprising of six 35 MW gas turbines units. Due to the amid fears over the state supply, the application was prioritised and ‘fast tracked’.

The planning documents stated that the emergency power plant is designated to start quickly and will run when the electricity demand is high and generation capacity from other, currently available sources is insufficient and at risk of not meeting demand.

The Environmental Impact Assessment lodged with the planning application noted that the plant will be in place for up to 5 years from early 2023 and will operate for up to 500 hours a year, typically 4 hours per days when called to operate, on natural gas only.

Article by BPS Planning & Development Consultants LTD

Build-to-Rent planning rules to be axed

 The planning rules allowing ‘build-to-rent’ apartments will be abolished. The rules which were introduced by the then Minister for Housing, Eoghan Murphy in 2018, mean that apartments which are owned by institutional investors and are developed specifically for the rental market do not have to comply with the minimum size standards required in apartments which are for sale. There are less stringent storage requirements and more apartments are permitted per floor.

The Minister for Housing, Darragh O’Brien is expected to issue an amendment to the existing guidelines, removing the reduced standards. The developments which are already in planning will be allowed to continue under the existing regime.

The move comes from the pressures on the Government to provide more social and affordable homes, as the number of homeless people in Ireland are hitting record highs.

Article by Brendan Buck of BPS Planning & Development Consultants LTD

Is this the most disputed piece of land in Dublin?

 The sale of 16.5 hectares of land on Dublin’s northside in 2015 has led to one of the most hotly-contested planning disputes the city has ever seen. The former Vincentian plot at St Paul’s College, Artane, was sold to Marlet Property Group. But plans to build on it sparked immediate controversy as it borders St Anne’s Park, the so-called “lungs of the northside”. We look back at the numerous attempts to build apartments at the location and examine the issues involved in the dispute. Crekav Trading GP, a subsidiary of Marlet Property Group, purchased the ground in 2015. Two years later, the sports pitches were closed off and the owners stopped cutting the grass. In 2018, planning permission was granted by An Bord Pleanála for 536 apartments. This was subsequently blocked by the courts after a case taken by residents. By 2020, planning permission was again granted, this time for 657 apartments. The courts also blocked this attempt.

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Application lodged for major residential unit on site of former Bessborough Mother and Baby Home

 A Dublin-based developer that was refused planning to build on the former Mother and Baby home site at Bessboro, Blackrock has lodged a new application this morning for a 92-unit residential development in the same area. Developer's MWB Two Ltd applied for planning permission in 2020 for an 8-storey building consisting of 67 apartments, saying the development would include communal open space areas, landscaping, car and bike parking spaces, bin stores, and public lighting. The planning was refused by Cork City Council, followed by an unsuccessful appeal by the developers. MWB Two Ltd received widespread backlash at the time from campaigners who claimed the development site overlapped with a child burial ground attached to the former Bessborough Mother and Baby Home.

Read the full article @ Corkbeo

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Green light for €360m housing scheme for Donabate

 An Bord Pleanála has given the green light to contentious plans for a €360m housing development near Donabate in north Dublin. The appeals board has granted a ten-year planning permission to Aledo Donabate Ltd for the 1,323-unit scheme on a site close to the Dublin-Belfast rail-line. The Corballis East Strategic Housing Development (SHD) is thought to be the second biggest such scheme in the State, second only to the 1,600-unit Holy Cross development in Drumcondra. Aledo Donabate initially lodged plans in August 2021 for 1,365 units for a site 250m south of Donabate town centre and around 50m south of Donabate train station.

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Wednesday 21 September 2022

Plan to build staff accommodation at Powerscourt Hotel is appealed to An Bord Pleanála

 A proposed development at Powerscourt Hotel Resort and Spa has received a set back after a planning appeal against the granting of the permission was lodged with An Bord Pleanala. Powerscourt Hotel had received planning approval last month to build a new 56-bed staff accommodation complex to help it attract staff amid the current housing crisis. In the submission to Wicklow County Council, planners for Powerscourt said it was “exasperated” by the current housing crisis and the availability of affordable housing near Powerscourt in Enniskerry leading to difficulties in attracting prospective employees. The issues had meant the hotel had turned its attention to recruiting from “close haul European markets” such as Spain and Greece, supplemented by people from Brazil and “more recently Ukraine”.

Read the full article @ The Wicklow People

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Hiring process to board of An Bord Pleanála to be overhauled - O'Brien

 Housing Minister Darragh O'Brien has told the Dáil that the public must have trust in the impartiality and integrity of the planning system if it is to function effectively in facilitating sustainable development. He was speaking during statements on An Bord Pleanála which has been plunged into controversy following allegations of wrongdoing against former deputy chairperson Paul Hyde. Mr Hyde resigned his position in July and he denies any wrongdoing. The Minister said he would shortly bring proposals to cabinet to overhaul the appointments process to the board of An Bord Pleanála. This will be underpinned by legislation. "It is intended that this process will reflect modern best practice for recruitment to senior executive positions within the Irish public service," he said.

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An Bord Pleanála backs down on High Court challenge regarding the Bridge Hotel refusal in Wexford

 An Bord Pleanála has backed down from a High Court legal challenge by Wexford businessmen Colm and Anthony Neville over its decision to refuse planning permission a second time for a new 142-bedroom hotel on Commercial Quay. The brothers sought a judicial view of the planning board’s refusal of the proposed Bridge Park Hotel project,  requesting that it be set aside and declared unlawful. The board refused permission for the development on appeal last October  despite its own inspector recommending that the hotel be granted planning permission. It was the second time that the project by CoAnt Entertainments Ltd was  turned down by the board after Wexford County Council twice gave it the go-ahead before their decisions were appealed by third parties.

Read the full article at The Irish Independent

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New €20m Wexford movie studio gets planning approval

 An Bord Pleanála has given its approval for a new €20 million movie studio for Co Wexford. The Tara Studios Ltd development will include seven studios, 10 workshops and two office buildings within the curtilage of Borleagh House eight kilometres north west of Gorey. The appeals board granted planning permission after dismissing its own inspector’s recommendation to refuse the plan, which Tara Studios said “would amount to doubling the size of the Irish inward investment for film industry in Ireland”, when operational. The application also enclosed an email from a Netflix executive underlining that “studio capacity in Ireland is limited”.

Read the full article @ The Irish Times

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Irish Planning Institute calls on Housing Minister to urgently resource An Bord Pleanála

 The Irish Planning Institute (IPI) has called on Darragh O’Brien, the Minister for Housing, to make a number of temporary appointments to An Bord Pleanála amid concern the planning body’s workload could be compromised over the coming months. It comes as the Dáil, on Thursday afternoon, held a debate around the future of the embattled authority after months of controversy, and follows a series of allegations against the board’s former deputy chair, Paul Hyde, as well as questions arising around a number of the board’s procedures. In April, O’Brien initiated a review by senior counsel Remy Farrell into a number of Hyde’s planning decisions, which has since been referred to the Director of Public Prosecutions (DPP).

Read the full article at the Sunday Business Post.

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Donnybrook apartment block plan approved on appeal

 A contentious plans for a 10-storey build-to-rent apartment scheme in Donnybrook has been given the green light by An Bord Pleanála. The development is earmarked for the site currently occupied by a Circle K filling station, opposite Donnybrook Stadium. The decision follows a revision by the developers, Red Rock Donnybrook Ltd, at the appeal stage to reduce the height of the development by two floors. But it overturns both the planning refusal by Dublin City Council for the original 12-storey, 84-apartment scheme and over-rules a recommendation for refusal by its own senior planning inspector, Gillian Kane

Read the full article @ The Irish Times

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Tuesday 28 June 2022


 This is the official response of the Irish Planning Institute to matters arising at An Bord Pleanála:

The Irish Planning Institute notes with concern recent events and media coverage regarding An Bord Pleanála, which have the potential to damage the reputation of planning and planners and erode the public’s confidence in the planning system in Ireland.
Since 1977 An Bord Pleanála has played a critical and confidence-building role in the Irish planning system by providing affordable, impartial and transparent reviews of local planning decisions. Its success in delivering on its original core role inevitably led to an expectation that its mission could be expanded into new areas. While some new roles have been successfully absorbed, others such as Strategic Housing Developments, have compromised the integrity and robustness of the processes and decision-making in the Board, and undermined a fundamental aspect of the Irish Planning System.  This is evidenced by the marked increase since 2017 of Judicial Reviews, many of which have related to Strategic Housing Developments, and were caused largely by a combination of complexity and confusion around the process, and the frustration of communities and other stakeholders at the loss of access to a planning appeal on decisions for this type of development.
While the Institute does not wish to comment on any ongoing investigations and welcomes the intention of the Office of the Planning Regulator to initiate its own review of processes and procedures in the Board, the Institute believes that these reviews must be completed thoroughly and without any undue delay. The reviews must also consider the procedures of appointment of Board Members, the independence of the inspectorate in its decision-making and any conflicts of interest in governance protocols. In all of this it is important to appreciate the many years of service to society provided by current and former Board members.  And it is vital to recognise and protect the expertise, independence and integrity of the highly-skilled professional planners of the Board’s inspectorate and the contribution they have made to a fair and transparent planning system and a more sustainable Ireland. It is imperative that public confidence in the Board and its critical role in Irish society is restored and reinforced.”

This statement is available from the Irish Planning Institute 

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Bulloch Harbour plan appeal will not go to oral hearing

 A formal request for an oral hearing into contentious plans for Dalkey’s Bulloch Harbour has been rejected by An Bord Pleanála. The planned scheme is the subject of a long-running battle between developers, Bartra, and Dalkey residents, including broadcaster Pat Kenny. The Newstalk presenter is the most prominent opponent of the scheme and has urged Dún Laoghaire-Rathdown County Council to refuse planning permission on multiple grounds in a joint objection with wife, Kathy. The Kennys said the mixed-use development would change Bulloch Harbour’s “welcoming ambience utterly, forever”. In February, they welcomed the council’s “common sense approach” in refusing permission.

Read the full article @ The Irish Times

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An Bord Pleanála ‘compromised’, claim planners

 Fast-track planning laws to speed up delivery of large housing schemes have “compromised” An Bord Pleanála, the professional body for planners has said. In a statement on the controversy swirling around An Bord Pleanála, the Irish Planning Institute also called for the way board appointments are made to the planning appeals authority to be scrutinised. “It is imperative that public confidence in the board and its critical role in Irish society is restored and reinforced,” said institute president Dr Conor Norton, an academic at TU Dublin. Allegations of impropriety against An Bord Pleanála’s deputy chairman Paul Hyde have led to a senior counsel’s inquiry being ordered by Minister for Housing Darragh O’Brien, a separate internal board review and a looming examination of the authority’s procedures by the Office of the Planning Regulator.

Read the full article @ The Irish Times

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An Bord Pleanála to consent to order quashing its approval for €70m Kildare wind farm

 An Bord Pleanála has indicated it will consent to an order quashing its permission for a €70 million wind farm in Co Kildare, the High Court has heard. Local resident Lorraine Quinn and environmental NGO Eco Advocacy CLG brought a judicial review challenge against the board’s approval in September 2020 for the 12-turbine development at Drehid, near Carbury. The court heard on Monday that the board would no longer be contesting the action. Barrister John Kenny said there remained a conflict between his client, developer North Kildare Wind Farm Group, and the applicants as to whether the planning application should be remitted to the planning board. The developer, a notice party in the proceedings, hopes to see its planning application remitted for fresh consideration and wants a short hearing for determination of this issue, Mr Kenny added. He asked the judge to refrain from making an order of certiorari while this question remained.

Read the full article @ The Irish Times

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Plans for redevelopment of Penneys Cork City store delayed

Plans for the redevelopment of Penneys' flagship store in the heart of Cork City have been delayed following an appeal. While planning permission was granted last month the decision is now being appealed by a third party. The plans included an increase in the store size by 17,000 sq ft to 54,000 sq ft, with the project encompassing a site that stretches from Robert St to Cook St, and from St Patrick's Street to Oliver Plunkett St. The expanded outlet will take in a substantial portion of the city’s main street, absorbing almost the entire block stretching back to Oliver Plunkett St. When announced last year, the proposal was welcomed and seen as a positive boost for the city’s prime shopping street which has been left reeling by the departure of a number of high-profile stores including Debenhams, Oasis, Warehouse, and Laura Ashley.

Read the full story @ The Irish Examiner

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