Construction Law Update: DART Underground – Scope Of Planning Order Successfully Challenged

Author:Ms Susan Bryson, Rory Kirrane and Eoin Cassidy
Profession:Mason Hayes & Curran
 
FREE EXCERPT

The recent successful judicial review of a planning order relating to DART Underground, which had effectively frozen lands on the proposed route, will be welcomed by the 5,000 home and business owners whose land could be compulsorily acquired for the project, particularly where it is still uncertain whether or not the project will ever go ahead.

Flancrest Enterprises Limited - v- An Bord Pleanala and Others

We recently acted in successful judicial review of a planning order relating to DART Underground, which had effectively frozen our client's lands on the proposed route. The order made by An Bord Pleanala ("ABP"), had allowed CIÉ a period of 7 years to notify landowners if it intended to compulsorily acquire their lands for the project. We successfully argued that ABP had acted outside of its powers in granting this 7 year timeframe within which to serve a notice to treat. The Court has now reduced the time allowed to serve a notice to treat under the order from 7 years to 18 months. This decision will be welcomed by the 5,000 home and business owners whose land could be compulsorily acquired for the project, particularly where it is still uncertain whether or not the project will ever go ahead.

Background

The Applicant, Flancrest, owns a brownfield site on the corner of Island and Bridgefoot Street, near St James' Gate Brewery in Dublin. On 14 December 2011, ABP issued the Railway Order, which is effectively a planning permission for the DART Underground project. It authorises CIÉ to construct, maintain and operate DART Underground. It also allowed CIÉ up to 7 years from the date of the order, to serve a notice to treat on owners of lands on the proposed route if it wished to compulsorily acquire their land for the project. This 7 year timeframe completely blighted any opportunity for our client to develop or make any return from its lands for at least that time. In addition, at the end of the 7 years, CIÉ could simply choose not to purchase the site. The negative impact of the order on the Applicant was exacerbated by the fact that the Government had announced in November 2011 that the project had been deferred indefinitely, due to a lack of funding.

Decision

Flancrest sought judicial review of the Railway Order. We argued for the Applicant, that the legislative scheme which empowered ABP to make the order...

To continue reading

REQUEST YOUR TRIAL