04 Sep 2020

OLG – Email re. Judicial Review and Proposal for “Inst” Zoning

During the summer we put together a document/explanatory note regarding the outcome of the OLG Judicial Review, and how it relates to “Inst” zoning. We felt it was very important that DLR Councillors be clearly informed about all this, as the Council is now working on the latest County Development Plan (to come into effect in 2022). This is when changes to zoning can take place. Michael’s experience in taking the Judicial Review highlighted that “Inst” zoning needs to be strengthened, and we have proposed how this could be done. “Inst” zoning is particularly important in our area, as both OLG and the Central Mental Hospital site are zoned “Inst”. We also know the Council is planning to review this type of zoning.

We sent this to all 40 DLR Councillors. If you have opinions on this, we would encourage you to contact Councillors directly. They will be voting on all zoning changes, and would welcome residents’ opinions.

Why are we writing to you?

We want to bring some things to your attention. These all relate to a SHD development planning application in our area that has recently been overturned through a Judicial Review. We want to give you a bit of background, and we also want to point out some related issues. Finally we want to offer a proposal that we would like you to seriously consider when it comes to the drafting of the new CDP.

A member of our Association successfully challenged the grant of planning that was awarded to an SHD on Our Lady’s Grove campus in Goatstown by An Bord Pleanála at a recent High Court Judicial Review. On July 1st Judge Garrett Simmons quashed the permission in its entirety. The developer must now submit a new planning application for any development on this site. This member did this without legal representation, due to the high costs involved. It was a remarkable achievement.

The site in question is to the rear of the school campus (2 schools and a pre and after school facility are located on the site). It was the last parcel of land on this site to be sold off by the owning religious order.

(More information about the history of this case can be found on our website.
An Irish Times article about the final judgement can be found here.
You can find the entire judgement here on the courts.ie website. )

Why did this Judicial Review succeed?
The Judge ruled that the development contravened the County Development Plan 2016-2022. He went so far as to describe it as ‘fatally flawed from the outset”. The development did not follow the zoning of the site.

What is the zoning of this site?
This site has A type zoning, but crucially, attached to this A type zoning is an extra addition called ‘Institutional Objective’. The developer in this case attempted to argue that this Objective did not apply to this site, and also attempted to diminish the importance of the criteria attached to this Objective. The Judge however ruled that there is no ambiguity around the zoning of this site, nor the criteria that must be adhered to. Any further development on this site will have to fulfill the criteria attached to the Institutional Objective.

What is this ‘Institutional Objective’?

The Inst Objective’s criteria can be found here (page 179 and 205) in the CDP. They are summarised here:

  • 25% publicly accessible open space (25% of the entire campus site, not just the portion most recently sold)
  • A site masterplan
  • Res 5 density (35-50 units per hectare) and specifically not Res 3 as was being allowed by both the Council and ABP
  • Adequate space for future school expansion
  • Retain a parkland setting
  • Tree preservation

Why is Institutional Objective important?

This Inst Objective applies to approximately 47 sites in DLR County, including many schools. It also applies to the very large Central Mental Hospital site in Dundrum that will shortly be developed by the LDA. This Judicial Review ruling greatly strengthens the zoning conditions attached to these sites.

This Objective is critical to these sites in order to insist on appropriate development. Around schools it means there is extra protection afforded to educational and community recreational open spaces and playing fields – appropriate zoning makes it harder for these assets to be sold off. It also means there will be adequate land to facilitate future school expansion. Around other institutional sites, such as the Central Mental Hospital, this Objective will be crucial in maintaining adequate public open space. With a plan to build 1,300 units on this site, making sure there is enough outside space for new residents, and for the surrounding communities, is so important.

Did you know the LDA made a submission to the pre-draft of the new CDP?

Yes, the Land Development Agency made a submission. In their submission they are clearly requesting that the 25% open space criteria be removed or altered. See their point 4.4: “The LDA welcome the review of the schools and INST objectives. The requirement to provide 25% of a brownfield site for open space in a location that might be very suitable to denser development runs contrary to the National Planning Objective for compact growth.” This is obviously in relation to the soon to be developed Central Mental Hospital site.

Did you know the Department of Education made a submission to the pre-draft of the new CDP?

Yes, the Department of Education also made a submission. The Department is asking the Council to take responsibility when it comes to sourcing new, and protecting existing, school lands. This submission was quite surprising to us given our experience with the Department’s involvement in planning matters in our area to date.

For example, in the case of the planning situation at Our Lady’s Grove, it was emphasised by the DLR Director of Planning (at the Council meeting on 12/6/17 where the possible rezoning of OLG and Clonkeen College was discussed and voted on) that the Council could protect the lands for educational use, IF this land was highlighted as necessary by the Department of Education. This makes sense. However in our experience, the Department of Education did not involve itself in the planning matters of the schools at Our Lady’s Grove, except in the most perfunctory way. It certainly did not look at the future planning requirements of the school. In fact Richard Bruton, who was Minister for Education at the time, described the Department as operating a “just in time” approach to school building (at a meeting with school parents in Leinster House, 24/6/17).

However there appears to have been a complete sea change in approach in the Department in the intervening time. This submission is unprecedented in that it requests that the Council itself takes on responsibility in determining, and protecting, existing and future school land. The Department is attempting to plan for the future. We strongly request that you read this submission, and take it into consideration when creating the CDP. As we know here, school assets are not just school assets, in most cases they are also community assets.

What do we want from you?

In short, we want you to protect the Institutional Objective in the new CDP 2022-2028 by strengthening it. By removing all ambiguity from this type of zoning.

Why do we want this?

For the Central Mental Hospital:

With a plan to build circa 1,300 units on this site, it is critical that adequate public open space be available to residents. It would be detrimental to not only the new residents there, but also to us, the surrounding communities, to allow development on more than 75% of this site. The existing parkland setting, with its many mature trees, is unique in such a dense suburban setting. Part of this is definitely worth preserving in some fashion. For example, there is no park in this part of DLR County. Why not open up the wall bordering with Rosemount playing fields, and create a small, but very needed, suburban park?

For all schools in DLR with this type of zoning:

School land, especially public schools’ land, is frequently used by the local community for many different uses. It is not just used by the school itself. There should be no ambiguity around the extent of the Council’s responsibility to give protection to these lands. Religious orders are selling off land throughout the county, and the current planning system in DLR does not provide enough protection to affected lands. Many of these lands are effectively community assets that have been used by local communities for many decades.

Our Proposal

Our experience with the Judicial Review leads us to the conclusion that is necessary to strengthen this Institutional Objective. We want you to consider turning this Objective into a separate stand-alone zoning type. Instead of having “Institutional Objective” tagged onto another zoning type, there should be a separate type of zoning for this type of land. It could be called “I” type of zoning. This would then have a separate colour on the zoning maps.

Dublin City Council has a distinct zoning type for Institutional land (Z15, Community & Institutional Lands), DLR should follow suit so as to avoid any doubt regarding the planning criteria associated with these sites.

Last but not least…

Going back to the SHD, and the Judicial Review – We are aware that local elected representatives can feel like they play a very minimal part when it comes to this fast track SHD process. What is the point of any type of local government when it seems like the CEO’s report is more or less ignored by An Bord Pleanala? (In this case the CEO’s report recommended planning be refused.) Certainly from the public’s point of view, it can feel hopeless. In this case, nearly 50 public submissions, comprising many hundreds of pages, were condensed to just 3 pages for consideration.

So it is somewhat heartening to note that in this case the Judge ruled that the Board did not give sufficient weight to this Report. In fact this case went so far as to clarify that the Council CEO’s Report should take higher precedence than even the An Bord Pleanala’s Inspector’s Report. (“Paragraph 116: The obligation for An Bord Pleanála to engage with the recommendation set out in the chief executive’s report is more obvious than the obligation to engage with an internal report such as that prepared by a board inspector.“)

This is an important point, and one that should be well advertised. Local government may not be completely missing from the SHD process after all.