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Three questions referred to European court in challenge to permission for development at former industrial site

By: James Cross BL

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High Court, in challenge to permission for 416 dwellings at a site including two former industrial sites previously operated by Player Wills, refers three questions concerning directives in relation to the environmental assessment of development plans to the Court of Justice of the European Union.

Planning and development – judicial review – challenge to the grant of planning permission at site including two former industrial sites previously operated by Player Wills – permission authorised a “Build to Rent” development allowing for the demolition of all existing structures on site and the construction of 416 dwellings in five blocks ranging from 2 storeys to 16 storeys as well as tenant amenities, communal open space, childcare facilities, commercial floor space, an ESB substation and associated works such as parking places - facts regarding heights of the proposed buildings - domestic law issues - alleged unlawful regard to pre-consultation discussions - alleged inconsistency regarding zoning in respect of open space - alleged invalidity of condition 22 - provision for leasing of units to the housing authority - alleged invalidity of conditions 2 and 3 - restriction on the right of alienation of apartments - alleged contravention of development plan regarding building heights – alleged inadequacy of plans and particulars - European law issues - alleged breach of the EIA directive regarding expertise - alleged breach of habitats directive - alleged non-transposition of the SEA directive - reliance on a masterplan not subjected to SEA - giving effect to the masterplan would amount to a deviation from the development plan in the sense that it expressly envisages a different set of developments, particularly in terms of heights – reference to the CJEU – referred questions - alleged breach of EIA directive arising from guidelines under s. 28 of the 2000 Act – alleged that EU law was invalidly transposed - transposition complaint is that an unstated implied meaning of the directive that has yet to be pronounced by the CJEU has not been set out expressly - facts here more particularly raise the issue of the lawfulness of mandatory guidelines that have their origin in policies motivated primarily by non-environmental considerations – questions referred to CJEU

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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