Challenge to proposed Dalkey nursing home must be made in respondents presence, court rules

High Court reporters

A High Court judge has directed that a challenge brought by several Dalkey residents, including broadcaster Pat Kenny, against the granting of planning permission for a nursing home in the South Dublin suburb should be made on notice to the other parties involved in the action.

Mr Kenny, along with Christopher Herbert, Tom Palmer and Peter Cullen, have brought judicial review proceedings over An Bord Pleanála's decision of July 6th to grant Bartra Property Ltd permission to construct a 104-bed nursing home on lands at Ulverton Roadd and Harbour Road in Dalkey.

In their proceedings, the plaintiffs, who live near the proposed five-story development, seek various orders and declarations, including an order setting aside the board's decision which they say is flawed.

Among the grounds of their challenge is that the proposed nursing home will adversely impact on badgers living on the lands.

The proceedings came before Mr Justice Liam Kennedy during Tuesday's vacation sitting of the High Court. The judge was asked, on an ex-parte basis, to grant the applicants permission to bring their challenge against the board's decision.

After considering submissions by Alan Doyle Bl, instructed by solicitor Fred Logue for the residents, the judge directed that the application for permission to bring the challenge should be heard on notice to, or in the presence of, the other parties.

As well as suing the board, the residents' action is against the Minister for Housing, Local Government and Heritage; Ireland and the Attorney General.

Bartra is a notice party to the proceedings. The matter was adjourned to a date in November.

Mr Doyle told the court that due to the size of the proposed development an application is likely to be brought to have the action included in the High Court's commercial planning environmental list.

Judicial review

In the judicial review proceedings, the residents claim that one of the conditions attached to the proposed nursing home's planning permission requires that the facility to be built in accordance with the plans submitted.

Another condition requires the developer to adhere to national guidelines concerning the treatment of badgers and works being carried out near their setts.

It is claimed the guidelines require that heavy machinery cannot be used within 30 metres of badger setts. The guidelines also prohibit works with lighter machinery within 20 metres, and no hand digging or clearing done within 10 metres of badger setts.

The residents claim that if the conditions of the permission are to be complied with it would be impossible to build 60 of the proposed nursing home units.

It is also claimed that the board failed to properly take account or determine issues including the volume of extra traffic generated, parking and the impact on the capacity of local sewers generated by the proposed development.

The board also failed to carry out an Environmental Impact Assessment (EIA) in respect of the proposed development, the applicants also submit.

Other issues include the ability of the proposed nursing home's elderly residents to access to local services and shops in Dalkey villages which is some 500 meters away, and the amount of light generated by the proposed development.

In its decision, the board overturned Dún Laoghaire-Rathdown County Council's 2021 decision to refuse to grant planning permission to Bartra.