Councillors on Dublin City Council on Monday voted down a motion calling on the council’s chief executive to move to take back a council-owned site at O’Devaney Gardens.
Councillors agreed in 2019 to transfer the site to the developer Bartra to build 768 homes on it in a complex reaching eight storeys.
But since then Bartra has sought and got planning permission to significantly increase the height and density of the planned development to 1,053 homes in a complex reaching 14 storeys.
At the full council meeting on Monday, two councillors dubbed the plans a “monstrosity”.
Some councillors said they supported the motion in principle but were concerned about whether it was legal after they received two different legal opinions instructing them that they can’t do it.
Green Party Councillor Michael Pidgeon said he understood the anger about the issue, but he didn’t want to give people false hope. “It’s pretty clear it’s not legally possible.”
But independent Councillor Cieran Perry, one of the councillors who proposed the motion, says he has got legal advice from Ken Kennedy Solicitors, saying it is possible, which he forwarded by email.
“Dublin City Council can play no part in facilitating, through a disposal, the proposal and permission which breach the development plan,” it says.
At the meeting, independent Councillor Nial Ring said, “This can only be decided in a court of law.”
A Long Path
O’Devaney Gardens, a former council housing complex in Stoneybatter, has been scheduled for redevelopment for many years. In 2008 a public-private partnership deal with the developer Bernard McNamara collapsed.
In 2019, Dublin City Councillors voted to transfer the land to the developer Bartra to build 768 homes, a mix of social, “affordable”, and market-rate homes.
The votewas contentious. There has for years been a campaign by some members of the public and of political parties to push the council to stop selling land to private developers and to build housing itself.
The coalition that took over running Dublin City Council after the May 2019 local election – Fianna Fáil, the Greens, the Labour Party and the Social Democrats – all signed onto a pledge to do that, with caveats.
Their “Dublin Agreement”, included a commitment not to sell off public land to developers, unless the financial benefit to the council outweighed the social and economic benefit of having social housing and other public uses on the site.
When the council voted on the O’Devaney Gardens deal, protestors disrupted the chamber while the vote was taking place, chanting “homes for need not for greed”.
When Bartra applied for planning permission earlier in 2021, it proposed building 1,047 homes in a complex reaching four storeys higher. An Bord Pleanála granted permission for that in September.
In October of this year, independent councillors John Lyons, Cieran Perry and Sophie Nicoullaud put forward a motion calling on the council’s chief executive, Owen Keegan, to write to the developer Bartra, asking it to comply with the original deal or to hand back the land to the council.
Under Section 15 of the Planning and Development Act 2000, the council should take all steps within its powers to deliver the objectives of its city development plan, says the motion.
The city development plan is the council’s blueprint for how the city should grow, and set out what heights buildings should reach in different areas. National guidelines, though, now override that and allow for much higher buildings. At its highest point, the development at O’Devaney Gardens would be 14 storeys.
The council’s CEO is legally obliged to uphold the city development plan so he should write to Bartra and ask that it return the site to the council, says the motion.
The council has an internal legal advisor called the law agent. She said on Monday that she had secured two separate, independent legal opinions on the issue.
“The first legal opinion was sought because I was keen to have an independent legal opinion for the councillors from a senior counsel,” said Yvonne Kelly, the law agent. “A second legal opinion has now been sought and circulated.”
“It is important that the rule of law is upheld in the council chambers,” said Kelly.
The deal that councillors agreed with Bartra was for 768 homes, not 1,047, said Perry at the meeting.
The plan for buildings scaling 14 storeys “in a primarily low-rise residential area is a monstrosity and the local community will be the victim”, said Perry.
Councillors have an opportunity to instruct the chief executive to write to Bartra and direct it to build the development in line with the plans agreed, he said. “The motion refers to a reserved function, the disposal of public lands, not to a planning function,” he said.
A “reserved function” is one where the elected councillors – as opposed to council managers – have the last word. “Disposing” (selling) council lands is one of those.
Independent Councillor John Lyons said that the principle of the issue is that the agreements voted through by the council should be adhered to. “What is the point of us being here if our role is that irrelevant?” he said.
The agreement with Bartra was always subject to planning permission, said Fianna Fáil Councillor Deirdre Heney. “We are very anxious that house building begins as soon as possible on the O’Devaney Gardens site.”
Fine Gael Councillor Ray McAdam said that both legal opinions councillors got from the law agent have advised that the motion is unlawful. “We cannot do something that is against the law,” he said.
Labour Councillor Joe Costello said the old council housing complex on the site, before it was demolished, had been four storeys high – and the proposed new development is a “monstrosity in a low-rise area”.
Area residents wanted to take a judicial review against An Board Pleanála’s approval of the Bartra plan for the site, but may not be able to proceed due to the cost of that, said Costello.
“The council did not agree to this monstrosity and it should not be built,” said independent Councillor Cieran Perry at the meeting on Monday night.
On Tuesday, Perry sent on his legal advice by email. Councillors are not objecting to the planning permission, says the solicitor.
Rather, they consented to transfer council land based on a set of plans that complied with their city development plan, the terms of which “have been materially exceeded and further represent a material contravention of the Development Plan”, he wrote.
“This constitutes a clear breach of Section 15 (1) of the Planning and Development Act 2000,” he wrote.