Wednesday, May 3, 2017
As the housing crisis deepens, the need for readily available social and affordable housing has become ever more acute. With housing demand outstripping supply, and long lead-in times for new home completions, a potential solution may lie in the conversion and modernisation of existing premises into fit for purpose residential units.
This presents a challenge for the Irish planning code which must accommodate the converging interests of combatting homelessness with the protection of Ireland’s architectural and cultural integrity.
A recent High Court decision in Kenny Byrnes v Dublin City Council from earlier this year demonstrates how the Irish High Court strikes this balance when an application for a change of use of a protected Georgian building from a boutique hotel to homeless accommodation was challenged.
In Byrnes Dublin City Council granted permission for the use of a Georgian house in Dublin 2 to change from a boutique hotel into temporary housing for homeless singles and couples. The facility was to be operated by the Dublin Simon Community and, at full capacity, could provide 30 bed spaces along with common living and support rooms for residents.
The redeveloped building was intended to replace facilities currently operated by the Dublin Simon Community in an emergency accommodation unit for homeless persons nearby on Harcourt Street. The building was designated as Zone Z8 under the Dublin City Development Plan (the “Development Plan”) which allows for buildings to be considered for use for “the health and safety or welfare of the public.”
Mr. Byrnes, a local resident, challenged the decision on a number of grounds including that:
• The Council’s decision was in material contravention of the Development Plan, and in particular that no “public benefit” would accrue from the building’s proposed new use.
• The public notices for the development were inadequate as they were too general and did not convey sufficiently the full extent of the structural alterations.
• No notice was given to Fáilte Ireland/Bord Fáilte regarding the Council’s decision to grant permission.
Ms. Justice Baker refused Mr. Byrnes’ appeal against the Council’s decision for the following reasons.
Material Contraventions of Development Plans and “public benefit”
With regard to the interpretation of material contravention, the Court noted that materiality should be based on a local analysis of what was considered material. For example, the Court considered that the mere fact that a large number of third party objections were made to the subject application “would suggest that the grounds of objections were material from a planning point of view”.
The Applicant had asserted that the proposed development would benefit such a narrow range of persons that it could not be characterised as a “public” health centre as permitted for lands designated as Zone Z8 under the Development Plan. Baker J noted that a facility does not have to service all members of the public in order to be “for public use”. The Court discussed at length Dublin’s homeless statistics before concluding that the unit would have a significant public benefit.
Baker J. considered that the site notices in this instance were sufficient. The Court considered at length the purpose of a site notice, noting that “a notice should alert a vigilant or potentially interested party to the general nature of what is proposed”, and that a notice must be seen in the context of “contemporary city life, and the persons interested in the environment or who live or work locally must be assumed for the purpose of the context of the notice not to live in a vacuum”
In relation to the alleged deficit of the site notices, the Court noted the importance of expert evidence to give weight to the claim. In this instance, it was held that Mr. Byrnes had put forward insufficient supporting evidence to show that he had been personally misled by the notices.
Failure to notify prescribed bodies
Mr. Byrnes also argued that no notice had been given by DCC to Fáilte Ireland/Bord Fáilte regarding the Council’s decision to grant permission notwithstanding that the development might detract from the tourism amenity value of Georgian Dublin.
In finding for DCC, the Court considered this administrative oversight was merely a “de minimis failure of process”.
The Court was also not satisfied that Fáilte Ireland/Bord Fáilte was a necessary notice party in circumstances where insufficient evidence was put to the Court that the existence of a homeless hostel would actively detract from the tourist value of the Georgian street. The Court was also mindful of that Fáilte Ireland/Bord Fáilte had recorded their intention not to object to the development in subsequent correspondence.
The decision of the High Court strikes a proportionate balance between the need for accommodation for homeless people and families with the need to preserve Ireland’s architectural heritage. With no end in sight to the homeless crisis in Ireland, the Courts may well encounter similar challenges to planning decisions in the near future as local authorities and housing charities seek to make use of existing properties within cities and towns in Ireland.
For more information on this case, click here.