A High Court challenge has been brought today against the planning authorities decision to give the go ahead for a retail development in Cork City.
The application has been brought by Raymond Dennehy of Manor Hill, Ballinacollig Co Cork and Brian Herlihy Muladhara Ballinaboy, Ballinhassig Co Cork arising out of a decision last September by An Bord Pleanála to grant permission for a new local retail centre at Model Farm Road Cork.
The application for the retail development was made by Melbourne Management Company Ltd and involves the the change of use of eight units at the park into one retail unit.
Mr Dennehy and Mr Herlihly have claimed before the High Court that the proposed development materially contravenes the Cork City Development plan, as the zoning of the lands in question do not permit retail development in the business park.
The two, represented by Oisin Collins Bl further claim the area has been zoned business and technology in the 2009 Cork City Development Plan.
Counsel said was his clients case that the Board in its decision to grant permission for the retail centre made no mention that the proposed development contravenes the development plan.
Counsel said that the Bord acted outside its powers, and contrary to its constitutional obligations.
In 2011, Cork City Council had refused to grant permission after local councillors unanimously voted against a motion to contravening the development plan.
However the Bord in its decision to over turn the council's decision said the local authority did not state that the decision had materially contravened, as opposed to just contravening the development plan.
However counsel said that there is no requirement that the word material or materially be used in a refusal of permission. In this case it was abundantly clear that the grounds for refusal related solely to the material convention of the development plan.
In their proceedings Mr Dennehy and Mr Herlihy are seeking orders quashing the Bord's decision to grant permission for the local retail centre. Melbourne Management Company Ltd are a notice party to the action.
In the alternative they are seeking an order seeking to quash Cork City Council's November 2011 refusal to grant permission for the development.
Counsel said that in the alternative its is seeking an order against Cork City Council quashing their decision not to grant planning permission.
While the local authority had refused permission it is claimed the manner in which it framed and phrased its reasons for refusal the Council failed to properly protect the decision of its own elected members- contrary to Article 28A of the Constitution.
Leave to bring the action, made on an ex-parte basis, was granted by Mr Justice Michael Peart.
The matter was made returnable to a date in December.