Councillor sues An Bord Pleanála over 'irrational' mast decision

Right to Change councillor Sophie Nicoullaud formally applied for judicial review of ABP’s decision of January this year.

A Dublin City Councillor has sued An Bord Pleanala for the “irrational” decision to approve the construction of an 18-metre high telecommunications mast on a green space in the south of the city.

Right to Change councillor Sophie Nicoullaud formally applied for judicial review of ABP’s decision of January this year to approve the mast, to be located in Bluebell, on a green space close to the Old Naas Road, at the High Court on Tuesday before Justice Charles Meenan, and requested that the mast’s permission be quashed.

The mast in question was first applied for by Cignal Infrastructure, which along with DCC is also a respondent in the case, in April of last year under Section 254 of the 2000 Planning and Development Act, meaning that no formal planning permission was required for its construction.

Section 254 applications cost €125 to lodge with a local authority, and are typically used by pubs and restaurants for example in order to place tables and chairs on the streets.

While such applications do not require planning permission, they can be appealed to ABP, the State’s national planning authority.

Dublin City Council first approved the S254 application for the mast in May of last year, one week after two DCC planners had recommended refusal of the licence, per Ms Nicoullaud’s statement of grounds, as the proposed location did not qualify for S254 as it isn’t situated “on, under, over or along a public road”.

Counsel for Ms Nicoullaud Cathal Leneghan BL, instructed by Eoin Brady of FP Logue Solicitors, argued that the decision by ABP to grant the licence was made “in error of law” given the location “is on public space” and as such does not satisfy the requirements for a S254 licence as running next to a public road.

Contravenes council's development plan

Mr Leneghan argued further that the application should not have been approved given it contravenes Dublin City Council’s own county development plan for 2022-2028.

This states that telecommunications structures should take account of the telecommunications regulations 1996 — which state that such masts should only be located within a community “as a last resort”, while the development plan itself stresses that such masts “should preferably be located on industrial estates, or on lands zoned for industrial/employment uses”.

He argued also that An Bord Pleanála had failed to address public observations, including those of Ms Nicoullaud and the Bluebell Residents Association, which had “raised a number of concerns relating to the siting of the mast, and the effect it would have on the residential and visual amenity of the area, particularly in winter”.

Mr Leneghan also referred to the decision made by former ABP member Michelle Fagan in January of this year. 

He said this impugned the granting of the licence given ABP itself had concluded in an as-yet-unpublished internal report last year that decisions regarding masts made by Ms Fagan together with former ABP deputy chair Paul Hyde represented “a very significant statistical irregularity” given the frequency with which the two overruled their own inspectors’ recommendations.

He said that as such Ms Fagan comprised “a member who was biased subjectively or objectively in relation to... the proposed development”.

Ms Nicoullaud said that the proposal would “detrimentally change the whole beautiful character of Bluebell at this important and much-loved green community space”.

She said she and the Bluebell community felt that the manner in which the application was first made amounted to “a deliberate attempt by the applicant to push something unwelcome under the radar”.

She said the decision was “fundamentally flawed” and “irrational” and was beyond ABP’s jurisdiction to endorse.