The hedge, a rugby ledge and how a planning row could ‘set a precedent’

Ex-Ireland star Malcolm O’Kelly and his neighbours overturn planning permission in the High Court

The acer campestre bushes and Portuguese laurel trees on a South County Dublin cul-desac must make up the most disputed hedge in all of Ireland. After previously featuring in the Circuit Court, the hedge on the affluent Churchtown Road was central to a High Court hearing last week.

A dispute over the ownership of the hedge and grass verge features prominently in a planning objection by a group of neighbours, including a barrister, an academic, an engineer, a hospital consultant, a one-time councillor, and rugby legend Malcolm O’Kelly.

In the middle of a housing crisis, a sitting Fine Gael politician has supported the residents’ objections, saying it would set an “unacceptable precedent” with more houses possibly being built along the road.

The neighbours on the Charleville estate succeeded in getting planning permission for a house to be built in an adjoining back garden overturned.

Former Ireland international and Leinster star O’Kelly, and his wife Stephanie, were among the owners of seven houses on the road taking a judicial review.

O’Kelly (49) is a one-time record international cap-holder, playing 92 times for Ireland, winning four Triple Crowns and a Grand Slam. During his time in rugby, he won the Heineken Cup and three Magners Leagues with Leinster, and he toured with the British and Irish Lions.

In their original objections to the planning permission by Dún Laoghaire-Rathdown County Council, the O’Kellys detailed a range of objections, saying it was “overdevelopment on a limited site” and that it would “adversely impact on our residential amenities, privacy, natural light and views of the Dublin Mountains”.

But the O’Kellys also pointed to “house depreciation”.

“We have been given a current evaluation, from our current auctioneer, for our home and also an evaluation after such a proposed build using the images and plans. As our home is directly opposite the potential site, they suggest a devaluation of approx. 18pc of the current market price, due to its poor visual aesthetics, sheer dominance of the area and the reduction in our privacy.”

Such a fall in value would be worth several hundred thousand euro. Property prices on the road are in the seven-figure territory. One house went on the market with an asking price of €1.1m, another was up for just short of €900,000.

Near the peak of the Celtic Tiger, the Irish Times Property section listed a series of house sales, including a home in Charleville selling for €1.4m.

The planned new two-storey, three-bedroomed house needs access across the verge and hedge. The residents of Charleville say the planted grass verge is jointly owned by the 17 houses along their road.

Dún Laoghaire-Rathdown Council says the grass verge “is not in council ownership”. “However, the area forms part of the public road network and the council is responsible for maintaining it.”

In Court No 24 of the High Court last week, the planning cases before Ms Justice Emily Farrell saw An Bord Pleanála back down on two applications.

An appeal against 800 houses at the old Central Mental Hospital site in Dundrum will now be defended by the Land Development Agency, the state housing body. But the preceding case saw the court cancel a decision granting planning permission at the site in Churchtown just a mile away.

Although about just one house, the case on Churchtown Road is significant because councils in Dublin are now more likely to grant permission for houses in back and side gardens, subject to conditions, due to the housing shortage.

The judge granted the review “on the basis that the Bord did not give sufficient reasons to explain why it did not accept the recommendation of the inspector in that case; the recommendation being to refuse to grant permission on the basis that the owner of the property had not consented to the application being made”. The planning question now goes back to An Bord Pleanála.

Another of the neighbours taking the judicial review was well-known Catholic theologian Gina Menzies. She pointed to her own political background with Fine Gael in her correspondence with the county council objecting to the house.

“As a former member of Dublin Co Council, I have always acknowledged and continue to acknowledge the expertise of the planning authority to ensure good and consistent planning in the whole country.” She described the planned house as an “ugly building”.

Fine Gael councillor Jim O’Leary supported the objecting residents, saying he was “concerned” the proposed access to the development over conditioned open space, which is provided for the amenity value of the residents of Charleville, is contrary to the current zone which has a responsibility of “protecting the existing residential amenities”.

“It would also set an unacceptable precedent potentially leading to further loss of green space to provide more vehicle access to other potential applications facing into the Charleville culde-sac,” he said.

In other words, there could be more applications for houses to be built in the back gardens of houses backing on to the street.

The planning permission applicant is Stephen and Brigitta Lannen, the owner of the house at the corner of the entrance into the Charleville cul-de-sac.

Judging by the planning files, the neighbours have objected to the Lannens’ previous applications for the redevelopment of their own house and previous applications to build at the bottom of their garden.

Charleville Residents Association appealed to An Bord Pleanála the granting of retention permission for a 39-square-metre single-storey extension, with attic space, to the rear of the existing house. The auctioneers’ photos of the property the Lannens bought showed a run-down house.

The boundary wall down the side of the house, adjoining Charleville, ended up in the Circuit Court because Mr Lannen obtained an order for the council to remove the old hedge. The council then had to pay to replace the trees and shrubs. Yet the residents now claim they own that same grass verge. When Mr Lannen was eventually granted permission to build a house at the bottom of the garden, neighbours on the other side appealed to An Bord Pleanála.

The board’s inspector recommended rejecting the application because there wasn’t sufficient legal ownership of the grass verge for the entrance and the “access across a planted landscaped strip which is an important feature in the layout of Charleville, would seriously injure the amenities of property in the vicinity, and would be contrary to the proper planning and development of the area”.

But the board rejected the inspector’s recommendation and agreed with Dún Laoghaire-Rathdown Council that building the house “would not detract from the amenities of the area and would be consistent with the provisions of the development plan”.

“The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area,” it said.

Through a solicitor, Charleville residents said they had “no formal comment to the queries raised” by the Herald. The residents said it would not be appropriate to comment as the matter is under appeal to An Bord Pleanála.