“Planning ensures that the right development happens in the right place at the right time, benefitting communities and the economy. It plays a critical role in identifying what development is needed and where. It helps to decide what areas need to be protected or enhanced and assesses the suitability of proposed development. Planning authorities control the location, amount and type of development by making decisions on planning applications. Everyone has a right to comment on planning matters and to shape the planning and development of their area”
Office of the Planning Regulator,
https://www.opr.ie/wp-content/uploads/2021/01/Planning-Leaflet-1-Introducing-the-Planning-System.pdf
On the 18th May 2021, Eagle Valley Association made a Section 5 Referral submission to An Bord Pleanála on the Sarsfield Heights development.
Nearly 12 months on, as the Sarsfield Height development is nearing completion, the Association has still not received a decision from An Bord Pleanála. The case is remains listed on An Bord Pleanála’s website with statutory decision due date of 21/9/2022 – over 6 months ago now. An Bord Pleanála Case Ref: RL28.313638
The lack of public transparency and communication about the change in use of “Sarsfield Heights” to exclusively social housing is notable. Eagle Valley Association has being trying for over 18 months to have its complaints with respect to Sarsfield Heights heard and addressed by the Planning Authorities.
This post outlines Eagle Valley Association’s experience to date with its complaints on Sarsfield Heights.
There have been constant delays to the extent that people are left wondering whether complaints with Sarsfield Heights are being deliberately being buried in the system by the planning authorities. People are suggesting that there is a strategy somewhere of delay until the units are occupied by tenants. If “possession is 9/10 of the law” is true, who is going to move social housing tenants out of the Sarsfield Heights units if the Association’s complaints through the planning system are upheld?
Timeline of Delays & Issues experienced by the Association with the Planning System
2021 September: Association lodges request for Leave to Appeal
The Association did not learn of the last planning application for Sarsfield Heights, 2021 Planning Application 2140139 , until after the date for submission of observations had passed. Planning permission was granted on 2/9/2021 by Cork City Council. No information or specifics was included in that application regarding “Part V” arrangements or use for social housing. The planning application had presented the 4 additional units as private dwelling houses, family homes and the permanent private residence of the Applicants, Finbarr, Tony and Patricia O’Flynn, O’Brien & O’Flynn Construction Unlimited .
With the increase in rumours that Sarsfield Heights had been sold in its entirety for social housing and the lack of information in the latest planning application, 2021 Planning Application 2140139, Eagle Valley Association sought clarity by using the Leave to Appeal process with An Bord Pleanála. Under this process, if you are a person with an interest in adjoining land, you can ask An Bord Pleanála for permission to make an appeal when you meet all the requirements.
Eagle Valley Association lodged its Leave to Appeal request with An Bord Pleanála on 29/9/2021 setting out how its Member’s met the requirements to be given leave to appeal and present its case fully.
2021 October: Leave to Appeal request rejected by Paul Hyde, former Deputy Chairman, An Bord Pleanála
On 27th October 2021, Eagle Valley Association’s request for Leave to Appeal was rejected in an order signed by Paul Hyde, former Deputy Chairman, An Bord Pleanála (2021 Leave to Appeal S37(6) – An Bord Pleanála Case reference: LV28.311519 Doughcloyne , Sarsfield Road , Wilton, Cork, Co. Cork (21401)
“Having regard to the submissions and documents received in connection with the application for leave to appeal and the conditions set out in the planning authority’s decision, it is considered that it has not been shown that the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject.”
Board Order ABP-311519-21, Paul Hyde, Member, An Bord Pleanála
2021 Leave to Appeal S37(6) – An Bord Pleanála Case reference: LV28.311519 Doughcloyne , Sarsfield Road , Wilton, Cork, Co. Cork (2140139)
The Association was extremely disappointed with the rejection of their request as the reasons given appeared to be with respect to the planning decision itself rather than whether or not the Association met the criteria to make an appeal. Even though the Association’s Members would have met the criteria as adjoining landowners, the appeal appears to have been prejudged without the Association being given the permission it sought to present its case in an appeal.
As has been reported in the media, the volume of decisions issued by Mr. Paul Hyde and other Board members in the course of board meetings raises questions as to how carefully these files were considered e.g. 21 cases decided over one afternoon Furthermore, this is in the context of Cork man, Paul Hyde, the now former deputy chairman of An Bord Pleanála, facing criminal prosecution by the Gardai for allegations of potential conflicts of interest in decisions that he was involved in:
“Former An Bord Pleanála deputy chairman Paul Hyde is to face criminal prosecution as part of a garda investigation into his conduct during his time working for the planning authority. The planning board has been under intense pressure for the past six months after a series of allegations of potential conflicts of interest were made against Mr. Hyde.”
DPP begins criminal prosecution of former Bord Pleanála deputy chair Paul Hyde
The Irish Examiner, 10th October 2022
2022 February: Association seeks Section 5 Declaration on Sarsfield Heights from Cork City Council
The Association tried another route to get information with an application for a Section 5 Declaration on 14th February 2021. This is where the Council is asked to rule whether a development needs planning permission or not. The Association’s argument was that the purchase of Sarsfield Heights for exclusive use as social housing represented a material change of use from the original planning permission for a mixed tenure development.
If the Association were successful in its Section 5 Declaration Application, a new application for planning permission would need to be filed by the Developers and the process would be open to the public to make observations. The new planning application would also potentially fall under the new legislation that was enacted in December 2020 following the Mullen Park scandal in Kildare. This legislation requires that, under any new grants of planning permission, 50% of units are ringfenced to be first offered to private buyers, including first time buyers.
2022 April: Cork City Council issues Section 5 Declaration
Even though there is a statutory requirement on Cork City Council to issue a decision on a Section 5 Declaration within 4 weeks of application, Cork City Council was nearly 2 months late in issuing its decision.
On 22nd April 2022, Cork City Council eventually issued its Section 5 Declaration R705/22 Sarsfield Heights, Doughcloyne, Sarsfield Road, Cork stating that there was not a material change of use in planning terms and therefore the change of use of Sarsfield Heights to exclusively social housing was not development.
However, in its declaration, the Cork City Council Planner wrote that there was no evidence that Sarsfield Heights was to be used entirely for Social Housing. As it subsequently transpired in the RTE Prime Time programme of 8/12/2022, this was despite Cork City Council having long been involved in the deal with Respond and the Developer at that stage.
2022 May: Eagle Valley Association appeals Cork City Council Section 5 Declaration in Referral to An Bord Pleanála
Following Cork City Council’s Section 5 Declaration R705/22 Sarsfield Heights , the Association had 10 days to appeal and make a referral of to An Bord Pleanála.
On 19th May 2022, hoping for an independent adjudication, the Association made a comprehensive submission to An Bord Pleanála: Eagle Valley Association Referral Submission of Cork City Council Section 5 Declaration R705/22, Doughcloyne, Sarsfield Road, Cork
The Association’s Section 5 Referral Submission set out its arguments that the change of tenure in Sarsfield Heights from mixed tenure to exclusively social housing represented a material change of use in contravention of the original plans for which planning permission was granted and the Council’s own Development Plans.
Initially, Cork City Council attempted to have the Association’s Section 5 Referral Submission declared invalid, claiming it wasn’t submitted on time within the statutory 10 day period. An Bord Pleanála returned the Submission document to the Association. The Association followed up with An Bord Pleanála who investigated and determined that the Association had made its submission within the 10 day deadline period commencing with the date notice of the declaration was issued to the parties by Cork City Council.
As a result, An Bord Pleanála requested Eagle Valley Association to return its Section 5 Referral Submission document to the Bord and then accepted the Submission as valid. It was a number of months before the online listing of the case on An Bord Pleanála’s website was updated from being incorrectly stated as invalid to correctly being declared valid. Again, this was further to follow up by Eagle Valley Association.
The full case listing can be viewed on An Bord Pleanála’s website where the date lodged is 19/5/2022.
An Bord Pleanála Case Ref: RL28.313638 Sarsfield Heights, Doughcloyne, Sarsfield Road, Cork (R705/22)
The case was listed as due for An Bord Pleanála’s decision by 21st September 2022 which is the statutory prescribed deadline period of 18 weeks.
2022 September: An Bord Pleanála postpones Section 5 Referral decision to 13/12/2023; Respond starts moving Tenants into Sarsfield Heights
On 22nd September 2022, rather than a decision, the Association received a statutory notice letter from An Bord Pleanála that it was not able to issue the determination for Referral Case Ref: RL28.313638 by the statutory deadline of 21st September as prescribed in legislation due to a backlog of cases. The Bord undertook to ensure that the referral would be determined before a new date of 13th December 2022 – over 2 months later.
“The Board hereby serves notice under section 126(3)(a) that it will not be possible to determine the case within the statutory objective period due to a backlog of cases. The Board now intends to determine the above referral before the 13th December, 2022. The Board will take all such steps as are open to it to ensure that the referral is determined before that date.” (emphasis added)
21/9/2023 An Bord Pleanála Statutory Notice Letter to Eagle Valley Association
Case Ref: RL28.313638 Sarsfield Heights
The first phase of Sarsfield Heights, consisting of 22 units, had been completed since late June 2022. However, in the week following this postponement letter from An Bord Pleanála, Respond started moving tenants into the first phase of the development.
2022 December: RTE Prime Time features the Sarsfield Heights issue and raises questions; An Bord Pleanála again postpones Section 5 Referral decision but with no due date
On Thursday 8th December 2022, RTE Prime Time featured a segment with contributions by Members of Eagle Valley Association on the issue of the new Sarsfield Heights development. One long term tenant spoke of how this turnkey purchase was displacing her as an aspiring First Time Buyer. She and her family have rented in the area for many years and was hoping to buy one of the houses so that her family had could stay in the area where they had grown up. Members of the Association also spoke of the need for more owner occupiers in the area, concerns with the change of use of Sarsfield Heights to a exclusively rental social housing and its non conformance with the original planning permission.
None of the parties concerned would appear on the programme but each issued Statements to RTE Prime Time.
The Prime Time programme clarified and raised five significant questions which the subsequent panel discussion did not address. The blog post on this site discusses these points – see 8/12/2022 RTE Prime Time Feature on Sarsfield Heights raises Major Questions of our Public Bodies & the Planning System – in summary:
- There were NO Viability issues with Sarsfield Heights – the drivers were Profitability and achieving Social Housing Targets
- How did Cork City Council ascertain that private purchasers – particularly first-time buyers – would not be displaced by the purchase of Sarsfield Heights exclusively for social housing?
- In holding the purse strings, how did the Department of Housing ensure that Respond, as an Approved Housing Body, was not competing with private purchasers ?
- Was there misrepresentation in the Planning Permission applications for Sarsfield Heights?
- “Do as I say, not as I do” – How is what our Public Bodies are doing in Sarsfield Heights different from the 2021 Mullen Park controversy over the bulk buying of estates and displacement of would be private home owners? Do we have a Planning System or not?
Then, on 13th December 2022, rather than a decision, the Association received yet a further second notice of postponement from An Bord Pleanála of the determination for Referral Case Ref: RL28.313638 The letter suggested that the case was in progress and a decision would shortly issue.
“I have been asked by the Board to refer to the above-mentioned referral and, in particular, to the Board’s notice to you under section 126 of the Planning and Development Act, 2000, (as amended), in which it was indicated that the Board intended to determine this referral before 13th December, 2022.
I regret to inform you that, the Board will not now be in a position to determine the referral before that date.
The Board hopes to receive the Inspector’s report and recommendation on the referral in the near future. Generally, as soon as the report and recommendation on the case has been received the referral file is sent to the Board for formal consideration.
The delay involved is regretted.”
13/12/2022 An Bord Pleanála Statutory Notice Letter to Eagle Valley Association
Case Ref: RL28.313638 Sarsfield Heights
2023 March: An Bord Pleanála still has not issued the Section 5 Referral decision; Sarsfield Heights nears completion of construction
It’s now the end of March 2023 and over 3 months since An Bord Pleanála’s last postponement notice of 13/12/2022. An Bord Pleanála has still not issued its Section 5 Referral decision for An Bord Pleanála Case Ref: RL28.313638 Sarsfield Heights, Doughcloyne, Sarsfield Road, Cork (R705/22)
In the meantime, Sarsfield Height’s is nearing completion of construction. Respond and Cork City Council are advertising the houses to let on Cork City Council’s Choice Based Letting system.
Sarsfield Heights Planning History
- 2017 Planning Application 174877 (Cork County Council) by George Maloney Joint Statutory Receiver of O’Brien & O’Flynn Unlimited Company for the construction of a residential development consisting of 73 no. residential units and all associated ancillary development works
Eagle Valley Association was one of 4 submissions made on the application raising concerns about the density of the development, land use conflicts and particularly the traffic and parking issues.
Cork City Council granted conditional permission for the full development on 10/8/2017 - 2018 An Bord Pleanála Case reference PL04.249194 Sarsfield Road, Doughcloyne, Wilton, Co. Cork (17/4877) Along with a number of other parties, Eagle Valley Association appealed the decision to An Bord Pleanála which issued an order reducing the number of units to 41 on 05/02/2018
- 2018 Planning Application 185275 (Cork County Council ) With a couple of months of An Bord Pleanála’s ruling, a second planning application was made on 18/05/2018 for the construction of an additional 27 no. residential units by George Maloney Joint Statutory Receiver of O’Brien & O’Flynn Unlimited Company.
Along with other parties, Eagle Valley Association submitted an observation highlighting how the application was essentially seeking permission for all of the elements that An Bord Pleanála had refused in a very specific way less than three months previously. Cork County Council granted permission for the additional 27 houses. No considerations of the traffic and parking issues were addressed despite Cork County Council’s Area Engineer raising the issues. - 2021 Planning Application 2140139 (Cork City Council) With the change of the city boundaries, Cork City Council was the new planning authority. O’Brien & O’Flynn, now out of receivership, made an application for the construction of 4 additional units on 28/4/2021 and was granted permission by Cork City Council on 2/9/2021. The application presented private dwelling houses. No information or specifics was included in that application regarding “Part V” arrangements or suggesting its use for social housing.
