Brain injury nursing home claims attempts to obstruct much needed extension, Commercial Court hears

The operator of the country's only care and rehabilitation centre for those with acquired brain injuries believes attempts are being made by adjoining landowners to obstruct a much-needed extension to the facility through a right-of-way claim, the Commercial Court has heard.

Costern Unlimited Company owns St Doolagh's Park nursing home in Balgriffin, near Malahide in north Dublin.

It currently operates a 72-bed facility and applied for planning permission to double that capacity at a cost of €5.5m.

However, a company called Balgriffin Developments lodged an objection claiming Costern is not entitled to use a right-of-way over the land where the extension will go and which Balgriffin says it is the owner of.

Costern managing director, Keith Robinson, said in an affidavit that Balgriffin Developments is controlled by Patrick and Robert McGuigan and that its (Balgiffin's) interest in the land was acquired from another company also controlled by the McGuigans. That second company is called Woodlawn Building Services which also has a nursing home in the area.

Mr Robinson said Costern had an agreement with Woodlawn that neither company would object to each other's planning applications.

However, he said, Costern was not aware at the time it made this agreement with Woodlawn that it (Woodlawn) had transferred ownership of certain lands to Balgriffin Developments.

It was now clear this ownership transfer was done with a view to allowing Woodlawn "escape its obligations" under the Costern/Woodlawn non-objection agreement, Mr Robinson said.

Balgriffin is being used as a vehicle to breach and undermine that agreement "in the belief it can rely on a separate legal personality to escape sanction," he said.

Despite requests to Balgriffin to withdraw its objection to the planning application, it declined to do so, he said.

Today, Mr Justice Robert Haughton agreed to Costern's application to have the case against Balgriffin and Woodlawn dealt with in the fast-track Commercial Court.

Hugh O'Keeffe SC, for Costern, said there had been a development in the last week with a refusal of the application for permission for the 72-bed extension. However, the planning authority indicated a 32-bed extension would be acceptable.

Counsel said despite this there was still an urgency to the matter being dealt with in the commercial list.

Damien Keaney BL, for the defendants, said while his clients were not strongly objecting to the case being admitted, there was an issue about whether it was necessary to have the matter dealt with at the "breakneck speed" with which the Commercial Court deals with cases. Costern will have to submit a new planning application, a process which is likely to take some time.

Mr Justice Haughton said while the court's procedures are speedy, they were not quite breakneck and it would at least be autumn before the case would be heard. He was prepared to admit it to the commercial list.

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