The Supreme Court has found in An Bord Pleanála’s favour in two appeals concerning identical legal points that apply to planning applications for strategic housing developments.
The court’s decision clarifies an area of conflict between two High Court judges in relation to whether the board is required, under planning regulations, to decline to deal with certain planning applications that are not accompanied by specific documents.
The judges gave conflicting judgments with regard to the interpretation of the word “statement” in the Planning and Development Regulations 2001.
In a judicial review action brought by Waltham Abbey Residents Association, Mr Justice Richard Humphreys found the board failed to include a statement as a “separate identifiable document” and therefore its permission for strategic housing at a site on the Old Fort Road in Ballincollig, Co Cork, was invalid.
In Pembroke Road Association’s legal challenge to the board’s approval for 105 apartments and 10 aparthotel bedrooms in south Dublin, Mr Justice Alexander Owens ruled that the 2001 regulations simply require some evaluative material to be included in the planning application.
The judge declined to overturn permission for the development on the Ballsbridge site, which includes the demolished former home of the 1916 Rising leader Michael Joseph O’Rahilly, after holding that the required information was contained within the planning application even though it did not contain a separate accompanying statement.
On Monday a five-judge Supreme Court unanimously upheld An Board Pleanála’s appeal against Waltham Abbey and dismissed Pembroke Road’s appeal against the board and the Minister for Housing, Local Government and Heritage.
The court made an order remitting the Waltham Abbey case to the High Court.
In a judgment on behalf of the court, Mr Justice Gerard Hogan said the failure to supply separate statements in these cases was not “in any sense a real impediment” to the board’s ability to discharge its statutory functions.
Examining the word “statement” in the context of article 299B of the Planning and Development Regulations alone, Mr Justice Hogan favoured the construction proffered by Mr Justice Humphreys. However, the word cannot be read in isolation from the rest of the regulations, he said.
The provisions seek to ensure that the board has all the relevant information at its disposal in the interests of “good and simplified administration”, he went on. The board is used to navigating complex documents and was “perfectly capable” of examining those furnished by the developers, he said.
Two further issues arose in Pembroke Road’s appeal.
The first related to the board’s decision to grant permission for the development, which includes a 12-storey block, despite its contravention of the local development plan in relation to height.
The Government adopted a new policy in 2016 to allow for more high-rise buildings, which permitted, among other things, the board to override elements of a local development plan where it is self-evident the plan does not align with the national framework.
It is “obvious”, said Mr Justice Hogan, that the Dublin City Development Plan, which contains blanket height restrictions, save for discrete locations such as the Docklands, is not aligned with the ministerial guidelines in relation to height requirements.
It is necessarily implicit in the board’s determination that it was perfectly aware of this want of alignment, said the judge, and no error of law on the board’s part has been demonstrated in this regard.
The other ground of appeal in this case related to how Mr Justice Owens dealt with an identified invalidity in An Bord Pleanála’s permission.
He upheld Pembroke Road’s claim that the board was not entitled to impose a condition under a particular subsection of the 2000 Act requiring developer Derryroe Ltd to pay a financial contribution to Dublin City Council as a “special contribution” in lieu of providing public open space within the site, which is beside Herbert Park.
However, the judge refused to quash the permission, instead allowing the board to “cure the legal defect” as he did not feel a correction would involve a “material alteration” of the development’s terms.
Mr Justice Hogan agreed with Mr Justice Owens’s analysis that the wording of the relevant legislation is broad enough to enable the board to correct its “purely venial” mistake by removing the condition and replacing it with the correct statutory reference. This amendment does not “in any sense” materially affect the original permission, said the judge.
Mr Justice Hogan also touched upon the nature of the “powerful and effective” remedy of quashing a planning decision. Experience has shown, he said, that “certiorari” may sometimes amount to a “form of excessive enthusiasm on the part of the legal system and that a more finely tuned remedy may be required”.
Mr Justice John MacMenamin, Mr Justice Peter Charleton, Ms Justice Iseult O’Malley and Ms Justice Marie Baker indicated their agreement with the judgment.
