Colbeam Ltd v Dún Laoghaire-Rathdown County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 31 July 2023
• Neutral Citation: [2023] IEHC 450
• Court: High Court
• Docket Number: 2022/350 JR

In the matter of Section 50 of the Planning and Development Act 2000 as amended

Between

Colbeam Limited

Applicant

and

Dún Laoghaire-Rathdown County Council

Respondent

and

Wendy Jennings and Adrian O'Connor

Proposed Notice Parties

[2023] IEHC 450

2022/350 JR;

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Mr Justice Holland DELIVERED ON 31 JULY 2023.

Contents

INTRODUCTION & FACTUAL BACKGROUND	2
ORDER 84 RSC & INITIAL OBSERVATIONS	8
WHAT DOES “DIRECTLY AFFECTED” MEAN?	13
O'Keeffe — 1993	14
Spin Communications — 2000	15
BUPA — 2005	16
Monopower — 2006	19
Abbeydrive — 2010	21
Yap — 2006	22
Dowling — 2013	23
KMM — 2015	26
North Meath Wind Farm — 2018	27
National Maternity Hospital — 2018	30
McElvaney — 2019	34
Gavigan — 2020	36
Ryanair — 2020	37
Crofton — 2022	37
Collection of the foregoing	37
IS AN EFFECT DIRECT OR INDIRECT?	38
DECISION	38
RIGHTS NOT INTERESTS?	40
CONCLUSION	41

INTRODUCTION & FACTUAL BACKGROUND 1

1 This is my judgment on an application by Wendy Jennings and Adrian O'Connor, by Notice of Motion, for primarily, the following reliefs:

“1. An Order pursuant to Order 84 Rule 22(9) of the Rules of the Superior Courts joining Wendy Jennings and Adrian O'Connor to the proceedings.

2. A declaration that special costs rules and/or costs protection and/or the NPE 2 costs rule applies to the participation of the proposed Notice Parties ….”

2 §2 of the Notice of Motion seeks what is known as a protective costs order. That issue is not for decision in this judgment. I refer to §2 for present purposes primarily as it refers to the “ proposed Notice Parties” in circumstances in which §1 is imprecise as to the form of joinder of Wendy Jennings and Adrian O'Connor which is sought and given also the particular terms of O. 84, r. 22(9) RSC, to which I will come in due course.

3 The applicant for judicial review, (“Colbeam”) and the respondent (“DLRCC”) oppose the application by Ms Jennings and Mr O'Connor. Given it is foreseeable that Ms Jennings and Mr O'Connor will support DLRCC in their opposition to Colbeam's case, I confess to some puzzlement as to why it did not at least affect neutrality on the application. But counsel for

DLRCC tells me and I accept that DLRCC's position proceeds from its understanding of the law

4 In these proceedings, Colbeam seeks to have quashed the decision (the “Impugned Rezoning Decision”) of the Respondent (“DLRCC”) whereby Colbeam's lands of 2.12 hectares at Our Lady's Grove, Goatstown Road, Dublin 14 (“the Site”), which had been zoned for residential development in the Dun Laoghaire-Rathdown County Development Plan 2016 – 2022 (the “2016 Development Plan”), were zoned for open space in the Dun Laoghaire-Rathdown County Development Plan 2022 – 2018 (the “2022 Development Plan”). It is common case that this rezoning, if valid and putting the matter at its least, dramatically diminishes Colbeam's prospects of getting planning permission to develop the site.

5 The consequences of the Impugned Rezoning Decision are potentially immediately acute. In June 2021, Colbeam got from An Bord Pleanála (the “Board”) permission 3 pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 (“the 2016 Act”), as applicable to Strategic Housing Developments (“SHD”), to develop student accommodation on the Site. Ms Jennings and Mr O'Connor sought judicial review of the decision to grant that permission. By judgment of 17 February 2023 4 in those proceedings (the “Jennings/O'Connor judicial review”), the High Court decided to quash that permission (the “quashed SHD Permission”). While it is convenient to refer to it as the “quashed” SHD Permission, strictly it is incorrect as final orders are yet to be made in that case and certiorari has not issued. From the points of view of the parties' respective interests, and of considerable relevance to the arguments on the issue I must now decide, vital issues remain for decision in that case as to what final orders should be made — specifically as to whether and on what terms the quashed SHD Permission is to be remitted to the Board for re-decision.

6 It is common case that if, in the Jennings/O'Connor judicial review, the quashed SHD Permission is remitted to be re-decided on foot of the 2022 Development Plan rezoning of the Site as open space, the Board will be obliged to refuse planning permission. That is because by s.9(6) of the 2016 Act 5 it may not grant SHD permission where a proposed development materially contravenes the applicable development plan as to the zoning of the land. Indeed, if remittal had to be on terms that the matter be decided on foot of the 2022 Development Plan rezoning of the Site as open space, it is arguable that remittal should be refused as pointless or, as Colbeam's counsel observed, Colbeam might not even seek remittal.

7 It is also common case that if, in the Jennings/O'Connor judicial review, the quashed SHD Permission is remitted to be decided:

a possibility would or could 6 remain that the Board would be legally entitled to consider granting permission in their remitted decision.

• • on foot of the 2016 Development Plan, which zoned the land for residential

  development, or

• • on foot of the 2022 Development Plan, but the rezoning to open space having been quashed in these proceedings,

8 As the law stands, any remittal now in the Jennings/O'Connor judicial review would be for decision on foot of the 2022 Development Plan. But the case — Crofton 7 — in which that was decided is under appeal. While the court is entitled to decide matters on the law as it stands when they come up for decision and without awaiting the outcome of an appeal in another case, the view has generally been taken by litigants in similar circumstances (of which there is a sizeable number) and the court has acquiesced in that view, that it is prudent to await the outcome of the appeal in Crofton. Though that course may need to be kept under review.

9 As the law stands — as the 2022 Development Plan is presumptively valid — any remittal now in the Jennings/O'Connor judicial review would be for decision on foot not merely of the 2022 Development Plan, but on foot of the rezoning therein of the Site to open space. Refusal of permission would inevitably ensue. Accordingly, Colbeam in these proceedings, as I have said, seeks to have that rezoning quashed.

10 Ms Jennings and Mr O'Connor point out that Colbeam, in its recitals of fact in its Statement of Grounds in these proceedings, recited:

• • the fact of the Jennings/O'Connor judicial review (which had not, when those Grounds were filed, come to trial).

• • that the Chief Executive of DLRCC, in advising its members against rezoning the Site to open space, noted in support of his view, the “live permission” on the Site (i.e. the SHD permission later quashed) as granted by the Board.

• • Colbeam's submission to the Council in January 2022, objecting to the proposed rezoning, as invoking the SHD permission later quashed and referring to the pending Jennings/O'Connor judicial review.

11 In in its assertion of legal grounds in its Statement of Grounds in these proceedings, at Ground 2, Colbeam explicitly,

• • invokes the SHD permission (later quashed) as a determination by the Board that residential use of the Site is consistent with proper planning and sustainable development.

• • asserts that the Councillors erred in law in that they did not engage “ properly and/or meaningfully with the determination of proper planning and sustainable development within the planning history of these lands” and “ by failing to identify and respect the determination of certain of those matters within the planning history”. These pleas are clearly an invocation in these proceedings of the SHD permission (later quashed).

12 Ms Jennings and Mr O'Connor emphasise that on 27 March 2023, Sadhbh O'Connor, by affidavit sworn for Colbeam in the Jennings/O'Connor judicial review 8 after judgment in that case deciding to quash that the SHD Permission, and seeking remittal to the Board, put Colbeam's position, inter alia, as follows: 9

From Ms O'Connor's affidavit seeking remittal, it will be seen that Colbeam emphasised the interrelationship of these proceedings and the Jennings/O'Connor judicial review.

• • If the quashed SHD Permission is remitted to be considered in accordance with the 2016 Development Plan, the Board could grant permission in accordance with the development scheme proposed by Colbeam.

• • If the quashed SHD Permission is remitted to be considered in accordance with the 2022 Development Plan, as it stands, the Board would have to refuse permission.

• • Colbeam has instituted judicial review of the validity of the 2022 Development Plan rezoning of the Site – she exhibits the pleadings in the present case.

• • “Clearly the outcome of those proceedings is of considerable importance, at least from a planning perspective, and insofar as Colbeam's application for permission to carry out the proposed development is concerned.”

• • “A stay on the entry into force of the relevant zoning objective, insofar as it affects the site, has been sought, but that this application has yet been heard or determined.”

13 Ms Jennings and Mr O'Connor also point out that Colbeam, in these proceedings, sought 10 a stay on the application and/or operation of the Impugned Rezoning Decision – i.e. of the 2022 Development Plan but limited to its rezoning of the Site. Colbeam did so on the explicit basis, by affidavit of Joseph Cox sworn 28 March 2023, the day after Sadhbh O'Connor's affidavit, that these proceedings were “ brought in the context where” the SHD Permission was under challenge in the Jennings/O'Connor judicial review. As is apparent, by the time the stay on the operation of the...