Dublin City Council v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 12 November 2020
• Neutral Citation: [2020] IEHC 557
• Docket Number: [2020 No. 469 JR]
• Court: High Court
• Date: 12 November 2020

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50, 50A and 50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN

DUBLIN CITY COUNCIL

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

SPENCER PLACE DEVELOPMENT COMPANY LTD.

NOTICE PARTY

[2020] IEHC 557

Richard Humphreys

[2020 No. 469 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning and development – Judicial review – Jurisdiction – Applicant seeking certiorari of a decision of the respondent to grant permission for building heights in excess of those provided for in a planning scheme – Whether the respondent has jurisdiction to allow a material contravention of a strategic development zone planning scheme

Facts: The respondent, An Bord Pleanála, on 3rd April, 2020, decided to grant permission for building heights in excess of those provided for in a planning scheme for the Dublin City docklands area. Implicit in the decision was the board’s view that s. 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016, together with s. 37(2) of the Planning and Development Act 2000, confer the jurisdiction on the board to grant permission in a strategic development zone in material contravention of a planning scheme. Judicial review was then instituted. Leave was granted by McDonald J, the primary relief sought by the applicant, Dublin City Council, being certiorari of the decision of the board of 3rd April, 2020. On 16th October, 2020, following the hearing, the High Court (Humphreys J) informed the parties of the order being made and indicated that reasons would be given later.

Held by Humphreys J that the overall statutory policy is clear that the planning scheme forms a very detailed framework for the area concerned with primacy over the development plan. Humphreys J held that not only the planning authority, but also the board, must work within the scheme and not make a decision in contravention of it. Thus, while s. 9(6) of the 2016 Act and s. 37(2) of the 2000 Act, give the board a jurisdiction to permit material contravention of a development plan, Humphreys J held that this does not include a planning scheme. Humphreys J held that the same logic would apply beyond the housing context under s. 37G(6) of the 2000 Act which allows the board to permit a material contravention of the development plan in the strategic infrastructure development context; similarly, there is no reason to read “development plan” there as including a planning scheme either.

The order made on 16th October, 2020 was: (i) to quash the board’s decision as sought in para. D(1) of the statement of grounds; and (ii) to decline to make an order referring the matter back to the board under O. 84, r. 27(4) RSC because the board had no jurisdiction to grant the application.

Relief granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Thursday the 12th day of November, 2020

1 In 2009, ministerial guidelines were issued on sustainable residential development in urban areas. These are one of a number of policy documents referenced in the decision of An Bord Pleanála that is challenged in the present case.

2 In May 2012, the government decided to wind up the Dublin Docklands Development Authority. That gave rise to a proposal to have a strategic development zone (SDZ) designation to allow continued fast track planning in order to maintain the focus on regeneration of the area.

3 The Planning and Development Act 2000 (Designation of Strategic Development Zone: North Lotts and Grand Canal Dock) Order 2012 (S.I. No. 530 of 2012), was made on 18th December, 2012 designating Dublin City Council as the development agency to prepare a planning scheme for the docklands area,

4 Such a scheme was then duly prepared by the council. In the process of drafting, a strategic environmental assessment (SEA) report dated November 2013 was prepared which considered various alternative scenarios for building heights. A SEA statement was also prepared dated November 2013. The planning scheme was approved by the council on 5th November, 2013. Central Government has described this as a “world class” scheme and a “paragon” of such development and the Department has noted that “the scheme is one of the State's most successful strategic development zones in terms of delivery of development and establishing a new … urban block structure”.

5 The scheme divides the docklands area into city blocks. The relevant ones for present purposes are blocks 2B and 2D, which allow for a maximum of six storey commercial and seven storey residential development. The site in question is on the eastward side of a city block bounded by Sherriff Street Upper, New Wapping Street, Mayor Street Upper and Park Lane.

6 The making of the scheme was appealed to the board and submissions were made seeking an increase in building heights. The board rejected those submissions and approved the planning scheme on 16th May, 2014.

7 On 4th December, 2015 a first planning permission was granted for a seven storey block of residential units on the site. Construction has commenced and I am told that internal construction is continuing.

8 On 19th July, 2016 the Rebuilding Ireland housing strategy was adopted. That plan gave rise to the Planning and Development (Housing) and Residential Tenancies Act 2016, which was enacted in December 2016 and indeed which unusually references the policy document in its long title. The Act provides for strategic housing development (SHD), which essentially, having regard to the definition of that term in the Act, means large housing developments. The present application comes within that definition. The Act provides for a procedure for planning applications directly to the board for a limited time period, potentially up to the end of 2021 (see s. 4(2)).

9 The current Dublin City Development Plan was made in September 2016 and came into operation in October 2016. It identifies the planning scheme as the means to achieve the planning objectives for the docklands area.

10 A National Planning Framework was published by Government in May 2018. That document is referred to in the board's decision here. The framework describes itself as a “high level” document to be followed by more detailed documents.

11 Two further planning permissions were granted in 2018: on 5th August, 2018 and 18th December, 2018 providing for modifications of the previous permission.

12 A consultation draft of guidelines on urban development and building heights was issued in August 2018. It proposed a specific planning policy requirement (SPPR) numbered SPPR3 that where guidelines regarding building height had been met, the planning authority could approve development even if the development plan, local area plan or planning scheme indicated otherwise.

13 The board a made a submission dated 1st October, 2018 to the Minister that “legislation governing Strategic Development Zones requires a planning scheme to specify maximum heights of buildings … [t]he draft policy (particularly in the wording of SPPR3) might appear to conflict with that.” The reference to acting inconsistently with the planning scheme was dropped in the final version. The SEA document for the final version notes that SDZs “do have a particular status by virtue of their particular adoption process and operation”. While an approved SDZ is not “immune” from evolution of government policy, it is clear from the SEA that the intention was that the mechanism to achieve this was “a review of the planning scheme.”

14 The final guidelines were issued in December 2018 under s. 28 of the 2000 Act. They state that they are “building from” the National Planning Framework (p. 1), and the revised policy requirement, SPPR3, can be summarised as providing that:

(a). an application complying with the criteria in the guidelines may be approved even where the provisions of the development plan or local area plan indicate otherwise - this doesn't apply to a planning scheme for an SDZ: see Spencer Place Development Company Ltd. v. Dublin City Council [2020] IECA 268 (Unreported, Court of Appeal, 2nd October, 2020) per Collins J. (Costello and Donnelly JJ. concurring);

(b). the development agency shall review the planning scheme to fully reflect the guidelines - the government policy that building heights be generally increased in appropriate urban locations shall be articulated; and

(c). planning schemes approved after the coming into force of the guidelines don't need to be reviewed.

15 On 11th February, 2019 the developer here made a fourth planning application on the basis (at the risk of over-summarisation) that the guidelines should be complied with pending any formal amendment to the planning scheme. Accordingly, a height increase up to thirteen storeys was sought. That was refused on 31st May, 2019 by the city council.

16 The developers sought declaratory relief that the guidelines should be followed. That was refused by Simons J. in Spencer Place Development Company Ltd. v. Dublin City Council [2019] IEHC 384 (Unreported, High Court, 30th May, 2019). Costs followed the event: Spencer Place Development Co. Ltd. v. Dublin City Council [2019] IEHC 631 (Unreported, High Court, Simons J., 6th September, 2019). An appeal was rejected in Spencer Place Development Co. Ltd. v. Dublin City Council [2020] IECA 268.

17 Following a non-statutory public consultation process, the council submitted proposed amendments to the planning scheme on 31st May, 2019. On 12th October 2019, the board determined that the amendment constituted a material change under s. 170A of the Planning and Development Act 2000, and commenced a consultation process. The proposed amendments still await a decision by the board. The board is not itself entitled to amend the proposed amendment unless the provision so amended “would not represent… a more significant change than that which was proposed” (s...