Dublin City Council v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 28 January 2021
• Neutral Citation: [2021] IEHC 34
• Docket Number: [2020 No. 469 JR]
• Court: High Court
• Date: 28 January 2021

Between

Dublin City Council

Applicant

and

An Bord Pleanála

Respondent

and

Spencer Place Development Company Ltd.

Notice Party

[2021] IEHC 34

[2020 No. 469 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Leave to appeal – Costs – Notice party seeking leave to appeal – Whether the notice party had made out a case for leave to appeal

Facts: The High Court (Humphreys J), on 12th November, 2020, granted an order of certiorari of a decision of the respondent, An Bord Pleanála (the Board) in respect of a strategic housing development in material contravention of a planning scheme ([2020] IEHC 557). The notice party developer, Spencer Place Development Company Ltd, proposed that Humphreys J should certify the following question as one of exceptional public importance for the purposes of an appeal: “[d]oes the Board have jurisdiction under the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, to grant permission [for strategic housing development] in material contravention of a planning scheme?” The notice party submitted that the question satisfied existing caselaw. It also submitted that the question was determinative in the sense that if answered differently it would change the result of the case (S.A. v Minister for Justice and Equality [2016] IEHC 646). The applicant, Dublin City Council, submitted that the criteria for leave to appeal were not met. Submissions were made on behalf of the notice party seeking no order as to costs. The notice party applied for a stay on the order of certiorari, which was opposed by the applicant. On 21st December, 2020 having heard the matter, Humphreys J informed the parties of the order being made and indicated that reasons would be given later.

Held by Humphreys J that the notice party had made out a case for leave to appeal, and the objections made to the application were not decisive. He considered that the statutory test had been satisfied so he granted leave to appeal. He held that costs must follow the event both in accordance with the general principle and as something required by s. 169 of the Legal Services Regulation Act 2015 in the absence of sufficient reason to order otherwise. He held that the correct balance was achieved in this case by a stay on any account being taken of the order of certiorari for the purposes of any enforcement action, whether by the applicant or any other person, including proceedings under s. 160 of the Planning and Development Act 2000, in respect of works carried out before 16th October, 2020 (being the date of the oral pronouncement of the order of certiorari), pending the final determination of the proceedings; that precludes further development pending final determination of the appeal but does not leave the developer exposed to enforcement proceedings in the meantime.

The order announced on 21st December, 2020 was as follows: (i) to grant leave to appeal and to certify the question as proposed by the notice party, such leave to appeal to include the costs; (ii) costs including reserved costs in favour of the applicant against the respondent (by consent), and against the notice party (jointly and severally); (iii) a stay on the order of certiorari in the terms set out above; (iv) a stay on the costs order for 28 days and if notice of appeal is served within that period until the final determination of the appeal; and (v) by consent, no order as to the costs of the leave to appeal application.

Leave to appeal granted.

(NO. 2)

JUDGMENT of Mr. Justice Richard Humphreys delivered on Thursday the 28th day of January, 2021

1 In Dublin City Council v. An Bord Pleanála (No. 1) [2020] IEHC 557, ( [2020] 11 JIC 1203 Unreported, High Court, 12th November, 2020), I granted an order of certiorari of a decision of the board in respect of a strategic housing development in material contravention of a planning scheme. Three consequential issues now arise for decision:

• (i). leave to appeal;

• (ii). the costs of the proceedings to date; and

• (iii). the question of a stay on the order of certiorari.

2 In those respects I have received helpful submissions from Mr. Stephen Dodd S.C. (with Mr. Stephen Hughes B.L.) for the applicant and from Mr. Eamonn Galligan S.C. (with Ms. Suzanne Murray B.L.) for the notice party. The board didn't participate in this leg of the proceedings, has consented to a costs order against it and has indicated that it does not propose to participate in any potential appellate context. On 21st December, 2020 having heard the matter, I informed the parties of the order being made and indicated that reasons would be given later.

3 The test for leave to appeal under s. 50A(7) of the Planning and Development Act 2000 has been well canvassed in caselaw, particularly in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, MacMenamin J., 13th July, 2006) and in Arklow Holidays Ltd v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112 per Clarke J.

4 The notice party developer here proposes that I should certify the following question as one of exceptional public importance for the purposes of an appeal: “[d]oes the Board have jurisdiction under the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, to grant permission [for strategic housing development] in material contravention of a planning scheme?”

5 The notice party submits that the question satisfies existing caselaw. It also submits that the question is determinative in the sense that if answered differently it would change the result of the case (see S.A. v. Minister for Justice and Equality [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016)). In the latter respect, however, it has to be pointed out that there were some other points that didn't have to be decided, in view of my answer to the primary question in the proceedings. Hypothetically, even if I am wrong on the primary question, it may be that the council would prevail anyway on one of the other issues. Or maybe not — one can't say because we didn't get to that point. However, it would not be appropriate for the court to get in to a position where it was precluded from granting leave to appeal unless it also opined, obiter, all possible issues in the case. That would not always be in the interests of justice. Furthermore, it would create a situation where a decision on a proliferation of potentially obiter points would be incentivised, which would be undesirable for a whole host of reasons, not least from the point of view of keeping the length of cases within manageable bounds in the interests not just of these litigants but of other litigants competing for scare judicial resources.

6 The applicant submitted that the criteria for leave to appeal were not met by reason of a number of factors as...