Dublin City Council v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 07 January 2022
• Neutral Citation: [2022] IEHC 5
• Court: High Court
• Docket Number: [2021 No. 419 JR]

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

[2022] IEHC 5

[2021 No. 419 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning scheme – Amendment – Applicant challenging the respondent’s refusal to approve an amendment to a planning scheme – Whether parts of the process ought to be declared invalid

Facts: The applicant, Dublin City Council (the council), challenged the refusal by the respondent, An Bord Pleanála (the board), to approve an amendment to a planning scheme for North Lotts and Grand Canal Dock Strategic Development Zone. The parties were agreed that there should be an order for certiorari, and for remittal of the matter back to the board. In effect, everything in the order was agreed, apart from the date immediately prior to which the remittal should be effective. The options were either 16th September, 2019 (the board’s position) or 16th March, 2021 (the council’s position). The board sought to have parts of the process declared invalid which the applicant sought to uphold.

Held by the High Court (Humphreys J) that that was a misconceived procedure for the following reasons: (i) the point “conceded” was not a point ever made by the applicant as part of its primary case, but was only ever a fall-back position in case it was wrong; (ii) judicial review was not a procedure whereby the respondent could seek to quash its own processes on grounds that an applicant was not contending for or consenting to; (iii) the case made by the board was inconsistent with the board’s own pleadings; (iv) if Humphreys J was wrong that the board was not entitled to make that point, it failed on the merits because the board clearly impliedly accepted the inspector’s report that strategic environmental assessment could be screened out; (v) the argument that the quashed 2021 decisions assisted the board was misconceived; and (vi) acceding to the board’s application to unwind the whole public consultation process would lead to duplication and delay.

Humphreys J made the following orders: (i) by consent, an order of certiorari of the board’s decision of 23rd March, 2021; (ii) by consent, an order of certiorari of the board’s direction of 16th March, 2021 under the heading of further and other relief; (iii) an order remitting the application for approval of the amendments to the planning scheme back to the board for consideration and decision, such process to re-commence at the point in time immediately prior to the board’s direction of 16th March, 2021.

Orders granted.

JUDGMENT of Humphreys J. delivered on Friday the 7th day of January, 2022

1 In this judicial review, Dublin City Council challenges the refusal by An Bord Pleanála to approve an amendment to a planning scheme for North Lotts and Grand Canal Dock Strategic Development Zone (SDZ).

2 The parties are agreed that there should be an order for certiorari, and for remittal of the matter back to the board. In effect, everything in the order is agreed — apart from a couple of words, namely the date immediately prior to which the remittal should be effective. The options are either 16th September, 2019 (the board's position) or 16th March, 2021 (the council's position). That ostensibly modest question is the issue for determination here.

3 Rather than plunge straight into the facts, the complex background to the present case makes it necessary to set out the statutory scheme first. Having done so, the most salient factual points should emerge more clearly.

4 The procedure for approval of amendments to a planning scheme is set out in s. 170A of the Planning and Development Act 2000, and involves eight distinct steps as follows (although not always necessarily in exactly the following order).

Step 1 — application for amendment

5 Subsection (1) of s. 170A allows the planning authority to apply to the board for approval of an amendment to a planning scheme. That may be preceded by a non-statutory consultation process.

Step 2 — decision as to whether a material change is involved

6 Subsection (2) provides that where an application under sub-s. (1) has been made, the board shall decide whether the making of the amendment would constitute the making of “a material change to the planning scheme.”

7 We can leave aside for present purposes what happens if the board decides that the change is of a minor nature (see sub-s. (4)(a)) as this did not arise here.

Step 3 — decision as to whether s. 169 should be applied

8 Subsection (3) provides that, where certain criteria are not satisfied by the amendment, then the board must require the planning authority to pursue the amended scheme under s. 169 of the 2000 Act (which relates to procedures for the adoption of a scheme in the first place) rather than s. 170A (which relates to amendments). It should be noted under this heading that what I am calling step 3 does not necessarily have to be taken at this point in the process and could be postponed to the final decision: see sub-s. (4)(b).

Step 4 — determination as to whether there are significant effects on the environment or on a European site.

9 Subsection (5) provides that before making a determination under the relevant provision of the section, the board shall establish whether the amendment or any alternative amendment the board is considering is such that it would be likely to have significant effects on the environment for the purposes of directive 2001/42/EC relating to strategic environmental assessment (SEA) or on a European site under the habitats directive 92/43/EEC and “for that purpose, the Board shall have reached a final decision as to what is the extent and character of any alternative amendment, the making of which it is also considering.”

10 One thing that is clear from subsection (5) is that the extent and character of any alternative amendment the making of which the board is considering is final and not reversible because that is what the subsection says.

Step 5 — in the event of there being significant effects on the environment or a European site, a requirement to conduct a full SEA or AA

11 Subsection (6)(b) provides that if the board determines that the making of the amendment or any alternative amendment that it is considering is likely to have significant effects on the environment or a European site then it “shall require the planning authority to undertake a strategic environmental assessment or an appropriate assessment or both”. If that is not the case, the board would proceed with the process (sub-s. (6)(a)).

Step 6 — requirement for public notice of the amendment

12 Subsection (7) provides that, before making a determination under the relevant provision of the section, the board shall require the planning authority to inform the Minister and the prescribed authorities of the proposed amendment and publish notice of the amendment in one or more newspapers circulating in the area. Every such notice shall state the reasons for the amendment and the opportunity for written submissions and crucially “that a copy of the proposed amendment, along with any assessment undertaken according to subsection (6)(b), may be inspected at a stated place or places and at stated times during a stated period of not less than 4 weeks”.

13 An absolutely critical point in the sequence is, as the council's submission correctly states, that “[t]he statutory scheme requires the Board's AA and SEA Screening determination to be made before the statutory public consultation process under s. 170A(7)-(9) – as, if appropriate assessment (AA) and/or SEA is required, the AA and/SEA documents prepared by the Council inform the content of the public consultation notice and subsequent Council report.” This clearly follows from the reference to sub-s. (6)(b) above. It does not totally help that the subsections within s. 170A are drafted otherwise than in the chronological sequence of the steps involved. A chronological flow would generally be a preferable form of drafting. But when looked at closely the sequence is clear for these purposes.

Step 7 — the council report

14 Under sub-s. (8), following the close of the time for public submissions, the planning authority must prepare a report for the board on foot of that process. Sub-section (9) provides that the report shall address the issues raised and give a response of the planning authority and shall also “include, where and if required for the purposes of subsection (6)(b), either or both – (i) the environmental report and strategic environmental assessment, and (ii) the Natura impact report and appropriate assessment, of the planning authority”. Subsection (10) requires the board to have regard to any report so prepared.

Step 8 — final decision

15 Leaving aside cases of minor change, the final decision is made under sub-s. (4)(b) where the amendment constitutes the making of a material change, but is within the criteria set out in subsection (3)(b) and so does not have to be subjected to the more onerous procedures for making a planning scheme in the first place under s. 169. Under such circumstances, subject to sub-s. (5), the board “may approve the making of the amendment to the planning scheme with such amendment, or an alternate amendment, being an amendment that would be different from that to which the request relates but would not represent, in the opinion of the Board, a more significant change than that which was proposed.”

Steps taken in this case

16 With that statutory sequence firmly in mind, it is a much more comprehensible task to isolate the material facts out of the morass of material here.

Step 1

17 The application for an amendment was submitted to the board by the council on 31st May, 2019.

Step 2

18 The decision as to whether the change was material was taken in the...