Dublin City Council v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 16 June 2023
• Neutral Citation: [2023] IECA 155
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Nos 2021/9

Between

Dublin City Council

Applicant/Respondent

and

An Bord Pleanála

Respondent

and

Spencer Place Development Company Limited

Notice Party

[2023] IECA 155

Collins J.

Whelan J.

Noonan J.

Court of Appeal Record Nos 2021/9

THE COURT OF APPEAL

Civil

Unapproved

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 16 June 2023

INTRODUCTION

1 This appeal presents a net issue of statutory interpretation, encapsulated in the point of law certified by the High Court (Humphreys J) which is in the following terms:

“Does 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 Board is, of course, An Bord Pleanála (“ ABP”). A “ planning scheme” is a scheme adopted in accordance with the provisions of Part IX of the Planning and Development Act 2000 (as amended) (“ the PDA”).

2 The Planning and Development (Housing) and Residential Tenancies Act 2016 ( “the 2016 Act”) was enacted in December 2016. It will be necessary in due course to refer its provisions in more detail but, at this point, it is sufficient to observe that Part 2, Chapter 1 of the Act established new procedures governing applications for planning permission for “ strategic housing development” (as defined). Subject to an exception I shall mention in a moment, section 4(1) of the Act (which was repealed by the Planning and Development (Amendment) (Large-scale Residential Development) Act 2021 with effect from 17 December 2021) made it mandatory for applications for permission for such development to be made directly to ABP rather than to the relevant planning authority. When determining such applications, ABP is required to “ have regard to” ( inter alia) the provisions of the development plan (including any local area plan) for the area but nonetheless has significant scope for granting permission even where the proposed development would materially contravene the development plan or local area plan: section 9(6).

3 The obligation under section 4(1) of the 2016 Act to apply to ABP where planning permission was sought for strategic housing development was, however, subject to a significant qualification in subsection (4). That subsection is central to the resolution of the certified point of law and so I shall set it out in full now:

“In the case of an application for a strategic housing development that is located in a strategic development zone, the applicant may elect to make the application to the planning authority under section 34 of the Act of 2000 rather than under this section and, accordingly, section 170 of that Act applies to the application to which the said section 34 relates.”

4 It will be necessary to come back to this provision. But a number of points may be made immediately. The first is that it makes clear that the 2016 Act applies to proposed strategic housing development within an SDZ. SDZs could have been excluded from the scope of the Act but the Oireachtas clearly decided not to do that. 1 Secondly, as regards proposed strategic housing development within a SDZ, the applicant for planning permission was given two options. The applicant could elect to apply to the planning authority under section 34 PDA or could instead apply to ABP under section 4 of the 2016 Act. In the event that the applicant

elected to make the application to the planning authority under section 34 PDA, section 170 PDA would apply to the application

5 Section 170 PDA significantly modifies the operation of the PDA as regards applications for development in a SDZ: see generally the discussion in my judgment (with which Costello and Donnelly JJ agreed) in Spencer Place Development Company Limited v Dublin City Council [2020] IECA 268. Section 170(1) provides that, where an application is made pursuant to section 34 for a development in an SDZ, that section and any permission regulations shall apply, subject to the other provisions of section 170. Section 170(2) then provides that permission shall be granted for a development where the planning authority is satisfied that it would be consistent with the applicable planning scheme and that no permission shall be granted for any development which would not be consistent with such planning scheme. As I noted in Spencer Place Development Company Limited v Dublin City Council, that appears to be an absolute prohibition and there is no procedure analogous to section 34(6) PDA permitting a planning authority to grant permission for a development that would be inconsistent with a planning scheme and therefore no mechanism within Part IX PDA whereby development inconsistent with a planning scheme may be permitted (short of varying the scheme itself): para 16. Finally, section 170(3) excludes any appeal to ABP from a decision on an application for permission in respect of a development in an SDZ.

6 So much was common case here. There was no dispute that, if the application for planning permission the subject of these proceedings had been made to the planning authority, Dublin City Council (“ the Council”), pursuant to section 34 PDA, section 170(2) PDA would have dictated its refusal, on the basis that the proposed development was inconsistent with the North Lotts Scheme and, in particular, was inconsistent with the maximum building heights fixed by the Scheme. However, the Notice Party's application was not made to the Council under section 34 PDA. Rather, it elected to apply to ABP pursuant to section 4 of the 2016 Act. The Notice Party contended – and ABP accepted – that, in determining that application, ABP was not rigidly bound by the terms of the Scheme and was entitled to grant the permission sought notwithstanding any inconsistency with any prescribed building height limits.

7 ABP was of the view that the proposed development was consistent with the proper planning and sustainable development of the area and proceeded to grant planning permission. That decision was challenged by the Council. In the High Court, Humphreys J upheld the Council's challenge and quashed the permission: [2020] IEHC 557. He did, however, grant leave to appeal in respect of the question already set out: [2021] IEHC 34.

8 The essential issue is whether the Judge was correct in concluding that, where an applicant applies for permission for strategic housing development to ABP under section 4 of the 2016 Act in respect of land within an SDZ, ABP is bound by the terms of the relevant planning scheme to the same extent as a planning authority would have been had the developer instead elected to make its application to the planning authority pursuant to section 34 PDA and thus has no entitlement (or, in the language of the certified question, no jurisdiction) to grant permission for any such development be inconsistent with such scheme.

9 For the reasons set out in this judgment, I conclude that ABP did have jurisdiction under 2016 Act to grant permission for strategic housing development in an SDZ that materially contravenes a planning scheme.

THE SCHEME, THE APPLICATION FOR PERMISSION

AND THE DECISION OF ABP

The Scheme

10 Though the certified question is framed in abstract terms, these proceedings are concerned specifically with the North Lotts and Grand Canal Planning Scheme 2024 (“ the North Lotts Scheme”) which governs development within the North Lotts and Grand Canal Strategic Development Zone (“ the North Lotts SDZ”). The North Lotts SDZ encompasses the Dublin docklands, both to the north and the south of the Liffey, including an area lying between Sheriff Street Upper, New Wapping Street, Mayor Street Upper and Park which is designated in the Scheme as City Block 2, comprising four sub-blocks, 2A, 2B, 2C and 2D.

11 The North Lotts Scheme was made in 2014. It contains detailed provisions prescribing building height limits within the North Lotts SDZ (section 168(2)(c) requires a draft planning scheme to include “ proposals in relation to the overall design of the proposed development, including the maximum heights ….”). Many, including the Notice Party (and, it appears, ABP also) consider that higher buildings should be permitted in the North Lotts SDZ than is provided for in the North Lotts Scheme. In December 2018 the Minister for Housing, Planning and Local Government issued the Urban Development and Building Heights, Guidelines for Planning Authorities (“ the Guidelines”) pursuant to section 28 PDA. The Guidelines contain a number of specific policy requirements (“ SPPRs”) with which planning authorities and ABP are required to comply in the performance of their functions: section 28(1C) PDA. In Spencer Place Development Company Limited v Dublin City Council, this Court rejected Spencer Place Development Company Limited's argument that SPPR 3(A) mandated Dublin City Council to override the building height limits in the North Lotts Scheme. The Court took the view that SPPR 3(A) did not apply to existing planning schemes and that the requirements of the Guidelines were intended to be implemented through the review and amendment of such schemes mandated by SPRR 3(B) (judgment at para 94).

12 My judgment in Spencer Place Development Company Limited v Dublin City Council recorded that the Council had undertaken a review of the North Lotts Scheme and had sent a draft amended Scheme to ABP for approval. That judgment was given in October 2020. Surprisingly, an amended Scheme has yet to be made. In March 2021, ABP, declining to follow the recommendation of its inspector, refused to approve the draft amended Scheme, because ( inter alia) in its view it provided for only minimal increases in height and density and did not properly reflect the policy objectives in the Guidelines and also because it was of the opinion that the Council had not properly...