Dublin Cycling Campaign CLG v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 19 November 2020
• Neutral Citation: [2020] IEHC 587
• Docket Number: [2020 No. 248 J.R.]
• Court: High Court
• Date: 19 November 2020

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000

AND

IN THE MATTER OF THE PLANNING AND DEVELOPMENT (HOUSING) AND RESIDENTIAL TENANCIES ACT, 2016

BETWEEN

DUBLIN CYCLING CAMPAIGN CLG

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DUBLIN CITY COUNCIL

AND

OXLEY HOLDINGS LIMITED

NOTICE PARTIES

[2020] IEHC 587

Denis McDonald

[2020 No. 248 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Denis McDonald delivered on 19th November, 2020

1 In these proceedings, the applicant seeks an order of certiorari quashing a decision of the respondent (” the Board”) made on 5th February, 2020 to grant planning permission pursuant to s. 9 (4) of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (” the 2016 Act”) for the construction of a development comprising 741 “build-to-rent” apartments, retail space and associated site works on lands to the rear of Connolly Station and adjoining Sheriff Street Lower, Dublin 1.

2 The applicant's case is based on two principal grounds:

(a) In the first place, the applicant contends that the proposed development does not fall within the definition of “strategic housing development” within the meaning of s. 3 of the 2016 Act; and

(b) Secondly, the applicant makes the case that the Board erred in granting planning permission in circumstances where it screened out the possibility of significant effects on certain Natura 2000 sites in Dublin Bay as a result of the proposed development. The applicant argues that the Board incorrectly concluded that a Stage 2 Appropriate Assessment within the meaning of the Habitats Directive was not required.

3 It will be necessary, in due course, to consider the grounds of challenge in more detail. Before doing so, it may be helpful to first identify and briefly describe the proposed development which the notice party (” Oxley”) proposes to build pursuant to the decision of the Board.

The proposed development

4 Connolly Station occupies a site which runs diagonally from Amiens Street to Seville Place, Dublin 1. To the east of the station there are a series of railway sidings. To the east of the sidings lies a surface car park in the ownership of CIÉ which occupies the ground bordered by Sheriff Street Lower to the south, Oriel Street to the east and Seville Place to the north. The car park is currently used by Irish Rail staff and by visitors to Connolly Station and, more generally, by the public. The proposed development site takes in a part of the car park. It also extends above the existing sidings which will be kept in situ with the development constructed above them. The development forms part of a larger masterplan for what is described as the “Connolly Quarter” which will comprise, in addition to the residential development the subject of these proceedings, an office development and a hotel development. The development site for the proposed Connolly Quarter is irregular in shape but is bordered by the station to the northwest, Seville Place to the northeast, Oriel Street to the east and Sheriff Street Lower to the south. The application for planning permission for construction of the office and hotel developments was separately made to Dublin City Council under s. 34 of the Planning and Development Act, 2000 ( “the 2000 Act”). That application was submitted on 18th May, 2020.

5 Insofar as the residential development is concerned, the intention is to construct a number of multi-storey blocks on the site. Among the blocks to be constructed is Block B which will extend up to fifteen floors above street level and will comprise three residential “finger blocks” (which are described in the application as blocks B1, B2 and B3) with private open space integrated at podium and rooftop levels. For present purposes, it is important to note that Block B extends over the existing railway sidings and will be supported by a steel truss support arrangement. The applicant contends that, as part of Block B, a concrete deck will be constructed with a view to accommodating 135 spaces for the purposes of CIÉ car parking with this deck being accessed by means of a series of ramps leading from a motor vehicle entrance on Oriel Street. The applicant contends that the clear intention is that part of the site would be used not for residential purposes but for the purposes of this CIÉ car park and that the area of land to be occupied by the car park and related ramp (when taken with other non-residential uses proposed) exceeds the maximum 4,500 square metres gross floor space permitted by s. 3 of the 2016 Act for uses other than residential use. In making this case, the applicant refers to a number of the documents that were submitted to the Board in support of the planning application including documents which indicate that Oxley is under a contractual commitment to provide car parking spaces to CIÉ as part of the development.

6 Both the Board and Oxley reject the suggestion that a car park forms any part of the proposed development. While they accept that the plans show a “void” or “Interstitial Deck” which might in the future be adapted for use as a car park (subject to any necessary consent that might be required) they argue that the application made to the Board under the 2016 Act does not seek permission in respect of any car park in this “void”. It should be noted that the car park is not included in the application made by Oxley to Dublin City Council on 18th May, 2020 under s. 34 of the 2000 Act.

7 For completeness, it should also be noted that the proposed development includes a very small car park for residents which is intended to operate on a “carpool” basis. In light of the exceptional public transport links in the immediate vicinity of the proposed development, cars were not considered to be necessary for the majority of residents. No challenge is made in these proceedings to the inclusion of this small residents' car park.

8 Having briefly described the development, it is next necessary to identify the issues which arise in the proceedings having regard to the case made by the applicant in its statement of grounds and the responses of the Board and Oxley in their respective statements of opposition. It should be noted that, although Dublin City Council is named as a notice party to the proceedings, it did not participate in these proceedings.

The case made in the statement of grounds

9 In para. 11 of the statement of grounds it is alleged that the Board fell into error in the following respects:

(a) In the first place, it is contended that the proposed development does not fall within the definition of strategic housing development prescribed by s. 3 of the 2016 Act and, therefore, the decision of the Board to grant permission was ultra vires the powers of the Board under s. 9 (4) of the 2016 Act. This case is expanded upon in subsequent paragraphs of the statement of grounds. In para. 29, the case is made (inter alia) that the car-parking was “erroneously regarded as a preexisting use for the purposes of planning permission and was not counted for the purposes of the alternative use calculation required by Section 3 of the 2016 Act”. In para. 30, reference is made to the agreement between Oxley and CIÉ (discussed in more detail below) to provide for car parking spaces in the development. It is specifically alleged that the inclusion of these spaces and the associated access ramp within the development brings the gross floor space of “other uses” above the maximum 4,500 square metres allowed under the definition of “strategic housing development” in s. 3 of the 2016 Act. It is also alleged in para. 40 that the concept of “other uses” does not require such uses to be new uses in the development. It is therefore argued that Oxley was precluded from using the fast track planning procedures available under the 2016 Act and that the only avenue open to Oxley was to make an ordinary planning application to Dublin City Council under s. 34 of the Planning and Development Act, 2000 ( “the 2000 Act”);

(b) Secondly, it is alleged that the application made by Oxley under the 2016 Act was invalid because the newspaper notice, site notice and application form did not comply with the mandatory requirements of the 2016 Act or the Planning and Development Regulations, 2001 (S.I. No. 600 of 2001) ( “the 2001 Regulations”) and/or were inaccurate and incomplete. In later paragraphs of the statement of grounds (including para. 44) the case is made that Oxley omitted to make any mention of the car parking deck or the gross floor space of the car parking deck in the relevant notices and application form.

(c) In the alternative, the applicant contends that, if it is incorrect in its argument at (b) above, it must follow that the Board has unlawfully granted planning permission for a carpark that did not in fact form part of the development. In para. 45 of the statement of grounds, the case is made that this renders the decision ultra vires the Board's powers under s. 9 (4) of the 2016 Act.

(d) The applicant also makes a case that the reasons given by the Board did not engage with the submissions made to it by the applicant or by Dublin City Council and in particular the submission which the applicant contends it made to the effect that Oxley was legally obliged to seek permission for the proposed car park;

(e) It is also alleged that the Board incorrectly concluded that a Stage 2 Appropriate Assessment was not required. In making this case, the applicant noted the screening report completed by Openfield Ecological Services on behalf of Oxley which addressed the potential impact of the development on a number of Natura 2000 sites including the South Dublin Bay and River Tolka Estuary SPA, the South Dublin Bay SAC, the North Dublin Bay SAC and the North Bull Island SPA. The screening report noted that the development would generate 340 cubic metres of...