Dublin Cycling Campaign CLG v an Bord Pleanala (No.2)

JurisdictionIreland
JudgeMr. Justice Denis McDonald
Judgment Date25 February 2021
Neutral Citation[2021] IEHC 146
Docket Number[2020 No. 248 J.R.]
CourtHigh Court
Date25 February 2021

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

AND

IN THE MATTR 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

[2021] IEHC 146

Denis McDonald

[2020 No. 248 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Point of law – Leave to appeal – Public interest – Notice party seeking leave to appeal to the Court of Appeal – Whether, in reckoning the quantum of “other uses” for the purposes of the definition of “strategic housing development” in s. 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016, “other uses” may include a use for which planning permission is neither sought nor granted

Facts: The High Court (McDonald J), on 19th November, 2020, granted an order of certiorari quashing the decision of the respondent, An Bord Pleanála (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 for the construction of a development comprising 741 “build-to-rent” apartments, retail space and associated works on lands to the rear of Connolly Station, Dublin 1 ([2020] IEHC 587). The second notice party, Oxley Holdings Ltd, applied to the High Court pursuant to s. 50A(7) of the Planning and Development Act 2000 for leave to appeal to the Court of Appeal in respect of a point of law which Oxley maintained arose out of the judgment given by McDonald J: “Whether, in reckoning the quantum of “other uses” for the purposes of the definition of “strategic housing development” in section 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016, “other uses” may include a use for which planning permission is neither sought nor granted.” The application for leave to appeal was opposed by the applicant, Dublin Cycling Campaign CLG. However, the applicant made the case, in the alternative, that, if McDonald J was minded to grant a certificate for leave to appeal in respect of the issue identified by Oxley, he should reformulate the question in the manner suggested by the applicant: “Whether the Honourable Court was correct to find: (a) that the Board did not grant planning permission for the development of the Car Park, and, (b) that the Car Park constituted “other uses” for the purposes of the Planning and Development (Housing) and Residential Tenancies Act 2016?”

Held by McDonald J that, in the circumstances, the question proposed by Oxley arose out of the November judgment. It seemed to him that the point of law proposed by Oxley satisfied the first of the two statutory criteria, namely, that it is a point of law of exceptional public importance. He concluded that it was in the public interest that an appeal should be taken to the Court of Appeal. He therefore certified for the purposes of s. 50A(7) of the 2000 Act the question proposed by Oxley for the purposes of an appeal to the Court of Appeal. He held that any issue as to potential mootness could be remedied by an additional question designed to address a specific aspect of the case. He therefore certified the following question for the purposes of an appeal: “Is the answer to that question any different where it is clear from the materials submitted with the application for permission that, in addition to the non-residential uses expressly included in the application, the applicant for permission either (a) intends and/or (b) is contractually obliged to make use of part of the structure of the proposed development for a non-residential purpose.” In his view, this question ensured that there could be no debate subsequent to the decision of the Court of Appeal as to whether the decision of that court was or was not dispositive of the proceedings. It also seemed to him that this question satisfied both of the statutory criteria. While he did not believe that the question formulated by the applicant was one which met the statutory test, it seemed to him that the following question (which arose out of the written submissions delivered on behalf of the applicant and also out of his judgment) did meet the test, namely: “Is it correct to apply the test set out in Re. X.J.S. Investments Ltd [1986] I.R. 750 and Lanigan v. Barry [2016] 1 I.R. 656 where the available materials contain contradictions of the kind described in paragraphs 65 to 70 of the judgment of the High Court in these proceedings [2020] IEHC 587 or is it necessary to adjust that test in such circumstances.” McDonald J certified that question for the purposes of an appeal.

McDonald J held that the costs of the application for leave to appeal should be reserved to the Court of Appeal.

Questions certified.

JUDGMENT (No. 2) of Mr. Justice Denis McDonald delivered on 25th February, 2021
The Application before the Court
1

This judgment addresses the application made by Oxley Holdings Limited (the second named notice party) pursuant to s. 50A(7) of the Planning and Development Act, 2000 (“ the 2000 Act”) for leave to appeal to the Court of Appeal in respect of a point of law which Oxley maintains arises out of the judgment ( [2020] IEHC 587) given by me in these proceedings on 19th November, 2020. For the reasons outlined in that judgment, I granted an order of certiorari quashing the 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 works on lands to the rear of Connolly Station, Dublin 1. The application for leave to appeal is opposed by the applicant. However, the applicant makes the case, in the alternative, that, if I am minded to grant a certificate for leave to appeal in respect of the issue identified by Oxley, I should reformulate the question in the manner suggested by the applicant (as described below).

2

The relevant legal principles governing an application of this kind are addressed in more detail below. At this point, it is sufficient to note that, having regard to the provisions of s. 50A(7) of the 2000 Act, if any questions are to be certified for the purposes of an appeal to the Court of Appeal, the court must be satisfied as to two matters:-

(a) In the first place, the court must be satisfied that its decision involves a point of law of exceptional public importance; and

(b) secondly, the court must be of the view that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

The question proposed by Oxley
3

Oxley proposes that the following point of law arises out of my November judgment and meets the statutory criteria set out in s. 50A(7):-

“Whether, in reckoning the quantum of “other uses” for the purposes of the definition of “strategic housing development” in section 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016, “other uses” may include a use for which planning permission is neither sought nor granted.”

The Point proposed by the Applicant in the event that the Court is satisfied that the Statutory Criteria are met
4

While the applicant strongly opposes the application made by Oxley, the applicant proposes that, if the court is satisfied that the statutory criteria are met, fairness requires that the question posed for consideration by the Court of Appeal should be reformulated as follows:-

“Whether the Honourable Court was correct to find:

(a) that the Board did not grant planning permission for the development of the Car Park, and,

(b) that the Car Park constituted “other uses” for the purposes of the Planning and Development (Housing) and Residential Tenancies Act 2016?”

Relevant Background
5

In order to understand how the issue of a potential appeal arises, it is necessary to briefly describe the relevant factual and legal background. The 2016 Act established an expedited process for the consideration of applications for planning permission relating to “strategic housing development”. Where a development meets the statutory definition of “strategic housing development”, a developer is required, under s. 4(1)(a)(i) of the 2016 Act to apply for planning permission directly to the Board and not to a planning authority.

6

In order to determine whether an application for permission has to be made under s. 4(1)(a)(i), it is necessary to consider whether the development can be said to constitute “ strategic housing development” for the purposes of the 2016 Act. That term is defined in s. 3 of the 2016 Act which provides (insofar as relevant for present purposes) that it comprises:-

“… the development of 100 or more houses on land zoned for residential use or for a mixture of residential and other uses…

…which may include other uses on the land, the zoning of which facilitates such use, but only if—

(i) the cumulative gross floor space of the houses… comprises not less than 85 per cent… of the gross floor space of the proposed development… and…

(ii) the other uses cumulatively do not exceed—

(I) 15 square metres gross floor space for each house… in the proposed development… subject to a maximum of 4,500 square metres gross floor space for such other uses in any development…”

7

In its statement of grounds, the applicant contended that the proposed development by Oxley adjoining Connolly Station does not fall within the definition of strategic housing development prescribed by s. 3 on the basis that part of the development comprised car parking for the use of CIE which, when taken with the “ other uses” proposed as part of the development, would exceed the maximum 4,500 metres allowed for uses other than housing. On that...

To continue reading

Request your trial
13 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT