O'Lone v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 21 March 2023
• Neutral Citation: [2023] IEHC 136
• Court: High Court
• Docket Number: [2021 No. 58 JR]

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, As Amended

Between

Barry O'Lone

Applicant

and

An Bord Pleanála Ireland and The Attorney General

Respondents

and

Bartra Property (Castleknock) Limited

Notice Party

[2023] IEHC 136

[2021 No. 58 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Objective bias – Applicant seeking an amendment to the statement of grounds – Whether the test for amendment in the interests of justice was satisfied

Facts: The first respondent, An Bord Pleanála (the board), on 5th October, 2017, granted permission for the demolition of a public house on a site on the Old Navan Road, Blanchardstown, Dublin 15 and for the construction of apartments. The notice party, Bartra Property (Castleknock) Ltd, acquired the land on 27th July, 2018. On 6th January, 2020, the board granted a second permission for the demolition of the public house and the construction of co-living bedspaces. The applicant, Mr O’Lone, brought a first set of judicial review proceedings challenging the validity of the second permission on 2nd March, 2020. On 20th June, 2020, the board conceded those proceedings and on 25th June, 2020, an order was made on consent quashing the second permission without remittal. On 3rd December, 2020, the board granted a third permission for demolition of the public house and construction of co-living spaces. The applicant then brought proceedings challenging that permission on 1st February, 2021. On 25th July, 2022, the proceedings were certified as ready for hearing and on 29th July, 2022, the proceedings were listed for hearing on 13th December, 2022. On 17th August, 2022, the applicant said he became aware of an article published on 22nd April, 2022, on The Ditch website entitled “An Bord Pleanála deputy chairperson failed to recuse himself from votes on six developments involving brother’s fire safety firm”. On 5th October, 2022, the first planning permission expired. On 11th October, 2022, the applicant sought consent of the parties to a proposed amendment to the statement of grounds to deal with an objective bias point. The applicant confirmed the request for an amendment to the High Court on 14th November, 2022, when the matter was next listed.

Held by Humphreys J that the applicant’s point was clearly arguable to the substantial grounds threshold, there was no irremediable prejudice in granting the amendment, there were no reliance interests on the decision because the permission had been under challenge at all material times, having to answer potentially winning points is not legally cognisable prejudice, and the applicant had proffered an explanation for not having included the point originally. Humphreys J held that the amendment was very personal to the board; it alleged that the deputy chairperson of the board acted in direct conflict of interest by making a decision in a case where a close relative was a partner in a firm that was a professional adviser to the developer. Humphreys J held that the vital interests of the board in the integrity of its own processes were directly engaged by these matters and the fact that the board itself had not seen fit to object to the amendment must be a significant factor. Humphreys J held that it was for the greater good that allegations of the type sought to be made by the applicant were allowed to be pursued by amendment, given that integrity in public life was at issue.

Humphreys J gave the applicant liberty to file the proposed amended statement of grounds in the terms sought. Humphreys J held that if no submissions to the contrary regarding costs were received by the List Registrar within seven days of the date of the judgment, the foregoing order would be perfected at that point with costs being reserved.

Application granted.

JUDGMENT of Humphreys J. delivered on the 21 ^st day of March, 2023

1 . On 5 ^th October, 2017, the board granted permission for the demolition of a public house on a site on the Old Navan Road, Blanchardstown, Dublin 15 and for the construction of apartments. The notice party acquired the land on 27 ^th July, 2018.

2 . On 6 ^th January, 2020, the board granted a second permission for the demolition of the public house and the construction of co-living bedspaces. The applicant brought a first set of judicial review proceedings [2020 No. 175 JR] challenging the validity of the second permission on 2 ^nd March, 2020. On 20 ^th June, 2020, the board conceded those proceedings and on 25 ^th June, 2020, an order was made on consent quashing the second permission without remittal.

3 . On 3 ^rd December, 2020, the board granted a third permission for demolition of the public house and construction of co-living spaces. The applicant then brought the present proceedings challenging that permission on 1 ^st February, 2021.

Procedural history

4 . On 27 ^th January, 2022, the board filed a statement of opposition. The notice party developer did likewise on 24 ^th February, 2022.

5 . On 22 ^nd April, 2022, an article was published on The Ditch website (ontheditch.com) entitled “An Bord Pleanála deputy chairperson failed to recuse himself from votes on six developments involving brother's fire safety firm” (https://www.ontheditch.com/abp-deputy-chair-voted-six-developments-involving-brothers-firm/). The article stated: “An Bord Pleanála's (ABP) under-fire deputy chairperson didn't recuse himself from at least a further six development[s] applications on which his brother's company worked. ABP board members must recuse themselves from cases where their ‘involvement could give rise to an appearance of objective bias,’ according to the organisation's code of conduct. Last week The Ditch reported that Paul Hyde voted on a controversial build-to-rent development in Ranelagh, Dublin 6 that included a report prepared by his brother Stefan's engineering firm, Maurice Johnson & Partners Ltd. Stefan Hyde is a founding partner and 50 per cent shareholder of the firm, which was established in 2009 and specialises in fire safety and access engineering services. It has now emerged that Paul Hyde from 2019 to 2020 voted on a minimum of six proposed developments that included submissions from the same company.”

6 . The present proceedings are referenced further down the article, where the authors state: “In December 2020, Paul Hyde also voted to approve a 210-unit build-to-rent development in Castleknock, Dublin 15. Property developer Bartra submitted a fire safety report conducted by Maurice Johnson & Partners as part of its application. The decision to approve is the subject of a High Court challenge from local student Barry O'Lone, who claims the development contravenes the Fingal County Development Plan. In June 2020 O'Lone successfully challenged a previous ABP decision approving the same development.” The article concludes: “Paul and Stefan Hyde and ABP declined to comment”.

7 . On 26 ^th May, 2022, an RTÉ Prime Time programme broadcast further information about perceived bias and conflict of interest at the board. An article was published on the RTÉ website the following day outlining some of this information.

8 . The article by Oonagh Smyth is headed “Concerns over ‘system failure’ at An Bord Pleanála” (https://www.rte.ie/news/primetime/2022/0526/1301450-key-procedure-an-bord-pleanala/), and begins: “A key procedure designed to avoid the perception of bias and conflicts of interest at An Bord Pleanála does not appear to have been followed in a number of recent cases involving its Deputy Chairman, Paul Hyde, Prime Time has learned. As a result, it appears that Mr Hyde, who has currently stepped aside from his role, made a number of decisions on planning files that he was restricted from handling. Upon being appointed to the board, Mr Hyde listed fire safety engineering firm Maurice Johnston and Partners as a business in respect of which he was restricted from making decisions on. This is because his brother Stefan is a partner of the company. But Mr Hyde was involved in 11 decisions where Maurice Johnston and Partners submitted a report on behalf of a planning applicant, or where the fire safety consultancy company was acting as a board inspector. According to An Bord Pleanála records, no conflicts of interest were declared”.

9 . The article goes on to quote Catherine Murphy T.D. as saying that this suggested that there was a “governance and a systemic issue” at the board, and that this “suggests to me that this is not an issue around an individual”. The article stated that “The allocation of these cases to Mr Hyde also appears to be a failure of internal procedures restricting file allocation”.

10 . On 8 ^th June, 2022, judicial review proceedings entitled Residents of Vincent's Park & Ors v. An Bord Pleanála & Ors [2022 No. 480 JR] were issued containing an allegation of perception of bias on a very similar ground to that sought to be made by the applicant here. One of the applicant's lawyers in the present proceedings appears to have drafted that statement of grounds.

11 . On 25 ^th July, 2022, the present proceedings were certified as ready for hearing and on 29 ^th July, 2022, the proceedings were listed for hearing on 13 ^th December, 2022. On 17 ^th August, 2022, the applicant says he became aware of the article on The Ditch. On 5 ^th October, 2022, the first planning permission expired. On 11 ^th October, 2022, the applicant requested a copy of the minutes of the board meeting at which the decision to grant the permission was made and also sought consent of the parties to a proposed amendment to the statement of grounds to deal with the objective bias point.

12 . The amendment is essentially encapsulated by a new core ground 1A which reads as follows: “The Decision is invalid insofar the grant of permission was...