Morris v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Denis McDonald
• Judgment Date: 08 June 2020
• Neutral Citation: [2020] IEHC 276
• Docket Number: [2020 No. 293 J.R.]
• Date: 08 June 2020

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

CHRISTIAN MORRIS

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CREKAV TRADING GP LIMITED

NOTICE PARTY

[2020] IEHC 276

Denis McDonald J.

[2020 No. 293 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Strategic housing development – Applicant seeking leave to bring judicial review proceedings – Whether there was a basis on which the applicant should be given leave to pursue his claim for an order of certiorari

Facts: The applicant, Mr Morris, applied to the High Court for leave to bring judicial review proceedings in respect of a decision of the respondent, An Bord Pleanála, dated 2nd March, 2020 granting planning permission for a strategic housing development at the former Baily Court Hotel, Main Street, Howth, County Dublin and on the adjoining lands located south of the Martello Tower on Balscadden Road, Howth, County Dublin. The decision was made pursuant to s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 on foot of an application made to the Board under s. 4.

Held by McDonald J that there was a basis on which the applicant should be given leave to pursue his claim for an order of certiorari. In her view the grounds on which such relief could be sought were as follows: the Board failed to give sufficient consideration to matters of safety pertaining to the site; the omission of the Board to cite the applicant as an observer; the Board did not adequately consider the requirements of Fingal County Council’s objective DMS 174 (pertaining to coastal erosion); the Board erred in granting permission for the proposed development on a site known to be subject to subsidence; the proposed development is not consistent with the zoning of the site under the Fingal County Council Development Plan 2017 to 2023; and Condition 2 as proposed in the Board’s order does not make sense.

McDonald J refused to grant leave to seek any of the relief set out in paras. 2, 5, 7, 8, 9 and 11 of Part D of the statement of grounds. She made an order granting the applicant leave to bring judicial review proceedings in respect of the decision of the Board dated 2nd March, 2020 insofar as he sought the relief set out in paras. 1, 3, 4, 6, 10, 12, 13 and 14 of Part D of the statement of grounds. She directed that the application should proceed by way of an originating notice of motion. She directed the applicant to serve the originating notice of motion together with a copy of the order made on foot of this judgment, the statement of grounds and his affidavit sworn on 25th May, 2020 on both the Board and on the notice party, Crekav Trading GP Ltd, by sending copies thereof by email to their respective solicitors, namely, Philip Lee Solicitors on behalf of the Board and Arthur Cox Solicitors on behalf of Crekav. She directed that service should be effected within 7 days from the date of perfection of the order proposed, failing which the order granting leave should lapse. She also directed that the originating notice of motion should be made returnable in the Strategic Infrastructure list for 25th June, 2020 at 10.30 a.m. at which stage she would give directions for the further prosecution of the proceedings. In light of the fact that the respondent and notice party had previously been served with the papers by the applicant, she expected that the statements of opposition and accompanying affidavits should be capable of being delivered within a relatively short period of time after 25th June. She directed the parties to confer with each other by email or telephone in advance of the further consideration of the matter on 25th June with a view to agreeing the further directions to be made in relation to the timescale for delivery of the statements of opposition and accompanying affidavits, any replying affidavit, the written submissions and suitable dates for the hearing of the proceedings. She held that the Court Registrar should be informed of the outcome of that interaction between the parties by email not later than 3:00pm on 24th June, 2020. She reserved the costs of the application.

Leave to bring judicial review proceedings granted in part.

JUDGMENT of Ms. Justice Denis McDonald delivered on 8 ^th June, 2020

1 This is an application for leave to bring judicial review proceedings in respect of a decision of the respondent (“ the Board”) dated 2 ^nd March, 2020 granting planning permission for a strategic housing development at the former Baily Court Hotel. Main Street. Howth, County Dublin and on the adjoining lands located south of the Martello Tower on Balscadden Road, Howth, County Dublin. The decision was made pursuant to s. 9 of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (“ the 2016 Act”) on foot of an application made to the Board under s. 4. The 2016 Act introduced a new procedure under which applications for permission for a strategic housing development are required to be made directly to the Board under s. 4 and not to a planning authority. For this purpose, s. 3 defines a “strategic housing development” as meaning a development of 100 or more houses on land zoned for residential use or for a mixture of residential and other uses.

2 Mr. Morris, the applicant, is a resident of Howth and he made written observations to the Board in opposition to the proposed development. The applicant pursues these proceedings in that capacity and as a lay litigant. The notice party (“Crekav”) is the developer of the proposed housing development. The development, if it proceeds, will involve the demolition of existing structures on site including a disused sports building on the Balscadden Road and the former Bailey Court Hotel buildings on Main Street and the construction of 177 residential units in three separate apartment blocks and one mews building ranging in height from two to five stories. The decision of the Board will permit the construction of 171 apartments and six duplexes comprising 44 one bedroom units, 103 two bedroom units and 30 three bedroom units.

3 In order to satisfy the applicable time limit for the making of the application for leave, the applicant, previously, on 22 ^nd April, 2020 appeared before Twomey J. On that occasion, Twomey J. deemed the application to have been opened to the court on that day even though the application for leave was not pursued at that time. The applicant made both the Board and Crekav aware of the order made by Twomey J. Thereafter, on 6 ^th May, 2020, Arthur Cox solicitors acting on behalf of Crekav wrote to the applicant to apprise him of High Court Practice Direction 74 which provides that applications for leave to apply for judicial review of decisions in respect of strategic infrastructure developments (which include strategic housing developments) should be made to me as the judge in charge of the Strategic Infrastructure Development List. As the judge in charge of that list, I subsequently fixed 28 ^th May, 2020 as the date for the hearing of the application for leave to seek judicial review. In advance of that hearing, the applicant swore an affidavit on 25 ^th May, 2020 in which he exhibited the following documents:

(a) The report dated 19 ^th February, 2020 of Stephen J. O'Sullivan, planning inspector, appointed by the Board:

(b) The order of the Board dated 2 ^nd March, 2020 granting permission for the proposed development:

(c) The written observations submitted by the applicant to the Board on 19 ^th November, 2019 in relation to the proposed development:

(d) The written observations of the Howth/Sutton Community Council clg ( the Community Council”) submitted to the Board on the 6 ^th December, 2019 in relation to the proposed development; and

(e) The written observations of Graínne Mallon architect and planning consultant submitted to the Board on 9 ^th December, 2019 on behalf of Balscadden Road SAA Residents Association Ltd. ( “the Residents Association”).

4 The applicant attended before me in person for the purposes of moving his application on 28 ^th May, 2020. I reserved judgment on his application in order to more fully consider the papers and in particular the nature of the relief and the grounds on which it is sought.

The relevant test for the grant of leave

5 The present application is governed by the provisions of ss. 50 and 50A of the Planning and Development Act, 2000 ( “the 2000 Act”). Under s. 50 (2) the validity of a decision of the Board cannot be challenged otherwise than by way of an application for judicial review under O.84 of the Rules of the Superior Courts. However, as explained more fully below, there are a number of statutory requirements imposed by the 2000 Act which differ from the requirements of O. 84.

6 Under s. 50 (6), there is a time limit for the making of the application but, on the basis of the material before the court and, having regard to the application made to Twomey J. in April 2020, I do not believe that any issue arises in relation to time. For completeness, it should be noted that, in any event, the time limits specified in the 2000 Act has been the subject of a significant extension as a consequence of s. 9 of the Emergency Measures in the Public Interest (COVID-19) Act, 2020 (“ the 2020 Act”) which inserted a new s. 251A into the 2000 Act. Under s. 251A, certain periods are to be disregarded for the purposes of calculating the time limit for ( inter aha) bringing judicial review proceedings under s. 50 of the 2000 Act. In particular, s. 251A (2) provides that the period to be disregarded is the period beginning on the date s. 9 of the 2020 Act came into operation and ending on a date to be specified by ministerial order. Section 9 of the 2020 Act (in common with the other provisions of Part 3 of the 2020 Act) was commenced on 29 ^th March, 2020. As a consequence of orders made on 16 ^th...