North Great George's Street Preservation Society v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 15 May 2023
• Neutral Citation: [2023] IEHC 241
• Docket Number: [2020 No. 562 JR]
• Court: High Court

In the Matter of an Application Pursuant to Sections 50, 50A, 50B of the Planning and Development Act 2000 and in the Matter of an Application

Between

North Great George's Street Preservation Society

Applicant

and

An Bord Pleanála

Respondent

and

Hillstreet Limited Partnership

Notice Party

[2023] IEHC 241

[2020 No. 562 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on the 15th day of May, 2023

1 . By the late 17th century, north Dublin city was well developed around Smithfield and Church St., and its eastward expansion had progressed as far as Jervis St., Wolfe Tone St. and Bachelor's Walk, as noted in the developer's conservation assessment. The development of the north city crept steadily eastwards throughout the 18th century, a process that accelerated with the arrival of Luke Gardiner (who we met in Sherwin v. An Bord Pleanála (No. 1) [2023] IEHC 26, ( [2023] 1 JIC 2701 Unreported, High Court, 27th January, 2023)). Henrietta St. was laid out from the 1720s, and as that process continued, Rutland Square (later Parnell Square) was laid out in the 1750s.

2 . Bernard Scalé's map of 1773 shows a new street called Temple St. to the west of St. George's Church. By this date, the Archdall family had begun to develop a new street centred on the driveway to a house on the site, which previously formed part of the private estate of Sir John Eccles, Lord Mayor of Dublin in 1710. This new street became North Great George's Street. The north and west sides were developed between 1768 and 1769, and the southern end from the mid-1770s onwards. This included No. 35, which may have been one of the later ones constructed. The section of the street including No. 36 was developed in the mid-1780s. According to Dublin City Council, No. 35 was constructed in 1784 and No. 36 around 1785.

3 . Despite the loss of some of the original buildings, North Great George's St. remains one of the finest 18th century streets in Dublin. It is parallel to Hill St., formerly part of Temple Street. The conservation assessment notes that in 1887: “The inhabitants of Temple Street Upper made representations to Dublin Corporation to have the name of Temple Street Lower changed, as it had become an area of ill repute and they wanted to dissociate themselves”. Chatterton V-C had become unpopular with the corporation for granting an injunction restraining their proposal to rename Sackville Street after Daniel O'Connell ( Anderson v. Dublin Corporation (1885) 15 L.R. Ir. 450). This resulted in a proposed name change of Temple St. Lower to Chatterton St. – an early attempted example of street renaming as political protest, currently topical in the derussification context. As the developer here notes, ultimately “the street was given the topographical description, Hill Street”.

4 . The development site with which we are now concerned is centred mainly towards Hill St., and replaces industrial buildings previously occupied by Orrwear, a supplier of protective clothing. A relatively narrow laneway links the development to North Great George's St., and emerges at a location named 36a North Great George's St. (so numbered from the 1890s as would appear from Thom's Directory). This lies between No. 36, a house previously occupied by William Joseph Dunbar, editor and proprietor of the Irish Sportsman (now the Irish Field), and No. 35, now the James Joyce Centre and formerly occupied by a tenant named Denis Maginn. He opened a dancing academy and ballroom on the premises and advertised himself as “Mr Denis J Maginni, Professor of Dancing, &c.”. As Professor Maginni, he appears in James Joyce's Ulysses. (With such a rich history there are a wealth of options for any new locally-relevant place-naming of developments in the area, although maybe it's too much to hope for that something might yet be named after Vice-Chancellor Chatterton to rectify a lost historical opportunity and to keep the judicial flag flying).

5 . The front of No. 36a is an archway noticeable by a sign for Orrwear. The Orrwear factory was developed in the 1930s, and the laneway was used for access to this from North Great George's St., although the premises fronted mainly onto Hill Street. Number 36 North Great George's St. became a listed building in 1971. By this time, the laneway had been used for decades for the purposes of access to Orrwear (see original affidavit of Mr Goodbody, para. 22). The building was added to the register of protected structures when the Planning and Development Act 2000 came into operation. There is currently no access from the laneway at 36a to either No. 35 or No. 36 (Mr Goodbody's affidavit, para. 20).

6 . On 19th July, 2019, the notice party developer applied to the city council (reference No. 3546/19) for permission to demolish the former light industrial structures on the site and to construct a shared accommodation scheme with 132 bed spaces up to seven stories plus roof plant at 39 to 42 Hill St. and 36a North Great George's St. This was an ordinary planning application and not one made directly to the board under the strategic housing development régime.

7 . The applicant made a submission to the city council on 15th August, 2019. On 11th September, 2019, the conservation officer recommended refusal of the application due to the impact on protected structures. The conservation officer referred among other things to the planning policy preference for retention of existing structures where possible. Without in any way taking from that perfectly valid general point, or getting into whether that would have been possible in this particular situation, and while of course emphasising that my views on planning matters are irrelevant, one might mention in passing that the industrial buildings do present a rather grim vista when viewed from the upper floors of No. 35, so the developer's preference for a fresh start is perhaps understandable, without commenting on its merits.

8 . On 3rd December, 2019 the council granted permission subject to 17 conditions. Seven appeals to the board followed (reference No. ABP-306181-19), one of which was made by the applicant on 6th January, 2020.

9 . Following an inspector's report, the board granted permission on 16th June, 2020 subject to 20 conditions. Of note for the purposes of the proceedings are conditions 2, requiring the provision of hobs in the kitchens of the dwellings in the development, and condition 3 which had the effect that rooms would be for single occupancy.

10 . On 20th July, 2020, the developer applied to the council for a second permission (reference No. 3061/20) involving the amendment and extension of the scheme permitted by the first decision. This included the extension of the site to No. 38 Hill St. and the demolition of the existing building on that site. Permission was sought for another 21 bed spaces as well as other amendments. The developer also sought the removal of condition 2.

Procedural history

11 . On 10th August, 2020, the present proceedings were commenced. The legal submissions of the applicant (para. 2) incorrectly state that the second application was made in the course of the proceedings. That is not so – it had been made prior to that, as noted above. The submissions also incorrectly state that the archway at No. 36a will be demolished, which is not the case. It is perhaps strange that the impact on the archway assumed such outsize proportions in the case, when the whole issue began as a false premise.

12 . On 11th November, 2020, the city council decided to approve the second application, subject to 14 conditions.

13 . Four third-party appeals and six third-party observations were made to the board including an observation by the applicant.

14 . Following an inspector's report, the board granted permission for the second development on 27th September, 2021 subject to 22 conditions. These again included conditions 2 and 3.

15 . By order of 8th November, 2021, I allowed the applicant to amend the statement of grounds to challenge the second decision. Allowing proceedings to be amended to incorporate further decisions is frequently much more efficient, cheaper and faster than requiring an applicant to bring a fresh set of proceedings (see for example Habte v. Minister for Justice and Equality [2019] IEHC 47, ( [2019] 2 JIC 0405 Unreported, High Court, 4th February, 2019) para. 32). I was satisfied that that would have been the case here.

16 . An amended statement of grounds was filed on 11th November, 2021 and amended statements of opposition filed in response.

17 . While a hearing date had been envisaged in early 2022, a costs issue then arose, and on 24th January, 2022 the hearing date was vacated with directions to issue a costs protection motion by 26th January, 2022. That motion came before the court for mention on 7th February, 2022 and submissions were directed, as was the delivery of missing exhibits.

18 . On 14th February, 2022, the board was allowed time for submissions on costs and directions were given regarding a substantive affidavit in the case. There was a consent adjournment on 28th February, 2022 and on 7th March, 2022, the applicant was given one week to lodge an affidavit.

19 . The costs issue was then due to be heard on 30th March, 2022 but due to the illness of one of the trial participants, the motion date was vacated and the matter was listed for mention on 9th May, 2022. On that date the notice party indicated that it wanted to put in an affidavit in the substantive proceedings and the applicants were directed to indicate whether they wanted to raise additional costs issues above and beyond those which were contemplated as being ones to be referred to the CJEU in Enniskerry Alliance & Anor v. An Bord Pleanála & Ors [2022] IEHC 338, ( [2022] 6 JIC 1003 Unreported, High Court, 10th June, 2022).

20 . On 16th May, 2022, the matter was adjourned...