Pembroke Road Association v an Bord Pleanála, The Minister for Housing, Local Government and Heritage

• Jurisdiction: Ireland
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] IEHC 403
• Date: 16 June 2021
• Docket Number: [2020 No. 761 JR]
• Court: High Court

Between:

Pembroke Road Association

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage

Respondents

and

Derryroe Limited and Dublin City Council

Notice Parties

[2021] IEHC 403

[2020 No. 761 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Development – Applicant challenged the validity of a decision of the first respondent to grant planning permission for a development – Whether condition 26 of the permission was invalid

Facts: The applicant, Pembroke Road Association, challenged the validity of a decision of the first respondent, An Bord Pleanála (the Board), to grant planning permission for a development which included an apartment building of up to 12 storeys over basement at Herbert Park in Ballsbridge, Dublin 4. The first ground of challenge asserted the application for permission should have been rejected because the “applicant” was not the same person as the “prospective applicant” which participated in the statutory pre-application consultation process under Part 2 Chapter 1 of the Planning and Development (Housing) and Residential Tenancies Act 2016. The second ground of challenge asserted that the application failed to include a statement prescribed by sub-article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) and that the Board should have rejected the planning application on that ground. The third ground of challenge asserted that the Board failed to engage with a provision in a ministerial guideline issued under s. 28 of the Planning and Development Act 2000 before deciding to grant permission for buildings in excess of height limits allowed by the Dublin City development plan. The fourth ground of challenge asserted that the Board failed to have regard to the architectural status and historic significance of a house at 40 Herbert Park in determining that the proposed development was unlikely to have significant effects on the environment. This was phrased as an objection that there was no evidence that the Board considered the significance of those matters in making a screening determination not to require an environmental impact assessment under sub-article 299B(2)(b)(ii)(I) of the 2001 Regulations. The final ground of challenge was that the Board incorrectly concluded that the proposed development did not involve material contravention of provisions of the Dublin City development plan relating to public open space and that the Board relied on an inapplicable statutory provision in imposing condition 26 of the permission.

The High Court (Owens J) held that Pembroke Road Association was correct in its submission that condition 26 was invalid. Owens J did not agree that the proposed development involved material contravention of the Dublin City development plan relating to public open space. He also rejected the other grounds of challenge. He dismissed the applications for judicial review based on each of the rejected grounds of challenge. He held that it was clear that the Board would not have granted this permission without requiring financial contribution in lieu of public open space; it followed that it was not possible to regard the invalid condition as severable.

Owens J held that it remained to be seen whether the appropriate consequential order was to invalidate the order of the Board granting permission and remit the matter for reconsideration. He found that the only points which required reconsideration related to the decision to impose a financial contribution in lieu of public open space. He found that an alternative to invalidating the permission may be to adjourn granting judicial review to enable the Board to revisit the invalid element by amending the permission to include a valid condition in exercise of powers given by s. 146A(1)(b) of the 2000 Act. He found that an issue may also arise as to whether it was necessary, having regard to the provisions of s. 50A(9) of the 2000 Act, to quash the entire decision of the Board.

Applications dismissed.

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 16 day of June, 2021.

1 When considering judicial review applications, courts must evaluate whether any non-conformity with a rule relating to procedural matters is sufficiently serious to justify intervention. I am cautious of accepting invitations to engage in analysis which suggests that resolution of an issue requires categorisation of any rule contained in legislation as mandatory, directory or jurisdictional. These are terms used by lawyers and judges. The Oireachtas does not use these formulations and may not specify consequences of failure to comply with statutory or other provisions.

2 Some legal rules are more important than others. Some breaches of a legal rule are of greater significance than others. The purpose for which a rule exists is relevant. Some rules may have no discernible purpose or may be inessential. Compliance with other rules is necessary in the interest of values which are identifiable and important. The significance of any breach of a rule may sometimes be measured against the interest of the person complaining of that breach. Has that person a real interest in upholding a value which the law attaches to compliance or does the rule only exist to protect an interest of others?

3 Where there is a request to set aside an administrative process on the basis of an asserted lack of conformity, it is necessary to analyse what interests or values need to be protected by insisting on conformity.

4 Many of the legal rules in the planning code are designed to achieve important purposes in the public interest such as certainty and transparency, proper administration and the right of the public to engage in effective participation. Courts have been reluctant to disregard these rules and have in many cases considered adherence to formal procedural requirements sufficiently important to either justify intervention by judicial review or to refuse judicial review in claims seeking to enforce “default permissions”.

5 Other rules within this code may not come within the category of important rules in the public domain or may have no relationship to any legitimate procedural, planning or environmental concern of the person challenging the validity of a process or decision. While, in general, a member of the public has sufficient interest to rely on any breach of statutory procedures, challenges based on breaches of rules designed to protect property rights of others in the context of materiality of identity of an applicant for permission have sometimes been looked on with disfavour.

6 Schwestermann v. An Bord Pleanála and Others [1994] 3 I.R. 437 is an example of a case where this type of challenge failed. Another example is McDonagh and Sons Limited v. Galway Corporation [1995] 1 I.R. 191 where the Supreme Court excused an unintentional misstatement attributing ownership to an associate company of the real owner since it did not have the effect of misleading anyone and could not possibly have been to the disadvantage of the planning authority or the public.

7 Pembroke Road Association has challenged the validity of a decision of An Bord Pleanála (the Board) to grant planning permission for a development which includes an apartment building of up to 12 storeys over basement at Herbert Park in Ballsbridge, Dublin 4 on a number of grounds.

8 The first ground of challenge asserts the application for permission should have been rejected because the “applicant” is not the same person as the “prospective applicant” which participated in the statutory pre-application consultation process under Part 2 Chapter 1 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (the 2016 Act).

9 The second ground of challenge asserts that the application failed to include a statement prescribed by sub-article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (the Regulations of 2001), as inserted by article 94 of the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018) (the Regulations of 2018) and that the Board should have rejected the planning application on that ground.

10 The third ground of challenge asserts that the Board failed to engage with a provision in a ministerial guideline issued under s.28 of the Planning and Development Act 2000 (the 2000 Act) before deciding to grant permission for buildings in excess of height limits allowed by the Dublin City development plan.

11 The fourth ground of challenge asserts that the Board failed to have regard to the architectural status and historic significance of a house at 40 Herbert Park in determining that the proposed development is unlikely to have significant effects on the environment. This is phrased as an objection that there is no evidence that the Board considered the significance of these matters in making a screening determination not to require an environmental impact assessment under sub-article 299B(2)(b)(ii)(I) of the Regulations of 2001.

12 The final ground of challenge is that the Board incorrectly concluded that the proposed development did not involve material contravention of provisions of the Dublin City development plan relating to public open space and that the Board relied on an inapplicable statutory provision in imposing condition 26 of the permission.

13 Pembroke Road Association is correct in its submission that condition 26 is invalid. I do not agree that the proposed development involves material contravention of the Dublin City development plan relating to public open space. I am also rejecting the other grounds of challenge. I will dismiss the applications for judicial review based on each of the rejected grounds of challenge.

14 It is clear that the Board would not have granted...