Spencer Place Development Company Ltd v Dublin City Council
|Mr Justice Garrett Simons
|30 May 2019
| IEHC 384
|2019 No. 239 J.R.
|30 May 2019
 IEHC 384
2019 No. 239 J.R.
THE HIGH COURT
Judicial review – Declaratory relief – Planning and development – Applicant seeking judicial review – Whether the respondent is obliged to apply and/or comply with the building height guidelines prior to undertaking and/or completing any review and/or amendment of the North Lotts and Grand Canal Planning Scheme
Facts: The applicant, Spencer Place Development Company Ltd (the Developer), instituted judicial review proceedings. The Developer sought three declarations: first, a declaration that the legal interpretation in the document entitled “Briefing Note on the City Development Plan and Height Guidelines” dated 31 January 2019 prepared by the City Planning Officer, Mr O’Hara, is ultra vires and/or incorrect as a matter of law; secondly, a declaration that the respondent, Dublin City Council, is obliged to apply specific planning policy requirement (SPPR) 3 (A) in the determination of planning applications for development within the area of any strategic development zone (SDZ) planning scheme, including the North Lotts and Grand Canal Planning Scheme 2014, as of the date of the publication of statutory guidelines issued by the Minister for Housing, Planning and Local Government entitled “Urban Development and Building Heights” (the building height guidelines); and thirdly, a declaration that Dublin City Council is obliged to apply and/or comply with the building height guidelines prior to undertaking and/or completing any review and/or amendment of the North Lotts and Grand Canal Planning Scheme.
Held by the High Court (Simons J) that SPPR 3 (A) does not apply to a planning scheme; the most that the guidelines do is to require a planning authority to review and amend a planning scheme. Simons J held that this is provided for under SPPR 3 (B) and that this process must be carried out in accordance with the statutory procedure prescribed; in particular, it may be necessary to undertake an environmental assessment of the amendments for the purposes of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (SEA Directive). Simons J held that it will be necessary to seek the approval of An Bord Pleanála to any proposed amendments to an existing planning scheme; thus, the fact that the Minister has issued guidelines is not necessarily conclusive of the outcome of the statutory process of amendment. Simons J held that, in the event that a planning scheme is amended, then the policy under the guidelines is given effect through the medium of the amended planning scheme; the requirement to comply with SPPR 3 (B) is spent and any planning applications will be determined in accordance with s. 170(2) of the Planning and Development Act 2000. Simons J held that, pending the making of an amendment to a planning scheme, any planning application made in the interim falls to be determined under s. 170 by reference to the extant planning scheme; on their correct interpretation, therefore, the building height guidelines do not authorise a planning authority to disapply the criteria prescribed under a planning scheme for an SDZ. Simons J held that, in interpreting Ministerial guidelines, it is legitimate to have regard to the content of the SEA statement prepared pursuant to Article 9 of the SEA Directive and Regulation 16 of the EC (Environmental Assessment of Certain Plans and Programmes) Regulations 2004.
Simons J held that the applicant was not entitled to any of the declarations sought; accordingly, the application for judicial review was dismissed in its entirety.
The underlying dispute between the parties to these proceedings concerns the interpretation of a set of statutory guidelines issued by the Minister for Housing, Planning and Local Government. The guidelines are entitled ‘ Urban Development and Building Heights’ and were issued in December 2018 (‘ the building height guidelines’). The issue of interpretation is net, and centres on the interaction between the guidelines and statutory planning schemes adopted in respect of strategic development zones (‘ SDZs’).
The parties are in disagreement as to whether the relevant policy under the building height guidelines distinguishes between a planning scheme and the development plan simpliciter. The resolution of this disagreement will depend, in part, on the correct inference to be drawn from the fact that a planning scheme is ‘deemed’ to form part of a development plan. (Section 169(9) of the PDA 2000). It will also depend on whether the guidelines must be read in conjunction with the SEA statement prepared for the purposes of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (‘ the SEA Directive’) and the implementing national regulations, the EC (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 (as amended).
The practical significance of the underlying dispute lies in its implications for two applications for planning permission submitted by Spencer Place Development Company Ltd. (‘ the Developer’). These applications are pending before Dublin City Council. The proposed development would exceed the maximum building heights prescribed under the relevant planning scheme. The Developer maintains, however, that the legal effect of the building height guidelines is that the planning authority is now authorised to grant planning permission notwithstanding this exceedance.
The Developer seeks certain declarations as to the meaning and effect of the guidelines in these judicial review proceedings. In particular, the Developer seeks a declaration that the building height guidelines apply to the determination of planning applications for development within the area of any SDZ planning scheme as and from the date of the publication of the guidelines. The proceedings have an urgency in that Dublin City Council is required to make a decision on the planning applications by Friday, 31 May 2019. A judgment on the correct interpretation of the guidelines might be conclusive of the outcome of the planning application. This is not certain however: for example, the planning authority might decide to refuse planning permission for reasons entirely unrelated to building height.
This lack of certainty as to the implications of a judgment for the outcome of the planning application process gives rise to a second area of dispute between the parties. The planning authority objects that the proceedings are inadmissible on the basis that any application for judicial review should have awaited the making of a decision on the two planning applications. It is submitted that—pending the determination of the two planning applications—there is as of yet no ‘decision’ or ‘act’ on the part of the authority which is amenable to judicial review. It is said, therefore, that the proceedings are premature. In response, the Developer contends that a briefing note issued by the City Planning Officer setting out his interpretation of the building height guidelines is justiciable.
I propose to address this procedural objection first, before turning to consider, if necessary, the substantive issue, i.e. the interpretation of the building height guidelines.
Before turning to that task, however, it is necessary first to set out a brief summary of the factual background.
The Developer is the leaseholder of lands at Spencer Place, Spencer Dock, Dublin 1. The lands are located in an area which has been designated as a strategic development zone, namely the North Lotts and Grand Canal Strategic Development Zone. A statutory planning scheme was prepared in respect of the SDZ in 2014. This is known as the North Lotts and Grand Canal Planning Scheme 2014 (‘ the North Lotts planning scheme’). Insofar as relevant to the Developer's sites, the North Lotts planning scheme prescribes maximum building heights of 5 to 8 storeys (commercial), and 6 to 10 storeys (residential), with one possible set back floor.
The Developer seeks to rely on the building height guidelines in order to obtain planning permission for additional storeys on two sites. In each instance, the Developer already has the benefit of extant planning permissions which authorise building heights of a scale allowed for under the North Lotts planning scheme. Following on from the publication of the guidelines in December 2018, the Developer submitted planning applications in January 2019, and February 2019, respectively, which seek amendments to the permitted development in order to increase the height of same. The first planning application relates to office buildings at Spencer Dock described as the ‘ Salesforce Building’; and the second planning application relates to proposed residential development and an aparthotel at Spencer Place. This second planning application seeks, inter alia, amendments to increase the maximum height of Block 1 of the permitted development from 7 storeys to 13 storeys, and to increase the maximum height of Block 2 to 11 storeys.
The Developer maintains the position that the two planning applications fall to be determined by reference to the building height guidelines. It is suggested that the guidelines authorise Dublin City Council to grant planning permission notwithstanding that the scale of the development now proposed conflicts with the building heights prescribed in the North Lotts planning scheme.
Prior to the institution of the within judicial review proceedings, the Developer had sought to articulate its position in this regard by way of correspondence with Dublin City Council. This correspondence commenced on 2...
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