Spencer Place Development Company Ltd v Dublin City Council (1), Spencer Place Development Company Ltd v Dublin City Council (2)

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr Justice Maurice Collins
• Judgment Date: 02 October 2020
• Neutral Citation: [2020] IECA 268
• Docket Number: Court of Appeal Record Nos 2019/309
• Date: 02 October 2020

Between

Spencer Place Development Company Limited

Applicant/Appellant

and

Dublin City Council

Respondent

[2020] IECA 268

Costello J.

Donnelly J.

Collins J.

Court of Appeal Record Nos 2019/309

THE COURT OF APPEAL

CIVIL

Planning and development – Policy requirements – Planning permission – Appellant appealing from judgment and order of High Court – Whether, in considering and determining two applications for planning permission made by the appellant, the respondent was bound to apply a specific planning policy requirement

Facts: The Minister for Housing, Planning and Local Government, in December 2018, issued the Urban Development and Building Heights, Guidelines for Planning Authorities. The Guidelines contained a number of specific planning policy requirements (SPPRs). The substantive issue arising in this appeal to the Court of Appeal from the Judgment and Order of Simons J in the High Court was whether, in considering and determining two applications for planning permission made by the appellant, Spencer Place Development Company Ltd (the Developer), in relation to proposed development within the North Lotts and Grand Canal Strategic Development Zone, the respondent, Dublin City Council (the Council), was bound to apply SPPR 3(A). The Developer argued that it was and said that, as a consequence, the Council was entitled to grant the planning permissions sought even though, in each case, the proposed development exceeded the applicable height limits set out in the North Lotts and Grand Canal Planning Scheme 2014. The Council said, to the contrary, that SPPR 3(A) had no application to existing planning schemes and that SPPR 3 generally had effect only on the review of such schemes and the adoption of an amended scheme. Accordingly – so the Council said – the height limits in the Scheme continued to apply and thus the applications made by the Developer could not be granted.

Held by Collins J that the Council’s position was correct. He held that there were significant differences between “ordinary” applications for planning permission and applications for permission for development within the area of a planning scheme (scheme applications); in particular, the nature and scope of the functions of the planning authority in relation to those different categories of application differ very materially. Collins J held that the application of SPPR 3(A) to scheme applications would radically alter the function of planning authorities in relation to such applications, to an extent and in a manner very difficult to reconcile with the structure of the Planning and Development Act 2000 (as amended). In those circumstances, it appeared to him that very clear words would be required in order to conclude that SPPR 3(A) applies to existing planning schemes. In his opinion, nothing in the PDA or the Guidelines themselves compelled any such conclusion; on the contrary, in its natural and ordinary meaning SPPR 3(A) is not applicable to scheme applications and that construction is supported by consideration of SPPR 3 as a whole and of the language and structure of the PDA.

Collins J held that on the substantive issue raised by this appeal he would uphold the Judgment and Order of Simons J in the High Court.

Appeal dismissed.

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 2 October 2020

INTRODUCTION

1 The issue of building height in urban areas in the State has lately been the subject of considerable debate and discussion, particularly in respect of development in Dublin. Many consider that the low-rise, low-density pattern of development historically followed in the State has had negative consequences for proper planning and development and is now unsustainable in the face of significant population growth. Others are concerned at the impact of “ high-rise” development on historic urban areas.

2 In December 2018, the Minister for Housing, Planning and Local Government (“ the Minister”) made a significant intervention in that debate by issuing the Urban Development and Building Heights, Guidelines for Planning Authorities (“ the Guidelines”). The essential objective of the Guidelines is set out in paragraph 1.9. There it is stated that, reflecting the National Planning Framework strategic outcomes in relation to compact urban growth, the Government considers that there is significant scope to accommodate anticipated population growth by “ building up” and consolidating the development of existing urban areas.

3 The Guidelines contain a number of specific planning policy requirements (“ SPPRs”). In contrast with Ministerial guidelines generally – to which planning bodies must “ have regard” but which do not impose binding obligations as such – planning authorities, regional assemblies and An Bord Pleanala (“ ABP”) are statutorily required to “ comply” with SPPRs in the performance of their functions.

4 This appeal is concerned with SPPR 3 and in particular SPPR 3(A). It is set out in full later in this judgment but, in brief, provides that, where an applicant for planning permission satisfies a planning authority that a development proposal complies with certain specified (and complex) “ development management criteria”, then “ the planning authority may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise.”

5 The substantive issue arising in this appeal is whether, in considering and determining two applications for planning permission made by Spencer Place Development Company Limited (“ the Developer”) in respect of proposed developments within the North Lotts and Grand Canal Strategic Development Zone (“ the North Lotts SDZ”), Dublin City Council (“ the Council”) was bound to apply SPPR 3(A). The Developer argues that it was and says that, as a consequence, the Council was entitled to grant the planning permissions sought even though, in each case, the proposed development exceeded the applicable height limits set out in the North Lotts and Grand Canal Planning Scheme 2014 (“ the Scheme”). The Council says, to the contrary, that SPPR 3(A) has no application to existing planning schemes and that SPPR 3 generally has effect only on the review of such schemes and the adoption of an amended scheme. 1 Accordingly – so the Council says — the height limits in the Scheme continued to apply and thus the applications made by the Developer could not be granted.

6 In my view, the Council's position is correct. As I shall explain, there are significant differences between “ ordinary” applications for planning permission and applications for permission for development within the area of a planning scheme (to which, for convenience, I shall refer as “ scheme applications”). In particular, the nature and scope of the functions of the planning authority in relation to those different categories of application differ very materially. The application of SPPR 3(A) to scheme applications would radically alter the function of planning authorities in relation to such applications, to an extent and in a manner very difficult to reconcile with the structure of the Planning and Development 2000 (as amended) ( “the PDA”). In these circumstances, it appears to me that very clear words would be required in order to conclude that SPPR 3(A) applies to existing planning schemes. In my opinion, nothing in the PDA or the Guidelines themselves compels any such conclusion. On the contrary, in its natural and ordinary meaning SPPR 3(A) is not applicable to scheme applications consideration of SPPR 3 as a whole as well as of the language and structure of the PDA supports that construction.

7 Accordingly, on the substantive issue raised by this appeal I would uphold the Judgment and Order of Simons J in the High Court.

THE STATUTORY CONTEXT

8 This question arises in the context of the elaborate and complex statutory planning regime. When enacted, the PDA was a complex piece of legislation, effectively consolidating the Local Government (Planning and Development) Act 1963 and the many subsequent statues amending that Act. In An Taisce v An Bord Pleanala [2020] IESC 39, McKechnie observed that, by the time of the enactment of the PDA in 2000, the body of legislation dealing with planning and development was “disparate, unwieldy and extremely difficult to locate or follow.” The PDA has itself been amended extensively since 2000 both by primary legislation enacted by the Oireachtas and by statutory instruments made under the European Communities Acts. In addition, there are thousands of pages of secondary legislation and statutory guidelines that impact on planning and development in the State. Successfully negotiating the resulting legislative sprawl is a very challenging exercise indeed.

Development Plans and Planning Schemes

9 Every planning authority is required to make a development plan. Section 2(1) PDA defines “development plan” as meaning “ a development plan under section 9(1)”, 2 section 9(1) being the provision that imposes the obligation to make such a plan. Development plans were first introduced by Part II of the 1963 Act. Part II, Chapter 1 PDA now contains the detailed statutory framework relating to the making of such plans, their content, their periodic review, variation, publication and so on. The function of making and varying developments plans is a reserved function, that is to say one exercisable by the elected members of the planning authority.

10 The development plan is a critical element of the planning regime in the State, “ an environmental contract between the planning authority, the Council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan…”. 3 When an application for planning permission is made, the provisions of the development plan...