Waterside Block 9 Developments Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Nolan
• Judgment Date: 07 November 2024
• Neutral Citation: [2024] IEHC 633
• Docket Number: 2021 648 JR

In the Matter of An Application Pursuant to Sections 50, 50A and 50b of the Planning and Development Act 2000, As Amended

Between:

Waterside Block 9 Developments Limited

Applicant

and

An Bord Pleanála

Respondent

and

Dublin City Council

Notice Party

[2024] IEHC 633

2021 648 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

JUDICIAL REVIEW

Arbitration clauses – Enforcement – Procedural compliance – Applicant seeks to prevent arbitration proceedings initiated by the respondent – Whether the arbitration clause in the agreement between the parties is applicable and enforceable

Facts: Waterside Block 9 Developments Limited, sought to prevent arbitration initiated by An Bord Pleanála, arguing procedural and jurisdictional issues. The dispute arose from a contractual agreement containing an arbitration clause, which the respondent sought to enforce. Specifically, they requested a court order to halt the arbitration process, arguing that the arbitration clause was either inapplicable or unenforceable due to procedural and jurisdictional grounds. Waterside Block 9 Developments Limited aimed to avoid the dispute being resolved through arbitration as stipulated in the original contractual agreement. An Bord Pleanála defense was based on the enforceability of the arbitration clause in the contract. They argued that the arbitration clause was binding and should be upheld, asserting that arbitration was the agreed mechanism for resolving disputes between the parties. The respondent cited the principle that arbitration clauses must generally be respected unless there are compelling reasons to override them, emphasizing the importance of honoring contractual agreements as outlined in relevant case law and the Arbitration Act 2010

Held by Mr Justice Nolan, that the arbitration clause in the agreement between the parties was valid and enforceable. The arbitration was the appropriate forum for resolving the dispute. The applicant relies on the decision of Crofton v An Bord Pleanála [2024] IESC 12, arguing procedural issues. While the respondent relied on East Donegal Co-operative Ltd v Attorney General [1970] IR 317 has been cited. The decision was informed by Irish arbitration law and principles from the Arbitration Act 2010, which incorporates the UNCITRAL Model Law, emphasizing respect for contractual arbitration agreements.

Nolan J, concluded that the arbitration clause was enforceable and appropriate for the dispute. No reliefs were granted to Waterside Block 9 Developments Limited.

Application dismissed.

JUDGEMENT of Mr Justice Nolan delivered on the 7 ^th day of November 2024

Introduction

1 . This is a judgment concerning what directions, if any, should be given by the court when a matter is being remitted to the Respondent following an order of certiorari pursuant to Section 50 A (9) of the Planning and Development Act 2000 (“ PDA 2000”), as amended.

2 . On the 7 ^th of February 2020 and the 7 ^th of July 2020, the Applicant and the Respondent held pre-application consultations pursuant to Section 5 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (“ PDA 2016”), as amended. The Respondent subsequently issued notification in July of 2020 that it was of the opinion that the documents submitted with the request to enter into consultations required further consideration and amendment to constitute a reasonable basis for an application for strategic housing development.

3 . On the 29 ^th of January 2021, the Applicant lodged an application with the Respondent for a strategic housing development consisting of the construction of 1,005 residential units with balconies and winter gardens on all elevations arranged in three blocks ranging in height from eight number storeys to 45 number storeys over a triple-level basement including mezzanine plant level at City Block 9, North Wall Quay and Mayor Street Upper, Dublin 1.

4 . By Order dated the 20 ^th of May 2021, the Respondent refused permission for the proposed development on the basis that it considered that it was precluded from granting permission based on the judgment in Dublin City Council v An Bord Pleanála and Spencer Place Development Company Ltd (Notice Party) [2020] IEHC 557 (“ Spencer Place”), in which the High Court held that the Respondent did not have the jurisdiction to grant permission for a development that materially contravened the North Lotts Planning Scheme.

5 . The proceedings were issued on the 8 ^th of July 2021. The application for leave to apply for judicial review was moved on the 12 ^th of July 2021 and leave was granted on that date. The Applicant issued an originating Notice of Motion on the 20 ^th of July 2021 with a return date of 26 ^th of July 2021.

6 . On the 26 ^th of July 2021, the proceedings were adjourned to await delivery of judgment by the Court of Appeal in Spencer Place. On the 16 ^th of June 2023, the Court of Appeal delivered judgment overturning the judgement of the High Court ( Spencer Place Development Company Ltd (Notice Party) and others [2023] IECA 155).

7 . On the 13 ^th of November 2023, the proceedings were adjourned to await determination by the Supreme Court of Dublin City Council's application for leave to appeal the judgment of the Court of Appeal. The Supreme Court refused the application for leave to appeal in a Determination dated the 7 ^th of February 2024.

8 . The parties agree that the decision should be quashed, and that the planning application should be remitted back to the Respondent for reconsideration. However, the parties cannot agree as to the terms of the order regarding remittal. Therefore, the net question which this court has to decide is what point in the process should the matter be remitted to.

The Respondent's Direction

9 . The Respondent's direction recorded that at a meeting held on the 18 ^th of May 2021, where the Inspector's Report was considered, that certain matters were accepted and agreed. It records as follows:

“The proposed development materially contravenes the North Lotts & Grand Canal Dock SDZ Planning Scheme — 2014 in respect of height and density. However, having regard to the strategic and national importance of the development of this site for housing within an area earmarked for urban regeneration, as well as national policy contained in the NPF and Housing Action Plan, and section 28 Ministerial Guidelines, the Board is satisfied that in principle the proposed development would satisfy the requirements and criteria outlined in section 37(2)(b) of the PDA (as outlined in detail in the Inspector's assessment).

The Board accepted the Inspector's assessment and recommendation in respect of the potential impacts of the proposed development and agreed in full with his assessment and recommendation in this regard including that outstanding issues could be addressed by way of clarification and elaboration of the issues through the oral hearing process, in order to ensure adequate information is available to meet the Board's obligations in respect of the SPPR3 of the Urban Development and Building Height, Guidelines for Planning Authorities, 2018.

However, the Board, taking into account the findings in the judgement of Justice Richard Humphreys delivered on 12th November 2020, between Dublin City Council and An Bord Pleanála and Spencer Place Development Company Ltd (Notice Party) [2020 No:557 J.R.], considered that under the relevant provisions of the Planning & Development (Housing) and Residential Tenancies Act, 2016, the Board considered that it was precluded from granting permission for development, as under the Strategic Housing Development legislative provisions the Board does not have jurisdiction to materially contravene the North Lotts and Grand Canal Dock Planning Scheme.”

10 . Therefore, it was noted that having regard to the strategic and national importance of the development of this site for housing within an area earmarked for urban regeneration, as well as national policy contained in the National Planning Framework and Housing Action Plan, and Ministerial Guidelines, the Respondent was satisfied that in principle the proposed development would satisfy the requirements and criteria outlined in section 37(2)(b) of the PDA 2000 as outlined in detail in the Inspector's assessment. That is an important decision.

11 . In the second paragraph, the Respondent accepted the Inspector's assessment and recommendation in respect of the potential impacts of the proposed development and agreed with him in full that outstanding issues could be addressed by way of clarification and elaboration of the issues through the oral hearing process, in order to ensure adequate information was available to meet the Respondent's obligations in respect of the relevant statutory provisions.

Applicant's Submissions

12 . Mr Galligan SC, counsel for the Applicant, submits that the matter should be remitted to the Respondent at the point in the board meeting on the 18 ^th of May 2021, where it had accepted and agreed with the Inspector's recommendation to hold an oral hearing, that is to the point just before they decided to refuse permission following the decision in Spencer Dock. However, in point of fact the Respondent had not agreed to hold an oral hearing, only that outstanding issues could be addressed by way of clarification and elaboration of the issues through the oral hearing process, in order to ensure adequate information was available to meet the Respondent's obligations in respect of the relevant statutory provisions.

13 . He points out that under the new statutory provision, section 50 A (9) of the PDA 2000, the court is required to remit the application to the Respondent where it is requested to do so by the Applicant for permission unless it is unlawful to do so. Furthermore, section 50 A (9) expressly provides that the court may make directions in respect of remittal where the...