Wendy Jennings and Adrian O'Connor v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 27 April 2022
• Neutral Citation: [2022] IECA 100
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2022/39

In the Matter of Sections 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenacies Act 2016

Between

Wendy Jennings and Adrian O'Connor

Applicants/Appellants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents/Respondents

and

Colbeam Limited

Notice Party

[2022] IECA 100

Costello J.

Court of Appeal Record Number: 2022/39

High Court Record Number: 2021/750 JR

THE COURT OF APPEAL

Planning permission – Stay – Extension – Applicants seeking extension of stay – Whether there would be both serious and irreparable harm to the environment if the stay sought was refused

Facts: The notice party, Colbeam Ltd (the developer), applied for planning permission of strategic housing development at land situate at Our Lady’s Grove, Goatstown, Dublin 14. The first respondent, An Bord Pleanála, granted the developer planning permission in June 2021 to develop 698 student accommodation units on the lands pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016. In July 2021 the applicants, Ms Jennings and Mr O’Connor, applied for leave to seek judicial review to quash the grant of planning permission. Holland J granted the applicants leave to seek judicial review on 19 October 2021 on an ex parte basis and stayed the decision to grant planning permission for the development. The developer issued a motion seeking to vary the stay to allow it to carry out certain preparatory works on the site which involved felling trees and demolishing an existing building on the site. The applicants opposed the application to vary the stay on the grounds that it would render three of their grounds of challenge moot, it would result in irremediable damage to the environment and it was premature. Holland J vacated the stay on the grant of planning permission only as to those elements of the works programme which preceded the handover of the site to the main construction contractor only, as that was the extent of the variation of the stay sought by the developer. Judgment was delivered on 14 January 2022 and the order was perfected on 9 February 2022. The applicants appealed the decision to partially lift the stay by a notice of appeal dated 18 February 2022 and the appeal was listed in the directions list of the Court of Appeal on 25 March 2022. On the basis that the court had varied the stay granted on 19 October 2021, after delivery of the judgment but before the order was perfected, the developer commenced some of the preparatory works on site. The applicants objected that the actions were premature as the order had not yet been perfected and the pre-commencement conditions had not all been agreed with the planning authority. On 1 February 2022 the matter was listed to perfect the order but, due to the actions of the developer in the interval, the application morphed into an application for a stay on the order of the High Court partially lifting the original stay of 19 October 2021 pending the determination of their appeal against the judgment of 14 January 2022. A stay was granted for a period of ten days from the perfection of the order, and if a notice of appeal was filed within that period, the stay would continue until the first returned date of the appeal in the Court of Appeal. The applicants then brought a motion to extend the stay granted by the High Court until the determination of the appeal returnable to 25 March 2022, the date upon which the stay granted by the High Court expired, but it was not possible to hear the application on that date. Costello J adjourned the motion to 1 April 2022 and extended the stay for a week. On 1 April 2022 Costello J heard the motion and reserved judgment and extended the stay until judgment was delivered.

Held by Costello J that she was not satisfied that there would be both serious and irreparable harm to the environment if the stay sought was refused. She was not satisfied that she could reject the evidence of the developer as to the urgency in the case. She held that it would not be appropriate to grant the relief sought by the applicants on this motion on the basis that the actions of the developer breached the order of 19 October 2021 as no order giving effect to the judgment of 14 January 2022 had been perfected until 9 February 2022.

Costello J refused to extend the stay granted by the High Court on 9 February 2022 pending the determination of the appeal pending before the Court of Appeal which accordingly lapsed. Costello J held that the developer would be free to commence works in accordance with the judgment of 14 January 2022 once all pre-commencement conditions had been agreed with the planning authority pending the hearing of the appeal.

Motion refused.

UNAPPROVED

JUDGMENT of Ms. Justice Costello delivered on the 27 ^th day of April 2022

1 . Colbeam Limited (“the developer”) applied for planning permission of strategic housing development at land situate at Our Lady's Grove, Goatstown, Dublin 14. An Bord Pleanála granted the developer planning permission (ABP Red 309430-21) in June 2021 to develop 698 student accommodation units on the lands pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016. The grant of planning permission was subject to the agreement of certain pre-commencement conditions with the planning authority. In July 2021 the applicants applied for leave to seek judicial review to quash the grant of planning permission on twenty grounds. Three grounds in particular are relevant to this application:-

“(8) The impugned decision is invalid as the proposed development granted permission by the Board is in material contravention of the [County Development Plan] in relation to the protection of trees. The grant of planning permission constituted a grant of permission contrary to a Zoning Objective in breach of s.9(6)(b) of the 2016 Act of the land and/or in the alternative, a grant in material contravention of the CDP that was not made pursuant to s.37(2)(b) of the Planning and Development Act 2000….

(10) The impugned decision is invalid because the Board failed to comply with Article 299B(1)(b)(i) of the Planning and Development Act Regulations 2001 (‘the 2001 regulations’) as it was not open to the Board to conclude that the possibility of significant effects on the environment could be excluded at preliminary assessment stage…

(12) The impugned decision is invalid in that it contravenes Article 12 of the Habitats Directive and/or Article 299(C)(1) as it failed to apply the correct legal test in respect of bat fauna that are entitled to strict protection, and/or the preliminary examination EIA determination was based on inadequate information submitted by the developer contrary to Article 4(4) of the EIA Directive.”

2 . Holland J. granted the applicants leave to seek judicial review on 19 October 2021 on an ex parte basis and stayed the decision to grant planning permission for the development.

3 . The developer issued a motion seeking to vary the stay to allow it to carry out certain preparatory works on the site which involved felling trees and demolishing an existing building on the site. It did so on the basis that it risked very significant financial losses if it was not in a position to offer the accommodation for rent to students for the academic year commencing in September 2024, the details of which are set out in the judgment of the High Court of 14 January 2022. In order to meet this hard deadline, it needed at least to commence the site preparation work if it was not to lose the possibility of meeting this opening date. As the development was of student accommodation, if the units were not available to rent by the start of the academic year, it would lose the income for the entire year as it would not be possible to let the units midway through the year.

4 . The applicants opposed the application to vary the stay on the grounds that it would render three of their grounds of challenge moot (those cited above), as the works would clear the relevant trees and building; it would result in irremediable damage to the environment and that it was premature. The latter argument was based on the fact that the developer had not agreed all pre-commencement conditions with the planning authority and therefore was not, according to the applicants, in a position to act on foot of the grant of planning permission.

5 . The application was heard by Holland J. over three days on 15, 16 and 17 December 2021 together with an application by the applicants for a declaration that they were entitled to the benefit of special costs rules applicable to certain environmental litigation. The trial judge delivered a comprehensive and considered judgment on 14 January 2022 on the issue of a variation or partial lifting of the stay on the grant of planning permission. In paras 38–63 he identified the authorities relevant to his consideration of the application. It was not contended that he erred in his identification or analysis of the relevant principles. In particular, it was accepted that the principles identified in Okunade v. Minister for Justice [2012] 3 I.R. 152 and CC v. Minister for Justice [2016] 2 I.R. 680 set out the relevant applicable principles.

6 . The trial judge first held that the applicants had an arguable case.

7 . He said that it was “readily apparent” that damages would not be an adequate remedy resulting from the works intended if the stay was lifted and likewise if the stay was continued and the applicants failed at trial that damages would not be an adequate remedy to the likely wrong to be suffered by the developer.

8 . In light of the flexible approach advocated by the Supreme Court in Merck Sharp & Dohme v. Clonmel Healthcare [2019] IESC 65 he then considered where the greater risk of injustice lay in the circumstances....