Wendy Jennings v an Bord Pleanala, Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 07 February 2022
• Neutral Citation: [2022] IEHC 61
• Court: High Court
• Docket Number: 2021/750JR

In the Matter of Section 50, 50A and 50B of the Planning and Development Act, 2000 (As Amended)

Between:-

Wendy Jennings

and

Adrian O'Connor

Applicants

and

An Bord Pleanala, Ireland

and

The Attorney General

Respondents

and

Colbeam Limited

Notice Party

[2022] IEHC 61

2021/750JR

JUDICIAL REVIEW

Planning permission – Strategic housing developments – Stay – Applicants seeking a stay pending appeal – Whether the balance of justice tilted towards a stay pending appeal

Facts: The applicants, Ms Jennings and Mr O’Connor, sought to have quashed the decision of the first respondent, An Bord Pleanála, dated 3 June 2021, to grant planning permission to the notice party, Colbeam Ltd, for, essentially, construction of a Strategic Housing Development (SHD) of 698 student bedspaces on a site at Our Lady’s Grove, Goatstown Road, Dublin 14. The applicants lived nearby and considered that the impugned permission would permit significant over-development of the site. On 14 January 2022, the High Court (Holland J) continued a stay which had earlier been imposed on the operation of the impugned permission, save that, on Colbeam’s application, resisted by the applicants, Holland J varied it to permit Colbeam to carry out the works identified at lines 1 to 17 of the Colbeam’s Programme of Works – essentially site clearance and excavation, tree cutting and demolitions. This represented success for Colbeam, who sought to lift the stay only to that extent. On 19 January 2022, Holland J declined, pro tem, to make further prosecution of the proceedings conditional on the applicants’ provision of an undertaking in damages. On 1 February 2022, the applicants applied for a stay pending appeal of Holland J’s order, on foot of his judgment of 14 January 2022, as to the stay on the impugned permission. As the application on 1 February 2022 developed, the applicants in effect sought a stay pending appeal until the first directions hearing in the Court of Appeal, on terms that they will file their notice of appeal within 10 days of perfection of the order on foot of the judgment of 14 January 2022. The parties differed as to when the first directions hearing in the Court of Appeal was likely. Counsel for the applicants said appeals in SHD judicial reviews are expedited in the Court of Appeal and recited his recent experience of a directions hearing and stay application coming on 10 days after filing the notice of appeal. By contrast, counsel for Colbeam cited an equivalent period of about 50 days in an appeal from the Commercial Court of a kind ordinarily receiving similar priority in the Court of Appeal.

Held by Holland J that a significant feature affecting the balance of justice was that, as matters stood the development intended by Colbeam – indeed already commenced – would be unauthorised development for want of pre-commencement condition agreements and inimical to the integrity of the planning system and code. Holland J held that it would not be the regular and orderly implementation contemplated by Clarke CJ in Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49, but the irregular and disorderly implementation by way of intentional unauthorised development of the statutory scheme in question and of the impugned permission. Holland J held that even the fact that the statutory scheme sought to ameliorate a housing crisis did not justify unauthorised development – if it did, SHDs would not need planning permission. This, to Holland J’s mind, emaciated what would otherwise be the substantial weight in the balance of the public interest in seeing a presumptively carried permission carried into effect. Holland J held that this emaciation of this public interest inevitably tilted the balance towards a stay pending appeal.

Holland J ordered a stay pending appeal of the order to be made on foot of his judgment of 14 January for 10 days from the perfection of that order and if notice of appeal is filed within that period, such stay to continue until the first return date in the appeal.

Application granted.

(#3)

Judgment of Mr Justice Holland, delivered the 7th of February 2022

Contents

Judgment of Mr Justice Holland, delivered the 7 th of February 2022	1
INTRODUCTION	2
THE LAW ON STAYS PENDING APPEAL	4
Cork County Council v Minister for Housing #2, Okunade	5
Krikke	8
AIB v FitzGerald & Brompton v McDonald #3	10
EVENTS SINCE JUDGMENT OF 14 th JANUARY 2022, COLBEAM'S PRESENT CAPACITY & INTENTION TO DEVELOP & THEIR LEGAL SIGNIFICANCE	12
OTHER ISSUES	24
Prospect of a Moot	24
Stay by the Back Door	25
Likely Grounds of Appeal – Arguability & Strength	26
CONCLUSION	28

INTRODUCTION

1 The Applicants seek to have quashed the Board's decision dated 3 June 2021 to grant planning permission (“The Impugned Permission”) to the Notice Party, (“Colbeam”), for, essentially, construction of a Strategic Housing Development 1 (“SHD”) of 698 student bedspaces on a site at Our Lady's Grove, Goatstown Road, Dublin 14. The Applicants live nearby and consider that the Impugned Permission would permit significant over-development of the site.

2 This is my third judgment in these proceedings and should be read with my two earlier judgments delivered on the 14 ^th January 2022 and 19 ^th January 2022 2. In my first judgment I continued a stay which had earlier been imposed on the operation of the Impugned Permission, save that, on Colbeam's application, resisted by the Applicants, I varied it to permit Colbeam to carry out the works identified at lines 1 to 17 of the Colbeam's Programme of Works 3 – essentially site clearance and excavation, tree cutting and demolitions. This represented success for Colbeam, who sought to lift the stay only to that extent. However, it is important to observe that in that judgment I emphasised that lifting the stay, to the extent that I did so, would not render lawful any development otherwise unlawful having regard to questions of timely compliance with pre-commencement planning conditions or building control law and the legal status of development effected prior to such compliance. I also referred to a lack of clarity as to whether and when Colbeam might, for reasons unconnected with the proceedings [i.e. those compliance issues], start development.

3 In my second judgment I declined, pro tem, to make further prosecution of the proceedings conditional on the Applicant's provision of an undertaking in damages.

4 Questions are outstanding as to:

Also, a motion stands adjourned in which Colbeam seeks to identify persons associated with the Applicants for the purpose of making them accountable in costs and on an undertaking in damages. None of these issues will be decided in this judgment.

• • the costs of the hearing of the motions which resulted in my first two judgments.

• • whether the Applicants should have a protective costs order. That motion has been heard but awaits written submissions on the significance, if any of the judgment of Humphreys J on costs protection issues in the Enniskerry Appliance/ Protect East Meath cases 4.

5 The Applicant on 1 February 2022 applied for a stay pending appeal of my order, on foot of my judgment of 14 ^th January 2022, as to the stay on the Impugned Permission. This is my judgment on that application.

6 As its application on 1 February 2022 developed, the Applicant in effect seeks a stay pending appeal until the first directions hearing in the Court of Appeal, on terms that it will file its notice of appeal within 10 days of perfection of the order on foot of the judgment of 14 ^th January 2022. The parties differ as to when the first directions hearing in the Court of Appeal is likely. Counsel for the Applicant says appeals in SHD judicial reviews are expedited in the Court of Appeal and recites his recent experience of a directions hearing and stay application coming on 10 days after filing the notice of appeal. He says that in Cork County Council v Minister for Housing 5 a Notice of Appeal and a Notice of Motion for a Stay issued on 22 December 2021 and came before the Court of Appeal on 14 ^th January 2022. By contrast, counsel for Colbeam cites an equivalent period of about 50 days in an appeal from the Commercial Court of a kind ordinarily receiving similar priority in the Court of Appeal.

7 These differences are potentially significant in the particular context of this case for reasons which will be apparent from my two earlier judgments: in effect the stay on the operation of the Impugned Permission is lifted for a relatively brief period to allow the performance of limited and specific works to the point of expected handover of the site to the main contractor. It is unclear as yet when the site will be ready to be handed over to the main construction contractor. It is anticipated that at, or presumably shortly prior to, that point, Colbeam may make a further application to lift the stay on development as it still applies from that point of handover to the main construction contractor. While Colbeam's exhibited Works Programme envisaged works on site commencing on 1 November 2021 and handover was originally scheduled for 10 February 2022, Colbeam has already been delayed in its Works Programme. I have no evidence, or even intimation, of a revised dated of expected handover. But I can infer that, if the longer period cited by Colbeam is more accurate, the Applicant would in appreciable degree, as Colbeam argues, get by the stay pending appeal now sought, the stay which it failed to get in the application on which my judgment of 14 ^th January 2022 decided. This is in a context in which, while I did not uncritically accept its evidence in this regard, I did broadly accept that it was urgent for Colbeam to commence development on a tight Works Programme to complete development in time to let the student accommodation for the...