Wendy Jennings v an Bord Pleanala, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 14 January 2022
• Neutral Citation: [2022] IEHC 11
• 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 11

2021/750JR

JUDICIAL REVIEW

Stay – Development – Planning permission – Notice party seeking to amend the stay of development on foot of an impugned planning permission – Whether the stay ought to be vacated

Facts: The applicants, Ms Jennings and Mr O’Connor, sought to have quashed the decision of the first respondent, An Bord Pleanála (the Board), dated 3 June 2021 to grant planning permission (the Impugned Permission) to the notice party, Colbeam Ltd (Colbeam), for, essentially, construction of 698 student bedspaces on a site at Our Lady’s Grove, Goatstown Road, Dublin 14. That permission was granted pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 as applicable to strategic housing developments. The applicants lived nearby and considered that the permission would permit significant over-development of the site. The application for leave to seek judicial review was formally moved for “clock-stopping” purposes on 27 July 2021 and such leave granted ex parte on 19 October 2021 on terms which included a stay restraining development on foot of the Impugned Permission. That stay was amended and continued from time to time. Colbeam was in effect restrained from starting site clearance, site preparation, demolition, tree removal and excavation works on foot of the Impugned Permission. Colbeam sought to amend the stay to permit works on foot of the Impugned Permission to the point at which, by reference to its exhibited sequential programme of intended works (the Works Programme), the site would, in the spring of 2022 and by reason of site clearance, site preparation, demolitions, tree removal and excavation works, be ready for hand over to the main building contractor. At that time Colbeam intended to seek renewed consideration of the question of a stay. The applicants sought a continued stay. The Board was neutral on the issue of a stay.

Held by the High Court (Holland J) that to give significant weight to Colbeam’s inadequate disclosure of its position as to pre-commencement conditions by granting a stay he might otherwise have refused would be disproportionate in the particular circumstances of the case. Holland J found neither side’s dire predictions of the consequences of an adverse outcome on the issue of a stay very convincing. On balance, and against the background of a presumptively valid permission, Holland J did not think Colbeam should be put to appreciable risk of large losses by reason of the prospect of tree loss in the context of the mitigation, including replanting, proposed or, if the development did not proceed, the mitigation which could be imposed. Holland J was moved by the public interest considerations identified in Okunade v Minister for Justice and Equality [2012] IESC 49 and the caselaw since. Holland J held that there was a clear public interest that presumptively lawfully permitted development of strategic housing identified by statute as urgently required to address a housing crisis should not be delayed. Holland J held that it is not for the court to second-guess the decision by the Oireachtas to include student accommodation in the category of strategic housing development. Holland J emphasised that if the issue of a stay again arose at the point of handover of the site to the main construction contractor, those issues would be considered afresh in the circumstances of that point in time and there was no presumption that the same decision as to a stay would be then made.

Holland J vacated the stay on the Impugned Decision only as to those elements of the Works Programme which preceded handover of the site to the main construction contractor: that is to say, Line 17 on the Works Programme. Holland J held that the stay would remain in place as to all works from handover of the site to the main construction contractor as that was the basis on which the notice party addressed the issue of a stay.

Stay amended.

Contents

Judgment of Mr Justice Holland, delivered the 14th of January 2022	2
INTRODUCTION & THE EVIDENCE	2
THE GROUNDS	4
THE MOTION FOR A STAY	7
Onus of Proof	7
Are Colbeam Otherwise Ready To Commence Works?	7
Chronology	8
Failure to deliver Opposition Papers.	21
Other Principles Applicable	21
Okunade, Hoey, Dowling, Merck, O'Brien	21
Krikke	26
Massey, Comerford and the Urgency of SHD	27
Arguability of Claim	31
Adequacy of Damages	32
Potential Loss to Colbeam and the significance of an Undertaking in Damages to the Question of a Stay.	32
A further Issue as to Undertakings in Damages	35
The Role of Property Rights in the Balance of Injustice	36
“Irreparable & Serious Harm” – Tree Loss, Bats & the Prospect of Replanting	37
The Public Interest Factors & the Scheme of the 2016 Act	43
CONCLUSION on the issue of a Stay.	44
Post-Script	46

Judgment of Mr Justice Holland, delivered the 14 ^th of January 2022

INTRODUCTION & THE EVIDENCE

1 This judgment concerns the question of a stay of development on foot of an impugned planning permission pending trial of this judicial review.

2 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 698 student bedspaces on a site at Our Lady's Grove, Goatstown Road, Dublin 14. That permission was granted pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 (“the 2016 Act”) as applicable to Strategic Housing Developments. The Applicants live nearby and consider that the permission would permit significant over-development of the site.

3 The Impugned Permission records the Board's screening decision that Appropriate Assessment for purposes of Habitats law was unnecessary. It also records the Board's exclusion by way of preliminary examination of the necessity to screen for sub-threshold Environmental Impact Assessment.

4 The application for leave to seek judicial review was formally moved for “clock-stopping purposes on 27 July 2021 and such leave granted ex parte on 19 October 2021 on terms which included a stay restraining development on foot of the Impugned Permission. That stay was amended and continued from time to time. At present Colbeam is in effect restrained from starting site clearance, site preparation, demolition, tree removal and excavation works on foot of the Impugned Permission.

5 Counsel for Colbeam “informally” appeared and was heard on 19 October 2021, inter alia as to the urgency of the matter from Colbeam's point of view. Essentially Colbeam said then and repeated since that it is committed to a demanding and tight Works Programme commencing on 1 November 2021 with a view to completion in mid-2024 with a view to letting the development to students of nearby UCD for the academic year starting September 2024. It says that if it misses that deadline and given a planning permitting condition limiting use of the property to student accommodation, it will be unable to let the accommodation until for the following academic year and will suffer significant financial losses. It says the Works Programme cannot accommodate more than very short delay of weeks or perhaps a few months such that a stay on development would cause such losses.

6 In contrast, the Applicants say that failing a stay and by way, primarily, of removal of trees from the site, irreparable environmental harm (in the form of both loss of the intrinsic value of the trees and of their value as a bat and bird habitat) would ensue. Thereby, they say, that their proceedings would be rendered moot and they would be deprived of effective remedy as to some of the grounds on which they have been granted leave to seek judicial review.

7 Two motions are pending and were heard together. One, in part the subject of this judgment, is by Colbeam, seeking to vary a stay restraining development on foot of the Impugned Permission and seeking to have the further prosecution of these proceedings made conditional on the Applicants' proffering a substantiated undertaking in damages and disclosing their means to meet any liability on such undertaking. In the other motion the Applicants seek a protective costs order. The questions of an undertaking in damages and disclosure of means and a protective costs order will be the subject of a second judgment. Notably, these motions have generated 5 sets of written submissions, running to over 50,000 words and over 130 pages: also well over 70 authorities of various kinds. That is no criticism.

8 While the questions of an undertaking in damages and disclosure of means as a condition of further prosecution of these proceedings are not the subject of this judgment, it is relevant to the question of a stay to observe that the Applicants have explicitly not given or offered to give an undertaking in damages or to disclose any matters relevant to the real worth of such an undertaking if given.

9 Colbeam has also issued a motion seeking to identify and have joined to the proceedings, supposed supporters of the Applicants, for the purpose of requiring an undertaking in damages from them and seeking costs against them in due course. That motion has not yet been heard.

10 Though at liberty to do so since my order of 15 November 2021, which liberty was given to assist expedition of the proceedings, the Board and Colbeam have not yet filed opposition papers.

THE GROUNDS

11 The Applicants seek relief on grounds which may be briefly, if somewhat incompletely, summarised as follows:

Grounds

...