The High Court rejected most of a judicial review challenge to a compulsory purchase order covering a large redevelopment site on the western side of Dublin’s O’Connell Street, while finding that An Bord Pleanála had no power to defer deciding the applicant’s costs application until after any judicial review proceedings.
In a judgment delivered on 15 March 2005, Mr Justice Finnegan said the Board had acted ultra vires by leaving the costs application undecided. Section 219 of the Planning and Development Act 2000 allowed the Board to grant or refuse costs, but did not authorise it to postpone that decision to await events outside the appeal. The judge said he would hear counsel on the appropriate terms of an order.
The applicant, Paul Clinton, challenged the compulsory purchase order made by Dublin City Council and confirmed by An Bord Pleanála in January 2003. The site included the Carlton Cinema and properties between O’Connell Street, Moore Street, O’Rahilly Parade and Henry Place. The council said the acquisition was needed to facilitate regeneration under the city’s development plan and the O’Connell Street Integrated Area Plan.
The judge rejected the applicant’s complaint that the handling of document requests denied him natural justice. He said the council had supplied substantial material, although some documents were provided during the hearing and others were missing. The applicant had not shown how the missing material caused injustice or that he had made the formal application to the Board required under section 135. The judge also found that discussions with other potential developers concerned the means of achieving the purpose, rather than the purpose itself.
He held that “development purposes” in the order and the Board’s reference to facilitating the Dublin City Development Plan were consistent when read with the inspector’s report. The law required a statutory purpose, he said, not a settled development scheme or a decision about how the land would ultimately be used. He also found the Board’s reasons sufficient when read alongside the report, including its explanation for excluding certain plots and parts of Moore Lane from the confirmed order.
The court dismissed the challenge to the statutory scheme’s constitutionality. The judge accepted that compulsory acquisition interferes with property rights and requires a countervailing public interest, careful scrutiny and fair procedures. He concluded that the statutory scheme provided for an oral hearing and judicial review if procedures were unfair. The judgment records that the judge refused the constitutional relief sought; it does not set out the final terms of the order on the costs issue.