The High Court has dismissed Atlas GP Limited’s motion to strike out grounds in a judicial review challenging planning permission for 255 homes and a childcare facility off Church Road in Killiney, County Dublin. It also rejected Atlas’s objection to amendments made to the applicants’ grounds during the leave process.
Mr Justice David Holland’s judgment, delivered on 28 April 2022, concerned an earlier ex parte order granting eight local residents leave to seek judicial review of An Bord Pleanála’s July 2021 permission. The residents had participated in the planning process. The judge said some lived adjacent to the site.
Atlas initially sought to set aside leave and strike out the case, but at the hearing sought only to strike out grounds 2 to 6, 10 and 11. Those grounds included challenges concerning density, separation distances, building height, tree loss, environmental assessment requirements and legal protections for bats. Atlas argued that some complaints were insincere because the residents had accepted a 2018 permission for a different scheme, and that certain points had not been raised before the Board.
The judge held that the challenge to leave had to meet a demanding threshold: it should be allowed only in a very plain case, and the burden was on Atlas to show that leave should not have been granted. He found that the 2018 and 2021 proposals differed substantially in scale and design, and that accepting the earlier permission did not by itself establish that the residents were insincere about opposing the later scheme. He also concluded that residents with general standing through proximity and participation did not have to show a personal interest in every individual ground.
On points not raised with the Board, the judge recognised limits but also exceptions, including where an objector identifies omissions in a developer’s application that the decision-maker should assess. He concluded it was not clear enough that any of the challenged grounds should be struck out. He made no finding on whether the 2021 permission was lawful or whether the residents’ grounds would succeed at trial.
Atlas also argued that amendments to the grounds were impermissible because they were made after the statutory eight-week period. The judge held that the later hearing was a continuation of the leave application opened within time, and that the court had power to allow amendments at that stage. He refused Atlas’s request to disallow them.
The judge dismissed Atlas’s application in all respects. He gave a provisional view that the residents should receive the costs of the motion and allowed Atlas 14 days to make written submissions if it disagreed. The residents would then have seven days to reply, with the case listed for mention on 30 May 2022.