The High Court certified one issue for appeal in a planning judicial review brought by Pembroke Road Association, but refused certificates on other proposed grounds. In a supplemental ruling delivered on 19 November 2021, Mr Justice Alexander Owens also dismissed the judicial review and awarded the association half its costs against An Bord Pleanála.
The certified issue is whether the judge was correct to refuse to quash the Board’s decision to accept the planning application, for the reasons set out in paragraphs 62 to 90 of his June 2021 judgment. The certificate was granted under section 50A(7) of the Planning and Development Act 2000, which allows an appeal on a point of law of exceptional public importance where an appeal is desirable in the public interest.
The association had separately challenged the application’s validity, arguing that the applicant for planning permission had not taken part in the statutory pre-application consultation. Justice Owens refused to certify that issue. He said he was not persuaded it raised a point of law of exceptional public importance. He had refused the requested relief on discretionary grounds, finding that Derryroe Limited had shown sufficient interest in the site when it applied. He also noted that the two companies involved had the same shareholders and management, and that the association had no interest in the site.
The judge said the technical argument lacked substantive merit and should not invalidate the planning process. He also declined to certify the association’s proposed grounds concerning building height and the court’s handling of an ineffective planning condition.
The condition issue arose after the court adjourned proceedings to give the Board an opportunity to amend condition 26 under section 146A(1)(iii) of the 2000 Act. The Board made an order on 18 October 2021 substituting an amended condition. Justice Owens dismissed the application after that order, and said he was not persuaded those decisions raised a point of law of exceptional public importance or gave rise to serious debate about the Board’s power to amend the condition.
A separate certificate had already been granted by another High Court judge on the interpretation of a provision in the 2001 Planning and Development Regulations concerning environmental screening reports. Justice Owens noted that certificate and said the Court of Appeal would address whether the regulatory requirement had to be met through a separately identified chapter or section in such a report.
The association was awarded half the costs of the judicial review against the Board, including reserved costs relating to leave and other matters. Those costs are to be assessed by adjudication if the parties do not agree. Derryroe is to bear its own costs.