The High Court has refused Dublin City Council leave to appeal a judgment concerning unauthorised awnings and a street furniture licence, finding that the proposed appeal did not raise a point of law of exceptional public importance.
Mr Justice Max Barrett delivered the ruling on 17 October 2017 in Dunnes Stores v Dublin City Council, with Taculla Limited as notice party. The application concerned the court’s earlier judgment of 2 March 2017. Under section 50A(7) of the Planning and Development Act 2000, as amended, an appeal could proceed only if the High Court certified that the decision involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
The Council argued that two such points arose. The first asked about the legal status of unauthorised development after it became immune from enforcement action. The second asked whether a local authority could use a licence condition to restrict development otherwise immune from enforcement.
On the first proposed point, the judge said the earlier judgment had not decided how long the overhead front awnings had been in place or whether they had become immune from enforcement. That issue had not been before the court. The earlier decision had instead held that the awnings were unauthorised because they lacked planning permission. The judge said the legal status of development without planning permission after the enforcement limitation period had passed was settled: it remained unauthorised development.
The judgment also addressed the Council’s submission concerning the constitutionality of development that was illegal but immune from enforcement. The judge referred to an earlier decision rejecting a claim that the planning system for permission and retention of unauthorised development unjustly attacked property rights.
The Council’s second proposed point arose from the earlier judgment’s discussion of Condition 26 of a street furniture licence. That judgment had said Taculla could decline to take the licence, but, having freely accepted it subject to a lawful-behaviour condition, could not claim a positive right to continue the conduct the condition prohibited. In the leave application, the judge said the earlier observation concerned the freedom to seek or decline a licence and the licensing authority’s obligation to assess permissible conditions under the relevant law. He found no point of law of exceptional public importance in that observation.
The court therefore declined to grant leave to appeal. The ruling addressed only the leave application; it did not revisit the earlier judgment’s determination that the awnings lacked planning permission.