Judgment: 2021-01-28 · Court archive

High Court grants developer leave to appeal planning decision, orders costs and limits enforcement stay

The court certified a question about the planning board’s power to approve a strategic housing development in material contravention of a planning scheme. Its stay protects work completed before 16 October 2020 from enforcement while the appeal is pending, but precludes further development.

High Court · [2021] IEHC 34

Who, what, where, when and why

Who
  • Dublin City Council (Applicant)
  • An Bord Pleanála (Respondent)
  • Spencer Place Development Company Ltd.
  • Richard Humphreys (Judge)
What

The court certified a question about the planning board’s power to approve a strategic housing development in material contravention of a planning scheme. Its stay protects work completed before 16 October 2020 from enforcement while the appeal is pending, but precludes further development.

Where

Places mentioned in the report

  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

In a judgment delivered on 28 January 2021, Mr Justice Richard Humphreys certified the developer’s proposed question: whether the board had jurisdiction under the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, to grant such permission. The court said the statutory test for leave to appeal was satisfied, despite Dublin City Council’s objections. The board did not participate in this stage and had consented to a costs order against it.

The High Court has granted Spencer Place Development Company Ltd. leave to appeal a ruling that quashed An Bord Pleanála’s permission for a strategic housing development in material contravention of a planning scheme.

In a judgment delivered on 28 January 2021, Mr Justice Richard Humphreys certified the developer’s proposed question: whether the board had jurisdiction under the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, to grant such permission. The court said the statutory test for leave to appeal was satisfied, despite Dublin City Council’s objections. The board did not participate in this stage and had consented to a costs order against it.

The court noted that the Court of Appeal had addressed some related issues in an earlier case, but not the precise question now raised. It also considered the potential relevance of the ruling to other cases, including strategic infrastructure developments, and said the legislation could still apply to some cases already in the pipeline. The judge said a first-instance court could not refuse leave simply because it considered its own decision correct.

The appeal concerns the earlier judgment in Dublin City Council v An Bord Pleanála (No. 1), in which the court granted certiorari quashing the board’s decision. The judgment on leave did not decide the certified question or determine the appeal.

On costs, the court ordered An Bord Pleanála and the developer to pay Dublin City Council’s costs, including reserved costs, jointly and severally. The judge said the developer had taken a significant role in defending the decision through pleadings, affidavits and written and oral submissions. By consent, there was no order for costs of the leave application itself.

The court also stayed the certiorari order for a limited purpose. Pending final determination of the proceedings, no person may rely on the order as a basis for enforcement action, including proceedings under section 160 of the Planning and Development Act 2000, in respect of works carried out before 16 October 2020. The stay does not permit further development while the appeal is pending.

The costs order was stayed for 28 days and, if a notice of appeal was served within that period, until the appeal is finally determined.

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