The High Court has certified three questions for the Court of Appeal in a planning dispute over a proposed 741-apartment development behind Connolly Station in Dublin 1. The questions concern how to count non-residential uses in a strategic housing development and how to interpret planning documents containing significant contradictions.
The application was brought by Oxley Holdings Limited under section 50A(7) of the Planning and Development Act 2000. In a judgment delivered on 25 February 2021, Mr Justice Denis McDonald found that the proposed points met the legal tests of exceptional public importance and desirability in the public interest.
The questions arise from an earlier judgment in which the High Court quashed An Bord Pleanála’s 5 February 2020 permission for the development. That earlier ruling held that a car park planned on a deck within the development counted as an “other use” for the statutory definition of strategic housing development. Together with other non-residential uses, it exceeded the 4,500-square-metre limit, so the Board lacked jurisdiction to grant permission under the 2016 Act.
The earlier judgment also concluded that Oxley had not applied for, and the Board had not granted, permission to use the deck as a car park. The documents submitted with the application were contradictory: some described car parking as part of the proposed development, while others said permission for that use was not sought. The judge had found that the materials indicated the deck was intended for car parking and that Oxley was contractually obliged to provide spaces for CIÉ.
The Court of Appeal is to consider whether “other uses” can include a use for which planning permission was neither sought nor granted; whether the answer changes where the applicant intends or is contractually obliged to make that use of part of the development; and whether the established approach to interpreting planning documents should be adjusted when the documents contain contradictions of this kind.
The High Court rejected the applicant’s proposed question asking simply whether the Board had granted permission for the car park, finding that formulation did not meet the statutory tests. It certified a broader question about applying the established interpretation principles to contradictory materials. The court did not determine the appeal or revisit the earlier order quashing permission. It said the costs of the leave application should be reserved to the Court of Appeal, subject to any submissions from the parties.