A High Court cross-examination in a challenge to planning permission for 399 build-to-rent homes at Dublin’s Heuston South Quarter was adjourned after the judge found that the developer’s notice party had supplied a new affidavit and a large volume of unexhibited material shortly before the hearing.
Mr Justice Humphreys ruled on 17 May 2023 that the material went beyond an earlier court order. He said the late delivery had derailed the hearing and adjournment was necessary to give the applicants a fair opportunity to consider it. His written reasons were delivered on 25 May.
The judicial review was brought by Paul Leech and Frank McDonald against An Bord Pleanála, Ireland and the Attorney General. H.PREF HSQ Investments Limited was a notice party. The applicants seek to quash the board’s 31 March 2022 permission for 399 residential units, partial demolition of existing structures, 18 parking spaces and a retail unit at Heuston South Quarter, St John’s Road West/Military Road, Kilmainham.
The scheduled cross-examination concerned evidence from Leech and the notice party’s expert, Mr Reddy. The permitted topics included the effect of planning condition 3, which required revised details to be agreed with the planning authority, and whether the development would affect a protected “cone of vision”.
Under a March 2023 order, the parties were to prepare a dossier of documents they expected to use in cross-examination. The applicants uploaded material already in the case. The notice party, however, uploaded ten documents on the evening before the hearing, including a five-page second affidavit from Reddy and a 42-page collection containing new drawings, annotations and other material. The judge noted that much of the technical material had not previously been exhibited in the affidavits permitted in the case.
Humphreys said the order did not authorise a new affidavit or envisage introducing previously unexhibited documents at the last minute. He rejected the notice party’s argument that advance notice was unnecessary, saying that surprise and ambush should be avoided in case-managed proceedings. The ruling did not prevent new material being introduced in principle, provided the applicants had a reasonable opportunity to consider it.
The court adjourned cross-examination to the trial, vacated the 4 July hearing date and directed that the case return to the list to fix dates on 12 June. The applicants were given until 31 May to state whether they objected to the new material and until 7 June to file any replying affidavit. Any remaining dispute could be addressed on 12 June. The applicants were also awarded the costs of the 17 May hearing, with enforcement stayed until the proceedings are finally determined.
The judge directed the notice party to remove from ShareFile material that had not been exhibited, including the new affidavit and exhibits, unless the applicants consented. The notice party could apply to introduce further evidence; absent such an application, the affidavit would be struck out and unexhibited material disregarded. The ruling addressed the adjournment and evidence procedure only; it did not determine the challenge to the planning permission.