The Court of Appeal has ruled that An Bord Pleanála (ABP) had jurisdiction under the Planning and Development (Housing) and Residential Tenancies Act 2016 to grant permission for strategic housing development that materially contravened a planning scheme.
The judgment, delivered by Mr Justice Maurice Collins on 16 June 2023, concerned a proposed development at City Block 2 in Dublin’s North Lotts Strategic Development Zone. The court’s decision addressed the Board’s legal power to approve the development despite the scheme’s building height limits. It did not assess the planning merits of the proposal.
Spencer Place Development Company Limited applied to ABP in August 2019 to amend a previously permitted development at Blocks 2B and 2D. The proposal added 115 residential units and changed a previously permitted aparthotel to 84 shared accommodation units. It proposed increasing the maximum heights of two blocks from seven storeys to 13 storeys and 11 storeys, respectively, exceeding the limits in the North Lotts and Grand Canal Planning Scheme 2014.
ABP’s inspector recommended refusal, citing inconsistency with the scheme. The Board granted permission in April 2020, finding that it could approve a development that materially contravened the development plan on specified statutory grounds. Dublin City Council challenged the permission by judicial review.
The High Court quashed the permission. It held that the 2016 Act did not allow ABP to approve a material contravention of a planning scheme. Spencer Place appealed that decision. ABP did not appeal and did not participate in the Court of Appeal hearing.
The Court of Appeal concluded that ABP was required to have regard to the relevant planning scheme, but was not bound by it in the same way as a planning authority deciding an application under section 34 of the Planning and Development Act 2000. The judgment said the 2016 Act expressly applied section 170’s planning-scheme restrictions when an applicant chose the planning authority route, but did not extend those restrictions to applications made to ABP under the 2016 Act. It also held that the Act allowed ABP, in certain circumstances, to depart from a development plan, including a relevant planning scheme.
The court answered the certified question in the affirmative and said it would allow the appeal and set aside the High Court’s order quashing the permission. However, the judgment proposed a three-week period for the parties to agree the final orders. If they could not agree, a short hearing would be arranged. Costs also remained to be determined.