The Court of Appeal has ruled that a ministerial building-height policy did not allow Dublin City Council to approve developments that exceeded the height limits in the North Lotts and Grand Canal planning scheme.
In a judgment delivered on 2 October 2020, Mr Justice Maurice Collins said the 2018 Urban Development and Building Heights Guidelines did not make Specific Planning Policy Requirement 3(A) applicable to applications under an existing strategic development zone (SDZ) planning scheme. Under SPPR 3(A), a planning authority may approve a proposal that conflicts with certain development plan or local area plan objectives if specified development management criteria are met.
Spencer Place Development Company Limited argued that SPPR 3(A) applied to two planning applications it had made for developments in the North Lotts SDZ, even though the proposals exceeded the scheme’s height limits. Dublin City Council argued that the policy did not apply to existing planning schemes and that the scheme’s limits remained in force until it was reviewed and amended.
The court agreed with the Council. It said SDZ applications are assessed by reference to the applicable scheme, and the planning legislation requires permission to be refused for development inconsistent with it. The court found that SPPR 3 addresses planning schemes separately: Part A concerns development plans and local area plans, while Part B requires existing schemes to be reviewed and, where needed, amended to reflect the guidelines. The judgment said the guidelines’ environmental assessment statement and the changes made after consultation supported that reading.
The decision concerned the meaning and application of the guidelines; it did not determine the two planning applications or decide whether either proposed development should receive permission. The court noted that the Council had undertaken a review of the scheme and proposed amendments, but those amendments had not yet been approved by An Bord Pleanála when the judgment was being finalised.
The appeal also concerned whether the developer’s proceedings were brought prematurely. Collins J agreed with the High Court that the company should have awaited the Council’s decisions on its applications before bringing the proceedings. The judgment records that the Court of Appeal addressed the substantive interpretation issue as well, in the interests of legal certainty, because the High Court had done so.
The Court of Appeal therefore upheld the High Court’s conclusions on both prematurity and the interpretation of SPPR 3(A).