Judgment: 2021-03-12 · Court archive

High Court refuses developer’s bid to reopen planning case

The court dismissed a motion to decide outstanding EU-law grounds after it had already quashed development consent on domestic-law grounds. It directed the parties to arrange a Monday List hearing to finalise costs.

High Court · [2021] IEHC 143

Who, what, where, when and why

Who
  • Balscadden Road SAA Residents Association
  • An Bord Pleanála (Respondent)
  • Crekav Trading G.P. Limited
What

The court dismissed a motion to decide outstanding EU-law grounds after it had already quashed development consent on domestic-law grounds. It directed the parties to arrange a Monday List hearing to finalise costs.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The motion followed an earlier judgment in Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 1), in which the court found two domestic-law grounds determinative and quashed the development consent. The judge said the European-law issues had not been decided in that judgment.

The High Court has refused a developer’s request to reopen a planning judicial review so it could decide outstanding European-law grounds. The court dismissed the motion and directed the parties to liaise with the List Registrar to relist the matter on the next convenient Monday List to finalise costs.

The motion followed an earlier judgment in Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 1), in which the court found two domestic-law grounds determinative and quashed the development consent. The judge said the European-law issues had not been decided in that judgment.

The developer, Crekav Trading G.P. Limited, argued that deciding those issues could clarify the legal position and avoid further expense if the points arose in another judicial review. It also argued that the applicants were holding back grounds for a later challenge. The court noted that any future application would concern a different decision and would involve different facts and plans. It did not accept that deciding the outstanding issues at this stage would prevent an applicant from formally raising them in a later case.

The court said reopening the hearing would address hypothetical issues after the consent had already been quashed, and would not itself change the parties’ legal position. Whether the board would grant permission again was uncertain, and the outstanding points depended substantially on the facts. The judge also questioned whether a ruling on those points would enable a reference to the Court of Justice of the European Union, since that court does not decide hypothetical questions.

Other considerations included the additional time and cost of another hearing, the effect on other litigants waiting for court dates, and the need for finality. The court said there was no tangible exceptional public-interest reason to reopen the hearing. It concluded that the motion did not meet the threshold and dismissed it.

The order did not decide the outstanding European-law grounds. The matter was to return to the Monday List for the purpose of finalising costs.

Read the original court judgment

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