Judgment: 2021-07-29 · Court archive

High Court adjourns planning challenge to let An Bord Pleanála correct condition

The court declined to set aside permission for a Herbert Park development at this stage after finding an error in the statutory basis for a contribution condition. Final orders were left for a later hearing.

High Court · [2021] IEHC 545

Who, what, where, when and why

Who
  • Pembroke Road Association (Applicant)
  • An Bord Pleanála
  • Derryroe Limited
  • Dublin City Council
  • Alexander Owens (Judge)
What

The court declined to set aside permission for a Herbert Park development at this stage after finding an error in the statutory basis for a contribution condition. Final orders were left for a later hearing.

Where

Places mentioned in the report

  • Herbert Park
  • 40 Herbert Park
  • Dublin
When

Judgment:

Other dates in the report
  • 11 October 2021

    The court did not quash the permission or make a final order on the validity of condition 26. Instead, it adjourned the proceedings to allow the Board to use its correction power. The matter was to be relisted at 10am on 11 October 2021, when the judge said he would decide any final orders.

Why

Reasons reported in the judgment

In a supplemental judgment on 29 July 2021, Mr Justice Alexander Owens said the Board had relied on an inapplicable statutory provision when imposing the contribution condition. He had previously concluded that the Board would not have granted permission without a condition requiring the contribution.

The High Court has adjourned a judicial review over a development at Herbert Park, giving An Bord Pleanála an opportunity to correct a legal defect in a condition requiring a financial contribution to Dublin City Council in lieu of public open space.

In a supplemental judgment on 29 July 2021, Mr Justice Alexander Owens said the Board had relied on an inapplicable statutory provision when imposing the contribution condition. He had previously concluded that the Board would not have granted permission without a condition requiring the contribution.

Pembroke Road Association argued that the error meant the entire planning permission should be treated as invalid and remitted to the Board for reconsideration. It also submitted that replacing condition 26 would materially alter the development’s terms and that the Board could not revisit it under section 146A of the Planning and Development Act 2000.

The Board and developer Derryroe Limited asked for an adjournment so the Board could consider correcting the condition. Justice Owens rejected their suggestion that section 146B applied, explaining that it concerns changes to permissions for strategic infrastructure developments.

The judge said the defect was confined to a discrete part of the permission: the Board had used the wrong statutory basis for the contribution. He considered section 146A(1)(iii) broad enough to let the Board remove condition 26 and replace it with a legally effective condition that implements its decision to require a contribution. He said this would not materially alter the development’s terms.

The court did not quash the permission or make a final order on the validity of condition 26. Instead, it adjourned the proceedings to allow the Board to use its correction power. The matter was to be relisted at 10am on 11 October 2021, when the judge said he would decide any final orders.

The Association also relied on issues concerning demolition of a house at 40 Herbert Park and possible protected-structure status. The judge said he could not decide in these proceedings whether the demolition was unauthorised development. He rejected the submission that these matters justified setting aside the permission, noting that the house was not a protected structure when the Board decided the application and no longer existed.

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