The High Court has refused a developer leave to appeal the quashing of planning permission for a large housing development at the former Clonliffe College Seminary Campus in Dublin.
In a judgment delivered on 8 May 2023, Mr Justice Humphreys rejected an application by CWTC Multi Family ICAV to appeal his January decision granting certiorari of An Bord Pleanála’s approval under the strategic housing development procedure. The court also made a costs order in favour of applicant Fionuala Sherwin, allocating costs between the board and the developer, subject to possible further submissions.
The developer proposed three appeal questions: whether restrictions on demolition of protected structures covered partial demolition; what standard of judicial review applied where planning decisions involved discretion; and whether the board had to explain departures from recommendations in planning authority reports.
The judge said the Planning and Development Act defined a structure to include part of a structure. He noted that the earlier judgment had allowed that demolition enhancing a protected structure overall might not be caught by the restriction. But the works in this case went beyond incidental changes: they included removal of brick arches in the seminary’s internal corridor, which a city council conservation officer described as part of the building’s character and architectural quality.
On judicial review, the judge said the earlier ruling did not displace planning judgment as a general principle. He said the board had not properly addressed whether the proposed development respected the height, mass and scale of the protected structures, and described the mismatch in this case as clear on the material before the court. He also rejected the developer’s reading of the earlier ruling on the obligation to give reasons.
A further reason for refusing leave was that the proposed appeal would be moot even if the developer succeeded on all three questions. The earlier decision had also identified unchallenged problems, including the board’s approach to minimising impacts on protected structures and a national monument, its balancing test, and its treatment of a proposed subterranean structure.
The judge also noted that the strategic housing development procedure had since been abolished and said the public interest would be better served by a fresh application under the law then in force. The court ordered that leave to appeal be refused. Its costs order was to be finalised after seven days unless a party lodged written submissions challenging it.