The High Court has quashed An Bord Pleanála’s decision to reduce a development contribution payable to Cork City Council from €4,316,208 to €2,606,048.
In a judgment delivered on 1 June 2006, Mr Justice Kelly found that the board had misinterpreted Cork City’s General Development Contribution Scheme and acted beyond its limited statutory function. The case was a judicial review brought by the council. The court did not itself recalculate the amount payable; it set aside the board’s decision.
The dispute concerned a planning permission granted to O’Flynn Construction Limited on 6 July 2005 for a mixed residential, office and retail development on a 1.24-hectare site bounded by Eglinton Street, Albert Street and Old Station Road in Cork. The permission included a contribution condition based on the council’s scheme. The development included 553 parking spaces, mainly in a two-level basement, as well as parking at ground level.
The developer appealed the contribution condition, arguing that the scheme’s reference to “gross floor area” should be read in line with “gross floor space” under the Planning and Development Regulations 2001. That regulatory definition excludes some parking space incidental to a building’s main purpose. The board accepted the appeal and directed the council to amend the condition, excluding basement and ground-floor parking from the reckonable area apart from parking it treated as non-ancillary.
The council challenged that decision. The parties agreed that, under section 48(10) of the Planning and Development Act 2000, the board could consider only whether the council had properly applied the terms of its scheme. It could not review the scheme’s merits or replace its provisions with a different policy approach.
Mr Justice Kelly said the scheme required floor area to be calculated from buildings’ external dimensions and contained no exemption for car parking. He found that the regulatory definition could not be imported into the council’s scheme, which used a different definition. The board’s reliance on the ancillary nature of parking and on land-use efficiency and sustainable development was outside the question it was authorised to decide.
The court also criticised the board’s stated reasons, finding they did not explain why it concluded that the scheme had been improperly applied. Having found the board wrong in law, the judge allowed the council’s judicial review and quashed the 2 December 2005 decision.