A developer that benefits from a planning decision can defend it in judicial review proceedings even after the decision-maker concedes the challenge, the Supreme Court has ruled.
The Court dismissed an appeal by Ballyboden Tidy Towns Group, holding that Ardstone Homes Limited, the notice party in the case, was entitled to defend An Bord Pleanála’s grant of planning permission. The ruling concerns the developer’s right to participate; it does not decide whether the permission is lawful or whether it should ultimately be quashed.
The Group brought judicial review proceedings over permission for 241 apartments and associated works on land north of Stocking Avenue, Woodstown, Dublin 16. It argued, among other grounds, that the proposed building heights materially contravened planning objectives. An Bord Pleanála said it would not oppose certiorari on a separate ground: that it had failed to assess whether public transport capacity was adequate before granting permission.
Ardstone sought liberty to defend the proceedings. The High Court granted it, finding that the developer had shown substantial grounds for doing so. The Supreme Court, in a judgment delivered by Justice Donnelly on 22 February 2024, held that no such threshold was required.
The Court said a party directly affected by a judicial review, including a party benefiting from the challenged administrative decision, has a right to protect its interests and advance arguments that the decision-maker may not make. That entitlement remains even if the decision-maker concedes the proceedings. The High Court must still decide for itself, based on the evidence and submissions, whether it should grant judicial review relief.
The judgment also set out how the High Court can manage cases in which a notice party contests a concession. It may set an appropriate timetable, direct a focused or preliminary hearing, or list the full case for hearing. The choice depends on the issues and their complexity. The Court noted that the High Court may also strike out a notice party’s opposition in rare cases where the high legal threshold for doing so is met.
The Supreme Court did not determine the planning challenge itself or direct how the High Court should proceed with it. Justice Donnelly said the manner in which the case proceeds is a matter for the High Court. The appeal was dismissed.