The High Court has quashed An Bord Pleanála’s decision that changing the fifth floor of 23 Shelbourne Road in Ballsbridge from offices to an embassy office was development requiring planning permission.
In a judgment delivered on 23 November 2021, Ms Justice Quinn found that the Board’s reasoning relied on earlier decisions about the difference between an office and an embassy. The referral before it concerned an embassy office, a separately defined use in Dublin City Council’s Development Plan. The court held that the Board acted irrationally and unreasonably by relying on the nature and activities of an embassy to decide the status of the proposed embassy office.
The property’s owner, Spectre (Shelbourne) Limited, had sought judicial review of the Board’s 6 February 2020 decision. Dublin City Council had issued three declarations that the proposed change of use was exempt from planning permission. Finance Ireland, a tenant on the fourth floor, sought a separate declaration and then referred the council’s second declaration to the Board for review. The Board decided that the change was not exempt.
Spectre argued, among other grounds, that Finance Ireland’s request and referral improperly challenged the first council declaration. The court rejected that argument. It found that Finance Ireland began the statutory process on the same day the first declaration was notified to Spectre, and that the later referral was the next step in that process. The Board had power to consider it. The court also found that Spectre had standing to bring the case despite not making submissions on the referral.
The judgment identified other errors, including the Board’s failure to consider whether to dismiss the referral under section 138 of the Planning and Development Act 2000 and its failure to consider the judgment in Narconon Trust v An Bord Pleanála. The court said those errors did not by themselves warrant quashing the decision. It also rejected Spectre’s separate argument that the Board’s consideration of whether the change was material was necessarily irrelevant to the exemption question.
The court declared that the Board had taken irrelevant considerations into account and acted irrationally and unreasonably. It ordered the 6 February 2020 decision quashed and said it would hear the parties on the final form of the order and consequential matters. The judgment does not itself determine whether the proposed embassy office use is exempt development.