The High Court has given further reasons in a judicial review concerning a planning permission, but has not yet finalised its proposed reference to the Court of Justice of the European Union (CJEU).
In a judgment delivered on 4 October 2021, Humphreys J addressed requests from An Bord Pleanála and the State respondents for clarification before the court settled the reference. In an earlier judgment, the court had rejected the applicants’ arguments on domestic law and decided in principle to refer questions to the CJEU, subject to further submissions.
The judge said the masterplan was envisaged by the development plan but did not formally form part of it or modify it. It was not directly legally binding, although the developments it envisaged would in effect change the outcomes contemplated by the development plan. The judge concluded that the council had agreed the masterplan in its capacities as local authority, planning authority and landowner.
The court also addressed condition 24 of the planning permission. It required the developer to pay €4,000 per unit, as updated, towards public open space in the wider masterplan area because none was provided within the application site. The judge said the condition earmarked the money for that purpose and gave effect to the masterplan to that extent. It did not require the masterplan to be implemented in full; if the open-space works were not carried out, the council would have to return the money. The masterplan had not specifically required the condition, but the judge said it arose from the statutory framework, development plan and masterplan together.
On the Building Height Guidelines, the judge said compliance with Specific Planning Policy Requirement 3 (SPPR 3) prevented the board from refusing permission on the basis that specific development-plan objectives ruled it out, where the stated criteria were met. Permission could still be refused on other grounds. The judge said the guidelines were mandatory under section 28 of the Planning and Development Act 2000 and that the board had considered them in its decision, including in the environmental assessment process. Comparing the inspector’s recommendation for refusal with the board’s decision to grant permission, the judge said SPPR 3 had strongly favoured granting permission in this case.
The judge rejected the State’s suggestion that the court should first consider a conforming interpretation of domestic legislation. He said the initial question for the planned EU reference was what the relevant directive required, and that this remained relevant to the validity of the specific planning decision.
The court directed that this judgment be read with the earlier judgment for the proceedings. All parties may submit revised proposed answers to the CJEU questions within two weeks. After that period, the judge will finalise the order for reference, taking account of any further submissions. The judgment did not determine the eventual outcome of the judicial review or the questions to be answered by the CJEU.