The High Court has quashed An Bord Pleanála’s permission for a proposed development in Dublin’s docklands, ruling that the board had no jurisdiction to approve it in material contravention of the area’s strategic development zone planning scheme. The court declined to remit the application to the board for reconsideration on that basis.
Dublin City Council brought the judicial review against the board’s decision of 3 April 2020. Spencer Place Development Company Ltd. was a notice party. The judgment, delivered by Mr Justice Richard Humphreys on 12 November 2020, addressed a permission for building heights above those allowed by the scheme.
The site lies in a block bounded by Sheriff Street Upper, New Wapping Street, Mayor Street Upper and Park Lane. The scheme provides for maximum heights of six storeys for commercial buildings and seven storeys for residential buildings in the relevant blocks. The developer’s fifth application, made directly to the board under the strategic housing development process, sought permission for a development up to 13 storeys high.
A board inspector recommended refusal, considering the proposal incompatible with the scheme then in force. The board initially granted permission in December 2019, but that decision was quashed by consent in January 2020 and returned to the board. The board granted permission again in April 2020, prompting this judicial review.
The board and developer argued that legislation allowed the board to approve a material contravention of the scheme. The judge rejected that interpretation. He held that the statutory powers allowing the board to permit material contraventions of a development plan did not extend to an SDZ planning scheme. The scheme has its own detailed statutory framework and takes priority over the development plan, he said.
The judge also found that the board’s interpretation would make the rules depend on whether a developer chose to apply to the council or directly to the board, despite the legislation providing those application routes. He considered that inconsistent with the statutory scheme. Government building-height guidelines did not change the result: in the judge’s view, they contemplated review of the planning scheme as the means of applying the guidelines in an SDZ.
The council had proposed amendments to the scheme, including allowing buildings up to 12 storeys at corners and an additional set-back storey. That amendment process was still awaiting a board decision. The court did not decide the other administrative-law and environmental impact assessment arguments because its jurisdiction ruling resolved the case. It also did not decide the planning merits of this development or the broader case for taller buildings in the docklands.
The court quashed the board’s April 2020 decision and declined to refer the application back to it, holding that the board lacked jurisdiction to grant it.