The Supreme Court has dismissed James Kenny’s appeal against the striking out of his application for planning enforcement orders concerning Trinity Hall, Trinity College Dublin’s student accommodation development in Dartry.
The appeal concerned a High Court decision to strike out an application under section 160 of the Planning and Development Act 2000. That provision allows a court to order action in response to unauthorised development. Kenny had sought orders requiring the development to comply with planning permission, including restrictions on work and restoration of land. The High Court struck out the case in 2011, concluding that claims had already been decided, should have been raised earlier, or were too minor to justify continuing.
The Supreme Court, in a judgment delivered by Ms Justice Iseult O’Malley on 14 August 2020, said the appeal had to be dismissed. It accepted that judicial review of a planning compliance decision and a section 160 application serve different purposes in principle. But it found that Kenny’s two sets of proceedings had made the same specific complaints about the development. His section 160 claims were based on the compliance submissions approved by Dublin City Council, and success would therefore require him to challenge that compliance decision.
The compliance decision had already been challenged by Kenny and upheld in earlier proceedings. The Supreme Court said it was not strictly a case of res judicata or issue estoppel, because the parties were not identical. It nevertheless found that trying to attack the compliance decision through the later proceedings was a collateral attack and an abuse of process. The court said the new arguments about alleged differences between the Board-approved plans and the plans approved through the compliance process had been available earlier.
Kenny had sought to introduce further allegations, including changes to building heights and designs, additional floors and structures, and use of accommodation for foreign schoolchildren. The Supreme Court noted that the High Court had refused to expand the case, citing delay and the history of the litigation. The Supreme Court concluded that the proposed claims would, in substance, reopen the validity of the compliance decision after Kenny’s challenge to it had failed.
The court dismissed the appeal. It directed the parties to file written submissions on costs, limited to 500 words, within two weeks of the judgment. The judgment did not decide those costs submissions.