Judgment: 2023-05-25 · Court archive

High Court grants leave to appeal over open-space conditions in planning case

The court certified four questions about how Dublin City’s development plan applies to open space at a proposed development. The underlying judicial review had been dismissed; the appeal questions remain unresolved.

High Court · [2023] IEHC 280

Who, what, where, when and why

Who
  • Sinead Kerins
  • Mark Stedman (Applicant)
  • An Bord Pleanála
What

The court certified four questions about how Dublin City’s development plan applies to open space at a proposed development. The underlying judicial review had been dismissed; the appeal questions remain unresolved.

Where

Places mentioned in the report

  • Dublin
  • Dublin City Council lands
When

Judgment:

Why

Reasons reported in the judgment

The court rejected two other proposed appeal questions, concerning property rights and the status of a masterplan, finding no suitable issue for appeal on those points. It also refused the applicants’ request for costs in the substantive proceedings, including the proceedings before the Court of Justice of the European Union, up to and including the earlier dismissal. The court said there should be no order as to those costs.

The High Court has granted Sinead Kerins and Mark Stedman leave to appeal after dismissing their judicial review of planning permission for a development in Dublin. The appeal will address four certified questions about public open-space requirements in the Dublin City Development Plan.

In a judgment delivered on 25 May 2023, Mr Justice Humphreys said the questions concerned differences between the plan’s provisions for 10% open space in residential schemes and a 20% open-space target for Strategic Development and Regeneration Area 12. The judgment described the development site and nearby lands as having Z1, Z4, Z6 and Z14 zonings.

The inspector had concluded that the proposal’s lack of public open space amounted to a material contravention of the plan. An Bord Pleanála nevertheless granted permission with a condition requiring a special contribution of €4,000 per unit, indexed at payment, in lieu of open space on the site. The board relied on a masterplan indicating a proposed park and recreational facilities on adjoining Dublin City Council lands.

The applicants argued that the board could not rely on potential future development to meet open-space requirements, and that the plan’s financial-contribution exception applied only where a site was too small or unsuitable for useful open space. Their judicial review was dismissed in an earlier judgment. At this leave-to-appeal stage, the court did not decide whether the board’s interpretation was correct. It considered whether there was a plausible argument warranting appellate clarification.

The four certified questions ask whether the board could treat the plan’s more permissive open-space provision as strengthening the more specific provision; whether differences between the provisions amount to conflicting objectives under planning legislation; whether those provisions could justify departing from both the 10% and 20% requirements; and whether permission could be granted without either on-site compliance with the 20% target or a legally enforceable way to achieve it across the area.

The court rejected two other proposed appeal questions, concerning property rights and the status of a masterplan, finding no suitable issue for appeal on those points. It also refused the applicants’ request for costs in the substantive proceedings, including the proceedings before the Court of Justice of the European Union, up to and including the earlier dismissal. The court said there should be no order as to those costs.

For the leave application, the judge proposed an order for the applicants’ costs against An Bord Pleanála, including written submissions, unless contrary submissions were lodged within seven days. The judgment grants leave on the four certified questions; it does not determine the appeal.

Read the original court judgment

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