The High Court has refused An Bord Pleanála permission to appeal a judgment quashing planning permission for a strategic housing development at Dalguise House, Monkstown.
In a judgment delivered on 19 January 2023, Mr Justice David Holland declined to certify any point of law for appeal. He said the Board’s proposed grounds did not meet the statutory tests of exceptional public importance and desirability in the public interest.
The application concerned an earlier judgment, delivered on 31 May 2022, which quashed the Board’s August 2020 permission for Lulani Dalguise Limited’s proposed development on a site of about 3.66 hectares. The earlier judgment found that the Board had wrongly relied on a specific planning policy requirement concerning building height and had not given adequate reasons for its environmental impact assessment screening decision. It also found that the Board had adopted an inadequate screening report as a basis for deciding that a full environmental impact assessment was unnecessary.
The Board argued that the earlier judgment raised important questions about when planning authorities may rely on specific planning policy requirements and the standard of judicial review in environmental impact assessment screening. It also challenged the treatment of the screening report. The Monkstown Road Residents’ Association and the other applicants opposed certification. Lulani did not take part in the certification application.
On the planning policy issue, Mr Justice Holland said the Board’s proposed appeal rested on a misreading of the earlier judgment. That judgment did not prohibit reliance on the policy requirements when deciding whether to grant permission despite a material contravention of a development plan. It held that, where relevant, the requirements also had to be applied under the statutory provision governing their application. The judge added that the Board could make its intended basis clearer in future decisions.
On environmental screening, the judge said the earlier judgment quashed the permission for inadequate reasons, not because the court had found the Board’s conclusion irrational or substituted its own view of the environmental effects. He said the Board’s proposed grounds did not arise from the earlier judgment as the Board characterised them. The Board was also not pursuing an appeal ground about the adequacy of reasons as a point of law.
The court’s ruling addressed only whether to certify points of law for appeal. It did not revisit or change the May 2022 decision quashing the planning permission. No point of law was certified.