The High Court found that Dublin Corporation’s handling of a planning retention application for No. 2 Hardwicke Place breached fair procedures and natural and constitutional justice. It also held that An Bord Pleanála’s refusal of the appeal was not reached in accordance with law because the Board did not receive the full relevant record.
Mr Justice William M. McKechnie delivered judgment on 7 September 2005 in proceedings brought by Jerry Beades Construction Limited. He found that planners James Muldowney and Patrick McDonnell had prejudged the application before it was lodged and should not have been involved in deciding it. The judge did not, however, apply the legal doctrine of bias to the case, concluding that the events relied on were too connected to the retention process for that doctrine to apply.
The application concerned unauthorised changes to a building at No. 2 Hardwicke Place, including a raised roof that allowed for an additional fourth-floor apartment. The company acknowledged that the works were not covered by the original permission. In March 1994, before the retention application was submitted, Muldowney recorded that the recommendation would be to refuse the additional apartment and the top-hung sash windows. The judge found this was a declared position, not merely information gathered for enforcement purposes.
The judge found that senior planner Michael Gough later reviewed the application and recommended permission subject to conditions. His report was removed from the planning file, and the only report sent to the Assistant City Manager for the decision was Muldowney’s refusal recommendation, countersigned by McDonnell. The Assistant City Manager did not know about the complaints against the planners, the March note, or Gough’s contrary report. The judge found the resulting decision was based on an incomplete and distorted account.
On appeal, the planning authority sent An Bord Pleanála Muldowney’s report and additional comments, but not Gough’s report or the relevant complaints and internal records. The judge found the Board and its inspector had acted without wrongdoing, but had been deprived of significant material needed to understand the background. The court did not decide whether the Board would have reached a different planning conclusion with the complete record.
The court also extended the time for bringing the challenge, finding that the company had a justifiable explanation for waiting until it learned more about Gough’s involvement. It concluded that the Board’s decision was unlawful, but did not make a final order in the judgment. It invited further submissions on the appropriate orders, noting that the company sought a valid permission and that a reference back for that purpose might be appropriate.