The High Court has allowed the developer behind the White Pines East housing scheme to defend a judicial review of its planning permission, after An Bord Pleanála said it would not oppose the challenge.
In a judgment delivered on 10 March 2023, Mr Justice Humphreys ruled that the developer, identified in the judgment as the notice party, had shown “substantial grounds” for being allowed to defend the proceedings. The court did not determine the underlying challenge or decide whether the permission should be quashed.
Ballyboden Tidy Towns Group brought the proceedings against the board, Ireland, the Attorney General and South Dublin County Council. The challenge concerns the board’s 19 July 2021 permission for White Pines East SHD, a development including 241 dwellings at a site on Stocking Avenue, Woodstown, Dublin 16. The group seeks certiorari, an order quashing the permission.
The board told the parties in May 2022 that it would not oppose the claim on core ground 10, which alleged a failure to assess whether public transport capacity was adequate. The developer then applied for liberty to defend the case. The board agreed to an order for costs against it up to 20 June 2022 and was excused from the proceedings thereafter, with liberty to apply.
The applicant argued that the developer should not be allowed to contest the board’s concession and that the concession could be challenged through judicial review. The judge rejected that argument: he said the board’s decision to concede was a litigation decision, not a decision under the Planning and Development Act 2000. The developer’s route was to seek permission to defend the existing proceedings.
The judge held that a notice party seeking to defend a decision the decision-maker no longer wished to stand over must show a sufficient basis for its proposed defence. In this planning case, he considered “substantial grounds” the appropriate threshold. He said the developer’s affidavit and supporting material—including material on bus transport, the environmental impact assessment report and planning report—met that threshold at this stage. He did not decide the merits of the proposed defence.
The order grants the developer liberty to defend as sought in its motion. The court directed that the matter be listed for directions on the procedure to follow. It left for a later hearing questions including whether core ground 10 should be heard as a preliminary issue, whether the permission retains a presumption of validity after the board’s concession, and the extent of the developer’s duty of candour. The judge also said that a notice party allowed to step into a respondent’s shoes may take on relevant obligations, and that its views need not receive the same weight as the decision-maker’s.