The Court of Appeal has dismissed Spencer Place Development Company Limited’s appeal over a Dublin City Council briefing note on national building height guidelines, holding that the note was not amenable to judicial review and that the proceedings were premature.
The company, which holds a lease over land at Spencer Place in Dublin’s North Lotts and Grand Canal Strategic Development Zone, wanted to add floors to two developments under construction. The 2014 planning scheme for the zone set maximum heights. The company argued that the 2018 Building Height Guidelines, including a specific planning policy requirement known as SPPR 3(A), applied immediately and allowed the Council to consider the extra height.
A City Planner’s briefing note, prepared for elected members on 31 January 2019, said the guidelines’ requirements did not apply to an approved Strategic Development Zone planning scheme. It said the planning authority or development agency had to review the scheme to reflect the guidelines. The elected members noted the briefing note at a meeting on 4 March.
The company applied for permission to increase building heights in January and February 2019. It then agreed, at its own initiative, to extend the deadlines for decisions on both applications until 31 May. It began judicial review proceedings on 24 April, seeking to challenge the briefing note before the Council decided the applications.
In a judgment delivered on 2 October 2020, Ms Justice Costello said the briefing note was prepared to advise elected members on a general policy question, outside the statutory process for deciding the planning applications. It was not written by or addressed to the decision-makers for those applications and had no legal consequences for the company. The fact that the Council might apply the same interpretation when deciding the applications did not turn the note into a reviewable decision.
The judge also held that the proceedings were premature. The company could have allowed the planning process to finish and, if permission were refused, challenged the actual decisions and their reasons. It had shown no exceptional circumstances or credible prejudice that justified going to court earlier. The court did not decide whether the briefing note’s interpretation of the guidelines was legally correct.
The two planning applications were refused on 31 May 2019. The Council argued that this made the appeal moot, but Justice Costello declined to consider that issue. With the agreement of Donnelly and Collins JJ, she dismissed the appeal on the grounds discussed in her judgment, in addition to the reasons set out in a separate judgment by Justice Collins. The judgment does not determine the substantive interpretation of the guidelines described above.