The High Court dismissed a judicial review brought by Spencer Place Development Company Limited over how national building height guidelines apply to planning applications in a strategic development zone (SDZ).
Mr Justice Garrett Simons ruled on 30 May 2019 that the guidelines did not authorise Dublin City Council to set aside the North Lotts and Grand Canal Planning Scheme 2014 when considering applications for taller buildings. Under the guidelines, the scheme had to be reviewed and amended through the statutory process before the new height policy could govern applications in the SDZ.
The company, leaseholder of lands at Spencer Place, Spencer Dock, had two applications pending with the council. One concerned office buildings described as the “Salesforce Building”; the other proposed residential development and an aparthotel at Spencer Place. The second application sought, among other changes, to increase Block 1 from seven to 13 storeys and Block 2 to 11 storeys. The existing scheme set maximum heights of five to eight storeys for commercial buildings and six to 10 for residential buildings, with a possible set-back floor.
The company argued that Specific Planning Policy Requirement 3(A) allowed the council to approve development that met the guidelines’ criteria, even where a planning scheme set different limits. It sought declarations that the council’s interpretation was incorrect and that the guidelines applied to the applications before the scheme was amended.
The council’s briefing note had said the requirements allowing departures from plan objectives did not apply to an approved SDZ scheme, which should instead be reviewed. The council also argued that the judicial review was premature because the applications had not yet been decided.
The judge said he would have resolved the procedural objection in the council’s favour: the company could have challenged the council’s interpretation after the planning decisions, which would show how the issue had been addressed. He nevertheless considered the substantive arguments as well, to avoid a possible second High Court hearing if that procedural ruling were overturned on appeal.
On the substance, the judge read the guidelines as treating development plans and local area plans differently from planning schemes. Requirement 3(A) addressed the former; requirements 3(B) and 3(C) dealt specifically with schemes. The guidelines required existing schemes to be reviewed and amended, with public participation and any necessary environmental assessment, and the amendments required approval by An Bord Pleanála. Until then, applications in an SDZ had to be determined under the existing scheme.
The court dismissed the judicial review in its entirety and refused the declarations sought. It did not decide the pending planning applications. The judge said he would hear the parties on costs, including whether special planning-law cost rules applied.