Background

This case concerned the granting of permission by An Bord Pleanála (the Board) for an increase in the height of a 248-unit apartment development in Harold’s Cross, Dublin as a Strategic Housing Development (SHD). It follows two previous judicial reviews. The first [1] had challenged the planning permission of an earlier phase of the development. That dispute was settled on the terms that mature trees would be planted to reinstate the privacy of the adjacent resident. The company who had agreed to do this did not do so and have since been liquidated. The second [2] and this third judicial review, concern the later permissions having been granted under the SHD procedure and in particular, the increase in height from 16m to 19m resulting in contentions over substandard daylight.

Relief sought

The Applicant, Mr Walsh sought to quash the decision of the Board, which had been granted by the Board after being remitted under the second judicial review.[3]

As regards to this judicial review, the Applicant made three key arguments as follows:

1. There had been a breach of fair procedures in the provision of certain material to Mr. Walsh
2. The legislation had not been correctly cited
3. The Board had failed to comply with rules that allow them to make decisions in material contravention of development plans.

Decision

Under (i), the Applicant complained that he only received the developer’s additional material, which was quite lengthy and technical, on the afternoon before the oral hearing and during the course of the oral hearing. He then had only two days to deal with it by way of a responding submission. The High Court held that while the Board had “sailed close” to being unfair, no unfairness actually occurred.

The second ground, (ii), concerned the Board having used their power to override Dublin City Council’s development plan to maintain buildings at a height of 16m, by permitting a development which extended to 19m in height. The Board’s power to override development plans is permitted under, and to the extent provided by Section 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016, where only zoning decisions within development plans are unchallengeable by the Board. If such a power is exercised, other requirements under Section 37(2)(b) of the Planning and Development Act 2000 as amended, (PDA) must also be met.

The Board did not expressly refer to Section 9(6), but rather solely referred to Section 37(2)(b). Mr Walsh claimed this was an error of law, but the High Court was of the view that it was simply an omission of something that did not have to be referred to. Mr Justice Humphreys stated, to date, it is not a requirement that an administrative decision-maker expressly refer to all of the legislative provisions relied on.

It was on the third ground (iii) that Mr Walsh succeeded. Where planning applications are made for developments that fall short of certain building standards, the Board is entitled to grant permission in certain circumstances. Any such failure to meet standards however, would need to be “clearly identified” in the Board’s decision. In this case, the Board referred to the general standard of 2% average daylight factor and understood that the applicant for permission had not met this standard. In such a situation, the Court stated that there is a need to identify in precise and clear terms the extent of the failure to meet standards as this is critical to the evaluation of the acceptability of a project. The extent to which an application falls short of building design standards, and why, is critical to whether a sub-standard design such as one the subject matter of the proceedings should be accepted. As this did not occur in this matter, Mr Justice Humphreys held that the assessment by the Board cannot be lawfully accepted and the planning permission was quashed.

The developer, when making the application, did not provide the Board with adequate material to measure out the extent of the non-compliance. While the legal basis for quashing the Board’s decision was in fact due to an omission of the Board, this occurred because the developer’s omission flowed through to the Board’s assessment.

Practical implications

One practical lesson to be taken from these proceedings is that in the making of planning applications, adequate material should always be provided by the developer to the relevant planning authority. The planning authority can only assess the documents with which it has been provided. While planning authorities do have powers to request further information, this power is not always exercised. Mr Justice Humphreys explained that the decision was necessary to “reduce the prospect of any sub-standard, cramped, low-daylight apartments of today becoming the sink estates and tenements of tomorrow.”

[1] 2018 No. 1083 JR
[2] 2020 No. 266 JR
[3] 2020 No. 266 JR