Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 587
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Denis McDonald

Background

Dublin Cycling Campaign CLG (Dublin Cycling) sought an order of certiorari quashing An Bord Pleanála’s February 2020 decision to grant planning permission pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 s.9(4) for the construction of a development comprising 741 “build-to-rent” apartments, retail space and associated site works to the rear of Connolly Station and adjoining Sheriff Street Lower.

The 2016 Act provides that applications for planning permission for Strategic Housing Developments (SHD), being housing developments of more than 100 residential units or 200 plus student bed spaces, can be made directly to An Bord Pleanála. Any other development would have to go through the normal planning process.

The development site includes part of a car park used by Córas Iompair Éireann (CIÉ). Under the terms of the Development Agreement, the developer Oxley Holdings Ltd is required to maintain 180 carparking spaces exclusively for the use of CIÉ.

Dublin Cycling argued that An Bord Pleanála erred in law in not considering the works to be carried out on the construction of a third floor car parking deck (providing 135 of those 180 CIÉ car parking spaces) and access ramps. An Bord Pleanála and Oxley Holdings, which was a notice party, argued the CIÉ car park did not require planning permission and did not need to be counted for “other uses” within the meaning of the 2016 Act.

Mr Justice Denis McDonald outlined the relevant principles governing the construction of planning documents. He referred to Mr Justice Niall McCarthy’s judgment in Re XJS Investments Ltd [1986] IR 750, which he said provided that planning documents “should be construed not as complex legal documents drafted by lawyers but in a way in which members of the public, without legal training, might understand them.” He referred to the judgment of Mr Justice Frank Clarke in Lanigan v Barry [2016] 1 IR 656 who described this process as an example of the “text in context” method of construction appropriate to the determination of the meaning of all documents potentially affecting legal rights and obligations.

He noted that planning permission should be interpreted objectively, citing the judgment of Mr Justice Nial Fennelly in Kenny v Dublin City Council [2009] IESC 19 where it was stated that “A planning permission is a public document; it is not personal to the Applicant, but rather ensures for the benefit of the land. It follows as a consequence that a planning permission is to be interpreted objectively, and not in light of subjective considerations peculiar to the Applicant or those responsible for the grant of planning permission.” These principles were restated by the Court of Appeal in Camiveo Ltd v Dunnes Stores [2019] IECA 138.

The judge said he therefore had to place himself in the position of such a member of the public and attempt to reach an objective construction of the relevant planning documents, which required “a careful but not legalistic consideration of the relevant planning permission construed in the context of the application for permission and supporting documents.”

Counsel for An Bord Pleanála argued that there was no legal requirement which compelled Oxley to make an application for planning permission in respect of the proposed use of the deck as a car park. She referred in particular to Mr Justice Brian McGovern’s judgment in Ó Gríanna v An Bord Pleanála (No. 2) [2017] IEHC 7 and to the decision of the Supreme Court in Fitzpatrick v An Bord Pleanála [2019] IESC 23. She submitted that there was no legal obligation on Oxley to apply for planning permission for car park use at the same time as the application made under s.4 of the 2016 Act, on the basis that such use might be characterised as being linked or associated with the development for which permission has been sought. She also argued that there was nothing in s.3 or in any of the case law to suggest that something for which planning permission is not sought must be included in “other uses” for the purposes of the s.3 definition.

The judge said that he did not disagree with that submission, stating that it was “obviously a matter of Oxley to determine” what form of application it wished to make. He said that Oxley “clearly took an informed decision to deliberately not include an application for use of the deck as a car park.” The reason for that, the judge found, “appears to be obvious”. Had such an application been made, An Bord Pleanála would have been forced to conclude that the proposed development did not fall within the ambit of “strategic housing development” as defined in the 2016 Act.

The court noted that An Bord Pleanála was informed in plain terms that, although no application was being made for planning permission for car parking on the deck within the housing development, the deck would be used for this purpose and the reason why it was not being included in the application was “not because it did not form part of the development but because it allegedly constituted an existing use and, moreover, that Oxley was legally obliged to provide these spaces under the terms of the development agreement in question with CIÉ.” The judge said that “against that backdrop, it is wholly implausible … to suggest that the proposed use of the deck as a car park does not fall, as a matter of simple fact, within the ambit of ‘other uses on the land’ included in the proposed housing development”.

Mr Justice McDonald upheld Dublin Cycling’s arguments that An Bord Pleanála had erred in law by not assessing the 135 car parking spaces as part of the planning application. The judge held that because the car park use was required to be counted for the purposes of the 4,500 square metre limitation on “other uses” in the definition of SHD contained in s.3 of the 2016 Act, Dublin Cycling succeeded in establishing that the proposed development does not constitute “strategic housing development” within the meaning of s.3 of the 2016 Act, and An Bord Pleanála’s decision was therefore ultra vires.

Conclusion

The court granted an order of certiorari quashing the decision to grant planning permission.