A development company of Johnny Ronan has won its appeal against a High Court decision to quash permission for an increase in the height of two apartment blocks which form part of a larger development in the north Dublin docklands.
An Bord Pleanála had approved height rises for two blocks– one from seven to 13 storeys and the other from seven to 11 floors– in a 500-unit development proposed by Spencer Place Development Company (SPDC).
In October 2020, the High Court overturned this permission in proceedings brought against the board by Dublin City Council.
SPDC, which was a notice party in the case, was allowed to appeal the ruling on a single ground asking whether the board has jurisdiction to grant permission for developments that materially contravene a planning scheme.
Here, SPDC’s development came within Dublin City Council’s North Lotts/Grand Canal strategic development zone planning scheme. The council argued the North Lotts scheme, made in 2012, only permitted heights of up to 10 storeys.
In a ruling on Friday, the Court of Appeal concluded An Bord Pleanála was entitled to grant permission for a strategic housing development that materially contravenes the scheme.
Writing on behalf of the three-judge court, Mr Justice Maurice Collins said it would “seem to follow” that the court should allow the appeal and overturn the High Court’s order quashing the permission.
If the parties agree with such an order, the court will proceed to make it, he said. If there is disagreement, he added, the court will hear from the parties before making its final orders.
An Bord Pleanála did not participate in the appeal but had opposed, along with SPDC, the council’s case in the High Court. The council complained the board had no power to approve height increases that materially contravened the scheme.
Strategic housing developments
Mr Justice Collins said it was not disputed that the existence of the North Lotts scheme would have prevented the council from granting permission if a planning application was submitted to it.
However, SPDC elected to apply directly to An Bord Pleanála under a now-defunct provision for strategic housing developments (SHDs) provided for in the Planning and Development (Housing) and Residential Tenancies Act of 2016.
The SHD process was in 2021 replaced by a new statutory regime for “large scale residential development”, which restores the role of local councils as first-instance decision makers in planning requests.
The judge said SPDC argued in the appeal here was no rational purpose in bringing an application such as theirs under the SHD process if it provided no possibility of a different outcome than strict compliance with the North Lotts scheme.
Such a scenario would render the SHD process “largely ineffectual” in its ability to achieve greater delivery of housing in strategic development zone areas, it submitted.
The council countered that the SHD process existed simply to fast-track planning schemes.
Mr Justice Collins said the High Court’s judgment did not identify any express statutory basis for believing An Bord Pleanála was required to “work within the [North Lotts] scheme and not make a decision in contravention of it”.
That court did not adequately address whether and to what extent the scheme was binding on the board in the first place, Mr Justice Collins said.
Considering the 2016 Act, the judge felt the board was required to “have regard” to the relevant scheme. In this situation, the board “clearly did have regard to the North Lotts scheme”, he added.
The same statutory provision under the 2016 Act that required the board to “have regard” to the scheme entitled it to depart from its terms in certain circumstances, Mr Justice Collins said.
Ms Justice Máire Whelan and Mr Justice Seamus Noonan agreed with the judgment.
