The Supreme Court has agreed to hear an appeal with important implications for the work of An Bord Pleanála and some ten other challenges over strategic housing developments.
The appeal concerns a High Court decision to send a planning application for 102 build-to-rent apartments in Dún Laoghaire, made under the now-expired strategic housing development procedure, back to the board for reconsideration.
In a determination published this week, a panel of three Supreme Court judges said it would hear an appeal because the case raises issues of general public importance, including regarding the scope of the High Court’s power to remit to the board and to give directions to it regarding an oral hearing.
An appeal is also in the interests of justice as the outcome will probably govern some ten other strategic housing cases pending before the High Court, it said.
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The proposed development by Fitzwilliam Ltd – on the grounds of St Michael’s Hospital, Crofton Road – is for a development of apartments up to 13 storeys high, with two retail units, private residential amenity space and a cafe.
The board’s permission was challenged in High Court proceedings by Crofton Buildings Management CLG, manager of an adjacent apartments development at Harbour View, and by Stephanie Bourke, of Carrickbrennan Road, Monkstown, who owns an apartment in Harbour View.
After the board conceded the case, the core dispute became whether the court should simply overturn the permission, with the effect the planning process would have to be restarted, or remit the matter to the board for reconsideration. The board and the developer favoured remittal but the applicants argued the permission should simply be overturned.
In a lengthy judgment last December, Mr Justice David Holland decided in favour of remittal. He directed the board, when reconsidering the application, must have regard to the 2022 Dún Laoghaire development plan and hold a public oral hearing in line with fair procedure requirements.
He subsequently granted an application by Crofton to certify issues to be decided on appeal to the Court of Appeal.
Crofton also asked the Supreme Court to hear a ‘leapfrog’ appeal, one direct to that court from the High Court.
In its determination, the Supreme Court panel said it will hear an appeal, with the effect the issues will now be decided by the Supreme Court rather than the Court of Appeal.
The court noted the board had conceded its permission for the development must be quashed because it had failed to apply a provision under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 inasmuch as the decision materially contravened provisions of the 2016 Dún Laoghaire-Rathdown development plan regarding building height.
If the permission was simply quashed, as the applicants sought, any fresh application by the developer would not be under the accelerated planning system prescribed by the 2016 Act, since expired, the court noted. However, remittal would mean the board would have to reconsider the application under the 2016 Act.
A further consideration was that the 2016 development plan had since been replaced by a 2022-2028 development plan and the parties were in dispute whether any fresh reconsideration should be under the 2016 or 2022 plan. Another issue was whether any remittal where the 2022 plan applied could be in line with fair procedures.
The issues raised include whether the effect of the decision to remit was inconsistent with existing High Court case law and whether it distorted the nature of the statutory scheme, the court said.
As development plans of several local authorities have changed, the question of which development plan should govern any remitted decision was also of considerable importance.
Noting a public interest in hearing and determining the matter speedily, the court made directions for filing of legal submissions and fixed the matter for case management in early October.
