Developer can defend challenge to planning permission after Bord Pleanála concedes, court rules

Ballyboden Tidy Town Group’s action concerns approval for 241 apartments near the Dublin mountains

A developer has received permission to step in, following An Bord Pleanála’s concession, to defend a High Court action over planning permission for 241 apartments near the Dublin Mountains.

The board indicated last May that it would not be opposing Ballyboden Tidy Town Group’s pursuit of an order quashing the July 2021 approval of the strategic housing development in Woodstown, Dublin.

It was conceding the case due to a ground alleging there was a failure to assess whether there was adequate public transport capacity.

Ardstone Homes Limited, which was a notice party in the action against the board, brought a motion seeking permission to defend the action.

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In a ruling published on Tuesday, Mr Justice Richard Humphreys granted Ardstone liberty to defend. However, he said the court is not obliged to give the views of a notice party the same weight as that of the decision-maker.

At the hearing of the motion, the Ballyboden group claimed the developer was collaterally questioning the validity of a decision covered by section 50 of the Planning and Development Act of 2000, namely An Bord Pleanála’s decision to concede.

The judge did not agree, finding instead that the board’s concession was a litigation decision.

“It has nothing to do with the 2000 Act or procedures under that Act, and indeed like virtually any litigation decision by a public body, it is not, in principle, judicially reviewable,” he said.

The judge was not convinced by Ardstone’s argument that it did not have to meet any threshold to defend the board’s decision. Mr Justice Humphreys said he believes the correct test is for the developer to show it has substantial grounds in support of defending the case. Ardstone met this threshold, he said,

He pointed to a statement sworn by an Ardstone representative which relates to bus transport and traffic assessments.

Mr Justice Humphreys also considered the developer’s rights to an effective remedy and property under the Constitution, the European Court of Human Rights and the EU Charter.

Had An Bord Pleanála refused the planning permission, Ardstone would have been entitled to ask the High Court to judicially review that decision, he said. It would be “somewhat perverse”, he added, if the developer was in a worse position now due to having received approval.

He noted Ardstone wished to reflect on whether it would seek to address the transport capacity point as a preliminary issue or whether it would immediately address all of the applicant’s grounds.

Ballyboden Tidy Town Group raised the question of whether the presumption of validity should continue to attach to a decision that has been conceded by the decision maker.

Mr Justice Humphreys said this can be addressed at the hearing.

The impugned permission in this case is part of a wider set of approvals granted to Ardstone for hundreds of homes at the site off Stocking Avenue.

Among these was a permission for a further 114 apartments which is the subject of a separate judicial review action by the Ballyboden group, represented by FP Logue solicitors.

Separately, An Bord Pleanála conceded last month in another case brought by Ballyboden Tidy Town Group over permission for 329 houses and apartments planned for Woodstown, Ballycullen, by Ballycullen Limited Partnership.

Ellen O'Riordan

Ellen O'Riordan

Ellen O'Riordan is High Court Reporter with The Irish Times