Developer wins leave to appeal against quashing of permission on Connolly site

A developer has secured leave to appeal against an order quashing its permission for a development including 741 build-to-rent apartments on a site at the rear of Dublin’s Connolly Station.

An Bord Pleanála granted permission after designating the development a "strategic housing development" (SHD) under the Development (Housing) and Residential Tenancies Act 2016.

The board can grant permission for a SHD development but all other developments have to go through the traditional planning process.

The development was also to include 135 new car parking spaces but the board and the developer, Singapore based Oxley Holdings Ltd, argued the car park did not require permission and did not need to be counted for "other uses on the land" within the meaning of the 2016 Act.

In a judgment last November, Mr Justice Denis McDonald upheld arguments by Dublin Cycling Campaign CLG the board erred in law by not assessing the car park as part of the planning application. That failure meant the development did not constitute SHD under Section 3 of the 2016 Act and the permission must be quashed, the judge held.

He noted the board was informed in documents submitted by Oxley that, although no planning permission was being sought for a deck within the housing development, the deck would be used for car parking purposes. Oxley had said the reason the deck was not included in its permission application was because it allegedly constituted an existing use and Oxley was also legally obliged, under a development agreement with CIÉ, to provide the car park spaces.

‘Implausible’

Against that backdrop, the judge decided it was “implausible” to suggest the proposed use of the car park does not fall within the ambit of “other uses on the land” included in the proposed housing development.

The materials before the board clearly indicated the deck was to be used as a car park, he said.

An appeal against a High Court decision in planning proceedings may only be taken if the relevant judge grants leave to appeal.

Oxley sought the necessary certificate. DCC opposed an appeal but submitted, if leave was granted, the question proposed by Oxley concerning the reckoning of “other uses” under the 2016 Act should be reformulated.

On Thursday, Mr Justice McDonald held the criteria for leave to appeal were met as a point of law of exceptional public importance arose and an appeal was desirable in the public interest.

He set out three questions for determination. The first asks whether, in reckoning the number of “other uses” for the purposes of the definition of SHD in Section 3 of the 2016 Act, “other uses” may include a use for which planning permission is neither sought not granted.

The second asks whether the answer to question one is any different when materials submitted with the permission application make clear that, as well as the non-residential purposes included in the application, the applicant either intends, or is contractually obliged, to make use of part of the structure of the proposed development for non-residential purposes.

The third question concerns whether certain specified legal tests should be applied without modification, or need to be adjusted, where the available materials contain contradictions of the kind the judge identified in his main judgment.