Courts, “contrary to an extraordinarily popular delusion these days”, do not tend to quash things on the basis of “mere technicalities”, a High Court judge has said.
Mr Justice Richard Humphreys, who manages the court’s planning and environment list, was delivering a judgment overturning Dublin City Council’s planning approval for a 221-bed student accommodation development on lands at Church Lane, Santry, Dublin 9, after the council conceded the case.
The developer, Aideen Whelan, a notice party, said she could not take on defending the case after the concession and the judge’s indication that issues concerning public participation under EU law arose that would require clarification by the Court of Justice of the EU.
While noting Ms Whelan’s concern about losing a potential purchaser for the site, the judge said this was a “self-induced” problem due to her having twice breached planning regulations.
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The Large Scale Residential Development (LRD) permission was quashed over two breaches of planning regulations which led to excluding Ian Croft, who wished to raise issues about the proposed development, from his legal right to participate in the planning process
The judge noted a first planning application by Ms Whelan on August 1st, 2024, was deemed invalid by the council on August 6th, 2024, due to a defective newspaper notice published by her which failed to refer to the right to public participation in the decision-making process. She made “a second and fatal error “in failing to take down the site notice in relation to the application after the council wrote to her asking her to do so.
She made a fresh planning application on August 7th, 2024, without erecting a fresh site notice, the judge said.
Mr Croft’s evidence that he was unaware of this second application had not been displaced, the judge said. Mr Croft emailed the council about 8pm on August 7th, 2024, regarding the first invalid application. He was informed, in an email about 10am on August 8th that if the application he wished to make a submission on was deemed invalid, he could not make observations on it and should await any new application.
The second application was deemed valid because it included a newspaper notice containing the correct statutory wording. The council granted permission on September 30th, 2024, subject to 26 conditions.
Mr Croft’s evidence was he only became aware of the permission from an article published in The Irish Times in January 2025. He initiated judicial review proceedings on January 22nd, 2025.
This, Mr Justice Humphreys said, was not about a €7.5 million sale put at risk over “a typographical error that made no difference”. It was about two breaches of planning regulations that had the effect of disadvantaging Mr Croft and shutting him out of the process.
The effect of his not participating, due to the breaches, meant he would have been ineligible to appeal the grant of permission, the judge said.
This was “not a harmless error” or something to be ignored as a matter of judicial discretion.
There is, he said, “a big difference” between a breach of public participation and notification requirements that does not adversely affect a judicial review applicant and a breach that does. The latter was a “genuinely proper” ground for quashing the permission.
It is not the law that the size of a proposed transaction or a proposed development overwhelms the need for the right to public participation to have been afforded in accordance with law, he said.
Commerciality is relevant to the court’s consideration in many situations but it must also be “vigilant to protect the procedural rights of less powerful stakeholders in the planning process”, including giving “real and meaningful” effect to the right to public participation in environmental decision making.
