Introduction

The case of Dublin Cycling Campaign CLG v. An Bord Pleanála (No.2) [2021] IEHC 146 before the High Court of Ireland centers on the interpretation and application of the Planning and Development Act, 2000, and the Planning and Development (Housing) and Residential Tenancies Act, 2016. The primary parties involved are the Dublin Cycling Campaign CLG (Applicant) and An Bord Pleanála, along with Dublin City Council and Oxley Holdings Limited as notice parties. The core issue pertains to the definition and quantification of "other uses" within the framework of "strategic housing development" and whether planning permission was appropriately granted for a car park in the context of a large-scale residential project near Connolly Station, Dublin.

Summary of the Judgment

Justice Denis McDonald delivered the judgment on February 25, 2021, addressing Oxley Holdings Limited's application for leave to appeal a prior decision. The High Court granted an order of certiorari, quashing An Bord Pleanála's earlier approval of a development comprising 741 "build-to-rent" apartments, retail spaces, and associated works. The pivotal questions certified for appeal revolve around whether "other uses" can include uses for which planning permission was neither sought nor granted, and the appropriateness of applying the X.J.S. principles in cases with contradictory documentation.

Analysis

Precedents Cited

The judgment references several key cases that influence its reasoning:

• Re X.J.S. Investments Ltd [1986] I.R. 750: Established principles for judicial review in planning matters.
• Lanigan v. Barry [2016] 1 I.R. 656: Further elucidated the application of planning law principles.
• Glancré Teo v. An Bord Pleanála [2006] IEHC 250: Summarized the criteria for certifying points of law as of exceptional public importance.
• Callaghan v. An Bord Pleanála [2015] IEHC 493: Discussed the threshold for uncertainty in law to warrant an appeal.
• Grace & Sweetman v. An Bord Pleanála [2017] IESC 10: Highlighted the role of the Court of Appeal post the thirty-third amendment to the Constitution.
• S.A. v. Minister for Justice & Equality (No. 2) [2016] IEHC 646: Emphasized that points of law must not be moot to be certified for appeal.
• Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 820: Reinforced the principles around mootness in certifying appeals.

These precedents collectively underscore the stringent requirements for certifying questions of law, emphasizing exceptional public importance and the necessity of addressing legal uncertainties.

Legal Reasoning

Justice McDonald’s legal reasoning delves into the statutory definitions and interpretations within the Planning and Development (Housing) and Residential Tenancies Act, 2016. The key focus is on the definition of "strategic housing development" (SHD) and what constitutes "other uses" within such developments. The High Court scrutinized the extent to which "other uses" could include functions like car parking, especially when planning permission for such uses was neither explicitly sought nor granted.

Furthermore, the court examined the application of the X.J.S. principles, which guide how documents should be interpreted by an ordinary, reasonably informed member of the public without legal training. The presence of contradictory information in the planning documents presented a unique challenge in applying these principles, raising questions about whether modifications to the X.J.S. test are necessary in such contexts.

Impact

The certification of these critical questions paves the way for potential clarifications in the interpretation of SHD under the 2016 Act. A definitive ruling on whether "other uses" can encompass uses without explicit planning permission will have far-reaching implications for future strategic housing projects. Additionally, addressing the applicability of the X.J.S. principles in the face of contradictory documentation will enhance the clarity and reliability of planning permissions, benefiting developers, planners, and the public alike.

Complex Concepts Simplified

Strategic Housing Development (SHD)

SHD refers to large-scale housing projects defined by specific criteria under the 2016 Act, including the development of 100 or more housing units and limitations on non-residential uses within the project. SHD projects benefit from expedited planning procedures to address the housing crisis.

Other Uses

In the context of SHD, "other uses" refer to non-residential functionalities within the development, such as retail spaces or parking facilities. The key issue is determining whether these uses require separate planning permissions or can be included within the overarching SHD application without explicit approval.

X.J.S. Principles

These principles guide the interpretation of planning documents, emphasizing that they should be understood as an ordinary, reasonably informed person without legal expertise would. The challenge arises when documentation contains contradictory information, potentially complicating the application of these principles.

Conclusion

The High Court's decision to certify pivotal questions for appeal marks a significant step towards clarifying the scope of "other uses" within strategic housing developments and the appropriate application of interpretative principles in planning law. Should the Court of Appeal provide authoritative rulings on these matters, it will enhance legal certainty and guide future applications under the Planning and Development Acts. This judgment underscores the judiciary's role in ensuring that planning laws are applied consistently and transparently, thereby fostering effective urban development and addressing public concerns related to housing and infrastructure.