Spencer Place Development Company Ltd. v Dublin City Council

Factual and Procedural Background

The Applicant, a development company, is the leaseholder of lands within a strategic development zone (SDZ) in The City, governed by a statutory planning scheme established in 2014 prescribing maximum building heights. The Applicant submitted two planning applications in early 2019 seeking to increase building heights beyond those prescribed by the existing planning scheme. The Applicant relies on statutory guidelines issued by the Minister for Housing, Planning and Local Government in December 2018 ("the building height guidelines") to argue that the planning authority is authorized to grant permission notwithstanding the exceedance of the planning scheme limits.

The planning authority, The City Council, disagrees, maintaining that the building height guidelines do not apply to planning schemes and that the applications must be determined by reference to the extant planning scheme. Prior to judicial review proceedings, the Applicant exchanged correspondence with the Council, including senior counsel opinions, and the City Planning Officer issued a briefing note interpreting the guidelines. The Council contends the briefing note has no formal legal standing and that the judicial review is premature as no final decision on the planning applications has been made.

The judicial review proceedings were initiated by the Applicant on 23 April 2019, with a hearing before the High Court in late May 2019. The Court faced a procedural objection regarding the timing of the review and a substantive dispute over the interpretation of the building height guidelines in relation to SDZ planning schemes.

Legal Issues Presented

1. Whether the building height guidelines, specifically SPPR 3, apply immediately to planning applications within areas subject to an SDZ planning scheme or only after a statutory review and amendment of the planning scheme.
2. Whether the judicial review proceedings are premature given that no final decision on the planning applications had been made at the time of the application.
3. The proper interpretation and legal effect of the deeming provisions relating to planning schemes under the Planning and Development Act 2000 (PDA 2000) in the context of the guidelines.
4. The extent to which the SEA Directive and associated environmental assessments impact the interpretation and application of the building height guidelines.

Arguments of the Parties

Applicant's Arguments

• The building height guidelines apply immediately to planning applications within SDZ planning schemes, authorizing the planning authority to grant permission for developments exceeding the height limits of the existing planning scheme.
• The deeming provision under section 169(9) of the PDA 2000 means a planning scheme is deemed to form part of the development plan, thus SPPR 3(A) applies to planning schemes as well as development plans.
• The briefing note issued by the City Planning Officer is justiciable and reflects an incorrect interpretation of the guidelines.
• The guidelines should be interpreted in conjunction with section 1.14 of the guidelines, which states that SPPRs take precedence over conflicting policies of development plans and planning schemes.
• Judicial review at this stage is appropriate to avoid unnecessary expense and delay in preparing planning applications that would be refused under the Council’s interpretation.

Respondent's Arguments

• The briefing note is advisory and lacks formal legal standing; it does not constitute a reviewable act or decision.
• The planning authority’s final decision-maker is the Assistant Chief Executive, not the City Planning Officer, and the briefing note does not bind the decision-maker.
• The judicial review proceedings are premature because no final decision on the planning applications has been made; the proper course is to await the planning decision and then, if necessary, challenge that decision.
• The building height guidelines require a review and amendment of planning schemes before they can have effect, consistent with the statutory procedures and the SEA Directive.
• The interpretation advanced by the Applicant improperly extends the role of the planning authority under section 170 of the PDA 2000 beyond its limited function of determining consistency with the planning scheme.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the procedural objection concerning the timing of the judicial review. It acknowledged that while the briefing note issued by the City Planning Officer is not a formal decision and ordinarily would not be justiciable, the Council had adopted a formal position in its pleadings opposing the Applicant's interpretation of the guidelines. The Court noted that judicial review is generally a remedy of last resort in planning matters, and that the statutory scheme under the PDA 2000 contemplates that judicial review should typically await a final planning decision. The Court found no prejudice to the Applicant in awaiting the outcome of the planning applications before challenging any decision, especially since the applications were submitted before the judicial review was initiated and the Applicant had consented unilaterally to extend the decision period.

Turning to the substantive issue, the Court analyzed the interpretation of the building height guidelines, focusing on SPPR 3, which sets out specific planning policy requirements. The Court emphasized the distinction within SPPR 3 between development plans/local area plans and planning schemes. Unlike development plans, where SPPR 3(A) allows a planning authority to approve development contrary to specific plan objectives, planning schemes are subject only to an obligation to review and amend to reflect the guidelines (SPPR 3(B)), with no immediate effect on planning applications.

The Court rejected the Applicant’s argument that a planning scheme is "deemed" to form part of the development plan for purposes of applying SPPR 3(A). It held that the term "development plan" in section 34 of the PDA 2000 should be understood in its ordinary sense, not extended to include planning schemes. The Court found that the legislative scheme and the structure of the guidelines support a clear distinction between development plans and planning schemes, with planning schemes requiring a statutory review and amendment process before the guidelines take effect.

The Court gave considerable weight to the SEA statement published as part of the environmental assessment process mandated by EU law. The SEA statement explained the rationale for treating planning schemes differently, emphasizing the need for public participation and environmental assessment in any amendments. The Court held that the SEA statement is an integral part of the decision-making process and properly considered when interpreting the guidelines.

The Court also declined to give weight to extraneous statements by the Minister in Parliamentary Questions, distinguishing these from the SEA statement and emphasizing that interpretation of guidelines is a matter for the Court.

In conclusion, the Court held that the building height guidelines do not authorize a planning authority to grant planning permission inconsistent with an extant planning scheme absent the completion of a statutory review and amendment process. Pending such amendment, the planning scheme continues to govern planning applications within the SDZ.

Holding and Implications

The Court DISMISSED the Applicant’s application for judicial review in its entirety.

The direct effect of this decision is that the planning authority is not obliged to apply the building height guidelines immediately to planning applications within an SDZ planning scheme area. Instead, the planning authority must continue to determine applications in accordance with the existing planning scheme until such time as the scheme is reviewed and amended following the statutory procedures, including public participation and environmental assessment. No new precedent was set beyond confirming the proper interpretation of the building height guidelines in this context and the procedural approach to judicial review in planning matters.