Grassridge Limited v Dun Laoghaire Rathdown County Council

Factual and Procedural Background

The Applicant ("Company A") sought judicial review by way of certiorari to quash the decision of the Respondent ("The County Council") dated 27 August 2024, which refused to extend the duration of a planning permission ("the Impugned Decision"). The planning permission related to a development site formerly occupied by a nursing home located on Ardburgh Road, The City, County Dublin ("the Site").

Initially, Company A applied in 2018 for planning permission to demolish the nursing home and construct 15 dwellings with associated works. The County Council refused permission, but it was granted on appeal by the relevant planning board in May 2019 ("the Permission"). The Permission's "appropriate period" was due to expire on 7 September 2024.

Construction commencement was delayed due to factors including the Covid-19 pandemic and tender costs. Works commenced in April 2024, with site preparation, demolition, and excavation of over 5,000 cubic meters of granite bedrock completed by the expiry date. The value of the works done was approximately €1.125 million.

Company A applied on 2 July 2024 for a two-year extension of the Permission under section 42 of the Planning and Development Act 2000 ("PDA 2000"). This application included a detailed submission ("the Submission") outlining the extent and value of works completed and citing precedent decisions. The County Council refused this First Extension Application on the basis that substantial works had not been carried out pursuant to the Permission.

Company A made a second extension application on 2 September 2024, which was also refused. Company A seeks judicial review of the Impugned Decision on various grounds including errors of law and fact, failure to consider submissions adequately, inadequate reasons, breach of fair procedures, irrationality, and disproportionality.

Legal Issues Presented

1. Whether the County Council erred in law in its interpretation and application of the statutory criteria under section 42(1) PDA 2000, specifically the meaning of "substantial works".
2. Whether the County Council made an error of fact in concluding that the works carried out were not substantial.
3. Whether the County Council failed to adequately consider Company A's submissions and provide adequate reasons for the Impugned Decision.
4. Whether the Impugned Decision was made in breach of fair procedures or was disproportionate.
5. Whether the Impugned Decision was irrational and hence ultra vires.

Arguments of the Parties

Applicant's Arguments

• The County Council misinterpreted the statutory requirement of "substantial works" by applying a holistic test that required a certain threshold relative to the entire development, which is not mandated by the statute.
• The works completed, including demolition and extensive excavation valued over €1 million, are substantial as a matter of ordinary meaning and fact.
• The County Council failed to properly consider detailed submissions and precedent decisions cited, and gave inadequate reasons for refusal.
• The decision breached fair procedures and was disproportionate, given acceptance of commencement notices, payment of fees, and financial contributions.
• The Impugned Decision was irrational as no reasonable planning authority could conclude that such works were not substantial.

Respondent's Arguments

• The County Council lawfully applied the statutory test by assessing whether substantial works had been done in the context of the entire permitted development, consistent with established case law.
• The question of whether works are substantial is a matter of evaluative judgment and discretion for the planning authority, not subject to merits review.
• The County Council adequately considered all submissions, including the detailed submission and precedent decisions, but was not bound by them.
• Acceptance of commencement notices and payments under separate regulatory regimes does not fetter discretion or imply satisfaction of planning criteria.
• The decision was made in accordance with fair procedures and was not disproportionate; proportionality is subsumed within the rationality test and there was no overwhelming disproportionality.
• The Impugned Decision is presumed valid; the Applicant cannot impugn the merits or argue irrationality without overwhelming evidence, which is absent.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the statutory framework under section 42(1) PDA 2000, which requires the planning authority to extend the duration of a planning permission if it is satisfied that:

• The development was commenced before expiry of the appropriate period;
• Substantial works were carried out pursuant to the permission during that period;
• The development will be completed within a reasonable time.

The Court emphasized that the term "substantial works" is not rigidly defined but must be given its ordinary meaning in context, which involves a relative assessment compared to the entire permitted development. This interpretation is supported by precedent such as Frenchurch, Garden Village, and Littondale.

The Court rejected the Applicant's argument that the County Council erred in law by applying a "holistic" or contextual test, finding that such an approach is consistent with established case law requiring consideration of the works in relation to the entire permitted scheme.

Regarding the alleged error of fact, the Court held that the County Council's conclusion that the works done—principally demolition and excavation—were not substantial was a matter of evaluative judgment within the discretion of the planning authority. The Court found no material error of fact or irrationality in that conclusion given the works had not progressed beyond excavation of foundations and services.

The Court addressed the Applicant's contention that the County Council failed to consider submissions and provide adequate reasons. It found that the County Council had regard to all submissions, including detailed valuations and precedent decisions, and that the Planner's report, while concise and conclusionary, provided adequate reasons in context. The decision-maker's engagement with submissions was presumed and not rebutted by evidence.

On fair procedures and proportionality, the Court held that no procedural unfairness was demonstrated. The acceptance of commencement notices and payments under separate regulatory regimes did not fetter the County Council's discretion in assessing substantial works. Proportionality was considered within the rationality test, and no overwhelming disproportionality was found.

Finally, on irrationality, the Court reiterated the high threshold required to quash a decision on such grounds. It concluded that the County Council's decision was not fundamentally at variance with reason and common sense. The fact that the works done were limited to excavation and had not reached construction beyond foundations justified the evaluative judgment that works were not substantial.

Holding and Implications

The Court DISMISSED the proceedings and upheld the Impugned Decision refusing the extension of the planning permission.

The decision confirms that the assessment of whether "substantial works" have been carried out under section 42(1) PDA 2000 is a relative and evaluative judgment for the planning authority, considering the works in the context of the entire permitted development. The Court reaffirmed the limited scope of judicial review in this area, emphasizing that merits-based challenges are impermissible absent irrationality or procedural unfairness.

The direct effect is that Company A's planning permission expired without extension, and construction works must cease. No new legal precedent was established; rather, the decision applies existing principles to the facts of the case.