In North Great George’s Street Preservation Society v An Bord Pleanála Mr Justice Humphreys refused to quash planning permission for shared accommodation developments at Hill Street and North Great George’s Street.
The Court was critical of the Applicants, where they contended that an archway located at the front of 36a North Great George’s Street should be afforded the protection of a “protected structure” but had not raised this point at any stage before taking the judicial review. The Court also analysed the Board’s application of the Department of Housing’s Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities (the Guidelines), and considered the manner in which these can be challenged.
Gaslighting the decision maker
As part of the planning application, the Applicants had made a submission to Dublin City Council in which they stated that the development would “have a seriously detrimental effect on the adjoining protected structures” on North Great George’s Street. Judge Humphreys found that the Board could not have known that the Applicants were contending that there was a protected structure within the proposed development site itself. He viewed this as a “case of gaslighting the decision maker”, where the Applicants had failed to make a point and then subsequently sought to challenge the Board’s decision based on their failure to consider this same point. The Court found that requiring the Board to inquire into a multitude of hypothetical factual assertions would be “unworkable”.
Incorrect decision permissible in circumstances
The Applicants attempted to argue that if the archway formed part of a protected structure, it would follow that the permission granted was void from the beginning as the Board did not have jurisdiction to deal with it under the Planning and Development Regulations 2001. The Court disagreed and clarified that in some situations, the Board can “permissibly make an incorrect decision”. If an issue has not been raised before the Board, and it would not have been apparent to the Board from the materials put before it, the Courts will examine whether the Board acted lawfully rather than reasonably in order to determine whether the decision should be quashed.
While the Board is legally required to take a view on whether they are dealing with a protected structure in an application, any laxity in the implementation of this requirement will not automatically be fatal to its decision if this did not or would not have had any impact on their decision.
Challenging the Guidelines
The permission in this case was granted subject to a condition that the shared accommodation units be for single occupancy only and operate in accordance with the definition of Build-to-Rent developments, as set out in the Guidelines. The Applicants argued that this condition should be void for vagueness and uncertainty. The Court viewed this as an “attack” on the Guidelines. Judge Humphreys found that the Applicants should have challenged the Guidelines themselves rather than the Board’s application of these Guidelines.
The Court dismissed the Applicants’ case and refused to quash the permissions. The key messages arising from this decision are that objectors:
- Cannot raise new issues for the first time in judicial review proceedings in circumstances where those issues have not already been put before the Board; and
- Are precluded from challenging planning conditions that stem from policy documents or guidelines, as this is viewed as a collateral attack on the relevant policy documents or guidelines. Instead, objectors should have challenged those documents/guidelines themselves.