Supreme Court to consider when developer can defend permission An Bord Pleanála no longer backs

The Supreme Court will consider the circumstances in which it is appropriate for a property developer to defend in court a planning permission An Bord Pleanála has decided should be quashed.

The issue arises in a community group’s appeal against the High Court’s decision to allow Ardstone Homes Limited to step in to defend approval it received for the development of 241 apartments near the Dublin Mountains.

The board, which was the respondent in the case, indicated in May 2022 that it would not oppose Ballyboden Tidy Town Group’s pursuit of an order overturning the July 2021 permission for the strategic housing scheme in Woodstown, Dublin.

It conceded due to a ground alleging there was a failure to assess whether there was adequate public transport capacity.

The High Court’s Mr Justice Richard Humphreys later allowed Ardstone, as a notice party in the case, to take up the role of defending the planning permission.

A three-judge Supreme Court panel said in a written determination that Ballyboden’s request for an appeal raises a “novel but important issue” that could have implications for other areas of judicial review.

The court will examine when a party that has benefited from an administrative decision that has been challenged via judicial review by another group can defend a decision that the decision-maker has conceded should be quashed.

The judging panel said Ballyboden, represented by FP Logue solicitors, submitted that the High Court’s decision is in direct conflict with a decision by another High Court judge: Mr Justice Denis McDonald. Mr Justice Humphreys did not make it clear how the developer’s rights should be balanced against other factors, such as court resources, Ballyboden claims.

An Bord Pleanála did not oppose the request for an appeal that bypasses the Court of Appeal.

It submitted, the judges said, that the standard of “sufficient grounds to defend the case” applied by Mr Justice Humphreys was markedly lower than that identified by Mr Justice McDonald.

The board wanted clarity on the practical effect of a court order on a ground it has conceded in circumstances where it contests other legal grounds in the same case. It submitted this would involve additional expenditure by the board.

The Attorney General wanted leave to be granted and cited similar circumstances to those raised by Ballyboden and the board.

Meanwhile, Ardstone opposed the appeal request and argued that a notice party in judicial review proceedings is entitled to fully participate in the case, including defending a decision in which it has a material interest.

Ardstone also said it is not in the interests of justice to further delay the construction 241 homes. It also submitted that a developer has only stepped in to defend proceedings three times in five years, over which time the board has conceded 59 cases.

Ms Justice Elizabeth Dunne, Ms Justice Marie Baker and Ms Justice Aileen Donnelly said the court would hear the appeal.