Developer can defend planning permission in case An Bord Pleanála conceded, Supreme Court rules

A developer is entitled to defend planning permission in a High Court challenge, despite An Bord Pleanála conceding there was an error in its decision, the Supreme Court has ruled.

In a judgment on Thursday, the five-judge court said well-established principles support the right of a notice party – such as a developer whose planning permission is under challenge – to defend its “vital interests” in a court case.

On behalf of the court, Ms Justice Aileen Donnelly said that in judicial review cases the High Court is exercising its “inherent power to supervise the legality, rationality and procedural fairness” of public decision-making bodies.

A concession by a body such as An Bord Pleanála is based on its view of the law and “amounts to no more than an opinion”, she said. If the board is no longer continuing as an active party in the case, its view on the law (as opposed to facts) may not be admissible, she added.

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The judges together dismissed a tidy towns group’s appeal against the High Court’s decision to permit Ardstone Homes Limited to defend planning permission it received for 241 apartments on lands in the greater Rathfarnham area near the Dublin mountains.

An Bord Pleanála, which was the primary respondent in Ballyboden Tidy Towns Group’s case. It indicated in May 2022 that it was conceding in the challenge due to a ground alleging there was a failure to assess whether there was adequate public transport capacity and that this failure was in material contravention of urban development guidelines.

Ardstone wants to prevent a revocation of its July 2021 permission, which came under the now-expired strategic housing development regime, which fast-tracked applications for large housing projects.

The developer does not accept there is a “material” contravention and contests the view that such a contravention was accepted in its statement to An Bord Pleanála or in the board’s inspector report.

Ballyboden alleges further invalidities with the board’s permission.

The High Court’s Mr Justice Richard Humphreys permitted Ardstone to take up the role of defending the planning approval, having proved it had “substantial” arguments supporting such a move.

The Ballyboden group appealed his decision to the Supreme Court, arguing it was in direct conflict with another ruling.

In her judgment on behalf of the Supreme Court, Ms Justice Aileen Donnelly said a party with a vital interest in a case must be attached. Once joined, an interested party has a right to protect its interests and to advance arguments that might not be made by the decision-maker, she said.

No threshold has to be overcome, as the notice party obtained an entitlement to defend from the point the High Court decided it was a “person affected” by the board’s decision, she said.

While Ballyboden initially submitted that the court’s role is essentially at an end once the board concedes, the judge said, it later accepted there can be some occasions where a developer is entitled to step in to defend the case.

The board accepted a notice party may be entitled to continue defending but argued the threshold to do so must be high.

It expressed concerns about a situation where it was conceding on one ground but disputed all of the other allegations in the case. The board submitted it might have to incur expenses defending proceedings which, in its view, ought to be conceded.

Ms Justice Donnelly said this, “unfortunately, may be an unavoidable risk” if the notice party’s right of access to the court is to be protected. However, she said, the High Court has various powers to manage proceedings to ensure they are conducted as fairly, expeditiously and cost-effectively as possible.

The judge noted An Bord Pleanála takes an active role in defending its decisions, while other decision-making bodies, such as the Valuation Tribunal do not. This active participation does not alter the underlying principles of judicial review, she said.

“While an expert body may have specific expertise in an area, in matters of law, the High Court, subject to appeal, is the ultimate decision-maker on the interpretation and application of law,” she said.

She dismissed Ballyboden Tidy Towns Group’s appeal with the support of her colleagues: Chief Justice Donal O’Donnell, Mr Justice Séamus Woulfe, Mr Justice Gerard Hogan and Mr Justice Maurice Collins.

How this case proceeds is now a matter for the High Court, Ms Justice Donnelly said.

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