The Supreme Court has refused to allow Dublin City Council to appeal against proposed height increases for two north Dublin dockland apartment blocks proposed by a Johnny Ronan firm.
Three judges of the court said they were not convinced a further appeal is required in the interests of justice, given the local authority has had a full hearing of the case in the High Court and the Court of Appeal.
They also did not believe a point of systemic or general importance arose, as the strategic housing provision in dispute expired at the end of 2021 and the specific legal issue it sought to appeal only came up in two other cases.
The proposed apartment buildings were initially to have seven floors each, but An Bord Pleanála permitted Spencer Place Development Company (SPDC) to increase their height to seven and 13 storeys.
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The local authority brought legal proceedings against the board complaining it had no power to approve height increases that materially contravene the council’s North Lotts/Grand Canal strategic development zone planning scheme.
The High Court overturned the permission in October 2020, but this decision was later quashed on appeal by SPDC, which was a notice party in the case.
The Court of Appeal concluded that An Bord Pleanála was entitled, under a now-extinct provision for strategic developments, to allow a strategic build that defies the scheme. The board did not participate in the appeal but had opposed the council’s case in the High Court.
In its ruling last June, that court said that the existence of the North Lotts scheme would have precluded Dublin City Council from permitting the height increases if SPDC’s application had been submitted to it.
However, SPDC elected to apply directly to the board under the now-defunct strategic housing developments regime. Under the provision, the board was required to “have regard” to the North Lotts scheme but it was expressly permitted to depart from its terms in certain circumstances, the court said.
Legally, An Bord Pleanála was entitled to permit the height increases notwithstanding that the two blocks exceed the building height limits in the North Lotts Scheme, the court held.
The strategic housing provision was in 2021 replaced by a new process for “large-scale residential development”. This restores the role of local authorities as first-instance decision-makers in planning matters.
In seeking to appeal to the Supreme Court, the council contended a matter of general public importance arises concerning the board’s jurisdiction to permit a strategic housing development that contravenes a planning scheme. This issue, it submitted, is of “systemic importance” to the planning system.
SPDC countered that the provision ceased to have effect in December 2021 and it understands this particular issue arose in only two other cases.
In a determination published on Friday, a Supreme Court panel – comprising Chief Justice Donal O’Donnell, Mr Justice Séamus Woulfe and Ms Justice Aileen Donnelly – refused the council’s application.
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