Justice Haughton quashed a decision by Dun Laoghaire Rathdown County Council (DLR) to refuse planning permission to O’Flynn Capital Partners (OFCP) for the construction of a large residential development at Cabinteely, Dublin 18. Access to the development would be provided via a road called the Druids Glen Road which would link with a planned signalised junction on the N11. The proposed Druids Glen Road crossed OFCP’s lands and two adjoining landowners properties and once completed would also provide critical access to the remainder of the SDZ.
As part of their application, OFCP sought permission to construct the section of the Druids Glen Road located on its land. This small piece of land, which fell within an SDZ was the main bone of contention between the two parties. In a lengthy judgement, Justice Haughton set out multiple reasons for his decision to overturn DLR’s decision but in particular his guidance on planning applications for lands within an SDZ will be of interest to many developers and landowners.
The concept of a Strategic Development Zone
SDZs were introduced in May 2015 by Part IX of the Planning and Development Act 2000 (the Act). Under Section 166 of the Act, following consultation with the relevant development agency or planning authority, the Minister for Environment or Local Government may designate an area as an SDZ “to facilitate” development “of economic and strategic importance to the State”. Following designation of an SDZ, a draft planning scheme (Planning Scheme) is prepared setting out how the site should be developed. The Planning Scheme goes through a series of assessments and public consultation before being adopted and may be appealed to An Bord Pleanala. Once a site falls under the remit of the Planning Scheme, section 170 of the Act deals with how a planning application must be determined and in particular Section 170(2) provides as follows:
“Subject to the provisions of Part X or Part XAB, or both of those Parts as appropriate, a planning authority shall grant permission in respect of an application for a development in a strategic development zone where it is satisfied that the development, where carried out in accordance with the application or subject to any conditions which the planning authority may attach to a permission, would be consistent with any planning scheme in force for the land in question, and no permission shall be granted for any development which would not be consistent with such a planning scheme.”
In this case, while the bulk of OFCP’s development concerned lands which fell outside the area governed by the Planning Scheme, the small section of the Druids Glen Road which OFCP wanted to construct fell within the area governed by the Planning Scheme and thus fell to be determined under Section 170.
Grounds for challenging DLR’S decision
OFCP sought an order quashing the entire decision of DLR to refuse permission or alternatively the decision insofar as it related to the Druids Glen Road. One of OFCP’s core arguments was that their application in respect of the Druids Glen Road was consistent with the Planning Scheme and that DLR was obliged under S170 to grant planning permission. They argued that DLR had improper motives in refusing permission as DLR wanted to compel OFCP to provide access to its lands to adjoining owners.
Decision of the court
Justice Haughton concluded that the effect of Section 170 is that if an applicant can establish that the proposed development is consistent with a planning scheme or the planning authority is satisfied it would be consistent if conditions were attached, then the planning authority must grant permission or grant it subject to conditions. He noted that Section 170(2) is a “radical provision” which obliges planners to take a different approach when assessing application, as their assessment is controlled by “pre-ordained terms of the planning scheme” which has been through a series of planning checks as well as a public consultation process. He noted that planners should take a “holistic approach” and DLR could not refuse permission to OFCP if permission could reasonably be granted subject to conditions.
On examination of the facts, it appeared that the DLR had concerns that the completion of the roadway in different sections could lead to the creation of a “ransom strip”. Justice Haughton took the view that the real motive for refusing permission was to oblige OFCP to make a joint or co-ordinated application with adjoining landowners in respect of the entire road thus avoiding the this potential problem. As properly construed, the Planning Scheme did not prohibit an application for permission to construct only part of the Druids Glen Road. Justice Haughton found that DLR had taken into account irrelevant considerations due to improper motive which tainted the entire decision and it should be quashed.
This case highlights the different approach to be taken by local authorities in considering an application for a development within an SDZ. As a Planning Scheme has been specifically designed for the area by experts and has been through extensive assessments and public consultation, even if an individual planner has a concern in granting planning permission, provided the application is “consistent” with the planning scheme, permission must be granted (subject to conditions if necessary).
O’Flynn Capital Partners v Dun Laoghaire Rathdown County Council  IEHC 408