In March and April 2020, An Bord Pleanála ("the Board") granted permission for two housing developments under s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016. The first site was located on Balscadden, Howth, Co. Dublin. It would consist of 180 residential units across four blocks ranging from two to five storeys, one retail unit, two café/restaurant units, three pedestrian plazas, and 139 car and 180 bike parking spaces. The second site was in Claremont, Techrete Site, Howth Road, Howth, Dublin 13. It would consist of 512 residential units across four blocks, reaching a maximum height of 7 storeys above ground level, a childcare facility and associated site works, and a below-ground car park. In 2021, the Plaintiff brought two sets of Judicial Review proceedings challenging the grant of these permissions. He was successful in the Balscadden Road proceedings, with the Court quashing the decision to grant permission. The Board or the developer made no application to appeal. In the Techrete Site proceedings the reliefs sought by the Plaintiff were refused. He did not seek leave to appeal this decision.
In these plenary proceedings, the Plaintiff argued that the 2016 Act that gave the Board its authority was contrary to the Constitution and infringed his and Fingal County Council's right to access the courts. The Plaintiff sought a declaration that the Board acted improperly and an order quashing the Board's decisions made in March and April 2020.
The Court found against the Plaintiff in the plenary proceedings, directing that proceedings be struck out for the following reasons:
- The High Court had already quashed the decision on the Balscadden development, and it was therefore no longer in existence. This limb of the proceedings was considered an abuse of the process.
- The challenge against both developments was a collateral attack on the two decisions. These decisions had already been subject to judicial review, with the Techcrete site permission in particular having already been determined as valid by Hyland J. in the prior judicial review proceedings brought by the Plaintiff.
- The Plaintiff brought the judicial review proceedings outside the eight-week limit imposed by s.50 of the 2000 Act.
- The constitutional challenge should have been raised in the first set of challenges, running foul of the rule in Henderson v. Henderson that prevents new issues from being raised in subsequent hearings.
Finally, the Plaintiff lacked the necessary interest to show that he had been or was likely to be impacted by the impugned legislation. As set out in Cahill v Stone and endorsed by the Supreme Court in Mohan v. Ireland, a tangible interest that either has been or was likely to adversely affect the Plaintiff was required to allow him to mount a stateable challenge to the constitutional validity of an act.
The Court invited submissions on final orders and listed the matter for mention on the 6 October 2022 for final orders.
Written by: Jonathan Moore, Craig Farrar and John Quigley
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