There is a growing sense of disillusionment in
those communities around Ireland that have been finding out that their County Development
Plan’s or Local Area Plan’s building heights restrictions appear to have been
dismissed by statutory guidelines. The ‘Urban Development and Building Heights’
statutory guidelines were issued in December 2018 by the Minister for Housing,
Planning and Local Government. Many communities feel that statutory guidance
should not be allowed to over-ride democratically produced development plans
and consider that the courts may need to intervene in this area.
One area where the courts have been involved is in the
interpretation of the guidelines as they apply in Strategic Development Zones; it is now clear that the guidelines do not provide for extant SDZ planning schemes to be over-ruled with regard to building heights.
Before the summer, Mr Justice Simons handed down a
judgment relating to a case entitled Spencer Place Development Company Limited v Dublin City Council (2019/239 JR). The dispute
between the parties related to the interpretation and interaction between the
statutory building height guidelines and statutory planning schemes adopted for
strategic development zones. The guidelines, entitled "Urban Development
and Building Heights", were issued in December 2018, (the “Guidelines”).
Background to case
Spencer Place Development Company Ltd is the
Developer and leaseholder of lands at Spencer Place, Spencer Dock, Dublin 1.
The lands are located in an area which has been designated as a strategic
development zone, or SDZ, known as the North Lotts and Grand Canal Strategic
Development Zone.
The Developer submitted two applications for
planning permission to Dublin City Council (DCC) seeking to obtain permission
for additional storeys on two sites. The proposed development would exceed the
maximum building heights prescribed under the relevant planning scheme.
The
Developer argued that the legal effect of the Guidelines is that the planning
authority is now authorised to grant planning permission even though the
maximum height restriction for a development within an SDZ was exceeded. The
parties disagreed over whether the relevant policy under the Guidelines
distinguishes between a planning scheme and a development plan. The Developer sought declarations as to the meaning
and effect of the Guidelines. The Developer argued that the two planning
applications fell to be determined by reference to the Guidelines. They
contended that that the Guidelines authorise Dublin City Council to grant
planning permission even though the proposed scale of the development conflicts
with the building heights restrictions governing the North Lotts planning
scheme.
The dispute centred around the interpretation and
application of a particular provision of the Guidelines known as “SPPR 3”. The
abbreviation "SPPR" refers to a "specific planning policy
requirement". The overall objective of the Guidelines is to give tangible
effect to government policy which supports increased building height and
density in locations with good public transport accessibility. These typically
occur in towns and cities. In these areas, planning authorities are required to
explicitly identify areas where increased building height will be actively
pursued, and not to provide for blanket numerical limitations on building height.
Planning authorities are also required to ensure an appropriate mixture of uses
in developments, such as housing and commercial or employment. The Guidelines
identify development management criteria which must be taken into account when
authorities assess individual planning applications. Where the relevant
planning authority considers that these criteria are appropriately incorporated
into development proposals, then the planning authority is required to apply
SPPR 3.
In this case, the Developer sought three
declarations by way of relief:
-
A declaration that the interpretation in the
briefing note of 31 January 2019 is ultra vires and/or incorrect as a
matter of law.
- A declaration that Dublin City Council is obliged
to apply SPPR 3(A) in the determination of planning applications for
development within the area of any SDZ planning scheme, including the North
Lotts and Grand Canal Planning Scheme 2014, as of the date of the publication
of the Guidelines.
- A declaration that Dublin City Council is obliged
to apply and/or comply with the Guidelines prior to undertaking and/or
completing any review and/or amendment of the North Lotts and Grand Canal
Planning Scheme.
Court decision
The Court was satisfied that the developer’s
interpretation of SPPR 3 was not correct for the following three reasons, being
that:
-
It necessitated imputing a level of legal knowledge
to a member of the public which is impermissible under the "ordinary meaning"
test.
- It was inconsistent with the general approach of
the Guidelines whereby the terms "development plan" and
"planning scheme" are used disjunctively. At a number of points in
the Guidelines, development plans, local area plans and planning schemes are
referred to as separate items within the same paragraph, which indicates that
the Guidelines are employing the term "development plan" in its
ordinary meaning, and not the extended meaning of "development plan plus
planning scheme". The Court took the view that the reference to a
"development plan" under SPPR 3(A) must be understood as referring to
a composite of the development plan and the planning scheme.
- If SPPR 3(A) was intended to include a composite
reference to a "planning scheme", then the Guidelines would have the
immediate effect of overriding the planning scheme and such an effect would not
be contingent on the carrying out of and completion of a review and amendment
of the planning scheme.
In its consideration of the issues, the Court also
considered the interaction between Ministerial guidelines and the SEA
Directive. Justice Simons held that on its ordinary meaning, SPPR 3(A) did not
apply to a planning scheme in respect of an SDZ and that this finding is
sufficient in and of itself to dispose of the Developer's argument. The Judge
held that the correct interpretation of the Guidelines is put beyond all doubt
when one has regard to the environmental statement published as part of the
decision-making process required under the SEA Directive. This document not
only identifies the amendments between the draft Guidelines and the "as
issued" Guidelines, but also explains the precise rationale for
distinguishing between a development plan and a planning scheme.
The Court held that SPPR 3 (A) does not apply to a
planning scheme. The most that the Guidelines do is to require a planning
authority to review and amend a planning scheme. This process must be carried
out in accordance with the statutory procedure prescribed. In particular, it
may be necessary to undertake an environmental assessment of the amendments for
the purposes of the SEA Directive.
The Court also held that it would be necessary to
seek the confirmation of An Bord Pleanala of any proposed amendments to an
existing planning scheme. Therefore, the fact that the Minister has issued
guidelines is not necessarily conclusive of the outcome of the statutory
process of amendment.
It was further held that pending the making of an
amendment to a planning scheme, any planning application made in the interim
falls to be determined by reference to the extant planning scheme. On their
correct interpretation, therefore, the Guidelines do not authorise a planning
authority to dis-apply the criteria prescribed under a planning scheme for an
SDZ.
The Court did not grant the Developer any of the
declarations sought and dismissed the application for judicial review in its
entirety.
Conclusions:
Increasing prevailing building heights has a
critical role to play in addressing the delivery of more compact growth in
urban areas, particularly in cities and large towns through enhancing both the
scale and density of development. Planning authorities and An Bord Pleanála will be
required to have regard to the Guidelines and apply any specific planning
policy requirements (SPPRs) of the Guidelines in carrying out their functions. However, notwithstanding the significance of the
Guidelines, developers should take note that:
- Pending the making of an amendment to a planning
scheme, any planning application made falls to be determined by reference to
the relevant planning scheme.
- The Guidelines do not supersede the height caps in
the Special Development Zone (SDZ) where a building is being developed,
particularly if the building height would not be consistent with the provisions
of the planning scheme
- There is no right of appeal to An Bord Pleanála on
local authority planning decisions on building height if they are in a SDZ area.
Summary
of 2019/239 JR and online records of this case.
