THE HIGH COURT has quashed a planning permission for a 221 purpose built student accommodation (PBSA) bed space scheme on a €7.5m site due to the developer’s failure to erect a fresh planning site notice.
In quashing the Dublin City Council planning permission to Aideen Whelen, Mr Justice Richard Humphreys commented that “contrary to an extraordinarily popular delusion these days, courts don’t tend to quash things on the basis of mere technicities”.
Mr Justice Humphreys – who presides over the Planning and Environment Division of the High Court – said: “There has to be a point of genuine substance that makes a real difference to an objective interest that warrants protection.”
Dublin City Council had conceded the High Court judicial review challenge taken by Ian Croft to quash the planning permission for the seven storey 221 unit PBSA for Church Lane in Swords. Ms Whelan had failed to erect a fresh site planning notice in August 2024.
Mr Croft told the High Court that he only became aware that planning permission had been granted for the scheme on 15 January of this year after coming across an Irish Times property article reporting that the site was for sale, with full planning permission for the PBSA, at an asking price of €7.5m.
Mr Croft lodged his High Court judicial review proceedings against the Council permission on 22 January.
Ms Whelan first lodged her Large Scale Residential Development (LRD) application on 1 August 2024 and it was invalidated five days later by the Council on 6 August concerning a defective newspaper notice.
Mr Justice Humphreys commented that “the defect, rather forebodingly, was the omission of wording about public participation in the decision making process”.
The council then wrote to Ms Whelan to have the site notice taken down in respect of the invalid application.
Mr Justice Humphreys stated that Ms Whelan “then made the second and fatal error in failing to do that”.
He said that “instead, a fresh application was made without erecting a fresh site notice”. “There is no evidential explanation for that.”
Mr Croft had corresponded with the Council’s planning department concerning the first application that was invalidated but did not become aware of the second application because of the developer’s failure to erect a fresh site note.
In an affidavit, Mr Croft said: “I, like many members of the public, rely on physical site notices to stay informed of planning activity…I was never placed on notice of the second application through proper channels.”
Mr Justice Humphreys stated that Mr Croft’s “evidence that he relied on the site notice and was unaware of there being a fresh application has not been displaced”.
Mr Justice Humphreys said: “It is perhaps prudent to emphasise one thing – this matter is not about a €7.5 million sale being put at risk over a typographical error that made no difference.
“It is about a permission that was obtained despite two breaches of planning regulations that on the evidence had the actual cumulative effect of disadvantaging the applicant (Mr Croft) and shutting him out of the process.”
He said: “Among other consequences, not participating at council level meant he (Mr Croft) would have been ineligible to appeal the grant of permission.
“That isn’t harmless error, it isn’t de minimis and it isn’t something that should be ignored as a matter of discretion.
Mr Justice Humphreys said that “it is not the law that the size of a proposed transaction or a proposed development overwhelms the need for the right to public participation to have been afforded in accordance with law”.
He said that while commerciality is relevant to the court’s consideration in many situations, the court, if it is to hold the scales equally at all as between the various interests involved in this area, “must also be vigilant to protect the procedural rights of less powerful stakeholders in the planning process, including giving real and meaningful effect to the right to public participation in environmental decision-making”.
In his written judgment delivered on Friday, Mr Justice Humphreys said that the Council has conceded Mr Croft’s challenge to quash planning permission and in the circumstances Ms Whelan “is not in a position to continue to defend the proceedings”.
