Top planning judge says courts don't quash developments over 'mere technicities'

Mr Justice Richard Humphreys said a developer’s failure to erect a fresh planning site notice for a 221-bed student accommodation development  'isn't harmless error'

Mr Justice Richard Humphreys said that 'contrary to an extraordinarily popular delusion these days, courts don’t tend to quash things on the basis of mere technicities.'

The High Court has quashed permission for a 221-bed purpose-built student accommodation (PBSA) scheme for a site in Swords in north Dublin due to the developer’s failure to erect a fresh planning site notice.

In quashing Dublin City Council's permission, Mr Justice Richard Humphreys said 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 permission for the seven-storey scheme to Aideen Whelan over a failure by Ms Whelan to erect a fresh site planning notice in August 2024.

Mr Croft told the High Court he only became aware that permission had been granted for the scheme on January 15 this year after reading a property article reporting that the site with full planning permission for the PBSA was for sale at an asking price of €7.5m.

Mr Croft lodged his High Court judicial review proceedings against the council permission on January 22.

Ms Whelan first lodged her large scale residential development (LRD) application on August 1, 2024. It was invalidated five days later by the council on August 6 concerning a defective newspaper notice.

Mr Justice Humphreys said “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 said Ms Whelan “then made the second and fatal error in failing to do that”.

He said “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 over 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 said 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 €7.5m 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. He said: 

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 “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”.