Atlantic Diamond Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 14 May 2021
• Neutral Citation: [2021] IEHC 322
• Docket Number: [2020 No. 712 JR]
• Court: High Court
• Date: 14 May 2021

Between

Atlantic Diamond Limited

Applicant

and

An Bord Pleanála

Respondent

and

EWR Innovation Park Limited

Notice Party

[2021] IEHC 322

[2020 No. 712 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning and development – Lack of reasons – Applicant seeking certiorari of the respondent’s decision – Whether there was a lack of reasons for rejecting the submissions made

Facts: The proposal of the notice party developer, EWR Innovation Park Ltd, under the Strategic Housing Development procedure was to replace most of the existing commercial units at Docklands Innovation Park, East Wall Road in Dublin with six residential blocks, leaving three of the existing operating industrial units in place. The applicant, Atlantic Diamond Ltd, was a commercial tenant of one of the units to be retained in the Innovation Park, and had made a submission to the respondent, An Bord Pleanála, claiming there would be a necessity for heavy goods vehicles to come into the development for the indefinite future, at somewhat unsocial hours and for the operation of noisy industrial equipment outdoors, again during unsocial hours. The board’s inspector prepared a report on 23rd July, 2020 recommending that permission be granted subject to 30 conditions and on 17th August, 2020 the board decided to grant the permission generally in accordance with the inspector’s report. The development would involve 366 dwellings, childcare facilities and associated site works. The board concluded that full Appropriate Assessment and Environmental Impact Assessment was not required. The decision found that the grant of permission would materially contravene the development plan in respect of building heights, but that this was permissible under s. 37(2)(b)(i) and (iii) of the Planning and Development Act 2000 having regard to various matters, particularly s. 3.2 of the building heights guidelines, and specific planning policy requirement (SPPR 3). In the decision, 26 conditions were imposed. The applicant applied to the High Court seeking certiorari of the board’s decision. There were essentially three grounds of challenge: (i) lack of reasons for rejecting the submissions made; (ii) an erroneous approach in relation to the issue of daylight and sunlight; and (iii) an incomplete application contrary to the prescribed form.

Held by Humphreys J that, sticking with the formulation of the board being required to provide the main reasons on the main issues, he did not consider that the alleged unprecedented nature of the scheme was a main issue and there was no clear reason provided as to why that was not a countervailing consideration to the grant of permission. He did not think that it could be said that the applicant had been provided with the main reasons for all of the main issues (particularly the rejection of the applicant’s submissions regarding movements of heavy vehicles and the use of outdoor equipment) having regard to the perhaps atypical circumstances, so accordingly he would quash the decision on that basis also. He held that the obligation was to have appropriate and reasonable regard to guides, and regard would not be appropriate or reasonable unless one considered all of the material and acted in conformity with it or, if not, explained why. He noted that the developer ticked yes to the question of statutory enforcement notices, but failed to give details as required. He held that even if arguendo the problems with the way reasons were omitted and daylight issues were dealt with could be cured on hypothetical remittal, because the notice party’s application was invalid, certiorari must issue and the question of remittal did not arise.

Humphreys J held that the order would be: (i) an order of certiorari removing for the purpose of being quashed the decision of the board to grant permission to the notice party for the impugned development; (ii) an order that remittal would not be appropriate having regard to the foregoing findings; and (iii) a direction that the parties liaise with the List Registrar to arrange for the matter to be mentioned at the next convenient Monday list for any consequential matters.

Certiorari granted.

JUDGMENT of Humphreys J. delivered on Friday the 14th day of May, 2021

1 The notice party developer's proposal here under the Strategic Housing Development (SHD) procedure is to replace most of the existing commercial units at Docklands Innovation Park, East Wall Road in Dublin with six residential blocks, leaving three of the existing operating industrial units in place. The applicant refers to the resultant outcome as a “factory-cum-apartment complex”.

2 The applicant is a commercial tenant of one of the units to be retained in the Innovation Park, and had made a submission to the board claiming there would be a necessity for heavy goods vehicles to come into the development for the indefinite future, at somewhat unsocial hours and for the operation of noisy industrial equipment outdoors, again during unsocial hours.

3 The board's inspector prepared a report on 23rd July, 2020 recommending that permission be granted subject to 30 conditions and on 17th August, 2020 the board decided to grant the permission generally in accordance with the inspector's report. The development would involve 366 dwellings, childcare facilities and associated site works.

4 The board's decision includes the “defensive and circular” ( per O'Donnell J. in Balz v. An Bord Pleanála [2019] IESC 90, [2020] 1 I.L.R.M. 637) phrase that they had considered all matters that they were obliged to consider under the legislation. I don't see this sort of terminology as really assisting the board either in terms of law or judicial psychology. As a matter of law it is an empty phrase that adds nothing to the decision; and as a matter of psychology it suggests a certain insecurity in the robustness of the decision, because a confident decision-maker wouldn't have recourse to such a self-consciously defensive formulation.

5 The board's decision states that regard was had to government policies including the Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities (2018) and the Urban Development and Building Heights: Guidelines for Planning Authorities (December 2018).

6 The board concluded that full Appropriate Assessment (AA) and Environmental Impact Assessment (EIA) was not required. The decision found that the grant of permission would materially contravene the development plan in respect of building heights, but that this was permissible under s. 37(2)(b)(i) and (iii) of the Planning and Development Act 2000 having regard to various matters, particularly s. 3.2 of the building heights guidelines, and specific planning policy requirement (SPPR 3). In the decision, 26 conditions were imposed. The applicant now seeks certiorari of the board's decision pursuant to an amended statement of grounds that sets out 49 listed grounds of challenge.

Summary of domestic law grounds

7 A number of interesting domestic law grounds were raised in submissions, but were not in fact pursued due to inadequacies in the pleadings: firstly, the argument that the council's report was not issued by the Chief Executive contrary to s. 8(5)(a) of the Planning and Development (Housing) and Residential Tenancies Act 2016, but rather was issued by one of the departments of the council; and secondly, an argument that the board erred in referring to reg. 109(3) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) which had been revoked by reg. 69(c) of the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018). With those points out of the way, there were essentially three grounds of challenge:

• (i). lack of reasons for rejecting the submissions made;

• (ii). an erroneous approach in relation to the issue of daylight and sunlight; and

• (iii). an incomplete application contrary to the prescribed form.

Inadequate reasons

8 The reasons argument is, in practice, frequently overcooked by applicants. The question of reasons normally comes down to the main reasons for the main issues: see Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 1) [2020] IEHC 586, ( [2020] 11 JIC 2501 Unreported, High Court, 25th November, 2020), Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 453. It is also important that, whether under the heading of reasons or otherwise, the court does not get drawn into the merits of a planning application: Kemper v. An Bord Pleanála [2020] IEHC 601 (Unreported, High Court, Allen J., 24th November, 2020).

9 There was much interesting discussion at the hearing as to the lack of a procedure in the SHD mechanism for resolving conflicts of fact, given that there is no procedure to require further information from a developer. The applicant submits that because the developer chooses the SHD mechanism rather than normal planning, the developer must then take the burden of any adverse consequences flowing from the lack of a mechanism to resolve factual conflict. The inference, although the discussion didn't perhaps fully spell it out, is that in the SHD context the board does not have jurisdiction to resolve any conflict of fact in favour of the developer as to do so would create an unfairness of procedure, especially given that the court is not in the business of reviewing substantive findings. That would not prevent the board from preferring one set of expert opinions over another in the exercise of planning judgement, but it would preclude rejection of an objector's version of the facts on the ground by reference to which the planning application should be judged.

10 The developer and board put up the argument that many of the applicant's points were matters for other forms of civil litigation, such as whether it had a right of way...