Ballyboden Tidy Towns Group v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 13 February 2024
• Neutral Citation: [2024] IEHC 66
• Docket Number: [H.JR.2022.0000304]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Ballyboden Tidy Towns Group

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Maccabe Durney Barnes Limited

Notice Party

[2024] IEHC 66

[H.JR.2022.0000304]

THE HIGH COURT

PLANNING & ENVIRONMENT

(BALLYBODEN V)

JUDGMENT of Humphreys J. delivered on Tuesday the 13th day of February, 2024

Judgment history

1 . While the present parties have not all litigated inter se before, this is the fifth set of proceedings instituted by the applicant that has given rise to a written judgment, and the ninth written decision overall, so I will refer to the case as Ballyboden V. I will identify the other cases for ease of present and future reference.

2 . Ballyboden I was 2020 No. 816 J.R., a challenge to a Strategic Housing Development (SHD) on a site at Taylor's Lane and Edmondstown Road, Ballyboden, Dublin 16. Certiorari was granted by Holland J. in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2022] IEHC 7, [2022] 1 JIC 1001.

3 . Ballyboden II was 2021 No. 89 JR, a challenge to flood relief works in South Dublin. That was dismissed in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2021] IEHC 648, [2021] 10 JIC 2003. Leave to appeal was refused in a No. 2 judgment: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2022] IEHC 1, [2022] 1 JIC 0701. The Supreme Court granted leapfrog leave to appeal ( [2022] IESCDET 42) and then dismissed the appeal in a judgment by Woulfe J.: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2022] IESC 47, [2022] 11 JIC 1502.

4 . Ballyboden III was 2021 No. 810 JR, a challenge to a development on a site at Stocking Avenue, Woodstown, Dublin 16. The board decided to concede the challenge, but the developer asked for liberty to defend it. I decided that that should be granted: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2023] IEHC 114, [2023] 3 JIC 1007. The applicant obtained leapfrog leave to appeal to the Supreme Court: [2023] IESCDET 90. The matter is currently pending before that court.

5 . Ballyboden IV was 2021 No. 933 JR, a challenge to a Strategic Housing Development of 114 Build-to-Rent apartments in six apartment and duplex blocks of up to six storeys on a 2.2 hectare site south of Stocking Avenue, Rathfarnham, Dublin 16. That was dismissed by Holland J.: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2023] IEHC 722, [2023] 12 JIC 2107. A second module against the State is now awaited.

Facts

6 . The applicant challenges the validity of an SHD decision permitting the construction of 131 residential units and associated works on lands off Stocking Lane, Ballyboden, County Dublin (ABP-311616-21).

7 . The applicant is an unincorporated association dedicated to the sustainable planning and development and strong protection for the natural and built environment in the Ballyboden area, taking into account its long-established character and environmental characteristics.

8 . In advance of the application, Irish Water (since 31 ^st December, 2022, Uisce Éireann (UÉ) by virtue of the Water Services (Amendment) Act 2022) issued a pre-connection letter dated 30th May 2019 as follows:

“Re: Connection Reference No CDS19003311 pre-connection enquiry — Subject to contract | Contract denied

Connection for Mixed Use Development of 122 units at Coolamber, Stocking Lane, Ballyboden, Co. Dublin.

Irish Water has reviewed your pre-connection enquiry in relation to a water connection at Coolamber, Stocking Lane, Ballyboden, Co. Dublin. Based upon the details that you have provided with your pre-connection enquiry and on the capacity currently available in the network(s), as assessed by Irish Water, we wish to advise you that, subject to a valid connection agreement being put in place, your proposed connection to the Irish Water network(s) can be facilitated. Water: The connection should be made from 6″ ID cast-iron main in Stocking Lane. Approximately 20 m network extension will be required for the connection. Should you wish to progress with the connection, the extension works fee will be calculated and be a part of Irish Water connection offer for the Development. This Confirmation of Feasibility to connect to the Irish Water infrastructure also does not extend to your fire flow requirements. Please note that Irish Water can not guarantee a flow rate to meet fire flow requirements and in order to guarantee a flow to meet the Fire Authority requirements, you should provide adequate fire storage capacity within your development. Wastewater: New connection to the existing network is feasible without upgrade. Strategic Housing Development Irish Water notes that the scale of this development dictates that it is subject to the Strategic Housing Development planning process. Therefore: A. In advance of submitting your full application to An Bord Pleanála for assessment, you must have reviewed this development with Irish Water and received a Statement of Design Acceptance in relation to the layout of water and wastewater services. B. You are advised that this correspondence does not constitute an offer in whole or in part to provide a connection to any Irish Water infrastructure and is provided subject to a connection agreement being signed and appropriate connection fee paid at a later date.

All infrastructure should be designed and installed in accordance with the Irish Water Codes of Practice and Standard Details. A connection agreement can be applied for by completing the connection application form available at www.water.ie/connections. Irish Water's current charges for water and wastewater connections are set out in the Water Charges Plan as approved by the Commission for Regulation of Utilities.”

9 . On 12th August 2020, UÉ under its previous name issued a statement of design acceptance, as follows:

“Re: Design Submission for Lands at Stocking Lane, Ballyboden, Co. Dublin (the ‘Development’) (the ‘Design Submission’) / Connection Reference No: CDS20003688

… Many thanks for your recent Design Submission. We have reviewed your proposal for the connection(s) at the Development. Based on the information provided, which included the documents outlined in Appendix A to this letter, Irish Water has no objection to your proposals. This letter does not constitute an offer, in whole or in part, to provide a connection to any Irish Water infrastructure. Before you can connect to our network you must sign a connection agreement with Irish Water. This can be applied for by completing the connection application form at www.water.ie/connections. Irish Water's current charges for water and wastewater connections are set out in the Water Charges Plan as approved by the Commission for Regulation of Utilities (CRU)(https://www.cru.ie/document_group/irish-waters-water-chargesplan-2018/). You the Customer (including any designers/contractors or other related parties appointed by you) is ( sic) entirely responsible for the design and construction of all water and/or wastewater infrastructure within the Development which is necessary to facilitate connection(s) from the boundary of the Development to Irish Water's network(s) (the ‘Self-Lay Works’), as reflected in your Design Submission. Acceptance of the Design Submission by Irish Water does not, in any way, render Irish Water liable for any elements of the design and/or construction of the Self-Lay Works.”

10 . The developer consulted with the planning authority (South Dublin County Council) on 16th April, 2021. On 20th April, 2021 the council issued the following letter:

“20th April, 2021 … Maccabe Durney Barnes Ltd 20 Fitzwilliam Place Dublin 2

Comhairle Contae Atha Cliath Theas South Dublin County Council

WITHOUT PREJUDICE SUBJECT TO CONTRACT/CONTRACT DENIED

… Re: Proposed Grant of Consent to include lands in the charge/control of the Council in a planning application to An Bord Pleanala to facilitate pedestrian, cycle and vehicular access to proposed Strategic Housing Development in Stocking Lane, Dublin 16

I refer to your request to include lands in the charge/control of the Council in a proposed planning application. I now wish to confirm that South Dublin County Council hereby grants its consent to include lands coloured blue on attached Indicative Drawing No. PR402491-ACM-01-00-DR-CE-00-0002 in a planning application for the purposes outlined above. Please note that this consent does not convey to Maccabe Durney Barnes Ltd. any interest whatsoever in the subject lands and is for the sole purpose of allowing a planning application to be made. This consent is valid for a period of twelve months from date of this letter. Yours sincerely PP Tony O'Grady Senior Engineer Road Maintenance Section”

11 . Attached to that was a map which purported to include in the blue coloured land some of the land within the folio attached to 9a Prospect Heath.

12 . The developer lodged a request for pre-application consultation on 30th April, 2021 (ref 310111). The developer, board and planning authority participated in the SHD pre-application meeting on 23rd June, 2021.

13 . The board issued its opinion on 25th June, 2021 that the documents constituted a reasonable basis for an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016.

14 . The application for planning permission (ref 311616) was submitted on 11th October, 2021. It was accompanied by a number of documents, most notably for present purposes:

(i) maps;

(ii) a statement of material contravention; and

(iii) purported consents of owners.

15 . As regards the site location map, a map (Drw No: 2183-10-A) indicates the red lined area as including part of the roadway (which is in the registered ownership of the owner of No....