Ballyboden Tidy Towns Group v an Bord Pleanála and Others [No 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 16 May 2025
• Neutral Citation: [2025] IEHC 277
• Docket Number: [H.JR.2021.0000933]

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 and South Dublin County Council

Respondents

and

Ardstone Homes Limited

Notice Party

[2025] IEHC 277

[H.JR.2021.0000933]

THE HIGH COURT

PLANNING & ENVIRONMENT

Judicial review – Planning permission – Strategic environmental assessment – Appellant seeking an order of certiorari quashing the decision of the first respondent to grant planning permission to the notice party – Whether the second and third respondents failed to properly transpose Articles 3(1), (2) and 4 of Directive 2001/42/EC

Facts: The applicant, Ballyboden Tidy Towns Group, applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, An Bord Pleanála (the board), to grant planning permission to the notice party, Ardstone Homes Ltd, for the construction of apartments on a site off Stocking Lane, Rathfarnham, Co. Dublin. The applicant also sought a number of declarations. The sole ground of challenge was that the decision was invalid as the second and third respondents, Ireland and the Attorney General, had failed to properly transpose Articles 3(1), (2) and 4 of the Strategic Environmental Assessment (SEA) Directive (Directive 2001/42/EC) as s. 19(1)(d) of the Planning and Development Act 2000 allows for the effective extension of the period of application of the BOLAP without using the procedure provided in the Directive and/or the BOLAP is no longer valid since its period of application was unlawfully extended in breach of the Directive.

Held by Humphreys J that: (i) the claim that the local area plan (LAP) had ceased to have effect as of the date of the board decision was an impermissible collateral attack on the decision to extend; (ii) the allegation that the board’s error was to rely on a plan that had ceased to have effect was an unstateable claim; (iii) the applicant never called upon the opposing parties to carry out any remedial obligation; (iv) the remedial obligation did not have the effect of reopening the running of time or rendering the underlying decision invalid - it related to an ongoing obligation to rectify effects, if any, of a breach of EU law assessment requirements; (v) an applicant still has to plead such effects, and has the onus to show that there are such effects, an onus that was undischarged in this case in terms of the evidence; (vi) in the absence of a duly pleaded and timely challenge to the relevant specific decision, an applicant does not have standing to challenge the legislation in the abstract; (vii) the legislation was not invalid because the height of the applicant’s case was a failure to make explicit provision for SEA of extensions, not any positive provision that prevents that from happening; (viii) declaratory relief was inappropriate even if there was a hypothetical failure to conduct SEA or screening, inter alia because the applicant positively relied on the LAP in the proceedings before the board, and/or because the LAP had expired and/or because the applicant had failed to show that the lack of SEA of the extension gave rise to any substantive issue so the complaint was a mere technicality; and (ix) as the claim failed even on assumptions as to the need for assessment favourable to the applicant, it was unnecessary to decide whether or to what extent a decision to extend an LAP requires SEA.

Humphreys J dismissed the proceedings.

Proceedings dismissed.

IV (No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 16th day of May 2025

1 . Legislation provides for strategic environmental assessment (SEA) of general measures in certain circumstances, not expressly including decisions extending the duration of local area plans (LAPs). The applicant objects to a planning permission granted in reliance on an extended LAP, and challenges the legislation as incompatible with the SEA directive ( directive 2001/42). However in the present case, this was raised without the applicant challenging the decision to extend, still less seeking an extension of time to do so, and instead the inconvenient procedure for such a challenge was circumvented by seeking a declaration that the plan was no longer in force. The main question is whether that exotic relief is a collateral attack on, because it necessarily involves an assertion as to the invalidity of, the unchallenged decision to extend, and if so, whether the legislative challenge even gets off the ground in the absence of a properly pleaded complaint about a specific decision affecting the applicant.

Judgment history

2 . The applicant has instituted five sets of proceedings that have given rise to written decisions, and this is the eleventh such decision overall (and the seventh one unfavourable to the applicant). I will identify the other cases for ease of present and future reference.

• (i) Ballyboden I was 2020 No. 816 JR, 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 Unreported, High Court, 10th January 2022).

• (ii) 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 Unreported, High Court, 20th October 2021). Leave to appeal was refused in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors (No. 2) [2022] IEHC 1, ( [2022] 1 JIC 0701 Unreported, High Court, 7th January 2022). The Supreme Court granted leapfrog leave to appeal ( [2022] IESCDET 42 (Dunne, Woulfe and Hogan JJ., 4th April 2022)) but 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 Unreported, Supreme Court, 15th November 2022).

• (iii) 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 such a defence should be permitted: Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2023] IEHC 114, ( [2023] 3 JIC 1007 Unreported, High Court, 10th March 2023). The applicant obtained leapfrog leave to appeal to the Supreme Court: [2023] IESCDET 90 (Dunne, Baker and Donnelly JJ., 10th July 2023), but in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2024] IESC 4, [2024] 2 JIC 2201 (Unreported, Supreme Court, Donnelly J., 22nd February 2024), the Supreme Court dismissed the appellant's appeal and held that a notice party was entitled to defend a decision where, in judicial review proceedings, the decision-taker had conceded that the decision ought to be quashed. The notice party decided subsequently not to pursue the defence of the proceedings.

• (iv) The present matter is Ballyboden IV. In Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors IV (No. 1) [2023] IEHC 722, ( [2023] 12 JIC 2107 Unreported, High Court, 21st December 2023), Holland J. dismissed the non-State related grounds of challenge to a SHD 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. This judgment concerns the second module involving the State. I will give further details of this below.

• (v) Ballyboden V was 2022 No. 304 JR, a challenge to the validity of an SHD decision permitting the construction of 131 residential units and associated works on lands off Stocking Lane, Ballyboden, County Dublin, and I granted certiorari in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2024] IEHC 66, ( [2024] 2 JIC 1304 Unreported, High Court, 13th February 2024).

Module I

3 . Module I of the present challenge impugned the decision of the board, a case originally made by reference to 10 core grounds. Prior to the hearing of module I, the applicant withdrew the challenge based on core grounds 2, 6, 7 and 8B and part of core ground 1.

4 . By judgment delivered by Holland J. on 21st December 2023, the application for relief on foot of core grounds 1, 3, 4, 5, 8 and 8A was refused as recorded in the Order of the High Court of 12th January 2024. The applicant has confirmed that no application for leave to appeal will be made in respect of the judgment of Holland J.

5 . Module II originally concerned core grounds 9, 10 and 11. By letter dated 23rd January 2024, the applicant confirmed it was no longer pursuing core ground 10. Further, in its legal submissions in respect of module II, the applicant has confirmed that it is no longer pursuing core ground 11.

6 . Core ground 12 is purely procedural (seeking a stay).

7 . Consequently, the sole remaining ground of challenge to be determined is core ground 9.

8 . Holland J. did not propose retaining seisin of the matter so module II returned to the general list.

Geographical context

9 . The development ( https://www.pleanala.ie/en-ie/case/310398) relates to lands at Stocking Avenue, Woodstown, Dublin 16, involving 114 build-to-rent apartments and associated site works. The development site is adjacent to existing housing near Stocking Avenue, approximately here: https://maps.app.goo.gl/nCWPpZUVmC1ophVJA.

Facts

10 . The Ballycullen Oldcourt Local Area Plan 2014 (the LAP) was adopted on 6th May 2014, and came into force on 3rd June 2024.

11 . The LAP was amended on 8th May 2017, with the amendment coming into effect on 2nd June 2017.

12 . On 7th May 2019, by resolution of the elected members of South Dublin County Council (the council), the LAP was extended for...