Ballyboden Tidy Towns Group v an Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Holland
• Judgment Date: 10 January 2022
• Neutral Citation: [2022] IEHC 7
• Docket Number: Record No. 2020/816JR

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, The Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

Respondents

and

Shannon Homes Construction ULC

and

South Dublin County Council

Notice Parties

[2022] IEHC 7

Record No. 2020/816JR

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Material contravention – Traffic impacts – Applicant seeking to quash the first respondent’s decision to grant planning permission – Whether the first respondent’s decision failed to recognise material contravention of the Development Plan as to density and address it as such

Facts: The applicant, Ballyboden Tidy Towns Group, a community group set up to protect the environment and amenity of Ballyboden and the greater Rathfarnham areas in Dublin, impugned the decision made by the first respondent, An Bord Pleanála (the Board), on 14 September 2020 to grant planning permission ABP-307222-20 to the first notice party, Shannon Homes Construction ULC, for a Strategic Housing Development on a site at Taylor’s Lane and Edmondstown Road, Ballyboden, Dublin 16 in the functional area of South Dublin County Council on foot of a planning application made to the Board on 25 May 2020. The applicant sought to quash the impugned decision as invalid for the following reasons: the Board erred in failing to have any, or adequate, regard for the protection of bats and otters for the purposes of Annex IV of the Habitats Directive; the Developer and the Board erred in concluding that the density of the proposed development was not a material contravention of the Development Plan; the Board erred in its interpretation of s. 3 of the Height Guidelines 2018 and/or failed to take into account a relevant consideration; and the Board acted irrationally or unreasonably and/or breached the applicant’s rights to fair procedures and reasoned decision making in its assessment of traffic impacts from the proposed development on the greater Rathfarnham area.

Held by Holland J that he would quash the Board’s impugned decision for: failing to recognise material contravention of the Development Plan as to density and address it as such; the failure to take into account a relevant consideration as to the capacity of the public transport network and give adequate reasons for its decision on density in that context; and the inadequacy of reasons on the traffic issue, specifically as to the disagreement between the traffic experts regarding methodology and the reliability of the results resulting from the application of that methodology.

Holland J rejected all other grounds of challenge.

Application granted.

JUDGMENT of Mr Justice Holland, delivered on 10 January 2022

Contents

JUDGMENT of Mr Justice Holland, delivered on 10 January 2022	1
INTRODUCTION & THE IMPUGNED DECISION	4
THE CHALLENGE TO THE IMPUGNED DECISION – OUTLINE OF ISSUES	11
STATUTORY PROVISIONS	12
PD(H)A 2016 – Overview	12
S.9(3) & 9(6) PD(H)A 2016	13
S.37(2)(b) PDA 2000	14
S.28 PDA 2000	15
THE DEVELOPMENT PLAN	15
Chapter 2 Housing	15
2.0 INTRODUCTION	16
2.2.0 Sustainable Neighbourhoods	16
2.3.0 Quality Of Residential Development	19
Chapter 11 – Implementation	20
11.0 OVERVIEW	20
11.3 LAND USES	20
URBAN RESIDENTIAL GUIDELINES 2009	21
THE APARTMENT GUIDELINES 2018	25
NATIONAL PLANNING FRAMEWORK 2018	27
THE HEIGHT GUIDELINES 2018 & SPPRs & Comment thereon	28
Chapter 1 – Introduction	28
Chapter 2 – Building Height and the Development Plan & SPPR1	29
Chapter 3 – Building Height and the Development Management Process & SPPR3	30
DENSITY, HEIGHT & PUBLIC TRANSPORT	32
SDCC on Density & Height	32
The Inspector on Density & Height	35
Capacity of Public Transport – Grounds 7 & 8 – the Issues & Discussion	42
Capacity of Public Transport – Conclusion	50
DENSITY & MATERIAL CONTRAVENTION – Ground 5	50
Introduction, What is Not at Stake & Standard of Review	50
Interpretation of Development Plans & Ministerial Guidelines & Determining Material Contravention	52
Materiality of Contravention	64
The Remaining Issue – Whether there is a Contravention?	65
Submissions and Analysis	67
Conclusion as to Density	83
BUILDING HEIGHT – SPPR3, Misalignment Issue & Public Transport Capacity Issue – Ground 7	83
Introduction	83
Interpretation of the Numerical Height Limitations Prohibition	84
Relationship between S.9(3) and S.9(6) PD(H)A 2016 and their application in the Impugned Decision – did the Board apply SPPR3?	87
Misalignment Issue – Precondition to the Application of SPPR3?	89
Malalignment Issue – Conclusion	92
Observations on the Impugned Decision as to Building Height	92
TRAFFIC – Ground 8	94
Traffic – Pleadings & Submissions	94
Traffic – The Nature of the Challenge	96
Traffic – Importance of the Issue	96
Traffic – Inspector's Report & Comment thereon	97
Traffic – The MPA Technical Note	100
Reasons – The Authorities & their Application	105
Traffic – Reasons, Conclusion	115
SEVERANCE OF REASON – s.37(2)(b) – Material Contravention	116
BATS & OTTERS	117
The Inspectors' Report and the Impugned Decision – Bats & Otters	117
The Pleadings & Submissions	120
Discussion & Conclusion – Bats & Otters	127
CONCLUSION	132

INTRODUCTION & THE IMPUGNED DECISION

1 In these proceedings the Applicant, a community group set up to protect the environment and amenity of Ballyboden and the greater Rathfarnham areas in Dublin, impugns the decision (the “Impugned Decision” or the “Impugned Permission”) made by An Bord Pleanála (“the Board”) on 14 September 2020 to grant planning permission ABP-307222-20 to Shannon Homes Construction ULC (“Shannon Homes”), for a Strategic Housing Development (“SHD” and “the Proposed Development”) on a site at Taylor's Lane and Edmondstown Road, Ballyboden, Dublin 16 in the functional area of South Dublin County Council (“SDCC”) on foot of a planning application (“the SHD Application”) made to the Board on 25 May 2020.

2 The Proposed Development essentially comprises demolition of a disused religious house and the construction of 496 apartments in 3 blocks, a creche and 2 retail units and associated development.

3 The site fronts onto Taylor's Lane to the north and Edmondstown Road to the west and they meet at a roundabout adjacent the northwest corner of the site. The “red line” site for purposes of the planning regulations measures 3.8 hectares. The net area (excluding public roads and lands – essentially the lands owned by Shannon Homes) is 3.5 hectares. It is in a suburban area about 7.5 km south west of Dublin city centre. The area generally is characterised by 1–2 storey housing, retail and community uses. The site is zoned for residential use in the South Dublin County Development Plan 2016 – 2022 (“the Development Plan”) and the principle of its residential development is agreed by all. The site location, in its current state, is illustrated below.

Figure 1 — the Site 1

Note: The red line encloses the lands in respect of which the planning application is made.

4 The site comprises the former Augustinian “Good Counsel” seminary and chapel to the west and, to the east, part of a disused pitch and putt course. The remainder of the course lies south of the site. The statutory report in the SHD application of the chief executive of SDCC (“SDCC Report”) describes it as “the Good Counsel former pitch and putt course”. It is similarly described in the EIAR 2. I infer that, as with many such institutions, some of the Augustinian “Good Counsel” lands were devoted to community/sporting activities and that, at some point at least, the pitch and putt course lands were part of the seminary lands. It would seem clear therefore, and it is agreed by the parties, that a considerable part, and likely all, of the development site owed by Shannon Homes is on “Institutional Lands” within the meaning of both the Development Plan and the Sustainable Residential Development in Urban Areas Guidelines 2009, (“Urban Residential Guidelines 2009” and “2009 Guidelines”) issued under S.28 of the Planning and Development Act 2000 (“PDA 2000”).

5 It is important to note that while the Inspector and the Board and SDCC considered the lands fell into the category of Institutional Lands, as to residential density (“Density”) the Inspector and the Board considered that they fell also and more importantly into the category of lands on a “Public Transport Corridor”. I return to this issue below.

6 The proposed development is illustrated below. Blocks A and C are 6–7 storey buildings. Block B consists of three 6 to 7 storey buildings and Block A of two 2 storey buildings.

Figure 2 — the Proposed Development 3

Note: The blue line encloses the Shannon Homes lands. The red line encloses the lands in respect of which the planning application is made.

7 496 apartments on a net site area of 3.5ha represents a density across the entire site (or an “average” density) of 141.7 dwellings/units per hectare (“142 dph”). 28% of the site will be Public Open Space comprising a public park along Taylor's Lane, the central street and a public woodland walkway to the south and east of the site. 11% of the site will be Communal Open Space – essentially the open areas surrounded by each block of apartments.

8 The “red line” in the planning application drawings, by regulation denoting the area to which the Shannon Homes planning application related, encompasses areas outside, and generally west of, the area enclosed by the blue line...