Ballyboden Tidy Towns Group v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 21 December 2023
• Neutral Citation: [2023] IEHC 722
• Court: High Court
• Docket Number: Record No. 2021/933 JR

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

[2023] IEHC 722

Record No. 2021/933 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

Judgment of Mr Justice David Holland, delivered 21 December 2023

Contents

INTRODUCTION & ISSUES	4
MATERIAL CONTRAVENTION — S.9(6) of the 2016 Act and s.37(2)(b) PDA 2000	6
GROUND 1 — MATERIAL CONTRAVENTION OF DEVELOPMENT PLAN OBJECTIVE RES-N	8
Pleadings	8
The Arguments & Decision	9
GROUND 3.1 — APPLICATION FORM INACCURACY — BICYCLE SPACES	14
Pleadings	14
The Inspector's report and Condition 13	15
Discussion & Decision	16
GROUND 3.2 — APPLICATION FORM INACCURACY — VEHICULAR ENTRANCES	20
Figure 1 — Extract From Ardstone's Site Plan	21
GROUND 4 — ELECTRICITY LINE WAYLEAVE WIDTH — MATERIAL CONTRAVENTION OF BOLAP	23
Pleadings	23
Art 297 PDR 2001	26
Bolap on the 110kV line, the lateral clearance area and contravention thereof	26
Is there a wayleave?	29
Wayleaves and the shd planning application	33
The BBTTG & White Pines North objections to the board & as exhibited	35
The inspector on the power line wayleave	36
Contravention of art 297 pdr 2001 — wayleave marked in yellow on site location map — decision	38
Contravention of the bolap as to the power line wayleave — materiality — decision	41
GROUND 5 — HEDGEROW REMOVAL — MATERIAL CONTRAVENTION OF BOLAP	42
Introduction	43
Figure 2 — extract from Landscape Architects Report Figure 2 — Aerial Image highlighting Application boundary (red)	43
Figure 3 — extract from Arboricultural Impact Drawing 102	44
Planning Policies	44
Ardstone's Application Reports	45
The Council, the Inspector and the Board.	48
The Pleadings	49
Submissions	50
Discussion & Decision	52
What does the Planning Application permit as to hedge removal?	52
Hedge Removal — Material Contravention — the Issue.	53
Hedge Removal — Development Plan	54
Hedge Removal — BOLAP	54
Materiality of Contravention	55
Four Districts & Material Contravention of the Development Plan	58
Decision	61
GROUND 8 — CHILDCARE — FAILURE TO ENGAGE WITH RESIDENTS' OBJECTIONS	61
Context	61
Pleadings	62
Inspector's report, Ardstone's Childcare Demand Assessment, the White Pines North Residents' objection & Comment Thereon	62
The issues in dispute did not inform the Board's Decision & Decision	67
GROUND 8A — STRATEGIC ENVIRONMENTAL ASSESSMENT	68
Pleadings	68
Submissions	70
Discussion & Decision	71
No Material Contravention — No Preliminary Reference	71
The SEA Directive & SEA Regulations 2004 & some caselaw thereon	72
O'Donnell	76
The Relationship between SEA and EIA	79
Material Contravention grounded in policies subjected to SEA & Modification in Domestic law.	82
Is a Development Consent in Material Contravention a Derogation from or a Modification of a Plan for purposes of the SEA Directive?	83
SEA — Conclusion	88
OVERALL CONCLUSION	88

INTRODUCTION & ISSUES

1 By Order 1 made on 16 September 2021 under s.4 of the 2016 Act, 2 An Bord Pleanála (“the Board”) granted Ardstone Homes Limited (“Ardstone”) planning permission (“the Impugned Permission”) for a Strategic Housing Development (“SHD”) of 114 Build-to-Rent 3 apartments 4 in six apartment and duplex blocks of up to six storeys (“the Proposed Development”) on a 2.2 hectare site south of Stocking Avenue, Rathfarnham, Dublin 16 5 (“the Site”). The Board decided to grant permission generally in accordance with its Inspector's recommendation (“the Inspector”).

2 The South Dublin County Council Development Plan 2016 – 2022 (“the Development Plan”) and Ballycullen-Oldcourt Local Area Plan 2014 6 (“the BOLAP”) applied to the Impugned Permission.

3 The Site is at the eastern extremity of the BOLAP area and Stocking Avenue runs east-west along its northern border. The Proposed Development is Phase 5, “White Pines Cen, of the wider White Pines development. 7

• • White Pines North (172 dwellings, north of Stocking Avenue), White Pines South (106 dwellings, south-west of the Site and including White Pines Park and White Pines Dale) are built and occupied.

• • White Pines Retail, a neighbourhood centre west of the Site and consisting of a convenience retail unit and a creche building, was in construction when the SHD application was made and is since completed, occupied and trading.

• • Planning permission for White Pines East (north of Stocking Avenue) is the subject of separate judicial review proceedings brought by BbTTG.

4 The applicant for judicial review, Ballyboden Tidy Towns Group (“BbTTG”), objected to the planning application on grounds including excessive density and building height, removal of hedgerows, encroachment on a powerline wayleave, discrepancies in the application documents (including as to the number of proposed bicycle spaces, the width of the powerline wayleave and the failure to properly identify it) and failure to give public notice that 3 vehicular entrances to the Site are proposed.

5 The Planning Authority, South Dublin County Council (“the Council”), recommended refusal of permission for, inter alia,

• • material contravention of specific objectives of both the BOLAP and the Development Plan as to building height, density and unit mix.

• • non-provision of childcare facilities – contrary to §3.3.1 of the Childcare Facilities Guidelines 2001. 8

6 Having abandoned other grounds, and the case against the State and the Council standing adjourned generally, BbTTG now seeks to have the Impugned Permission quashed on the following grounds, briefly described:

• • Ground 1 9 – Failure to recognise, and hence failure to justify permission despite, material contravention of Development Plan objective RES-N (“ New Residential — RES-N — To provide for new Residential Communities in accordance with approved Area Plans”).

  (Note, as the BOLAP in 2014 preceded the 2016 Development Plan, it refers to the previous, but identical, iteration of this objective as “A1”. For convenience I will refer to the objective as “RES-N” and amend accordingly references to documents which cited objective as A1.

  Essentially, BbTTG assert that, given the Board recognised material contraventions of the BOLAP as to Building Height, Density, Dwelling Mix and Phasing, 10 it follows that the Proposed Development was not “ in accordance with” the BOLAP within the meaning of Development Plan Objective RES-N such that there was a material contravention of Development Plan Objective RES-N as well as of the BOLAP.

• • Ground 3 – inaccuracy of the SHD Planning Application form, contrary Article 297(1) and Schedule 3, Form 14 PDR 2001, 11 as to the number of proposed bicycle parking spaces and the number of proposed vehicular entrances to the Site, such that the

  Board was obliged, but failed, to invalidate, and decline to decide, the planning application.

• • Ground 4 – Failure to recognise, and hence failure to justify permission despite, material contravention of BOLAP by encroachment of the Proposed Development on the 110Kv electricity line wayleave which traverses the Site. Essentially, BbTTG assert that whereas the BOLAP stipulates 12 that “ the ESB require” “ a minimum lateral clearance of 23 metres from the centre line on either side of the 110kV lines” 13, the Proposed Development allows only 17 metres.

• • Ground 5 – Failure to recognise, and hence failure to justify permission despite, material contravention of BOLAP Objective DI13 by removal of about 70% of the only hedgerow on site, which was identified by the BOLAP as a significant hedgerow. 14 BOLAP Objective DI13 is to “Create an integrated network of green corridors … by way of linking, preserving and incorporating hedgerows … wildlife corridors, SUDS features and existing streams.”

• • Ground 8 – inadequacy of reasons by way of failure to engage with residents' objections,

  • ○ that, in justifying the omission of a creche from the Proposed Development despite §4.7 of the Apartment Guidelines 2020, 15 Ardstone had significantly overestimated the availability of off-site childcare.

  • ○ by explaining why it preferred the Developer's estimate of the availability of off-site childcare to that provided by the residents.

• • Ground 8A – SEA. 16 This ground asserts that as the Impugned Permission granted planning permission for the Proposed Development in material contravention of plans – the BOLAP and the Development Plan – which had been subjected to SEA, the Impugned Permission constituted a modification of those plans such that a screening of the planning application, qua modification of the BOLAP, for SEA – for likely significant effect on the environment – was required but, it is common case, was not done.

MATERIAL CONTRAVENTION – S.9(6) OF THE 2016 ACT AND S.37(2)(B) PDA 2000

7 A number of grounds of challenge allege, essentially, failure by the Board to recognise material contraventions of planning policy and failure accordingly to activate the statutory processes which would have enabled a valid grant of permission despite such material contraventions. It is convenient therefore to identify at this point those statutory processes.

8 S.9(6) of the 2016 Act provides as follows:

(6) (a) Subject to paragraph (b), the Board may decide to grant a permission for a proposed strategic housing development in respect of an application under section 4 even where the proposed development, or a part of it,...