Balscadden Road SAA Residents Association Ltd v an Bord Pleanala

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date25 November 2020
Neutral Citation[2020] IEHC 586
Date25 November 2020
CourtHigh Court
Docket Number[2020 No. 375 JR]
BETWEEN
BALSCADDEN ROAD SAA RESIDENTS ASSOCIATION LIMITED
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
CREKAV TRADING GP LIMITED
NOTICE PARTY
AND
BETWEEN
CHRISTIAN MORRIS
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
CREKAV TRADING G.P. LIMITED
NOTICE PARTY

[2020] IEHC 586

Richard Humphreys

[2020 No. 375 JR]

[2020 No. 293 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Richard Humphreys delivered on Wednesday the 25th day of November, 2020
1

These cases relate to a significant development on Howth Head involving the excavation of an Ice Age esker and the removal of 78,000 m 3 of soil, sand and gravel on the developer's estimate or 90,000 m 3 on the applicants' estimate.

2

The site is in proximity to areas of both natural and built environmental significance. As regards the natural environment, Ms. Gráinne Mallon in her affidavit on behalf of the applicant in Balscadden points out that the area “contains an extraordinarily high number of European sites” (para. 64). Part of the area is covered by the Fingal County Council (Howth) Special Amenity Area Order (Confirmation) Order 2000 (S.I. No. 133 of 2000).

3

The Natura 2000 network consists of two types of designated habitats, Special Areas of Conservation (SACs) under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora; and Special Protection Areas (SPAs) under Directive 2009/147/EC of the European Parliament and of the Council of 30th November, 2009 on the conservation of wild birds.

4

There are 19 European sites including ten SPAs and nine SACs or candidate SACs (cSACs) within 15km of the development. One of them, the Howth Head cSAC, includes part of the site itself. That cSAC (reference 000202), was proposed as an SAC in May 1998 and transmitted to the European Commission on 28th February, 2000 according to the National Parks and Wildlife Service, who say that a formal statutory instrument will be adopted in due course.

5

The Howth Head Coast SPA (004113) was designated by the European Communities (Conservation of Wild Birds (Howth Head Coast Special Protection Area 004113)) Regulations 2012 (S.I. No. 185 of 2012).

6

The Ireland's Eye SPA (004117) was designated by the European Communities (Conservation of Wild Birds (Ireland's Eye SPA 0004117)) Regulations 2004 (S.I. No. 900 of 2004). The European Communities (Conservation of Wild Birds (Ireland's Eye Special Protection Area 004117)) Regulations 2010 (S.I. No. 240 of 2010) and the European Union Habitats (Ireland's Eye Special Area of Conservation 002193) Regulations 2017 (S.I. No. 501 of 2017).

7

As regards the built environment, the site is adjacent to a Martello Tower built around 1804 on an Anglo-Norman motte. The tower is a protected structure (RPS 570), and a recorded monument (DU 16-002092). The motte is also a recorded monument (RMP DU 16-00201).

8

The site of the proposed development is 1.55 hectares in size and is located between Balscadden Road in Howth and Asgard Park. It is made up of three separate sites. Firstly, the former Baily Court Hotel, secondly, a greenfield site to the south including the glacial esker that backs on to the dwellings at Asgard Park, and thirdly, the Edros building which is adjacent to the Martello Tower. The term “Edros” is a reference to an ancient name for Howth, Aδρou;, set out in Ptolemy's 2nd century map of Ireland, which, while described as an island, was identified as being Howth by among others, Professor Thomas F. O'Rahilly, Early Irish History and Mythology (Dublin Institute for Advanced Studies, Dublin, 1946, 1984), p. 14.

9

The development involves the construction of 177 dwellings, two shops, a café and a community room and 146 car parking spaces. The land in question rises by over 50 feet from north to south, so that in order to ensure the stability of the ground there would be an extensive subterranean sheet piling structure which will be immediately adjacent to the dwellings in Asgard Park.

10

On 29th May, 2018 a first application for planning permission was made under the Strategic Housing Development (SHD) procedure directly to the board. The inspector reported on 24th August, 2018 and permission was granted on 17th September, 2018.

11

Leave to apply for judicial review in respect of that decision was sought on 15th November, 2018 [2018 No. 947 JR].

12

As that judicial review progressed, the developer decided to make a fresh application for the development and a pre-planning consultation took place in relation to the second application on 16th May, 2019. Of course, the first permission was regarded as valid at that point.

13

The inspector reported on the pre-planning consultation on 17th May, 2019.

14

On 30th October, 2019 an Appropriate Assessment Screening and Natura Impact Statement was submitted by Altemar Marine and Environmental Consultancy on behalf of the developer.

15

On 4th November, 2019 the second planning application was formally submitted under the SHD procedure. A covering letter dated 1st November, 2019 from Tom Phillips Associates sets out what counsel for the developer calls “ a vast amount of documentation”, in excess of a thousand pages of supporting material.

16

On 6th December, 2019 the applicant in Balscadden made submissions objecting to the application, signed by Gráinne Mallon, Chairperson.

17

On 9th December, 2019 a submission was made by MTW Consultants Limited, prepared by Mr. Tom Markham, supporting the applicants' objections.

18

On 23rd December, 2019 the statutory report of the Chief Executive of Fingal County Council was submitted. That relied to some extent on the contents and merits of the first planning decision which was later quashed, although it hadn't been quashed at that point.

19

On 16th January, 2020 the first judicial review was finalised with a consent order of certiorari on the basis that there had been inadequate consideration of the issue of excavation of material.

20

On 16th February, 2020 the board's inspector undertook a site inspection and the inspector submitted a report on 19th February, 2020.

21

On 26th February, 2020 the board gave a direction granting permission followed by a formal order on 2nd March, 2020.

22

On 8th June, 2020 McDonald J. decided on leave in the 6 case by way of a written judgment, Morris v. An Bord Pleanála [2020] IEHC 276 (Unreported, High Court, McDonald J., 8th June, 2020), granting partial leave on a number of grounds and refusing leave on other grounds.

23

Leave to apply for judicial review in the Balscadden case was applied for on 18th June, 2020 and duly granted. I have now received helpful submissions from Mr. Barney Quirke S.C. (with Mr. Michael O'Donnell B.L. and Mr. Christopher Hughes B.L.) for the applicant in Balscadden, from Mr. Christian Morris, pro se, in his own proceedings, from Mr. Rory Mulcahy S.C. (with Mr. Brian Foley S.C.) for the respondent and from Mr. Declan McGrath S.C. (with Ms. Suzanne Murray B.L.) for the notice party.

Domestic law issues
24

The myriad of issues raised by the applicants can essentially be divided into three headings:

(i). domestic administrative law points;

(ii). EU law points; and

(iii). if the decision is otherwise valid, the question of the validity of condition 2.

25

Whether the court should deal with domestic issues discretely from European issues and, if so, how, may vary from case to case, but in this instance I heard full arguments on the domestic law issues first, albeit in the context of a unitary hearing. To hear domestic law issues first where there are EU issues lurking in the background involves proceeding on the assumption that EU law doesn't superimpose a greater obligation than domestic administrative law. That is an assumption that an applicant is free to revisit if unsuccessful on the domestic administrative law points. So to be absolutely clear about the matter, insofar as the present judgment rejects any domestic law points, that in no way prejudges the question of whether under any given heading EU law imposes a greater obligation than normal Irish administrative law.

Predetermination
26

The Planning and Development (Housing) and Residential Tenancies Act 2016 provides that before making an SHD development, a developer shall engage in pre-application consultation with the board under s. 5.

27

The applicant in Balscadden makes a number of complaints regarding prejudgement, in particular, the fact that the board at the pre-application stage didn't scrutinise anything that had already been covered by the previous permission which was later to be quashed, the fact that the applicants were excluded from participation in the pre-application process and overall prejudgement arising from the pre-application process.

28

Much of the complaint seems to be an oblique attack on the validity of the 2016 Act. As the Act is not challenged in the proceedings, and as the board has complied with it, it doesn't seem that any complaint arising from such compliance can succeed, such as, for example, the complaint of exclusion from the process.

29

The fact of preplanning consultation without public input doesn't prevent third parties from making submissions that the relevant criteria are not met, and the board is required to deal with that at the substantive stage. Insofar as there is the problem that the preplanning consultation didn't revisit points in the original application (which was later quashed), given that that was simply a preliminary screening procedure that didn't predetermine the ultimate merits, even though there was a degree of contamination of that procedure by having regard to the quashed application, it wasn't a contamination that warrants an order of certiorari. One could offer an analogy with the court hearing a leave application and then determining the merits at a later stage. Even if some point is incorrectly taken...

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