Clane Community Council v an Bord Pleanála and Others

JudgeHumphreys J.
Judgment Date28 July 2023
Neutral Citation[2023] IEHC 467
CourtHigh Court
Docket Number[2022 No. 8 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

Clane Community Council
An Bord Pleanála, Ireland and The Attorney General


Debussy Properties Ltd
Notice Party

[2023] IEHC 467

[2022 No. 8 JR]



JUDGMENT of Humphreys J. delivered on the 28th day of July, 2023


. The applicant impugns a permission granted by the board under the now-repealed strategic housing development (SHD) procedure pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 for the proposed construction of 192 residential units and associated works at a site on the western side of Millicent Road and the southern side of Prosperous Road, Clane, Co. Kildare on the outskirts of Clane, Co. Kildare.


. The Kildare County Development Plan 2017–2023 and the Clane Local Area Plan 2017–2023 were adopted in 2017.


. A pre-application consultation occurred on 28th May, 2020 involving the developer, the local authority and the board.


. Variation No. 1 to the development plan was adopted on 9th June, 2020. The written statement of the variation, at Section 1.0 explains that the variation was in response to national policy requirements under the NPF and the RSES, stating:

“… The reason for the proposed variation report is to respond to the recent changes in national and regional policy, namely the publication of Project Ireland 2040: National Planning Framework (NPF), The Implementation Roadmap for the National Planning Framework and the Eastern and Midland Regional Assembly (EMRA) Regional Spatial and Economic Strategy (RSES).”


. The Variation explains the changes to the settlement strategy stating at Section 2.9 that:

“Growth targets have been allocated to towns, villages and settlements based on the NPF Implementation Roadmap and the RSES.”


. Returning to the pre-application consultation for this application, this resulted in an inspector's report which concluded that the proposed application required further consideration and amendment (ABP Ref 306944-20). A Board Order to that effect issued on 16th June, 2020.


. An application for planning permission pursuant to section 4 of the 2016 Act was submitted by the Developer dated 6th January, 2021.


. On 13th April, 2021, the board granted permission for a separate development in Clane (area KDA1) involving 333 dwellings (ABP Ref 308943) which is currently challenged before the court [2021 No. 507 JR].


. The application in the present case resulted in a permission dated 22nd April, 2021 for 192 units on the site. The applicant brought judicial review proceedings to quash this permission [2021 No. 558 JR]. The proceedings were conceded by the board and an order of certiorari without remittal was made on 11th October, 2021. The terms of that order are relevant to the present case and are set out below.


. On foot of the order of certiorari, the developer did not initiate a new pre-application consultation – rather it relied on the previous consultation despite the order of certiorari. The developer simply proceeded to a new planning application which was lodged with the board on 21st July, 2021.


. The applicant made a submission to the board during the public participation process.


. Kildare County Council's Chief Executive's report signed on 9th September, 2021 recommended grant of permission although it attached some quite negative comments from officials dealing with traffic issues.


. The board's inspector Mr Stephen Rhys Thomas prepared a 94-page report dated 19th October, 2021 that recommended that planning permission be granted subject to 26 conditions.


. On 21st October, 2021, the board granted a separate permission in Clane (area KDA1) for the construction of 91 residential units and associated works (ABP Ref 309367-21). That is challenged currently before the court [2021 No. 1076 JR].


. In the present matter, the Board agreed generally with the inspector's report and granted planning permission for the development, with 26 conditions, by direction of 4th November, 2021 and order dated 8th November, 2021 (ABP Ref 310892-21), both signed by Ms Michelle Fagan, at that time a board member.


. The order rejected the need for stage 2 appropriate assessment notwithstanding the submission of a Natura Impact Statement by the developer. That wasn't challenged by the applicant in these proceedings. The board carried out EIA screening and concluded that full EIA was not required. Again, that is unchallenged here.


. The order concluded as follows regarding material contravention:

“The Board considered that, while a grant of permission for the proposed Strategic Housing Development would not materially contravene a zoning objective of the statutory plans for the area, a grant of permission could materially contravene the Kildare County Development Plan 2017–2023 in relation to the core strategy allocation of 145 number dwelling units for Clane up to 2023 and the estimated residential capacity of 158 number units for Key Development Area 5 Millicent of the Clane Local Area Plan 2017–2023. The Board considers that, having regard to the provisions of section 37(2)(b)(i), (ii), (iii) and (iv) of the Planning and Development Act 2000, as amended, the grant of permission in material contravention of the Kildare County Development Plan 2017–2023 and Clane Local Area Plan 2017–2023 would be justified for the following reasons and consideration:

(a) In relation to section 37(2)(b)(i) of the Planning and Development Act 2000, as amended: the proposed development is in accordance with the definition of Strategic Housing Development, as set out in section 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, and in the context of Clane comprises a significant amount of housing units (192) located in Key Development Area 5 of the Clane Local Area Plan 2017–2023, in order to deliver on the Government's policy to increase delivery of housing from its current under supply as set out in Rebuilding Ireland Action Plan for Housing and Homelessness 2016.

(b) In relation to section 37(2)(b)(ii) of the Planning and Development Act 2000 as amended: the matter of conflicting objectives in the development plan, table 4.1 of the Clane Local Area Plan 2017–2023 estimates density per hectare of 30 number units, but detailed guidance under section 12.2.5 Key Development Area 5, Millicent states the Key Development Area is likely to accommodate medium density residential development in the order of 30 to 35 number units per hectare. The statutory plan contains conflicting objectives for the area, the Board invokes section 37(2)(b)(ii) of the Planning and Development Act 2000, as amended, in this instance.

(c) In relation to section 37(2)(b)(iii) of the Planning and Development Act 2000, as amended: The proposed development in terms of scale, design and density is in accordance with national policy as set out in Project Ireland 2040 National Planning Framework, specifically National Policy Objective 3a, 4 and 13. In terms of regional guidelines, the proposal accords with the Eastern and Midland Regional Assembly Regional Spatial and Economic Strategy 2019–2031 that seeks to promote compact urban growth – targets of at least 50 percent of all new homes to be built, to be within or contiguous to the existing built up area of Dublin city and suburbs and a target of at least 30 percent for other urban areas. In terms of the provision of conventional houses and apartment units, the proposed development meets the requirements set out in section 2.4 of the Sustainable Urban Housing: Design Standards for New Apartments, Guidelines for Planning Authorities issued by the Department of Housing, Planning and Local Government in December 2020.”


. The SHD legislation was repealed by the Planning and Development (Amendment) (Large-scale Residential Development) Act 2021, enacted on 14th December, 2021, which was commenced on 17th December, 2021 by the Planning and Development (Amendment) (Large-scale Residential Development) Act 2021 (Commencement) Order 2021 (S.I. No. 715 of 2021), art. 2.


. Legislative policy now is that new planning applications of the kind impugned here should be made to planning authorities in the first instance.

Procedural history

. The proceedings challenging this decision were instituted on 10th January, 2022. Leave was granted on 17th January, 2022. The case was modularised as against the State on 31st January, 2022.


. On 7th February, 2022, a costs protection issue had broken out, and the applicant was given liberty to bring a motion against the board and the developer.


. On 28th March, 2022 the developer indicated that they were not taking further part in the matter. The costs issue was then dealt with on a pragmatic basis and ultimately was resolved. The board's statement of opposition was filed on 11th November, 2022.


. The matter was then to be listed for certification but on 27th February, 2023, the court was told that the parties had not arranged for the agreement regarding costs to be embodied in an order. A draft order was to be sent in.


. The List to Fix Dates for Trinity, 2023 took place on 20th March, 2023, and a hearing date of 27th to 29th June, 2023 was fixed. The matter was heard on those dates and on 11th July, 2023 when judgment was reserved.

Relief sought

. Reliefs 1 and 2 are the ones of primary concern at the present time:

“1. An order of certiorari quashing the decision of the Respondent granting planning permission to Debussy Properties Ltd (‘the Developer’) for the construction of 192 no. residential units and associated works at a site on the western side of Millicent Road and...

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