Clonres CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 07 May 2021
• Neutral Citation: [2021] IEHC 303
• Docket Number: [2020 No. 725 JR]
• Court: High Court

In the Matter of Section 50 of the Planning and Development Act 2000, as Amended

Between

Clonres CLG

Applicant

and

An Bord Pleanála

and

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

Respondents

and

Crekav Trading GP Limited

and

Dublin City Council

Notice Parties

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, as Amended

Between

John Conway and Louth Environmental Group

Applicants

and

An Bord Pleanála

Respondent

and

Crekav Trading GP Limited

Notice Party

[2021] IEHC 303

[2020 No. 725 JR]

[2020 No. 693 JR]

THE HIGH COURT

JUDICIAL REVIEW

(NO. 2)

JUDGMENT of Humphreys J. delivered on Friday the 7th day of May, 2021

1 This case involves a housing development that is somewhat more contentious than usual: so far it has clocked up four board decisions and ten sets of legal proceedings, and counting.

2 The issue of zoning of institutional lands in Dublin city has a turbulent history. In 2010, the development plan for 2011 to 2017 was adopted which included a zoning for institutional lands (Z15). Initially residential development was open for consideration on such lands, as the draft plan was proposed by the manager, but the members removed this against official advice. That element of the zoning was quashed in Christian v. Dublin City Council (No. 1) [2012] IEHC 163, [2012] 2 I.R. 506. The Z15 zoning was ultimately rephrased in the manager's terms, allowing residential development as open for consideration.

3 The site here is on lands formerly part of St. Paul's College in Raheny. The site is bounded to the north, east and south by St. Anne's Park, and to the west by residential developments and by St. Paul's College and a protected structure, Sybil Hill House. That house, according to the National Inventory of Architectural Heritage, was built around 1750 and bought by Lord Ardilaun in 1876 for the St. Anne's estate. His nephew Bishop Benjamin Plunkett sold the estate to Dublin Corporation in 1939, retaining the house and demesne. The house was then acquired in 1950 by the Vincentian Fathers to establish a school which was opened as St. Paul's College later that year.

4 The Natura Impact Statement records that over the 2018–19 winter season, during one survey, a peak of 480 light-bellied Brent geese were recorded on the St. Paul's playing pitches. Other information before the board, particularly the Scott Cawley report, noted St. Anne's Park as the closest site utilised by birds that were qualifying interests for the North Bull Island Special Protection Area (SPA) (004006).

5 It appears from the environmental impact assessment report (EIAR) of the notice party, in chapter 11 dealing with Archaeology, Architecture and Cultural Heritage, that the pitches were laid around 1953. A further portion (marked B), was laid out after 1959, when these lands were acquired by the school and when a building, Maryville, was demolished.

6 The institutional lands originally had six pitches. One remains attached to St. Paul's school and five are on the site in question which was sold by the Vincentian order to the notice party developer in 2015. Subsequent to that sale, the Dublin City Development Plan 2016–20 was adopted and came into operation.

7 These lands were zoned Z15 “to protect and provide for institutional and community use”. The zoning map B notes the lands as including a “sports ground”. The developer, presumably in the belief that it would improve the prospects for residential development, terminated the use of the five pitches by sports clubs in late 2017 and ceased cutting the grass on the pitches in August 2018.

8 As regards the sixth pitch retained by the school, the council refused permission to convert that to an AstroTurf pitch. That was appealed to An Bord Pleanála on 20th April, 2018 but the appeal was refused on 6th February, 2020.

9 The lands have now been fenced off. Licenses to use them by sports groups have not been renewed and the de facto situation at present is that they are unused grasslands.

The first decision — April 2018

10 On 18th October, 2017, the developer applied for the construction of 536 dwellings on the site. That was granted by the board on 3rd April, 2018. Three judicial reviews then issued: Sweetman v. An Bord Pleanála [2018 No. 422 JR], Conway v. An Bord Pleanála [2018 No. 423 JR] and Clonres v. An Bord Pleanála [2018 No. 426 JR]. Barniville J. granted certiorari and remitted the matter back to the board: ( [2018] IEHC 473 Clonres CLG v. An Bord Pleanála (No. 1) Unreported, High Court, 31st July, 2018).

Second decision — September 2018

11 On 10th September, 2018, following remittal the board made a further decision refusing permission for the development. That was then challenged by the developer. In ( [2020] IEHC 400 Crekav Trading GP Ltd. v. An Bord Pleanála Unreported, High Court, 31st July, 2020), Barniville J. quashed the refusal.

Third decision — February 2020

12 In the meantime, the developer had lodged a revised application on 16th October, 2019.

13 On 10th December, 2019, the Chief Executive of Dublin City Council recommended that the application should be refused. The views of the elected members appear to have been also all negative.

14 The board made a further decision to grant permission in February 2020.

15 Two further judicial reviews were then issued Clonres CLG v. An Bord Pleanála [2020 No. 346 JR] and Conway v. An Bord Pleanála [2020 No. 237 JR].

16 On 11th June, 2020, a consent order of certiorari was made on the basis that appropriate assessment had not been correctly carried out, and the matter was remitted to the board.

Fourth decision — August 2020

17 A further inspector's report was prepared dated 31st July, 2020 and on 20th August, 2020 the board, under the strategic housing development procedure, granted permission for 657 dwellings, a crèche and associated site works. Three judicial reviews were instituted in respect of that decision: the two with which I am dealing at the moment Conway v. An Bord Pleanála [2020 No. 693 JR] and Clonres CLG v. An Bord Pleanála [2020 No. 725 JR] and a third set of proceedings Sweetman v. An Bord Pleanála [2020 No. 729 JR]. That third case is based on EU law and so is not being dealt with in the current module, which is confined to the domestic law points.

Designation proceedings

18 Separately proceedings were issued seeking the designation of the five pitches as an SPA ( Clonres CLG v. Minister for Arts, Heritage and the Gaeltacht [2019 No. 2960P]). That application was dismissed by Twomey J. on 16th July, 2020, and while a judgment has not been provided to me, it was apparently on the basis that the proceedings were held out of time. That decision has been appealed to the Court of Appeal [2020 No. 181] and judgment is currently reserved.

Modularisation of issues

19 Given the sheer number of issues involved in the three proceedings challenging the decision with which we are now concerned, I decided to modularise the matter and to deal firstly with issues of domestic law. As noted above the Sweetman proceedings fell out of consideration for this purpose.

Alleged lack of reasons regarding how remittal was dealt with

20 It is alleged that the board failed to give adequate reasons to understand how the remitted file was handled following the certiorari of the third decision. It seems to me that there is nothing in this point. The board appointed a new inspector who was made aware quite properly of what the reasons for the previous quashing were and she understood she was not to place reliance on the earlier decision. She expressly states that she did not read the analysis of the merits contained in that earlier decision. None of that is problematic. One cannot assume pre-judgment bias. An applicant has to show that proper de novo consideration might not have happened, and it seems to me there is nothing from which such a conclusion can be drawn.

Failure to put information on the board's website regarding remittal

21 The applicant in Clonres complains that the board failed to put documents on its website showing how it handled the remitted application. One problem with this submission is that insofar as s. 146(5) of the Planning and Development Act 2000 requires that documents relating to the matter be made available by the board, this cannot include documents relating to a quashed decision. Indeed, to do so could be seen to contaminate the process. It seems to me there is no basis for a suggestion that documents relating to how a remitted file was handled are to be included. Section 146(5) relates to documents that are part of the statutory process, not internal administrative documents. It was also submitted that there is an EU law angle to this point, but we did not get to that for present purposes.

22 Finally, since the placing of materials on the website under s. 146(5) and (6) occurs after the decision, non-compliance cannot be a basis for quashing the decision. Having said that I am not in any way minimising the complaint made by the applicant in Clonres that the board may not be fully complying with the section. But if that is the case, some more specific relief in that regard, not related to the validity of a particular decision, would have to be sought.

Whether this is strategic housing development

23 For a development to be strategic housing development the land has to be “zoned for residential use or for a mixture of residential and other uses” under s. 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016. Helpfully the applicant in Conway notes in legal submissions at para. 7 that “use of matrices as used in certain development plans indicating types of development which may [be] ‘permissible in principle’ or ‘open for consideration’ does not have any particular statutory basis.”

24 I...