Concerned Residents of Coolkill Sandyford Downs and Lamb's Brook and Another v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 19 May 2025
• Neutral Citation: [2025] IEHC 265
• Court: High Court
• Docket Number: Record No. 2023/1106 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

Concerned Residents of Coolkill, Sandyford Downs and Lamb's Brook

and

Aonghus O'Keeffe

Applicants

and

An Bord Pleanála

Respondent

and

Midsal Homes Limited

Notice Party

[2025] IEHC 265

Record No. 2023/1106 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

Judicial review – Planning permission – Strategic housing development – Applicants seeking certiorari quashing order granting planning permission to notice party – Whether decision materially contravened County Development Plan 2022-2028

Facts: The applicants, Concerned Residents of Coolkill Sandyford Downs and Lamb's Brook and Mr O’Keefe (Coolkill), applied to the High Court seeking certiorari quashing the order of the respondent, An Bord Pleanála (the Board), dated 9 August 2023 granting planning permission to the notice party, Midsal Homes Ltd (Midsal), for a strategic housing development (SHD). Coolkill pleaded that: (1) the impugned decision materially contravenes the density requirements of the County Development Plan 2022-2028 (the CDP) and/or the Board erred and/or misinterpreted the Sustainable Urban Housing: Design Standards for New Apartments- Guidelines for Planning Authorities (2020) (the Apartment Guidelines) in concluding that the site was in an intermediate urban location relating to density; (2) the impugned decision materially contravenes CDP §12.9.6 as to climate change; (3) the Board misinterpreted and/or failed to apply the CDP requirement that childcare provision be in accordance with ss. 2.4, 3.3.1 and Appendix 2 of the ‘Childcare Facilities Guidelines for Planning Authorities’; (4) the impugned decision materially contravenes CDP §12.3.5.2 and/or Objective PHP 19 as to separation distances; (5) the impugned decision materially contravenes CDP §12.3.4.2 as to minimum apartment dimensions; (6) the impugned decision is invalid because the mandatory pre-application consultations related to a type of residential development entirely different to that permitted, contrary to ss. 4, 5, 6 and 8 of the Planning and Development (Housing) and Residential Tenancies Act 2016; and (7) the Board failed to comply with Articles 299B(2)(b)(ii)(I) and 299C(1) of the Planning and Development Regulations 2001 and/or Article 4(4) and §3(b) of Annex IIA of the EIA Directive and/or the EIA Screening Report failed to comply with Schedule 7A of the 2001 Regulations and Annex III of the EIA Directive.

Held by Holland J that: (1) he found it difficult to meaningfully distinguish the arguments made by Coolkill in impugning the designation of the Site as an intermediate urban location from those rejected by Farrell J in Murphy v An Bord Pleanála & Clonkeen Investments [2024] IEHC 186; (2) any contravention was not material; (3) this ground failed as in substance an attack on the merits of the impugned decision as to childcare, based on misinterpretation of the Childcare Facilities Guidelines for Planning Authorities 2001 and on flawed analysis in consequence, and unsupported by any evidence; (4) he rejected the Board’s plea that no question of material contravention of CDP §12.3.5.2 can arise as it is background text and not a CDP objective; (5) he had no hesitation in finding that any contravention as to minimum bedroom size was not material; (6) Coolkill had failed to show that the application for a Build to Sell development was, by virtue of its being for a Build to Sell development, so different from that envisaged in the pre-application consultation as to preclude in law its reliance on the Board’s opinion that the development envisaged in the pre-application consultation represented a reasonable basis for an SHD application; (7) it did not seem to him that, in The State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] IR 642 terms, the Board’s conclusion in EIA screening, as it bears on the issue of site excavation, was, on the objective evidence before it, irrational.

Holland J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT OF Mr Justice David Holland DELIVERED 19 MAY 2025

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 19 MAY 2025	1
INTRODUCTION	5
Figure 1 – Scheme Layout – as Proposed in the Planning Application	7
Brief Chronology	7
GROUND 1 – MATERIAL CONTRAVENTION – DENSITY — INTERMEDIATE URBAN LOCATION	9
Core Ground 1	9
CDP §12.3.3.2 & PHP18 and Apartment Guidelines §2	10
G1 – Inspector's Report	13
§7, 8 & 9 – DLRCC, Objectors & An Taisce	13
§10.3 Residential Density	14
§10.9 Movement & Transport	16
G1 – Coolkill's Particulars & Position	16
G1 — Board's Position	20
G1 – Discussion & Decision	22
Is Material Contravention of CDP §12.3.3.2 Possible?	22
Murphy & Graymount	22
Observations	24
Application of the Law & Decision	27
GROUND 2 – MATERIAL CONTRAVENTION — CDP §12.9.6 — CLIMATE CHANGE	29
Core Ground 2	29
G2 — CDP §12.9.6	30
G2 – Particulars	30
G2 — Opposition	31
G2 – Coolkill's Submissions	32
G2 — Board's Submissions	34
G2 – Material Contravention — Climate Change — Discussion	35
Materiality of Contravention — Test	35
Is Material Contravention of CDP §12.9.6 Even Possible?	37
Form of Compliance with CDP §12.9.6 – Analogy with Waltham Abbey/Pembroke Road	38
Form of Compliance with CDP §12.9.6 — Contravention — Conclusion	44
Form Apart – to what Substantive Effects does CDP §12.9.6 Relate?	44
Climate Change – Content of the Planning Application	46
Other Reports & Conclusion on Substance of Planning Application as to Climate Change	52
Onus of Proof of & Evidential Basis for a finding of Materiality of Contravention	53
G2 – Material Contravention — Climate Change — Decision	54
GROUND 3 – CHILDCARE – FAILURE TO APPLY CPD, RELEVANT CONSIDERATIONS & REASONS	56
Core Ground 3	56
G3 — Childcare Guidelines & CDP	56
G3 – Development Proposal (Childcare Demand Assessment)	58
G3 – Inspector's Report	60
G3 – Coolkill's Position	60
G3 – Board's Position	63
G3 – Discussion & Decision	64
GROUND 4 – MATERIAL CONTRAVENTION — SEPARATION DISTANCES/AMENITY	72
Core Ground 4	72
G4 — CDP §12.3.5.2 & Objective PHP19 & Commentary	72
CDP §12.3.5.2	72
CDP Objective PHP19 & “Infill”	73
G4 — Material Contravention & SHD	76
G4 — Actual Separations – Opposing Windows — Staggering & Obscuring & Material Contravention Statement	78
G4 — Coolkill Objection, CE Report & Inspector's Report	81
G4 – Coolkill's Position	84
G4 — Board's Position	86
G4 — Discussion & Decision	88
Coolkill's Pleading Point	88
Is Material Contravention of CDP §12.3.5.2 Possible?	89
Material Contravention & Planning Guidelines	89
Objective PHP19 & Effect on Amenity of Adjoining Developments	90
Separation – Merely a Means to an End?	92
Separation Distances — Blocks & Windows — CDP §12.3.5.2	94
Separation Distances – Reasons & Relevant Considerations	99
GROUND 5 – MATERIAL CONTRAVENTION — BEDROOM DIMENSIONS	99
Core Ground 5	99
CDP §12.3.4.2 — Habitable Rooms & Apartment Guidelines as to Apartment Floor Areas	99
G5 — Particulars	100
G5 — Applicants' Position & Text of Appendix 1 of the Apartment Guidelines 2020	101
G5 — Board's Position	104
G5 — Decision	105
Materiality of Contravention	107
GROUND 6 – PRE-APPLICATION CONSULTATIONS AS TO DIFFERENT DEVELOPMENT TYPE	107
Core Ground 6	107
G6 – Coolkill's Position	107
G6 — Board's Position	108
G6 — Factual Notes	108
G6 – Pre-Application Consultations — Discussion and Decision	110
Confusion & Prejudice	110
O'Neill & Irrationality	112
Discretionary Remedy	114
Standing and Disposal	115
GROUND 7 – EIA SCREENING (EXCAVATIONS)	115
Core Ground 7 & Particulars	116
G7 — Opposition	116
G7 — Information before the Board	117
Information from Midsal	117
Information from the Applicants, Kalidone Developments & DLRCC	122
G7 — Inspector's Report & Impugned Decision	123
G7 — Law on EIA Screening — Waltham Abbey, Standard of Review & Significance of Effect	126
The Scope and Standard of EIA Screening	126
Standard of Judicial Review of EIA Screening	130
Small Projects	137
G7 — Proof & Evidence	138
G7 – EIA Screening — Discussion and Decision	138
Boland Condition – Noise Management Plan	142
CONCLUSION	142

INTRODUCTION

1 The Applicants (“Coolkill”) seek certiorari quashing the Respondent Board's Order 1 dated 9 August 2023 (“the Board” and “the Impugned Decision”) granting planning permission to the Notice Party (“Midsal”), “ generally in accordance with the Inspector's recommendation”, 2 for an SHD 3 consisting of 116 apartments (1-, 2-, and 3-bed units), at a

density of 140 units/ha, 4 in 4 blocks 5 (including a basement/ undercroft car park 6) and associated works 7 on a 0.92 ha site 8 fronting onto Sandyford Road, Dublin 18 (the “Permitted Development” and the “Site”). While one may conveniently call them “Build to Sell” (“BtS”) apartments, it is more correct to describe them negatively in that they are not “Build to Rent” (“BtR”) apartments

2 The Site is in the functional area of Dún Laoghaire/Rathdown County Council (“DLRCC”) and its County Development Plan 2022–2028 adopted in March 2022 (“the CDP”) applies. It zones the Site “Objective A” — “ To provide residential development and improve residential amenity while protecting existing residential amenities”. 9 The principle of residential development of the Site is not disputed.

3 The Board's Inspector...