Crekav Trading GP Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IEHC 400
• Court: High Court
• Docket Number: [2018 No. 880 J.R.]
• Date: 31 July 2020

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

BETWEEN

CREKAV TRADING GP LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CLONRES CLG, PETER SWEETMAN, JOHN CONWAY

and

LOUTH ENVIRONMENTAL GROUP

NOTICE PARTIES

[2020] IEHC 400

David Barniville J.

[2018 No. 880 J.R.]

THE HIGH COURT

Proposed development – Permission – Reasons – Applicant seeking permission in respect of a proposed development – Whether the reasons given by the respondent for refusing permission for the proposed development were inadequate

Facts: The respondent, An Bord Pleanála (the Board), reconsidered the remitted application of the applicant, Crekav Trading GP Ltd, for permission in respect of a proposed development on a de novo basis. On 10th September, 2018, the Board made a fresh decision refusing permission for the proposed development (the impugned decision). The reasons given by the Board for refusing the permission sought related both to screening for appropriate assessment (AA) (and, in particular, to the fact that bird species apart from the Light-bellied Brent Goose had been screened out by the inspector) and to the AA itself (as a result of an alleged lack of adequate qualitative analysis in respect of the Light-bellied Brent Goose). The impugned decision also set out reasons why the Board disagreed with the inspector’s recommendation to grant permission. The Board had not referred the application to an inspector for further consideration or for the preparation of a new or updated report in advance of making the impugned decision following the remittal of the application to the Board. The applicant challenged that decision, ultimately relying on three essential grounds in support of its challenge. This judgment addressed the following three main issues: (1) whether the reasons given by the Board in the impugned decision for refusing permission for the proposed development were inadequate as alleged by the applicant; (2) whether the Board erred in failing properly to consider whether to exercise its power to seek further information from the applicant in relation to the remitted application and/or to exercise that power; and (3) whether the Board erred in characterising, and proceeding to refuse to grant permission on foot of, the remitted application, on the basis that the applicant put forward the availability of other potential inland feeding sites for the geese as “mitigation” or as a “mitigation measure”.

Held by the High Court (Barniville J) that the applicant must succeed on one of the grounds of challenge which it has made to the impugned decision of the Board, namely, on the ground that the reasons given by the Board for refusing permission and for disagreeing with the inspector’s recommendation to grant permission were inadequate in various respects. Barniville J had concluded that the reasons provided by the Board did not comply with the requirements as to reasoning set out by the Supreme Court in Connelly v An Bord Pleanála [2018] IESC 31. It seemed to him that on the basis of that finding, he should grant an order of certiorari quashing the impugned decision to refuse planning permission and granting certain of the declaratory relief sought by the applicant. He had concluded that the applicant must fail on the other two grounds of challenge advanced by it.

Barniville J suggested that the parties liaise as to the terms of the order which should be made to give effect to this judgment. He proposed listing the matter for mention on a date in August or September. If it was not possible to agree the terms of the order at that stage, if necessary, he would give further directions.

Application granted.

JUDGMENT of Mr. Justice David Barniville delivered on the 31 ^st day of July, 2020

Introduction

1 This judgment concerns a controversial strategic housing development which the Applicant, Crekav Trading GP Limited, wishes to carry out on a site which forms part of lands previously associated with, and located to the east of. St. Paul's College, a boy's secondary school, in Raheny, Dublin 5, which is bound to the east, south and north by St. Anne's Park, Raheny. The proposed development involves the construction of 536 residential units (104 houses and 432 apartments) and ancillary works. The application for permission was made under s. 4 of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (the “2016 Act”), the fast track planning process for strategic housing developments.

2 The respondent, An Bord Pleanála (the “Board”), granted permission for the proposed development in a decision made on 3 ^rd April, 2018 (the “original decision”). On 14 ^th June, 2018, I granted leave to Glomes CLG (“Glomes”), Peter Sweetman, and John Conway and Louth Environmental Group each to bring separate proceedings by way of judicial review to challenge the original decision on several different grounds. The Board did not defend those proceedings. It accepted that there was an error on the face of the record of the original decision in the way in which it recorded the test applied by the Board in carrying out an appropriate assessment (“AA”) under the EU Habitats Directive and indicated that it was prepared to consent to an order of certiorari in respect of the original decision.

3 Having indicated its consent to an order quashing the original decision, the Board proposed that a further order should be made remitting the application for permission to the Board on a particular basis. The Applicants in those proceedings (who are now the notice parties in the present proceedings) did not agree with the terms of the proposed order. In particular, they did not agree that the application should be remitted to the Board on the basis proposed or at all. The Applicant in the present proceedings was a notice party in those proceedings. It supported the remittal proposed by the Board.

4 Having heard submissions from all of the parties, I delivered a judgment in those proceedings on 31 ^st July, 2018 ( [2018] IEHC 473) (the “remittal judgment”) in which I considered the respective submissions of all of the parties and explained the reasons why I had decided to grant an order of certiorari quashing the original decision on the terms consented to by the Board, as well as orders remitting the Applicant's application for permission to the Board to be determined in accordance with law, with such remittal taking effect from the point in time immediately following the time at which the Board's inspector had signed her report on 23 ^rd March, 2018. I also made an order deeming that the time period set out in s. 9(9)(a) of the 2016 Act would, in respect of the remitted application, expire six weeks from the date of the perfection of the orders made. I awarded the Applicants in those proceedings their costs.

5 In circumstances explained in greater detail later in this judgment, the Board reconsidered the Applicant's remitted application for permission in respect of the proposed development on a de novo basis. On 10 ^th September, 2018, the Board made a fresh decision refusing permission for the proposed development for the reasons set out in its decision (the “impugned decision”). The reasons given by the Board for refusing the permission sought related both to screening for AA (and, in particular, to the fact that bird species apart from the Light-bellied Brent Goose had been screened out by the inspector) and to the AA itself (as a result of an alleged lack of adequate qualitative analysis in respect of the Light-bellied Brent Goose). The impugned decision also set out reasons why the Board disagreed with the inspector's recommendation to grant permission. The Board had not referred the application to an inspector for further consideration or for the preparation of a new or updated report in advance of making the impugned decision following the remittal of the application to the Board.

6 In these proceedings, the Applicant challenges that decision on several grounds, ultimately relying on three essential grounds in support of its challenge. The Applicant's challenge is opposed by the Board and by all of the notice parties, although Clonres was the only one of the notice parties actively to participate in the proceedings.

7 This is my judgment on the Applicant's challenge to the impugned decision. The judgment principally addresses issues in relation to (a) the reasons given by the Board for its decision, (b) the alleged powers of the Board to seek further information from an applicant for permission in respect of a strategic housing development under the 2016 Act and (c) the Board's treatment of what it terms “ mitigation“ in its decision.

8 After judgment was reserved in these proceedings, the Applicant made a new application for permission to develop the site at St. Paul's. The Board granted permission on foot of that application. However, the Board very recently consented to an order quashing that decision and an order was made in those terms by the High Court on 11 ^th June, 2020. The issues the subject of that further decision and the further proceedings which led to the quashing of that further decision, were not brought to my attention and are not relevant to the issues addressed in this judgment.

Summary of Decision

9 For the reasons set out in this judgment, I have concluded that the Applicant must succeed in one of its grounds of challenge in respect of the impugned decision, namely, the ground which alleged that the reasons given by the Board for refusing permission and for disagreeing with the inspector's recommendation to grant permission were inadequate on various grounds. That finding in itself is sufficient to require me to grant an order of certiorari quashing the decision. While, strictly speaking, it may be unnecessary for me to consider the other grounds of challenge advanced by the Applicant. I have nonetheless proceeded...