O'Donnell and Others v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 05 July 2023 |
| Neutral Citation | [2023] IEHC 381 |
| Court | High Court |
| Docket Number | [2021 No. 251 JR] |
In the Matter of Sections 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
and
[2023] IEHC 381
[2021 No. 251 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Humphreys J. delivered on the 5th day of July, 2023
. Like Sherwin v. An Bord Pleanála [2023] IEHC 26, ( [2023] 1 JIC 2701 Unreported, High Court, 27th January, 2023), this case relating to the proposed construction of residential units and associated works at the former Carmelite monastery at Delgany, County Wicklow is another window on the rise and fall of the Catholic Church in Ireland.
. The central section of the monastery, according to the National Inventory of Architectural Heritage (NIAH), was originally a country house built around 1810. The Carmelites took possession of the house in 1844. According to other public domain material (wicklowheritage.org), the building of the monastery church was delayed by the Famine. The foundation stone was laid in 1851 and the first Mass was celebrated in 1853. The same source describes the church as having been called “a little gem of gothic architecture”.
. According to the NIAH, a large two and three-storey wing to the south was built around 1860 and a school was held within the monastery until 1896. Wicklowheritage.org states that:
“In recent times, due to diminishing numbers in the Order, the Carmelite Sisters decided to sell the monastery and move the small remaining congregation to a Carmelite monastery in Stillorgan Co. Dublin. The bishop instructed that the church be deconsecrated and religious artefacts be removed before the property was vacated … the final Mass in the church was celebrated in February 2019.”
. In anticipation of the development consent application, an application for a bat derogation licence was made to the National Parks and Wildlife Service (NPWS) on 17th January, 2020. The licence was issued on 4th March, 2020.
. On 16th July, 2020, a request was made to amend the licence to include the brown long-eared bat. That was granted and an amended licence issued on 21st July, 2020.
. Pre-application consultation took place on 23rd July, 2020, which resulted in a board order identifying issues to be addressed dated 12th August, 2020.
. The application for planning permission under s. 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 was submitted on 21st October, 2020. The revised derogation licence was appended to the application documentation, so the application date was the first date on which the applicants could have known about it.
. The applicants made submissions on the application. The board's inspector then prepared a report recommending grant of permission with conditions dated 3rd February, 2021. The board broadly accepted this recommendation and granted permission on 15th February, 2021.
. Proceedings challenging the board's decision and the derogation licence were issued on 25th March, 2021.
. On 19th April, 2021, I granted leave to seek judicial review and a stay on the works. I gave case management directions on 14th May, 2021. An issue then blew up because one of the points being made by the applicants was covered by the Waltham Abbey v. An Bord Pleanála [2021] IEHC 312, ( [2021] 5 JIC 1002 Unreported, High Court, 10th May, 2021) proceedings and the matter was then delayed pending a resolution of that issue.
. On 28th March, 2022, the directions were amended and were further amended on 9th May, 2022 by agreement of the parties. There were then further revised directions by agreement on 20th June, 2022 and further agreed adjournments on 25th July, 2022 and 3rd October, 2022. Ultimately, following completion of the exchange of pleadings and affidavits, a date was fixed in the list to fix dates on 30th January, 2023 and the matter was heard on 9th to 11th May, 2023. On the latter date, an additional affidavit exhibiting further material that was before the board was admitted without objection.
. Following the CJEU judgment in Case 721/21 Eco Advocacy CLG v. An Bord Pleanála (Court of Justice of the European Union, 15th June, 2023, ECLI:EU:C:2023:477), the matter was listed for mention on 19th June, 2023 for any further submissions arising from that case. It was then adjourned on consent to 26th June, 2023, at which point some further argument was offered in relation to pleadings issues. The applicants wanted to reserve the right to yet a further reply so the matter was adjourned to 27th June, 2023 for that purpose. At that point some discussion arose as to whether the court could give a judgment on most of the issues but indicate provisionally any views or difficulties that arose in respect of aspects of the derogation licence arguments and invite further submissions on those. That was not particularly objected to and judgment was formally reserved on the basis that such an option would be available.
. The reliefs sought by the applicants are as follows:
“1. An order of certiorari quashing the decision of the Respondent granting planning permission for the construction of 232 residential units and associated works at the site of the former Carmelite Monastery Lands, Delgany Co. Wicklow on 15th February 2021 (ABP Ref 308467-20) (the ‘Decision’).
2. An order of certiorari quashing the Derogation Licence (DER/BAT 2020/9) (the ‘Derogation Licence’) granted by the Second Respondent in respect of bats and issued to the Developer in respect of the proposed development on 21st July 2020.
3. Such declaration(s) of the legal rights and/or legal position of the applicants and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the respondents as the court considers appropriate.
4. A declaration that (to the extent that they are not capable of bearing a conforming construction) sections 5, 6, and 7 of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (‘the 2016 Act[’]) are incompatible with Article 6(4) of Directive 2011/92/EU and/or the requirements of fair procedures and natural and constitutional justice.
5. A declaration that (to the extent that it is not capable of bearing a conforming construction) section 5(6) and 9(6)(c) of the 2016 Act are incompatible with Articles 3 and 4 of the Strategic Environmental Assessment Directive, Directive 2001/42/EC.
6. A stay on works being carried out pursuant to the Decision pending the resolution of these proceedings.
7. An order that section 50B of the Planning and Development Act, 2000 (the ‘2000 Act’), and/or sections 3 and 4 of the Environment (Miscellaneous Provisions) Act, 2011, and/or Article 9 of the Aarhus Convention apply to the present proceedings.
8. Costs.”
. Since core ground 1 was withdrawn, relief 4 falls so the preliminary objections at paras. 6 and 7 in the State's statement of opposition does not arise.
. Core ground 1 states as follows:
“The Decision is invalid as the statutory pre-consultation procedures provided in sections 5 and 6 of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (the ‘2016 Act’) are incompatible with Article 6(4) of Directive 2011/92/EU (as amended) (the ‘EIA Directive’) and/or the requirements of fair procedures and natural and constitutional justice.”
. As noted above, this ground was not pursued.
. Core ground 2 states as follows:
“The Decision is invalid because the Board granted planning permission for the proposed development in contravention of a zoning objective or an objective in relation to the zoning of land contrary to section 9(6)(b) of the 2016 Act.”
. This is dealt with below as a domestic law issue.
. Core ground 3 states as follows:
“The Decision is invalid because the Board failed to identify any basis pursuant to section 37(2)(b) of the 2016 Act as to why it was entitled to grant permission notwithstanding that the proposed development constitutes an acknowledged material contravention of the relevant Development Plan and Local Area Plan.”
. This is also addressed below as a domestic law issue.
. Core ground 4 states as follows:
“The Decision is invalid as the material contravention procedure provided by the Minister in section 5(6) and/or 9(6)(c) of the 2016 Act is incompatible with the requirements of Directive 2001/42/EC ([‘]the SEA Directive’) and/or that the Board was required to but failed to ensure the effectiveness of the law of the European Union.”
. This is a tortuously and inaccurately phrased point because obviously a provision of primary statute law is not a “procedure provided by the Minister”. Essentially, this is a complaint about statutory validity which is best dealt with on a reach-constitutional-issues-last-basis.
. Core ground 5 states as follows:
“The Decision is invalid because the Developer and the Board failed to comply with Article 299B of the Planning and Development Regulations 2001.”
. This ground was not pursued.
. Core ground 6 states as follows:
“The Decision is invalid because the Board erred in failing to have any, or any adequate regard for the protection of bat fauna for the purposes of Annex IV and Article 12 of the Habitats Directive and/or section 23 of the Wildlife Act 1976 (as amended).”
. This is an EU law point which is best postponed until after dealing with domestic law issues.
. Core ground 7 states as follows:
“The...
To continue reading
Request your trial
-
Clane Community Council v an Bord Pleanála and Others
...The only thing flexible is the word “normally”. The board tries to rely on the flexibility in the term “generally” as recognised in ( [2023] IEHC 381 O'Donnell v. An Bord Pleanála, Minister for Housing, Local Government and Heritage, Ireland and the Attorney General Unreported, High Court, ......
-
O'Donnell and Others v an Bord Pleanála and Others
...of Humphreys J. delivered on Wednesday the 1st day of November, 2023 Judgment history 1 . In O'Donnell v. An Bord Pleanála (No. 1) [2023] IEHC 381, ( [2023] 7 JIC 0501 Unreported, High Court, 5th July, 2023), I dismissed an application for certiorari of a planning permission for a housing d......