Environmental Trust Ireland v an Bord Pleanála

JurisdictionIreland
JudgeMr Justice Holland
Judgment Date03 October 2022
Neutral Citation[2022] IEHC 540
CourtHigh Court
Docket Number2021/856JR

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between
Environmental Trust Ireland
Applicant
and
An Bord Pleanála, Limerick City and County Council Ireland and the Attorney General
Respondents

and

Cloncaragh Investments Ltd
Notice Party

[2022] IEHC 540

2021/856JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Mr Justice Holland delivered 3 October 2022

Contents

Judgment of Mr Justice Holland delivered 3 October 2022

1

INTRODUCTION — BACKGROUND

4

Impugned Permission, Proposed Development, ETI, the Site and its Location

4

The Site

6

Figure 1 – extract from Planning Application Site Location Map

8

Figure 2 – extract from Planning Application/WERATN Surface Water Receptors Figure 2.2

9

Grounds on Which Relief is Sought – Brief Summary

9

Procedural History of the Judicial Review Proceedings

10

2016 Act – Introductory Note

11

AA – the Basic Rule

11

Karstic and Fractured Limestone – a note

12

URS Closure Report 2013

13

2019 Refusal

15

Site Investigation Report – January 2020

17

WERATN – January 2021

17

Groundwater Management Plan (Basement Construction Phase) – January 2020

21

AA Screening Report — NIS – January 2021

24

AA Screening Report

24

NIS

25

ETI Submission – 3 June 2021 – Content

26

Circulation of ETI Submission to the Council — Report of the Chief Executive of the Council to the Board

29

AA – Inspector's Report — Board's Decision

29

Evidence

35

Affidavit of Michelle Hayes – sworn 11 October 2021 – filed by ETI

35

Affidavit of Pierce Dillon – sworn 20 January 2022 – filed by the Board

36

Affidavit of Tim Paul – sworn 28 January 2022 – filed by Cloncaragh

37

Affidavit of Pierce McGann – sworn 28 January 2022 – filed by Cloncaragh

38

Affidavit of David Drew – sworn 15 February 2022 — Exhibited Drew Report – filed by ETI

39

Affidavit of Michael Duffy – sworn 17 February 2022 – filed by ETI

43

2nd Affidavit of Michelle Hayes – sworn 22 February 2022 – filed by ETI

44

Affidavit of Joe Moynihan – sworn 24 February 2022 – filed by ETI

45

2nd Affidavit of Pierce Dillon – sworn 20 January 2022 – filed by the Board

45

2nd Affidavit of Pierce McGann – sworn 10 March 2022 – filed by Cloncaragh

45

2nd Affidavit of Tim Paul – sworn 10 March 2022 – filed by Cloncaragh

47

3rd Affidavit of Michelle Hayes – sworn 29 April 2022 – filed by ETI

50

4th Affidavit of Michelle Hayes – sworn 30 June 2022 – filed by ETI — Affidavit of Gary Lawlor – sworn 30 June 2022 – filed by Cloncaragh

50

Evidence — Expertise

51

Ground 1 – FAILURE TO TRANSMIT THE ETI SUBMISSION TO THE COUNCIL

56

The Pleadings

56

The 2016 Act Scheme for Consideration of Submissions — Consultation with the Planning Authority

57

ETI Submission – Sequence of Events

60

The Alleged Absence of Prejudice

64

Conclusion as to Ground 1 – Failure to send the ETI Submissions to the Council in Time

76

Ground 2 – CONFLICT BETWEEN PLANNING APPLICATION DRAWINGS

77

Ground 2 – Other Allegations

84

Ground 3 – AA – GAPS AND LACUNAE

84

AA – The Law

84

Pleaded Ground 3 as to AA

87

Pleaded Opposition to Ground 3 as to AA

88

Ground 2 incorporated in Ground 3 – Plans and Particulars

88

Figure 3 – Construction Management Plan – Typical Foundation Pad — Column

93

Secant Pile Depth and No Secant Pile Elevations – Breach of Article 297 PDR 2001

93

Pleadings – Hydrological Route — Failure to Properly Establish Groundwater Levels

96

Consequences of the Pleading Issue as to Hydrological Route

102

Disputed Risk of Cement Leaching to Groundwater

102

Can ETI Raise Cement Leaching and is the Duffy Evidence on it Admissible?

102

General Issue of Dispute as to the Existence of a Risk

113

Method of Resolution of Dispute as to Existence of Risk

120

The Onus of Proof

123

Conclusion on Disputed Risk of Cement Leaching to Groundwater

125

Risk to the SAC

125

CONCLUSIONS

126

INTRODUCTION & BACKGROUND
Impugned Permission, Proposed Development, ETI, the Site and its Location

1. The Applicant (“ETI”) seeks to quash a decision of the First Respondent (“the Board”) dated 18 August 2021 granting planning permission (“the Impugned Permission”) under the PDA 20001 and the 2016 Act2 to the Notice Party (“Cloncaragh”) for a Strategic Housing Development (“SHD” and the “Proposed Development”) which may be fairly, if a little incompletely, described as demolition of various disused buildings on site and construction of a 7-storey over basement car park building of 60 Apartment/318 bedspaces of student accommodation and 30 build-to-let apartments on a 0.77 hectare brownfield site at Punches Cross, Limerick (the “Site”) about 1.1km from Limerick City Centre and less than 300m from Mary Immaculate College. Cloncaragh's SHD Planning Application was made on 30 April 2021. It was accompanied by various reports, plans, and particulars which I describe below.

2. ETI describes itself as an environmental protection NGO and, leaving aside the specifics of its grounds of challenge to the Impugned Permission, its counsel described its “underlying concern” as being that the Proposed Development will give rise to the discharge of on-Site pollutants to groundwater which will thereby reach and adversely impact on the Lower Shannon River SAC3. ETI made a submission to the Board in the planning process (the ETI “Submission”) which I describe below.

3. The Board decided to grant the Impugned Permission generally in accordance with the inspector's recommendation. This is not recorded in the Board's order but is recorded in its direction. So the Board's Inspector's reasoning may be imputed to the Board – see Eoin Kelly4 to the effect that “… the Board order and the board direction can be read with the Board inspector's report …” and see also Dublin Cycling5. That formulation in the Board's direction suffices to record the adoption of the Inspector's report save to any extent that the Board's decision explicitly or by necessary implication differs from that report.6

4. For purposes of compliance with the Habitats Directive7, Cloncaragh submitted an AA8 Screening Report9 and an NIS10. The Board conducted an AA Screening and concluded that AA was required having regard to the likelihood of significant effects on the Lower Shannon River SAC11 (the “SAC”). (AA is sometimes termed “Stage 2 Appropriate Assessment” to distinguish it from Stage 1 AA Screening. To avoid confusion12 I will refer simply to “AA” and “AA Screening” respectively).

5. As to AA, the Board:

  • • concluded that the information before it was adequate for AA purposes

  • • adopted the AA done in its Inspector's report

  • • concluded

    • ○ beyond reasonable scientific doubt

    • ○ based on a complete assessment of all aspects of the proposed development

    • ○ that the proposed development, by itself or in combination with other plans or projects,

    • ○ would not adversely affect the integrity of European Sites13 in view of their conservation objectives14.

The Board did an EIA15 Screening16 and concluded that EIA was not required.

The Site

6. The Site is not entirely regularly shaped but can be thought of as roughly diamond-shaped, with its northern apex at Punches Cross17 from which Rosbrien Road runs south east along the north east boundary of the Site and Ballinacurra Road/O'Connell Avenue runs south west along the north west boundary of the site. Cloncaragh's Groundwater Management Plan18 by SLR Consulting19 says20 that, generally, the Site falls about 6m from north-west to south-east in accordance with the gradient of the local area. Dr Drew21 appears to agree. However the URS Report 201322 has it sloping southwest along the general gradient of the surrounding land. The proposed ground floor levels likewise fall, though less so, from 15.2m OD at the northern apex of the Site, to 14m OD at roughly the south eastern and south western apexes.

7. Again roughly describing matters, the western/north-western half of the Site was occupied by a petrol station from about 1960 to around 2007 – since when the petrol station has been disused23 and largely demolished. Though the precise locational detail and timing are not entirely clear to me and do not matter, at least some of the Site was a quarry preceding the petrol station. The quarry was backfilled — such that much of the Site is made ground. Substantial disused buildings on Site remain for demolition. 4 underground oil storage tanks in the south/southwest of the site24 (“the Tanks”) are for removal – 4 others were removed about a decade ago.

8. Figure 2 below, from Cloncaragh's SHD planning application dated 30 April 2021 (the “Planning Application”), locates the site with reference to the Dooradoyle/Ballinacurra River, which runs from east to west/north west and discharges to the Shannon/Fergus estuary. Figure 2 depicts the SAC in the Shannon/Fergus estuary and the Dooradoyle/Ballinacurra river. It also depicts the River Fergus SPA25 (the “SPA”) but it did not feature in argument. At its nearest, the SAC is 1km southwest and/or west of the Site26. Figure 2 also depicts what Cloncaragh asserted in the Planning Application to be the groundwater flow direction from the Site southeast to discharge to the Dooradoyle River in excess of 500m from the Site.

Figure 1 – extract from Planning Application Site Location Map

Figure 2 – extract from Planning Application/WERATN 27 Surface Water Receptors Figure 2.2

Grounds on Which Relief is Sought – Brief Summary

9. While leave to seek judicial review was granted28 on wider grounds, and it will be necessary in due course to further consider the pleadings, by the end of the trial it was apparent that ETI relied...

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