Fernleigh Residents Association CLG v an Coimisiún Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 28 November 2025
• Neutral Citation: [2025] IEHC 655
• Docket Number: Record Number: 2023/1449 JR

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000

And the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Fernleigh RA CLG

Applicant

and

An Coimisiún Pleanála

Respondent

and

Ironborn Real Estate Limited

Notice Party

[2025] IEHC 655

Record Number: 2023/1449 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

Judicial review – Planning permission – Material contravention – Applicant seeking certiorari quashing the order granting planning permission to the notice party – Whether there was material contravention of the County Development Plan

Facts: The applicant, Fernleigh RA CLG (Fernleigh), applied to the High Court seeking certiorari quashing the order of the respondent, An Coimisiún Pleanála (the Board), dated 20 October 2023 (the impugned decision) granting Strategic Housing Development planning permission, pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016, to the notice party, Ironborn Real Estate Ltd, for 422 Build-to-Rent apartments, a childcare facility and associated works at lands off Aiken’s Village, Stepaside, Dublin 18 (the proposed development. Fernleigh did not pursue Core Grounds 2, 3, 6 and 7 and argued the remaining grounds in a revised order: (5) the impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.6 of the Dún Laoghaire-Rathdown County Development Plan 2022-2028 (CDP) in relation to private amenity space; (4) the impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.4.2 of the CDP which the Board is required to comply with under s. 9(3) of the 2016 Act; (8) the impugned decision is invalid as it constitutes a material contravention of §12.3.5.1 of the CDP in relation to dual aspect units for which the Board could only have granted permission once it had been identified in the Statement of Material Contravention and the Board satisfied itself that the requirements of s. 37(2)(b) of the Planning and Development Act 2000 had been complied with; (9) the impugned decision is invalid as no notice was given to statutory consultees pursuant to Article 295(h)(i) of the Planning and Development Regulations 2001 when read with s. 8(1)(b)(ii) of the 2016 Act as required in respect of a development that might have a significant effect on waterways; and (1) the impugned decision is invalid as it constitutes a grant of permission that contravenes a Zoning Objective of the CDP in relation to Objective F contrary to the requirements of s. 9(6)(b) of the 2016 Act which the Board is precluded from granting permission for.

Held by Holland J that, on the ordinary meaning of the words of the CDP and Specific Planning Policy Requirement 8, the Board failed to acknowledge a material contravention of the CDP as to provision of private open spaces in 74 units. Holland J held that the Board had no power to permit the proposed development save via s. 9(6) of the 2016 Act, which it did not invoke.

Holland J held that the impugned decision would be quashed on Core Ground 5 only -unacknowledged material contravention of the CDP as to private amenity space. Holland J held that all other grounds would be dismissed.

Application granted.

JUDGMENT OF Mr Justice David Holland DELIVERED 28 NOVEMBER 2025

Contents

Judgment of Mr Justice David Holland delivered 28 November 2025	1
INTRODUCTION	3
CORE GROUNDS LISTED	4
GROUND 5: PRIVATE AMENITY SPACE – MATERIAL CONTRAVENTION	6
G5 CDP, Guidelines & Statutory Provisions	6
G5 Ironborn Design Statement	9
G5 Fernleigh's Submissions to the Board & Inspector's Report	9
G5 Arguments: XJS interpretation of “Reduction”, Caselaw & Decision	10
GROUND 4: DAYLIGHT/SUNLIGHT – MATERIAL CONTRAVENTION & IRRELEVANT CONSIDERATION	17
G4 CDP, Applicable Standards, Ironborn's Sunlight, Daylight & Shadow Assessment, Fernleigh Submissions to the Board & Inspector's Report	17
G4 Arguments	21
G4 Decision	22
GROUND 8: DUAL ASPECT UNITS – MATERIAL CONTRAVENTION	26
GROUND 1: ZONING FOR WORKS REQUIRED BY UISCE EIREANN — MATERIAL CONTRAVENTION	30
G1 Introduction	30
G1 Inspector's Report	34
G1 Fernleigh's Case	35
G1 Commission's Case	36
G1 Discussion & Decision	37
GROUND 9: EFFECT ON WATERWAYS — NO NOTICE TO INLAND FISHERIES IRELAND	40
G9 Introduction	40
G9 Legislation & Some Commentary	43
G9 Inspector's Report	45
G9 Fernleigh's Case	46
G9 Commission's case, Discussion & Decision	47
Commission's Opinion	47
Ius Tertii	48
Other Standing/Similar Points	51
Kemper & Atlantic Diamond	52
Mandatory Obligations – Breach not de minimis	52
Evidential Deficit	52
CONCLUSION	53

INTRODUCTION

1 The Applicant (“Fernleigh”) seek certiorari quashing the Commission's order 1 dated 20 October 2023 (“the Impugned Decision”) granting SHD 2 planning permission, pursuant to the 2016 Act, 3 to the Notice Party (“Ironborn”) for 422 Build-to-Rent (“BTR”) apartments, a childcare facility and associated works at lands off Aiken's Village, Stepaside, Dublin 18 (“the Site” and “the Proposed Development”).

2 Ironborn is not participating in the proceedings. The Dún Laoghaire-Rathdown County Development Plan 2022 – 2028 (the “CDP”) applies. In Fernleigh #1, a previous SHD permission for the Site was quashed on grounds related to daylight/sunlight, public transport capacity and open space. 4

3 Ironborn's planning application for permission, 5 submitted on 6 ^th September 2022, included, inter alia, a Planning Report, a Statement of Consistency and a Material Contravention Statement. 6 Ironborn's planning report 7 describes its planning application as for 438 BTR apartments arranged in two courtyard buildings ranging in height from 2 – 8 storeys, with the majority of the buildings being 3 – 6 storeys, with two focal elements at 7 storeys and 8 storeys. Between the two courtyard buildings there is a large area of public open space. The car parking is in two single level basements, all on a site of circa 3.32 ha. It says the proposal is largely the same as that which resulted in the quashed permission. The primary difference is that a floor has been omitted from Block F (reduced from 5 to 4 storeys) resulting in a reduction in the number of units from 445 to 438. Ironborn's planning report 8 describes the key amendments to the proposed scheme following pre-planning consultation with the Commission as follows:

The omission of balconies and increase of window sizes was said to improve daylighting and sunlighting of the units. Fernleigh characterised this as sacrificing private amenity space (the balconies) to daylight and sunlight.

• • Reduction in height of Block F (onto Thornberry Road) from 5 storeys to 4 storeys.

• • Omission of 74 balconies.

• • Amendment to window opening heights from 2.25m to 2.4m.

• • Associated adjustments to elevation treatments.

4 A stream runs generally south-west of the Site. It is given various names in the papers. The EPA apparently call it the Barnaculla Stream. It is also known as the Barnacullia Stream 9 and the Ballyogan Stream. 10 I will refer to it as the Ballyogan Stream and will amend any citations accordingly. The Ballyogan Stream joins the Carrickmines Stream about 2.8 km to the south-east of the Site. The Carrickmines Stream joins the Shanganagh River at Cherrywood and it outfalls to the Irish Sea at Killiney Bay about 7.3 km from the subject site.

5 Fernleigh is an association of residents of the Fernleigh residential estate immediately east of and adjoining the Proposed Development. Fernleigh say they do not oppose residential development of the Site but that the Proposed Development would overdevelop it. By planning consultants, Fernleigh made a submission dated 10 October 2022, in response to the planning application.

6 The Commission's Inspector, by report dated 29 June 2023, recommended that planning permission be granted subject to 28 Conditions. He recommended by Condition 2 the omission of the proposed Block E, 11 — which would result in permission for 422 units in 8 blocks. The Commission agreed and granted permission accordingly. It screened out any need for EIA 12 and AA. 13

CORE GROUNDS LISTED

7 Fernleigh is not pursuing Core Grounds 2, 3, 6 and 7 and argued the remaining grounds in a revised order. Thus reordered, the core grounds are as follows:

GROUND 5: PRIVATE AMENITY SPACE – MATERIAL CONTRAVENTION

The impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.6 of the CDP in relation to private amenity

space. The Board erred in law in concluding that the proposed development did not materially contravene §12.3.6 of the CDP. The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in granting permission without considering whether such material contravention could be justified by reference to the requirements of section 37(2)(b) of the 2000 Act and/or the decision was invalid as it was on foot of a planning application which failed to identify in the material contravention statement that the planning application materially contravened §12.3.6 of the CDP in breach of section 8(1)(a)(iv)(II) of the 2016 Act .

GROUND 4: DAYLIGHT/SUNLIGHT – MATERIAL CONTRAVENTION & IRRELEVANT CONSIDERATION

The impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.4.2 of the CDP … 14 which the Board is required to comply with under section 9(3) of the 2016 Act .

The Board erred in law in concluding that the proposed development did not materially contravene §12.3.4.2.

The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in granting permission without...