Four Districts Woodland Habitat Group and Others v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 21 June 2023
• Neutral Citation: [2023] IEHC 335
• Court: High Court
• Docket Number: [2021 No. 17 JR]

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

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

Between:

Four Districts Woodland Habitat Group, BCM Residents Association, Rathcoole Park Residents Assocation and Forest Hill Residents Association

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Romeville Developments Limited

Notice Party

[2023] IEHC 335

[2021 No. 17 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on the 21st day of June, 2023

1 . Ministerial guidelines entitled Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas (Cities, Towns and Villages) were adopted in 2009.

2 . The South Dublin County Council Development Plan applicable to the impugned development came into force in 2016.

3 . Subsequent to that, further ministerial guidelines were adopted in 2018 entitled Urban Development and Building Heights, Guidelines for Planning Authorities.

4 . A pre-application consultation meeting took place on 27th November, 2019 in respect of what became an application for a development of 204 residential units, a childcare facility and associated works, together with a demolition of existing buildings, at Stoney Hill Road, Rathcoole, County Dublin.

5 . The board's inspector reported on the proposed application on 11th December, 2019, concluding that further information was required. A board direction to that effect issued on 17th December, 2019.

6 . The formal application under the Strategic Housing Development (SHD) procedure was made on 27th July, 2020.

7 . The applicants made submissions objecting to the development. The county council reported negatively on the application on 21st September, 2020, echoing concerns it had expressed at the pre-application stage. It concluded inter alia that:

“The Planning Authority expressed serious concerns in relation to the proposal during the SHD process and in assessing previous planning applications on the site. It is considered that the submitted proposal does not overcome these concerns.

The proposed strategic housing development is generally in accordance with the Core Strategy of the SDCC Development Plan and the general area plan approach provides adequate connection opportunity for future development to the east.

Notwithstanding this, the Planning Authority has significant concerns in relation:

— the poor integration of the existing Green Infrastructure Network into the site layout and design and the resultant removal of large numbers of trees and hedgerows;

— the proposed access location from Stoney Lane and the absence of consideration of the vehicular access from the north west sector of the site;

— the residential amenity of the lower level apartments; and

— the functionality of the open space adjacent to the apartments, due to the dominance of the gradient; and

— the design and layout of the apartment[s]. [Chief Executive's Report pp. 42–43]”

8 . The board's inspector recommended on 26th October, 2020 that planning permission be granted subject to 31 conditions. The board generally adopted that report and granted permission on 12th November, 2020.

Procedural history

9 . The proceedings challenging that decision were instituted on 12th January, 2021. As one of the pleaded grounds overlapped with an issue raised in Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 312, ( [2021] 5 JIC 1002 Unreported, High Court, 10th May, 2021), the proceedings were adjourned pending the outcome of those proceedings. In addition, issues regarding Strategic Environmental Assessment (SEA) pleaded against the State were modularised.

10 . The matter was listed again on 4th April, 2022 and adjourned to allow the applicants to put in a final replying affidavit. On 9th May, 2022, the matter was further adjourned to enable the opposing parties to consider that, and to allow the formal swearing and filing of the affidavit. Some further time was sought by the opposing parties in that regard and after adjournments sought to facilitate the notice party on 16th May, 23rd May, 20th June and 11th July, 2022, the matter was listed on 25th July, 2022, at which point the replying affidavit had been filed subject to a further affidavit to correct an error in that affidavit.

11 . The matter was then adjourned for certification as ready to take a date, although that did not happen immediately and there were adjournments sought by the parties on 3rd October, 24th October, 7th November and 21st November, 2022 to enable the matter to be certified as ready. In addition, there was possibly some delay in uploading papers to ShareFile but ultimately the matter was certified and given a hearing date of 18th April, 2023.

12 . In the meantime, on 16th January, 2023 an issue that overlapped with Kerins and Stedman v. An Bord Pleanála, Ireland and the Attorney General (No. 3) [2021] IEHC 733, ( [2021] 11 JIC 3001 Unreported, High Court, 30th November, 2021) was modularised pending the finalisation of that case.

Reliefs sought

13 . Reliefs 1 and 2 are as follows:

“1. An order of certiorari quashing the decision of the Respondent granting planning permission for the demolition of existing residential units and the construction of 204 residential units, a childcare facility and associated works at Stoney Hill Road, Rathcoole, Co. Dublin on 12 November 2020 (ABP Ref 307698) (the ‘Decision’).

2. Such declaration(s) of the legal rights and/or legal position of the Applicant [ sic – note that the pleadings use the singular quite liberally which gives them, perhaps inaccurately, a slightly cut-and-paste feel] and/or persons similarly situated and/or of the legal duties and/or legal position of the respondent(s) as the Court considers appropriate.”

14 . Those reliefs, particularly the first, now fall for consideration.

15 . Relief 3 is as follows:

“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 are invalid and incompatible with Article 6(4) of Directive 2011/92/EU (the ‘EIA Directive’) and/or the requirements of fair procedures and natural and constitutional justice.”

16 . That relief is not being pursued.

17 . Relief 4 states as follows:

“A Declaration that (to the extent that it is not capable of a conforming construction) section 9(6) of the 2016 Act is invalid and/or incompatible with the requirements of Directive 2001/42/EC (the ‘SEA Directive’).”

18 . As noted above, that has been modularised pending the outcome of the present module.

19 . Reliefs 5 to 7 are as follows:

“5. A stay on works being carried out pursuant to the Decision pending the resolution of these proceedings.

6. 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.

7. Costs.”

20 . Nothing particularly arises under those headings for decision at this point.

Core grounds

21 . Core ground 1 states as follows:

“The Decision is invalid as the statutory pre-consultation procedures provided for in sections 5, 6, and 7 of the Planning and Development (Housing) and Residential Tenancies Act, 2016 (the ‘2016 Act’) are invalid and incompatible with Article 6(4) of Directive 2011/92/EU (as amended) and/or the requirements of fair procedures and natural and constitutional justice.”

22 . That ground was not pursued.

23 . Core ground 2 states as follows:

“The Decision is invalid because the Board failed to comply with Article 299B of the Planning and Development Regulations, 2001 (the ‘2001 Regulations’) and/or Article 4(4) of the EIA Directive.”

24 . That issue potentially arises now. While not being entirely a matter of EU law it is significantly affected by European law, so will be considered following the purely domestic law questions.

25 . Core ground 3 provides as follows:

“The Decision is invalid because, contrary to the determination of the Board, the application constitutes a material contravention of the South Dublin County Council Development Plan 2016–2022 (the ‘CDP’)”.

26 . Most of this ground with its sub-grounds arises now as a domestic law point. As noted above, sub-ground 9 regarding the need for SEA of the area plan was modularised pending the outcome of Kerins.

27 . Core ground 4 provides as follows:

“The impugned decision is invalid as the Board erred in its interpretation of section 3 of the Urban Development and Building Height Guidelines 2018 and/or failed to take into account a relevant consideration.”

28 . That matter was not pursued.

29 . Core ground 5 provides as follows:

“The Decision is invalid as the material contravention procedure provided by the State in section 9(6) of the 2015 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.”

30 . As noted above, that issue was modularised, but one can note in passing the painfully convoluted drafting of the claim. If one wants to challenge an Act, one should challenge the Act – not some kind of abstract “procedure provided by the State in … the … Act”. It is from the same type of mind-set that prefers not to challenge a concrete, tangible thing like a licence or permission but instead to pursue the will-o'-the-wisp of challenging only the aethereal, incorporeal and abstract, such as the “decision to grant” the permission, the “decision to publish” the permission, the “decision to adopt” a decision, or presumably the “decision to decide” to do any of these things, and...