Grafton Group Plc v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 22 December 2023
• Neutral Citation: [2023] IEHC 725
• Court: High Court
• Docket Number: Record No. 2022/ 279 JR

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

Between

Grafton Group Plc

Applicant

and

An Bord Pleanala

Respondent

and

Strategic Power Limited

First Notice Party

and

Offaly County Council

Second Notice Party

[2023] IEHC 725

Record No. 2022/ 279 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

JUDGMENT of Ms. Justice Emily Farrell delivered the 22 ^nd day of December 2023.

Introduction	2
The Issues	3
Core Ground 1 – The Development Plan	4
Significance of the finding that there is no material contravention – Core Ground (i)(a)	8
The Inspector's Report and Order of the Board	15
Validity of decision regarding Zoning – Core Ground 1	21
Reasons and consideration by the Board of Relevant Matters – Core Ground 1(b) and (d)	26
Irrelevant Considerations – Core Ground 1(c)	32
Core Ground 2 — Failure to adequately consider all environmental effects of the proposed development for the purposes of sections 171A and 172 of the Planning and Development Act 2000 (‘the 2000 Act’), in particular to consider the cumulative effects on the environment, habitats and bats	33
The Environmental Impact Assessment Report	35
Impact on Bats and the Removal of Hedgerows	37
Cumulative effects	40
Core Ground 3 — Article 114 of the Planning and Development Regulations 2001 as amended	46
Is it appropriate to make a declaration?	49
Orders	52

Introduction

1 The Respondent granted planning permission to Strategic Power Limited, the first notice party (‘the developer’) in respect of a renewable biogas facility on a 2.14 ha site at Ballyduff, Tullamore, Co. Offaly by Order made the 17 ^th February 2022. The proposed facility would produce renewable energy and organic fertiliser through anaerobic digestion of farm by-product including silage, manure and chicken litter. The appearance of the proposed development during its operational phase was described by the Inspector as “ an industrial facility with large scale storage and processing vessels, boiler stack and flare for the flaring of gas”. It is anticipated that there would be 4–5 employees on site during the day, once the development would become operational. The Applicant operates a builders merchants store, trading under the name Tullamore Hardware/Chadwicks, which is approximately 150m from the plant buildings of the proposed development.

2 The application for planning permission was made to Offaly County Council, the second notice party (‘the planning authority’) on 23 ^rd July 2020. Numerous observations were made, which included the submission that the proposed development would be contrary to the zoning in the Draft Offaly County Development Plan, which was anticipated to be adopted in 2021.

3 Further information was sought by the planning authority on 16 ^th September 2020, which was furnished on 24 ^th November 2020. The planning authority refused permission for the development, the subject of the proceedings, on 21 ^st January 2021 on the grounds that the EIAR did not contain sufficient information to comply with Schedule 6 of the Planning and Development Regulations 2001 (as amended) (‘the 2001 Regulations’). Accordingly, the planning authority was not satisfied that the proposed development would not cause serious air pollution which may have a significant impact on the environment and public health. On that ground, it was considered that the proposed development was contrary to the proper planning and sustainable development of the area.

4 The developer appealed the planning authority's decision to An Bord Pleanála (‘the Board’) on 18 ^th February 2021. The Applicant submitted a third-party observation to the Board in respect of the appeal on 16 ^th March 2021. The Board did not publish the EIAR, which had been received from the planning authority and published by it on its own website. It is not in dispute that the EIAR had been published by the planning authority in accordance with its statutory obligations.

5 Observations were made by four parties, each of whom opposed the grant of permission. All four of the third-party observations submitted that the proposed development would be contrary to the zoning in the Draft County Development Plan. The Applicant and another observer expressly referred to the designation of the site as a Strategic Employment Zone (‘SEZ’) in the Draft Offaly County Development Plan. The response of the planning authority did not address the issue of zoning. Neither the observations nor the response of the planning authority referred to biodiversity, particularly habitats or bats.

6 The Offaly County Development Plan 2021–2027 was adopted on 10 ^th September 2021 and came into effect on 22 ^nd October 2021, after the Inspector's Report had been prepared on 6 ^th September 2021, but before the Board's Direction and Order, dated 10 ^th February 2022 and 17 ^th February 2022 respectively.

7 The Inspector identified the following main issues to be considered in the assessment of the appeal:

• — Validity of Planning Authority Decision and Substantive Reason for Refusal;

• — Principle of Development and Land Use Zoning;

• — Other issues.

8 The Inspector carried out an EIA at Section 8 of the Report, which included a consideration of Biodiversity, including habitats and bats.

9 The Applicant seeks an order of certiorari in respect of the Order of the Board made on 17 ^th February 2022 and a declaration that the Board erred in law in failing to put a copy of the EIAR on its website contrary to the requirements of Article 114 of the 2001 Regulations.

10 Leave to apply for judicial review was granted by Meenan J. on 9 ^th May 2022 and an order was made by Humphreys J. granting liberty to file an amended Statement of Grounds on 20 ^th February 2023. A Statement of Opposition was filed on behalf of the Board and the developer. At the commencement of the hearing, counsel on behalf of the developer indicated that it adopted the written and (future) oral submissions of the Board. The second notice party did not take part in the proceedings.

The Issues

11 The Applicant maintains that the decision of the Board is invalid by reason of:

• (i) Material Error on the part of the Board in relation to Zoning and the Development Plan;

  • (a) material error of law in finding that there was no material contravention of the Development Plan;

  • (b) failure to take account of all relevant considerations in particular, the designation as a Strategic Employment Zone and LUZO-15 and LUZO-16;

  • (c) taking account of irrelevant considerations, in particular, that the site was at the bottom of the zoning area and consideration of the absence of significant environmental effects, having regard to the EIA.

  • (d) failure to provide adequate reasons.

• (ii) Failure to adequately consider all environmental effects of the proposed development for the purposes of sections 171A and 172 of the Planning and Development Act 2000 (‘the 2000 Act’), in particular consideration of the cumulative effects on the environment, habitats and bats;

  In addition,

• (iii) the Applicant seeks a declaration that there was a failure on the part of the Board to publish the EIAR in compliance with Article 114 of the 2001 Regulations.

Core Ground 1 – The Development Plan

12 The planning application was made, determined by the planning authority and considered by the Board's Inspector under the Tullamore and Environs Development Plan 2010–2016 (hereinafter referred to as ‘the Tullamore Plan’), which was then in effect. The parties agree that the Board was required to consider the Offaly County Development Plan 2021–2027 (hereinafter ‘the Development Plan’) which was adopted on 10 ^th September 2021 and came into effect on 22 ^nd October 2021, and not the Tullamore plan, as the appeal was determined after it came into effect.

13 The Inspector considered both the Tullamore Plan and the Draft Development Plan in his report dated 6 ^th September 2021; he noted that the new Development Plan was likely to be adopted in its final form in autumn 2021. It is common case that the current Development Plan was adopted without any material change to the draft in existence at that time.

14 As appears from both the Board Direction and Board Order, the Board considered the Offaly County Development Plan 2021–2027, which had come into effect by the date of its Direction and Order, made on 10 ^th and 17 ^th February 2022 respectively.

15 It is clear from the submissions, both oral and written, that the parties agree that the correct approach to the interpretation of the Development Plan is that set out by the Supreme Court in Re XJS Investments Limited [1986] IR 750. As McCarthy J. stated, at p.756, planning documents “ are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning.”

16 Subsequently, in The Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99, 113, McCarthy J. described a development plan as “ an environmental contract between the planning authority, the council, and the community, embodying a promise by the council that it will regulate private development in a manner consistent with the objectives stated in the plan …”

17 Barr J. concluded as follows in Tennyson v. Dun Laoghaire [1991] 2 IR 527, 535–6:

“ In the light of these authorities it seems to me that a court in interpreting a development plan should ask itself what would a reasonably intelligent person, having no particular expertise in law or town planning, make of the relevant provisions? What would he or she learn from the 1984 development plan as to the types of development which the planning authority...