Heather Hill Management Company clg v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] IEHC 450
• Court: High Court
• Docket Number: 2019 No. 20 J.R.
• Date: 21 June 2019

BETWEEN

HEATHER HILL MANAGEMENT COMPANY CLG

GABRIEL MCGOLDRICK

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

BURKEWAY HOMES LTD

NOTICE PARTY

[2019] IEHC 450

Simons J.

2019 No. 20 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Residential development – Ultra vires – Applicants seeking to challenge a decision to grant planning permission for residential development – Whether the decision to grant planning permission was ultra vires

Facts: The applicants, Heather Hill Management Company clg and Mr McGoldrick, sought to challenge a decision to grant planning permission for residential development at Bearna, Co. Galway. The proposed development would comprise 197 residential units, and, as such, constituted “strategic housing development” as defined. The application for planning permission was made directly to the respondent, An Bord Pleanála, pursuant to the Residential Tenancies and Planning and Development (Housing) Act 2016. The decision to grant planning permission was dated 16 November 2018, and bears An Bord Pleanála reference “PL07.302216”.

Held by the High Court (Simons J) that the decision to grant planning permission was ultra vires and should be set aside. Simons J held that the proposed development would involve a material contravention of the Galway County Development Plan in two respects: first, the scale of the proposed development would breach the population allocation for Bearna as set out in the core strategy and settlement hierarchy, and as affirmed by a variation made to the County Development Plan on 23 July 2018; secondly, part of the application site lay in an area which had been identified as being at risk of flooding. Simons J noted that the County Development Plan provided that proposals for development works in the area were to be subject to a development management “justification test”; this was not done. Simons J held that An Bord Pleanála also erred in law in purporting to defer the completion of a site specific flood risk assessment. Simons J held that the fact—if fact it be—that there is a conflict between two objectives of a development plan does not allow a decision-maker to contravene one of the objectives and to dismiss that contravention as immaterial. Simons J noted that the solution which the Oireachtas has put in place to address the contingency of conflicting objectives is that provided for under s. 37(2)(b) of the Planning and Development Act 2000 (as applied to “strategic housing development” by s. 9(6) of the 2016 Act); more specifically, An Bord Pleanála is authorised to grant planning permission in material contravention of the plan where there are conflicting objectives in the development plan insofar as the proposed development is concerned. Simons J held that the board must first consider whether the statutory criteria under s. 37(2)(b) of the 2000 Act have been met, and must indicate in its decision the “main reasons and considerations” for contravening materially the development plan. On the facts of this case, Simons J held that An Bord Pleanála mistakenly concluded that the proposed development did not involve a material contravention, and, as a consequence, did not address its mind to these statutory requirements. Simons J held that these legal errors vitiated the decision to grant planning permission. Simons J held that An Bord Pleanála failed to carry out a proper screening exercise for the purposes of the EU Habitats Directive, as implemented under Part XAB of the 2000 Act. Simons J held that the board erred in relying on measures which were intended to avoid/reduce potential harmful effects of the proposed development on two European sites located in Galway Bay. Simons J held that measures of this type cannot lawfully be taken into account for the purposes of a stage 1 screening exercise.

Simons J proposed to make an order of certiorari setting aside An Bord Pleanála’s decision to grant planning permission. Simons J proposed to adjourn the matter briefly to allow the parties to consider this judgment. On the adjourned date, Simons J would hear counsel on the issue of costs, and on whether the matter should be remitted to An Bord Pleanála pursuant to Order 84, rule 26.

Order granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 June 2019.

SUMMARY

1 The within proceedings seek to challenge a decision to grant planning permission for residential development at Bearna, Co. Galway. The proposed development would comprise 197 residential units, and, as such, constitutes ‘strategic housing development’ as defined. The application for planning permission was made directly to An Bord Pleanála pursuant to the Residential Tenancies and Planning and Development (Housing) Act 2016 (‘ the PD(H)A 2016’). The decision to grant planning permission is dated 16 November 2018, and bears An Bord Pleanála reference ‘PL07.302216’.

2 For the reasons set out in detail in this judgment, I have concluded that the decision to grant planning permission was ultra vires and should be set aside. The proposed development would involve a material contravention of the Galway County Development Plan (‘ the County Development Plan’) in two respects. First, the scale of the proposed development would breach the population allocation for Bearna as set out in the core strategy and settlement hierarchy, and as recently affirmed by a variation made to the County Development Plan on 23 July 2018. Secondly, part of the application site lies in an area which has been identified as being at risk of flooding. The County Development Plan provides that proposals for development works in this area are to be subject to a development management ‘justification test’. This was not done. An Bord Pleanála also erred in law in purporting to defer the completion of a site specific flood risk assessment. See Condition No. 12(e) of the planning permission.

3 The fact—if fact it be—that there is a conflict between two objectives of a development plan does not allow a decision-maker to contravene one of the objectives and to dismiss that contravention as immaterial. Rather, the solution which the Oireachtas has put in place to address the contingency of conflicting objectives is that provided for under section 37(2)(b) of the Planning and Development Act 2000 (as applied to ‘strategic housing development’ by section 9(6) of the PD(H)A 2016). More specifically, An Bord Pleanála is authorised to grant planning permission in material contravention of the plan where there are conflicting objectives in the development plan insofar as the proposed development is concerned. The board must first consider whether the statutory criteria under section 37(2)(b) of the PDA 2000 have been met, and must indicate in its decision the ‘main reasons and considerations’ for contravening materially the development plan. On the facts of the present case, An Bord Pleanála mistakenly concluded that the proposed development did not involve a material contravention, and, as a consequence, did not address its mind to these statutory requirements. These legal errors vitiate the decision to grant planning permission.

4 Separately, An Bord Pleanála failed to carry out a proper screening exercise for the purposes of the EU Habitats Directive, as implemented under Part XAB of the PDA 2000. The board erred in relying on measures which were intended to avoid / reduce potential harmful effects of the proposed development on two European sites located in Galway Bay. Measures of this type cannot lawfully be taken into account for the purposes of a stage 1 screening exercise. See Case C 323/17 People Over Wind.

APPLICATION SITE

5 The application site is located in the village of Bearna, which is some 6.5 km from Galway City (Eyre Square). The population of Bearna as per the Bearna Plan (§1.1) is stated to be in excess of 2,000 persons. The application site is located behind the existing village, and also behind a proposed inner relief road. The site is adjacent to the existing Heather Hill residential development. The first named applicant is the management company for that development.

6 The physical feature of the site which is of most immediate relevance to these proceedings is the presence of a stream running through the site from north to south. This stream is referred to as the ‘Trusky stream’. The stream does not evenly bisect the site: more land lies to the west of the stream than to its east. After exiting the application site, the stream continues running south through the village, and ultimately enters Galway Bay at Bearna pier, which is approximately 700 m from the boundary of the application site. There are two protected European sites in Galway Bay, located some 1.4 km to 1.5 km to the east of Bearna pier. As discussed at paragraphs 131 et seq., An Bord Pleanála and the Developer, in the context of their analysis of the Habitats Directive issues, attach importance to the fact that the stream does not discharge directly into either European site.

7 The application site is approximately 7.2 ha. The site is generally zoned for residential development (‘ R – Residential (Phase 1)’). However, an area of circa 1.5 ha. of the site is zoned as open space (‘ OS – Open Space / Recreation and Amenity’). This open space area is generally located within the vicinity of the Trusky stream.

8 A smaller part of the application site is subject to ‘ Objective CCF 6 – Inappropriate Development on Flood Zones’. The nature of the legal requirements imposed by this objective are one of the principal issues in dispute between the parties. For introductory purposes, it is to be noted that both An Bord Pleanála and the Developer accept that Objective CCF 6 represents an objective for the zoning of land. See the board inspector's report (§9.2.1), and the affidavit of Gus McCarthy on behalf of the Developer (at paragraphs 37 to 40). The legal significance of this is that An...