Heather Hill Management Company CLG v an Bord Pleanála
Jurisdiction | Ireland |
Judge | Mr Justice Holland |
Judgment Date | 16 March 2022 |
Neutral Citation | [2022] IEHC 146 |
Court | High Court |
Docket Number | 2021/289JR |
In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)
and
and
[2022] IEHC 146
2021/289JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Planning permission – Strategic housing development – Applicant seeking to quash the decision of the respondent to grant planning permission to the notice party – Whether the notice party had adequate consents to validate the making of the planning application as neither frivolous or vexatious
Facts: The applicant, Heather Hill Management Company clg (Heather Hill), applied to the High Court seeking to quash the decision of the respondent, An Bord Pleanála (the Board), pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 (as amended), to grant planning permission (the Impugned Permission) to the notice party, Burkeway Homes Ltd (Burkeway), for a Strategic Housing Development of 121 residential units (52 houses and 69 apartments) on a 5.3 ha site at Bearna, County Galway (the Proposed Development), which site included Trusky East Stream and its floodplain. The Proposed Development included a creche and also a public linear park in the eastern part of the Site – essentially, the flood plain.
Held by Holland J that: (a) he rejected the challenge based on want of consents or title; (b) he rejected the allegation of material contravention of the Bearna plan based on alleged failure to apply the Flood Guidelines 2009 as incorporated into Objective CFF6 of the Bearna Plan; (c) he rejected the allegation, by reference to Heather Hill Management Company clg & Gabriel McCormack v An Bord Pleanála [2019] IEHC 450 (Heather Hill #1), of failure to accept the Bearna Plan Indicative Flood Zones; (d) he rejected the challenge based on alleged inadequacy of Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) as to the risk of sewage pollution of the Trusky East Stream by reason of failure of or flooding of both sewage pumps and associated emergency storage tank; (e) he rejected the challenge based on alleged failure to consider in EIA or AA the possibility that the laying of the sewer in the L1321 Road will pollute the Trusky West Stream and thence European sites in Galway Bay; (f) he rejected, as not pleaded, the challenge based on alleged failure to consider the effect of reprofiling works and creation of overland flood routes on the risk of downstream flooding of the Trusky East Stream; (g) he rejected the challenge, by reference to Heather Hill #1, based on alleged failure to treat ancillary works such as car parking and domestic sewers as residential works unsuitable to a flood plain; (h) he rejected as not argued or substantiated the challenge based on alleged failure to consider risks in decommissioning the Cnoc Fraoigh Waste Water Treatment Plan; and (i) he rejected the issues canvassed as to the provision and comprehensibility of data provided by Burkeway in the planning process.
Holland J rejected Heather Hill’s challenge to the Impugned Permission and refused the reliefs it sought.
Relief refused.
Judgment of Mr Justice Holland delivered the 16th of March 2022 | 5 |
INTRODUCTION | 5 |
Figure 1 Extract from Planning Application Site Location map | 6 |
Figure 2 Extract from Planning Application Proposed Site Layout Plan | 8 |
Flood | 10 |
Heather Hill #1 — Introduction | 12 |
The Wastewater Network and Pumping Station | 14 |
The Pumping Station — Ground level | 15 |
IMPUGNED PERMISSION | 17 |
GROUNDS 1 & 2 — TITLE/CONSENTS ISSUES | 20 |
Article 297 PDR 2001, Frescati & Keane | 20 |
Works in Cnoc Fraoigh and on the L1321 — Positions of the Parties as to Consents | 21 |
Pleadings — Grounds 1 & 2 | 23 |
Pleading Point & the Scope of the Applicant's case at trial | 25 |
Caselaw on Owner's Consent to the Making of Planning Applications | 25 |
Heather Hill #1 — Owner's Consent | 25 |
Walsh v An Bord Pleanála & Sinnott | 27 |
Application of the Law to the Facts | 29 |
Cnoc Fraoigh Estate — Sewage Pipe | 30 |
L1321 — Sewage Pipe | 31 |
L1321 — Footpath & Carriageway Widening/Realignment | 31 |
Local Authority Consent to Works | 32 |
That the Court Should Determine the Title Issue | 32 |
Alleged Invalidity of Conditions — Ground 1 | 33 |
GROUNDS 3, 5 & 6 | 33 |
Pleadings & Submissions | 33 |
Heather Hill Amended Statement of Grounds | 33 |
Observations on the Amended Statement of Grounds as to the Flood Guidelines | 38 |
The Board and Burkeway Homes — Opposition Papers | 39 |
Structure of Judgment from this Point | 43 |
Flood Guidelines 2009 | 43 |
Introduction | 43 |
Sequential Approach | 45 |
Flood Risk Assessment | 46 |
Indicative Flood Zones | 48 |
Flooding in Planning Applications — Chapter 5 | 48 |
Justification Test | 50 |
Bearna Plan, Strategic Flood Risk Assessment & Material Contravention | 53 |
Figure 3 Recommended Alteration of Flood Zone and Zoning | 54 |
Bearna Plan as adopted — Flood Zones, Land Use Zoning, Objectives CCF1 & CCF6 and DMFL1 | 55 |
Figures 4a&b Extracts from the Bearna Plan Flood Risk Management Map | 56 |
Figure 5 Extract from the Bearna Plan Village Centre Zoning Map | 57 |
Objectives CCF1 & CCF6 | 58 |
DMFL1 | 59 |
Bearna Strategic Flood Risk Assessment 2018 | 59 |
Heather Hill #1 on Flooding — Bearna Plan, Flood Guidelines 2009 & Justification Test | 62 |
Status & Interpretation of Bearna Plan & Objective CCF6 — Relationship to Flood Risk Guidelines 2009 — Application of Sequential Approach | 68 |
Inspector on Flood | 76 |
§10 — Planning Assessment — §10.8 — “Infrastructural Services including Flooding” | 77 |
§12 — EIA — §12.8 “Water” & §12.16 “Reasoned Conclusion” | 82 |
Application in this Case of the Flood Zones, Sequential Approach and Objective CCF6 — Some Conclusions | 83 |
Information Enclosed With the Planning Application | 85 |
Trusky East Stream Flood Study 2020 | 86 |
Engineering Services Report | 89 |
Site Specific Flood Risk Assessment | 90 |
Figure 6 SSFRA Figure 7: Indicative Flood Zone and Predicted Flood Extent | 93 |
Source of Photographed Flooding | 95 |
Assimilative Capacity Modelling Study & NIS | 97 |
EIAR & NIS | 99 |
Applicant's Objection — Asserted deficiencies in Trusky East Stream Flood Study, SSFRA & Location of Pumping Station — & comment thereon | 100 |
Some Conclusions on the “Trio” of Reports & the Adequacy of Information before the Board for Planning, EIA and AA purposes | 101 |
REPROFILING IN SOUTHEAST OF SITE | 106 |
AA ISSUES | 107 |
The Case Pleaded | 108 |
The Law on AA | 108 |
Heather Hill #1 — AA Screening | 110 |
Inadequacy of AA — Scientific Doubt | 111 |
Inadequacy of AA — Scientific Doubt — Raising the Issue — Burdens | 113 |
The AA Done & its Adequacy | 121 |
AA — Sewage Pipe on the L1321 | 127 |
AA — Risk to the Trusky East Stream | 129 |
EIA ISSUES | 130 |
EIA — Sewage Pipe on the L1321 | 130 |
EIA — Risk to Trusky East Stream | 131 |
Comprehensibility of EIA Information & Data | 131 |
The SSFRA and Trusky East Stream Flood Study “Data” issue | 133 |
DECISION INCONSISTENT WITH HEATHER HILL #1 — GROUND 6 | 138 |
Failure to Treat Ancillary Works as Residential | 138 |
Failure to Treat the Flood Zones as those defined in the Bearna Plan | 138 |
Failure to address the Method of Decommissioning the WwTP | 138 |
CONCLUSIONS | 139 |
Judgment of Mr Justice Holland delivered the 16th of March 2022
These judicial review proceedings seek to quash the decision of An Bord Pleanála (“the Board”) pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 (as amended) (“the 2016 Act”) to grant planning permission (the “Impugned Permission”) to Burkeway Homes Limited (“Burkeway Homes” or “Burkeway”) for a Strategic Housing Development (“SHD”) of 121 residential units, (52 houses and 69 apartments) on a 5.3 ha site (“the Site”) at Bearna, County Galway (“the Proposed Development”), which site includes Trusky East Stream and its floodplain. The Proposed Development includes a creche and also a public linear park in the eastern part of the Site – essentially, the floodplain.
The Board's Inspector's report, of 180 pages, records 1 inter alia that:
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• The primary access to the Site is from the L1321 public road via the existing Cnoc Fraoigh housing estate (“Cnoc Fraoigh”) 2.
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• It is proposed to connect the Proposed Development, via Cnoc Fraoigh, to the Irish Water watermain and foul sewer on the L1321.
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• The Proposed Development will also divert the Cnoc Fraoigh sewage to the Irish Water foul sewer on the L1321 in the manner described below.
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• Surface/Storm water from the Proposed Development is to discharge to the Trusky East Stream. Surface/Storm water from Cnoc Fraoigh already does so.
The figures below may assist understanding of the issues:

Figure 1 3 Extract from Planning Application Site Location map 4
Notes

Figure 2 9 Extract from Planning Application Proposed Site Layout Plan 10.
Notes
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• The “red line” encloses the undeveloped application Site for purposes of Article 297 PDR 2001 5.
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• Though not readily discernible on this map 6, the eastern segment of the red line follows the route of the Trusky East Stream (a.k.a. “the Trusky Stream” a.k.a. the “Cloghscoltia River”) which runs north-south to discharge to Galway Bay at Bearna Pier about 690m south of the site.
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• Cnoc Fraoigh, comprising 21 detached houses, lies essentially around the yellow areas.
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• The Site lies essentially east and north of Cnoc Fraoigh.
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• A blue line shows the “overall landholding” of Burkeway 7. It includes the roads and common areas in Cnoc Fraoigh. It...
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