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)

Between

Heather Hill Management Company CLG

Applicant

and

An Bord Pleanála

and

The Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

Respondents

and

Burkeway Homes Ltd

Notice Party

[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.

Contents

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

INTRODUCTION

1 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.

2 The Board's Inspector's report, of 180 pages, records 1 inter alia that:

• • The primary access to the Site is from the L1321 public road via the existing Cnoc Fraoigh housing estate (“Cnoc Fraoigh”) 2.

• • It is proposed to connect the Proposed Development, via Cnoc Fraoigh, to the Irish Water watermain and foul sewer on the L1321.

• • The Proposed Development will also divert the Cnoc Fraoigh sewage to the Irish Water foul sewer on the L1321 in the manner described below.

• • Surface/Storm water from the Proposed Development is to discharge to the Trusky East Stream. Surface/Storm water from Cnoc Fraoigh already does so.

3 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

• • The “red line” encloses the undeveloped application Site for purposes of Article 297 PDR 2001 5.

• • 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.

• • Cnoc Fraoigh, comprising 21 detached houses, lies essentially around the yellow areas.

• • The Site lies essentially east and north of Cnoc Fraoigh.

• • A blue line shows the “overall landholding” of Burkeway 7. It includes the roads and common areas in Cnoc Fraoigh. It...