Heather Hill Management Company CLG v an Bord Pleanála

JurisdictionIreland
JudgeMr Justice Holland
Judgment Date16 March 2022
Neutral Citation[2022] IEHC 146
CourtHigh Court
Docket Number2021/289JR

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...

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