Highlands Residents Association v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 02 December 2020
• Neutral Citation: [2020] IEHC 622
• Docket Number: [2020 No. 238 J.R.]
• Court: High Court
• Date: 02 December 2020

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000 AND

IN THE MATTER OF THE PLANNING AND DEVELOPMENT (HOUSING) AND RESIDENTIAL TENANCIES ACT, 2016

BETWEEN

HIGHLANDS RESIDENTS ASSOCIATION AND PROTECT EAST MEATH LIMITED

APPLICANTS

AND

AN BORD PLEANÁLA, THE MINISTER FOR CULTURE HERITAGE AND THE GAELTACHT, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

TRAILFORD LIMITED

AND

MEATH COUNTY COUNCIL

NOTICE PARTIES

[2020] IEHC 622

Denis McDonald

[2020 No. 238 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Denis McDonald delivered on 2nd December, 2020

1 These proceedings relate to a decision made by the first named respondent (“ the Board”) on 29th January, 2020 to grant planning permission to the first named notice party (“ Trailford”) for the construction of a strategic housing development on lands on the outskirts of Drogheda, County Louth. The decision of the Board was made under the powers conferred upon it by the Planning and Development (Housing) and Residential Tenancies Act, 2016 (“ the 2016 Act”) which provides a fast track planning procedure for substantial housing developments which fall within the ambit of the definition of “ strategic housing development” in s. 3 of the 2016 Act. The housing development proposed by Trailford in this case is for the construction of 509 houses, 152 apartments together with a crèche, a shop and a café.

2 The location of the proposed development is described in the following terms by the inspector appointed by the Board in para. 2.1 of his report:

“The site is at the western edge of Drogheda, to the immediate east of the M1, south of the river Boyne and adjacent to the Meath/Louth county boundary. It is c. 2 km from Drogheda town centre and c. 3.5 km from the train station. The site has a stated area of 26.2 ha and is agricultural land. The northern part of the site is a wooded area that slopes sharply down to the level of the road along the riverbank. The rest of the site is arable land that has a gentle even slope down from south to north. Farm buildings stand in two places on the site. The M1 motorway runs along the western site boundary. The northern, eastern and southern site boundaries are along rural roads…. There is a pedestrian boardwalk along this stretch of the river that runs back to the town centre. The Riverbank estate is to the north east of the development site …. Construction has commenced on a residential development on land to the south-east of the site ….. Two existing detached houses stand on the other side of that road near the south-eastern corner of the site”.

3 According to the statement of grounds, the first named applicant (“ HRA”) is an unincorporated association whose members live in The Highlands, a housing development adjacent to the site of Trailford's proposed development. The second named applicant (“ Protect East Meath”) is a not-for-profit company which was established for the purpose of ensuring that future development in East Meath should only take place “ with strong environmental protections”. The applicants challenge the legality of the decision of the Board on a number of grounds which can be summarised as follows:

(a) In the first place, it is alleged that the Board was precluded in this case from granting planning permission in circumstances where (so the applicants allege) the proposed development involves a material contravention of a zoning objective of the Meath County Development Plan 2013-2019 (“ the Development Plan”). In this context, s. 9 (6) (b) of the 2016 Act prohibits the Board from granting permission for a proposed development where the development (or a part of it) materially contravenes a development plan or local area plan relating to the area concerned “ in relation to the zoning of the land”. It should be noted, in this context, that, in addition to contesting the merits of the applicants' case on this ground, the Board has, for reasons which are explained further below, raised an issue as to the applicants' standing to raise this issue;

(b) Secondly, the applicants make the case that the provisions of s. 9 (6) (a) and (c) of the 2016 Act (which permit the Board to grant permission for a proposed strategic housing development where there is a material contravention of a development plan or local area plan in respect of matters other than zoning) are inconsistent with the Strategic Environmental Assessment Directive (namely Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment) (“ the SEA directive”). However, the parties are agreed that this issue should only be addressed by the court in the event that the applicants do not succeed in relation to any of the other issues pursued by them in these proceedings;

(c) Thirdly, the applicants contend that the Board, in carrying out a screening exercise for the purposes of the Habitats Directive, failed to exclude the possibility of a significant effect on the surrounding Natura 2000 sites for the purposes of s. 177U of the Planning and Development Act, 2000 (“ the 2000 Act”) by reference to best scientific knowledge. In particular, the applicants make the case that the Board, in the absence of appropriate surveys, could not lawfully exclude ex situ effects on avi-fauna from the proposed development. While the inspector appointed by the Board concluded that the application site does not support such ex situ habitats, the applicants allege that there was no basis for the inspector to make that finding in the absence of appropriate bird surveys;

(d) Fourthly, the applicants allege that the Board took mitigation measures into account for the purposes of the necessary screening assessment for the purposes of the Habitats Directive and that, in accordance with well-established case law, this constitutes an error of law which vitiates the Board's decision;

(e) The applicants also make a case in relation to the manner in which the Board addressed the impacts of the development on bats. In light of the strict protection available for bats under Article 12 and Annex 4 of the Habitats Directive, it is alleged that the survey work undertaken on behalf of Trailford was inadequate and that the matter has not been assessed in an appropriate manner as required by Article 3 of the EIA Directive. In addition, it is contended that the Board erred in law in identifying disturbance to bats as “ incidental” and therefore not captured by Article 12 of the Habitats Directive.

(f) It is also contended by the applicants that there is no system of strict protection for the protection of bats in Ireland and, for that reason, it is alleged that there has been inadequate transposition of the requirements of EU law.

(g) Furthermore, in their written submissions, the applicants have also sought to attack the legality of a derogation licence issued under the Habitats Regulations (namely EC (Birds and Natural Habitats) Regulations 2011; S.I. No. 477 of 2011). It is alleged that, insofar as the Habitats Regulations allow derogation licences to be applied for and granted after the grant of development consent, they are not consistent with the requirements of the Habitats Directive. It should be noted that the State respondents have objected to this aspect of the applicant's case in circumstances where it is not addressed in the statement of grounds and no application has been made to amend the statement of grounds. In my view, this objection is entirely justified. As no case has been made in respect of this issue in the statement of grounds, it is clear, having regard to the decision of the Supreme Court in A.P. v DPP [2011] 1 I.R. 729, that this case cannot be pursued.

4 It seems to me that any issues in relation to transposition or in relation to the compatibility of the 2016 Act with the SEA Directive should only be addressed in the event that the applicants do not succeed in relation to any of the other issues ventilated by them in their statement of grounds. For that reason, I will defer any consideration of the grounds identified in para 3 (b) and 3 (f) above until after I have considered the other issues raised. Subject to that reservation and to the observations made in para. 3 (g), I will deal with each of the issues identified in para. 3 above in the same order as they appear in that paragraph. However, in relation to the zoning issue mentioned in para. 3 (a) above, I will address the objection in relation to standing before considering the merits of the issue.

The standing of the applicants to pursue the issue in relation to zoning

5 Insofar as the standing of the applicants in relation to the zoning issue is concerned, the Board highlights that the applicants in their submissions did not argue, in the course of the proceedings before the Board, that the Board was precluded from granting planning permission by virtue of s. 9 (6) (b) of the 2016 Act. In addition, the Board, in its statement of grounds and in its written submissions has argued that the applicants expressly accepted that the Board does have jurisdiction. In this context, the Board drew attention to the submission made by Protect East Meath to the Board. On p. 6 of that submission, the following was stated:

“While it is acknowledged that section 9 (6) (a) of the Planning and Development (Housing) and Residential Development Act, 2016 gives the Board powers to grant permission for a development that materially contravenes the development plan or local area plan relating to the area concerned, the power must nevertheless be exercised in a way that is compatible with EU law.”

6 In response, counsel for the applicants contends that the statement in the submission made by Protect East Meath does not go so far as to accept the precise point which now arises in these proceedings in relation to s.9 (6) (b) and, in particular, the prohibition contained in that...