Ironborn Real Estate Ltd v Dun Laoghaire-Rathdown County Council
| Jurisdiction | Ireland |
| Judge | Mr Justice Rory Mulcahy |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] IEHC 477 |
| Court | High Court |
| Docket Number | 2022/944 JR |
[2023] IEHC 477
2022/944 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr Justice Rory Mulcahy delivered on 31 July 2023
In these proceedings, the Applicant (“ Ironborn”) challenges the Respondent's decision, made pursuant to section 42 of the Planning and Development Act 2000, as amended (the “ 2000 Act”), to refuse Ironborn's application to extend the appropriate period of a planning permission granted by An Bord Pleanála (“ the Board”) in 2011.
To explain briefly, section 40 of the 2000 Act provides that a planning permission shall cease to have effect upon the expiry of “the appropriate period”. The Act sets a default appropriate period of five years, but section 41 of the Act empowers a planning authority or the Board to specify a longer period during which the planning permission will have effect, up to a maximum of ten years in the case of a residential development. The planning permission the subject of these proceedings was a ‘ten-year permission’.
Section 42 of the Act provides that an application may be made to the relevant planning authority to extend the appropriate period, i.e. the period for which the planning permission will continue to have effect. If the criteria in section 42 are satisfied, the planning authority is required to grant the extension.
In this case, Ironborn claims that its application met the statutory criteria for such an extension but the Respondent (“ the Council”) disagrees. The disagreement turns not on the substance of the application, but rather on the correct interpretation of section 42 and, in particular, section 42(1)(a)(i)(IV) and section 42(8).
The requirement set out in section 42(1)(a)(i)(IV), that the planning authority must be satisfied that the development the subject of the extension application will be completed in a reasonable time, has been a feature of the 2000 Act since it was first enacted. Section 42(8) limits the circumstances in which an extension can be granted to those where no environmental impact assessment (EIA) or appropriate assessment (AA) would be required in relation to the proposed extension.
Before considering the issues raised in these proceedings in detail, it might be helpful to briefly set out the factual background, none of which is in dispute.
On 5 December 2011, the Board granted planning permission for a mixed-use development of 355 residential units, four office units, two retail units, a crèche and a community / sports facility on lands at Murphystown and Woodside, Stepaside, Dublin 18 (the “ Parent Permission”). Condition 2 of the Parent Permission stated that “the proposed development hereby permitted shall be for a period of ten years from the date of this order”. The application for permission had been accompanied by an environmental impact statement and had been the subject of both an environmental impact assessment and screening for appropriate assessment.
The Parent Permission was subsequently revised by a decision of the Council, Planning Permission Register Reference D16A/0511 (the “ Amendment Permission”). The Amendment Permission permitted amendments to what is referred to in the Parent Permission as “Sector 3” of the development permitted by the Parent Permission and authorised the development in Sector 3 of 243 apartments and duplexes in 11 blocks, a community building, basement parking and site works. The Amendment Permission was granted on 16 December 2016.
Construction on foot of the Parent Permission commenced in May 2013. The development, known as Aiken's Village, is not yet complete. As at the time of the extension application, 234 residential units have been constructed at Aiken's Village under the Parent Permission, all of which are located in Sectors 1 and 2. 121 of the units permitted by the Parent Permission have not been constructed. There remains 263 residential units to be constructed as part of Sectors 1 and 3 according to the terms of the Parent Permission as amended by the Amendment Permission. This consists, inter alia, of 1 apartment block consisting of 20 residential units in Sector 1, permitted under the Parent Permission, and 243 residential units in Sector 3 permitted under the Amendment Permission.
On 6 December 2021, an application for an extension of duration of the appropriate period of the Parent Permission (“ the Application”) was lodged by Ironborn with the Council pursuant to section 42 of the 2000 Act. The Application related to 263 residential units, i.e. the total number of remaining units as permitted by the Parent Permission as amended by the Amendment Permission. Nonetheless, on the same day, an application for an extension of the duration of the appropriate period of the Amendment Permission was also lodged with the Council. That application related to the 243 residential units permitted in Sector 3 of the Parent Permission. These proceedings are concerned solely with the first application. No issue was or is taken by the Council regarding the fact that the application to extend the Parent Permission seems to have been made by reference to the Parent Permission as amended. The Court was told that the Council has delayed a decision on the second application pending the determination of these proceedings.
The Application was accompanied by a Report from Stephen Little & Associates which included a section on environmental impact assessment. The Report noted that as there were only 263 units remaining to be constructed on a site of 3.2 hectares, an EIA was not mandatory. The Report concluded that the requirement for an EIA could be screened out and invited the Council to concur.
The Application was also accompanied by an AA Screening Report prepared by Scott Cawley. This detailed Report concluded that the requirement for an AA could be screened out.
The Council issued a request for further information on 4 February 2022 which asked Ironborn to address two issues:
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1. Given that [the Parent Permission] exceeds the threshold set in Item 10(b)(IV) of Part 2 of Schedule 5 of the Planning Regulations, and for which an Environmental Impact Statement was submitted, it is considered that extending the appropriate period would appear to be contrary to s. 42(8) of the Planning and Development Act 2000 (as amended). The applicant is invited to respond to this matter.
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2. The applicant has failed to address fully Section 42(1)(a)(IV) of the Act which requires the Planning Authority to be “satisfied that .. the development will be completed within a reasonable time”. While it is acknowledged that the development could be completed within the additional 5 year period sought, this is not sufficient to allow the planning authority to come to a positive conclusion on this matter. The applicant is requested to provide clarity around the intent or otherwise to implement the permission that is subject to this request for Extension of Duration, including reference to the recent planning history on this site.
Stephen Little & Associates responded on behalf of Ironborn on 3 March 2022. They disputed the Council's interpretation of section 42(8) and contended that the “assessment carried out as part of an Extension of Duration (EoD) relates only to the balance of the development (i.e. the remaining unimplemented parts of the development).” The Report also included further detail on why an EIA was not required for the balance of the development.
The response also included details regarding the proposed completion of the development. The response referenced that planning permission for a strategic housing development (SHD) had been granted in 2021 relating to the same lands as the remaining portion of the Parent Permission but that the SHD permission was subject to pending judicial review proceedings. It also referred to a further planning application for the same lands being the subject of a pre-application consultation and which it expected would be submitted that year. It concluded that in those circumstances, Ironborn ‘considers it prudent to extend the duration of the extant permission on the subject site to retain the potential to have an implementable planning permission.’
The Council's decision to refuse the Application, dated 16 September 2022 was based on a Planner's Report dated the same day and contained two reasons for refusal as follows:
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1. Given that Reg Ref D10A/0044 (ABP Ref PL06D.239332) exceeds the threshold set in Item 10(b)(iv) of Part 2 of Schedule 5 of the Planning and Development Regulations 2001 – 2022, and therefore, exceeds the threshold above which a development is likely to have significant effects on the environment, thus requiring the preparation of an Environmental Impact Statement, it is considered that extending the appropriate period is contrary to s. 42(8) of the Planning and Development Act 2000 (as amended).
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2. The Planning Authority is not satisfied that the permitted development will be completed within a reasonable time. Therefore, the criteria set by Clause IV of section 42(1)(a) is not considered to be met.
As appears from the Planner's Report, the Council was satisfied that all other statutory criteria were met.
Ironborn obtained leave to bring these proceedings by Order dated 12 December 2022 (Holland J) and the matter was heard by me on 6 and 7 July 2023.
There are two main issues in dispute:
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i. Did the Council err in its interpretation and application of section 42(8) of the 2000 Act?
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ii. Did the Council err in its interpretation and application of section 42(1)(a)(i)(IV) of the 2000 Act (“ the Clause IV requirement”)?
In respect of the first issue, the parties' positions in the proceedings are broadly consistent with their positions on the application itself....
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