James Bernard Flannery, Jim Nolan and Patsy Kearns as Trustees of Kevin's GAA v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 25 February 2022
• Neutral Citation: [2022] IEHC 83
• Docket Number: [2020 No. 74 JR] [2020 No. 66 JR]
• Court: High Court

Between

James Bernard Flannery, Jim Nolan and Patsy Kearns as Trustees of Kevin's GAA

Applicants

and

An Bord Pleanála

Respondent

and

Tempelogue Synge Street GAA Club, Dublin City Council and Barry Carroll

Notice Parties

Between

David O'Sullivan

Applicant

and

An Bord Pleanála

Respondent

and

Tempelogue Synge Street GAA Club

Notice Party

Between

Barry Carroll and BPAC Property Holdings (Ireland) Limited

Applicants

and

An Bord Pleanála

Respondent

and

Tempelogue Synge Street GAA Club

Notice Party

[2022] IEHC 83

[2020 No. 74 JR]

[2020 No. 75 JR]

[2020 No. 66 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Development – Administrative law – Applicants challenging a development on recreational open space lands – Whether there was material contravention of, or misinterpretation of, the development plan in its various aspects

Facts: Three judicial reviews challenged a development on recreational open space lands in Crumlin involving a cumulative total of 209 pleaded grounds and necessitating an attempt to summarise the issues in a Scott Schedule which endeavoured to encapsulate the points discussed at the hearing. Any specific headings suggested by the parties during the formulation of the Scott Schedule were included in one form or another. The 45 points in the Scott Schedule broke down as follows: (i) 9 points which were either not ultimately sought to be made or pursued, or were the subject of a pleading objection; (ii) 24 domestic law points; and (iii) 12 European law points. The domestic law points essentially fell into two broad categories: firstly, material contravention of, or misinterpretation of, the development plan in its various aspects, particularly chapter 8 regarding movement and transport, chapter 14 regarding land use owning, chapter 10 regarding green infrastructure and chapter 16 regarding development standards; and secondly, general administrative law points, particularly reasons, errors of fact and irrationality.

Held by the High Court (Humphreys J) that the respondent, An Bord Pleanála: failed to address or satisfy the requirement for highly exceptional circumstances; failed to address or satisfy the requirement for need for the development; failed to address or satisfy the requirement for serving the long term retention and consolidation of the sporting facility; failed to address or satisfy the requirement that only ancillary development is permitted; misinterpreted the requirement that it is the development that must consolidate or retain the sporting and amenity nature of the lands; incorrectly considered the irrelevant circumstances of the financial situation of the notice party, Tempelogue Synge Street GAA Club; incorrectly considered and failed to satisfy the requirement that the development be limited; failed to address or satisfy the requirement that the development be “on a once off basis”; adopted the incorrect test of whether the development “facilitates” the improvements to the sporting facilities; erred in fact regarding 17% reduction in open space; and failed to give reasons for rejecting the submission on the existing use of the laneway, for rejecting the submissions regarding the impact of balls on the proposed new apartments, and for disagreeing with Dublin City Council. Humphreys J held that the applicants succeeded on the domestic law points.

Humphreys J ordered that there would be an order of certiorari in each of the three cases quashing the decision of the board and the cases would be listed on Monday the 7th of March, 2022 for any consequential orders.

Applications granted.

(NO. 2)

JUDGMENT of Humphreys J. delivered on Friday the 25th day of February, 2022

1 These three judicial reviews challenging a development on recreational open space lands in Crumlin involve a record-breaking cumulative total of 209 pleaded grounds, in statements of grounds running to 24,593 words.

2 That embarrassment of material necessitated an attempt to summarise the issues in a Scott Schedule which endeavoured to encapsulate the points discussed at the hearing. Any specific headings suggested by the parties during the formulation of the Scott Schedule were included in one form or another. But, not content with that, some of the applicants also attempted to launch generalised complaints that they wanted to be taken as relying on everything in their papers, in a matter where there were thousands of pages of materials before the court. Ultimately, however, parties do have to assist the court if they want their issues addressed, and asking for headings is a reasonable requirement in such circumstances. As I say, any specific suggestions were incorporated in one shape or form. If a party can't even come up with a heading for any particular point then virtually by definition such a point can't be a main issue with which a decision-maker (the court in this instance) is obliged to expressly engage.

3 The 45 points in the Scott Schedule broke down as follows:

• (i). 9 points which were either not ultimately sought to be made or pursued, or were the subject of a pleading objection;

• (ii). 24 domestic law points; and

• (iii). 12 European law points.

4 The final version of the Scott Schedule is as follows:

Points not made/pursued or that were objected to

Other points (domestic law nos. 1–24, EU law nos. 25–36)

	O'Sullivan Ground no. if any	Flannery Ground no. if any	Carroll Ground no. if any
1. That developer lacks title to the laneway	N/A	N/A	N/A
2. That the developer is not in a position to carry out the works that envisage alterations in footpaths	N/A	N/A	N/A
3. That there was a lack of clarity as to what documents are before the board	N/A	Not pursued	N/A
4. That the correction of the error regarding reference to the wrong European site was legally flawed	N/A	Not pursued	N/A
5. That the inspector's report is contradictory insofar as it states the lane is approximately 7m wide but accommodates a development of up to 7.4m wide	N/A	N/A	E.59
6. That there is not in fact room in the laneway to deliver the proposed width of the carriageway and footpath	N/A	N/A	E.59
7. That the drawings do not comply with art. 22 of the 2001 regs. in that part of the works envisaged (curving the footpath) lies outside the red lined area	N/A	N/A	N/A
8. That the inspector's report was unduly vague on the dimensions of the laneway or failed to deal with the applicants' measurements	N/A	N/A	E.54, 55, 59. Relies on O'Sullivan submission to ABP re 6.8 metre width at access junction with Crumlin Road
9. That if the Development Plan requirement regarding legal agreement to development on Z9 lands means that a condition to that effect should be imposed, then the decision is invalid because there was no such condition	N/A	Consequential on para 89, but not directly raised.	N/A

	O'Sullivan Ground no. if any	Flannery Ground no. if any	Carroll Ground no. if any
1. That the inspector/ board misunderstood that the entrance is not a funnel shape	N/A	N/A	E.54, 55
2. That the drawings regarding a funnel entrance are inaccurate/ misrepresentative insofar as they imply a curved entrance and/or an encroachment on neighbouring properties	N/A	N/A	E.54, 55, (supported by Aff. Of Barry Carroll §22)
3. That the developer's sightline calculations are incorrect due to obstructions	N/A	N/A	E.54, 55, 59
4. That the developer's sightline information is contrary to DMURS	N/A	N/A	E.51, 54, 55, 58, 59
5. That the developer's proposal on the width of the carriageway and footpath is contrary to DMURS	N/A	N/A	E.51,
6. That condition 3 is inoperable	N/A	N/A	E.56 – 59
7. That in relation to Z9 the board failed to address or satisfy the requirement for highly exceptional circumstances	N/A	N/A	E.25, E.30
8. That in relation to Z9 the board failed to address or satisfy the requirement for “need”	N/A	49, 85–104 (except struck through paragraphs.)	E.29, 31, 32, 33
9. That in relation to Z9 the board failed to address or satisfy the requirement that the development would serve the long term retention of the sporting use	N/A	49, 85–104 (except struck through paragraphs.)	E.31, 32
10. That in relation to Z9 the board failed to address or satisfy the requirement that only ancillary development is permitted	N/A	N/A	E.26, 29, 30, 32
11. That in relation to Z9 the board failed to address or satisfy the requirement that it is the development that must consolidate or retain the sporting nature of the lands	N/A	49, 85–104 (except struck through paragraphs.)	E.29, 30, 31, 32, 33.
12. That in relation to Z9 the board incorrectly considered the developer's financial situation	N/A	49, 85–104 (except struck through paragraphs.)	E.26, 28, 29, 30.
13. That in relation to Z9 the board failed to address or satisfy the requirement for the development to be limited	N/A	49, 99, 100, 101, 102	E.20, 23, 26, 30,31, 32, 33.
14. That in relation to Z9 the board failed to address or satisfy the requirement for the development to be one of in the sense of not setting a precedent that undermines the status of open space lands more widely	N/A	N/A	E.14, 15, 16, 23 (first sentence), 26, “open space” is an overarching issue – the title of 14.8.9
15. That in relation to Z9 the board applied the wrong test of facilitation	N/A	49, 85–104, especially 102	E.30 – 33
16. That in relation to Z9 the board failed to address or satisfy the requirement for a prior legal agreement with the planning authority	N/A	49, 85–104, especially 89	N/A
17. That the board failed to address or satisfy the objectives of Chapter 10 of the Plan	N/A	49, 85–104, especially 91–97	E.43 – 47
18. That the board erred in relation to the zone classification of parking provision

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