Kerins and Another v an Bord Pleanala and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 24 April 2023
• Neutral Citation: [2023] IEHC 186
• Docket Number: [2020 No. 830 JR]
• Court: High Court

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, as Amended

Between:

Sinead Kerins and Martin Stedman

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

DBTR-SCR1 Fund, a Sub Fund of TWTC Multi-Family ICAV

Notice Party

[2023 IEHC 186]

[2020 No. 830 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning and development – European Union law – Applicants seeking an order of certiorari quashing the first respondent’s decision to grant planning for strategic housing development – Whether the first respondent erred in law

Facts: An application for planning permission was made directly to the first respondent, An Bord Pleanála (the board) under the strategic housing development procedure on 25th May, 2020. The board decided to grant permission by direction of 10th September, 2020 and order of 14th September, 2020. The applicants, Ms Kerins and Mr Stedman, challenged that decision. In Kerins & Anor v An Bord Pleanála & Anor (No. 1) [2021] IEHC 369, Humphreys J dismissed the applicants’ case on domestic law grounds and indicated an intention to refer the matter to the CJEU. In Kerins & Anor v An Bord Pleanála & Anor (No. 2) [2021] IEHC 612, he issued certain clarifications of the No. 1 judgment at the request of the opposing parties. In Kerins & Anor v An Bord Pleanála & Anor (No. 3) [2021] IEHC 733, he made the formal order for reference. In Case C-9/22 NJ and OZ v An Bord Pleanála & Ors (Site de St. Theresa’s Gardens), the CJEU (seventh chamber) ruled as follows (1) Article 2(a) and Article 3(2) and (3) of Directive 2001/42/EC of the European Parliament and of the Council of 27th June 2001 on the assessment of the effects of certain plans and programmes on the environment, must be interpreted as meaning that a plan comes within the scope of that directive where (i) it has been prepared by an authority at local level in collaboration with a developer of the project concerned by that plan and has been adopted by that authority, (ii) it has been adopted on the basis of a provision in another plan or programme and (iii) it envisages developments distinct from those envisaged in another plan or programme, provided, however, that it is at least binding on the authorities with competence to grant development consent; and (2) Directive 2011/92/EU of the European Parliament and of the Council of 13th December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16th April 2014, must be interpreted as not precluding national legislation which requires the competent authorities of a Member State, when deciding whether or not to grant development consent for a project, to act in accordance with guidelines which require the height of buildings to be increased, where possible, and which have been subject to an environmental assessment under Directive 2001/42. The matter then returned to the High Court in order to enable those answers to be applied to the balance of the case.

Held by Humphreys J that: core ground 1.1 was rejected in the No. 1 judgment; core ground 2.1 was also rejected in the No. 1 judgment; core ground 2.2 was likewise rejected in the No. 1 judgment; core ground 3.1 was also rejected in the No. 1 judgment; core ground 3.2 was also rejected in the No. 1 judgment; core ground 3.3 as a domestic law point was rejected in the No. 1 judgment and as an EU law point fell following the CJEU judgment; core ground 4.1 was rejected in the No. 1 judgment; core ground 5.1 was rejected in the No. 1 judgment; core ground 6.1 was also rejected in the No. 1 judgment; core ground 7.1 was not pursued following the judgment of the CJEU; core ground 7.2 seemed to have been removed from the Fifth Amended Statement of Grounds and there was no attempt to resuscitate the point following the judgment of the CJEU; core ground 8.1 was not pursued following the judgment of the CJEU; core ground 9.1 was rejected in the No. 1 judgment; core ground 10.1 was deleted by the applicants from their statement of grounds; core ground 11.1 was rejected in the No. 1 judgment; and core ground 11.2 was not pursued, as noted in the No. 1 judgment. Humphreys J held that the disposition of the various sub-grounds could be taken to follow the fate of the associated core grounds.

Humphreys J dismissed the proceedings.

Proceedings dismissed.

(No. 4)

JUDGMENT of Humphreys J. delivered on the 24 ^th day of April, 2023

1 . The application for planning permission that is challenged in these proceedings was made directly to the board under the strategic housing development procedure on 25 ^th May, 2020. It was ultimately consented to in the form of a development at 326–328 South Circular Road, Dublin 8 to include 416 residential units in 5 blocks.

2 . On 11 ^th August, 2020, the board's inspector recommended permission be refused. The board however disagreed and decided to grant permission by direction of 10 ^th September, 2020 and order of 14 ^th September, 2020.

3 . The present judicial review application challenging that decision was initiated on 9 ^th November, 2020.

4 . In Kerins & Anor v. An Bord Pleanála & Anor (No. 1) [2021] IEHC 369, ( [2021] 5 JIC 3102 Unreported, High Court, 31st May, 2021) I dismissed the applicants' case on domestic law grounds and indicated an intention to refer the matter to the CJEU.

5 . In Kerins & Anor v. An Bord Pleanála & Anor (No. 2) [2021] IEHC 612, ( [2021] 10 JIC 0408 Unreported, High Court, 4th October, 2021) I issued certain clarifications of the No. 1 judgment at the request of the opposing parties.

6 . In Kerins & Anor v. An Bord Pleanála & Anor (No. 3) [2021] IEHC 733, ( [2021] 11 JIC 3001 Unreported, High Court, 30th November, 2021) I made the formal order for reference.

7 . In Case C-9/22 NJ and OZ v. An Bord Pleanála & Ors (Site de St. Theresa's Gardens) (Judgment of 9 ^th March, 2023), the CJEU (seventh chamber) ruled as follows:

“1. Article 2(a) and Article 3(2) and (3) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, must be interpreted as meaning that a plan comes within the scope of that directive where (i) it has been prepared by an authority at local level in collaboration with a developer of the project concerned by that plan and has been adopted by that authority, (ii) it has been adopted on the basis of a provision in another plan or programme and (iii) it envisages developments distinct from those envisaged in another plan or programme, provided, however, that it is at least binding on the authorities with competence to grant development consent.

2. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014, must be interpreted as not precluding national legislation which requires the competent authorities of a Member State, when deciding whether or not to grant development consent for a project, to act in accordance with guidelines which require the height of buildings to be increased, where possible, and which have been subject to an environmental assessment under Directive 2001/42.”

8 . The matter then returned to the court in order to enable these answers to be applied to the balance of the case.

Relief sought

9 . The applicant has had the benefit of a more than usual number of orders allowing amendments of pleadings, and the operative statement of grounds appears to be the Fifth Amended Statement of Grounds dated 14 ^th April, 2021 (the Fourth Amended Statement of Grounds has the same date, for some reason).

10 . The only substantive relief arising from the Fifth Amended Statement of Grounds that now requires to be addressed is relief number 1 which is as follows:

“1. An Order of Certiorari quashing the decision of the first named Respondent dated 14th September 2020 to grant planning at lands on 326–328 South Circular Road, Dublin 8 for strategic housing development consisting inter alia of 416 residential units in 5 blocks.”

11 . Relief number 2 is as follows:

“2. Such Declarations as to the legal rights and/or legal position of the Applicants and/or persons similarly situated and/or of the legal duties and/or the legal position of the Respondents as to this Honourable Court doth seem fit and meet.”

12 . Nothing arises under this heading that doesn't arise more appropriately under relief 1.

13 . Relief 3 is as follows:

“3. A Declaration as against the Second and third Named Respondents that Section 28 of the Planning and Development Act 2000 (as amended), is inconsistent with Council Directive 2011/92/EU as amended by Council Directive 2014/52/EU in that it unlawfully and inappropriately limits the competent authority in carrying out an Environmental Impact Assessment for the purposes of Council Directive 2011/92/EU as amended by Council Directive 2014/52/EU and/or failed to transpose and/or be consistent with the requirements of that Directive.”

14 . This relief was not pursued following the CJEU judgment.

15 . Relief number 4 states:

“4. A Declaration as against the Second and third Named Respondents that Section 28 of the Planning and Development Act 2000 (as amended), is inconsistent with Council Directive 2011/92/EU as amended by Council Directive 2014/52/EU in that it unlawfully and inappropriately limits the competent authority in carrying out an Environmental Impact Assessment for the purposes of Council Directive 2011/92/EU as amended by Council Directive 2014/52/EU and/or failed to transpose and/or be consistent with the...