Keshmore Homes Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 27 June 2023
• Neutral Citation: [2023] IEHC 369
• Court: High Court
• Docket Number: [Record No.: 2021/12JR]

In the Matter of Section 50 of the Planning and Development Act 2000

Between:

Keshmore Homes Limited

Applicant

and

An Bord Pleanála

Respondent

[2023] IEHC 369

[Record No.: 2021/12JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT Of Ms. Justice Siobhán Phelan, delivered on the 27 ^th day of June, 2023

INTRODUCTION

1 . This application for judicial review concerns a decision of An Bord Pleanála (“the Board”) to refuse planning permission for a residential development comprising 64 dwellings (subsequently reduced to 62) and associated development on lands in the townlands of Loughminane, Knocksborough Glebe and Whitesland West, Kildare, County Kildare (“the proposed development”). The Applicant (hereinafter “KHL”) is a company carrying on a development business and was the applicant for planning permission in the application the subject of the present proceedings.

2 . The Applicant challenges the decision of the Board by reference to three different issues. First, it is alleged that there was a failure to consider a submission made by the Applicant that planning permission should be granted in material contravention of the Kildare County Development Plan 2017 – 2023 (“the Development Plan”) and/or a failure to give reasons for rejecting that submission. Second, it is alleged that the Board failed to afford fair procedures to the Applicant in respect of the application of a Variation to the Development Plan. Third, it is alleged that the Board has adopted an “ inconsistent” approach to different applications for planning permission which gives rise to an unfairness.

BACKGROUND

3 . KHL's application for planning permission was made on the 6 ^th of December, 2019. The application involved the construction of 64 residential units, comprising detached, semi-detached and terraced houses, and eight apartments in a single, two-storey block (ref. 19/1359). At that time, the site was subject to the Kildare County Development Plan, 2017–2023 (the “CDP”) and the Kildare Town Local Area Plan, 2012–2018 (as extended) (the “LAP”).

4 . On the 7 ^th of February 2020, the planning authority, Kildare County Council (the “Council”), decided to refuse permission on three grounds, the first of which was that the proposed development would represent a material contravention of the LAP. The material contravention identified, however, related to section 7.2.1 of the LAP for Kildare Town which prioritised development land zoned Phase 1 lands over lands zoned Phase 2 (which included KHL's lands). No contravention of the CDP was identified as a basis for the refusal.

5 . By letter dated the 5 ^th of March, 2020, KHL lodged an appeal with the Board against the Council's decision. This first-party appeal was supported by submissions on behalf of KHL by its planning consultant (David Mulcahy, Planning Consultants Limited) dated the 4 ^th of March 2020. It was submitted on behalf of KHL that there was no material contravention of the LAP for Kildare Town. The broad thrust of the submissions were directed to why it was in the interests of proper planning and sustainable development to grant permission in respect of the particular zoned phased 2 lands notwithstanding that all zoned phased 1 lands had not yet been developed. A brief alternative submission was made to the effect that if the Board concluded there was a material contravention of the LAP, the Board could nevertheless grant permission for the proposed development:

“having regard to the delivery of housing which is of national importance arising from the current housing crisis and, the RSES (Regional Spatial and Economic Strategy) which are clear that alternative lands should be considered for housing development when existing residential zoned land is not delivering same.”

6 . Express reference was made in the first-party appeal to s. 37(2) of the Planning and Development Act, 2000 (the “2000 Act”), which was quoted in full at para. 9.1.1, and the Board's power under that provision to grant permission in material contravention of a development plan. This submission was made with reference to the LAP and not the CDP. The submission focussed on the importance of development in the context of the national housing crisis (clearly referrable to the Board's power to grant permission under s. 37(2)(i)) and the Regional Spatial and Economic Strategy (“RSES”) (referrable to the power under s. 37(2)(iii)) notwithstanding a material contravention. Again, as already noted, these submissions were addressed to a contravention of the LAP as opposed to the CDP.

7 . Express reference was also made to a proposed variation of the CDP even though it had not yet been adopted (at p. 52) and was not the basis for the refusal under appeal in the following terms:

“We note that the Planner's Report makes reference to ‘Variation of the Kildare County Development Plan 2017–23’. We highlight that this is a proposed variation and is currently the subject of 73 submissions. We submit that it cannot be considered as part of the assessment of an application until it has been formally adopted. That said, we note that Kildare Town has been designated as a Self-Sustaining Growth Town which is the second highest tier within the settlement strategy and reflects the strong development of the two in recent years and its infrastructure base.”

8 . Several months after the appeal had been submitted, on the 9 ^th of June, 2020, the Council made the previously mooted variation to the CDP (the “Variation”). I understand that the Variation was itself a response to the publication on the 28 ^th of June, 2019 by the Eastern and Midland Regional Assembly of a RSES for the period from 2019 to 2023. The Variation effected changes to the Core Strategy and Settlement Strategy contained in the CDP including the insertion of a new Table 3.3 which contained a revised dwellings target for towns in the county. The dwellings target for Kildare Town, where the subject development is located, was revised from 1527 to 283. This constituted an 81 per cent reduction in the dwellings target to 2023 for Kildare Town.

9 . The Variation had major implications for the development of KHL's lands as it had the effect of amending the CDP core strategy by substantially reducing the target number of new dwellings for settlements in County Kildare. The Variation was challenged in separate proceedings commencing in July, 2020 entitled Ardstone Residential Partners Fund ICAV and Ardstone Homes Limited v. Kildare County Council (2020/538JR) (the “ Ardstone Proceedings”). A stay on the Variation was granted on an interim basis by order ex parte made on the 12 ^th of August, 2020 in the Ardstone Proceedings in respect of the towns of Celbridge, Clane and Johnstown. The terms of the stay were subsequently varied by order made on the 19 ^th of November, 2020 with the effect of limiting the application of the stay to the lands the subject of the Ardstone Proceedings.

10 . On the 19 ^th of August, 2020, the Board made a decision in respect of a separate development referred to as the “ Rycroft Decision”. The Inspector's Report in that case had been completed in August, 2020. While the inspector found that the proposed development in the case of that development integrated within the existing settlement and was an appropriate location for expansion, refusal of the appeal was recommended with reference to the Variation adopted by the Council in June, 2020 on the basis that the grant of permission would be a material contravention of the housing allocation for the area (Kilcock in that case) were the stay then understood to be in play by virtue of the Ardstone Proceedings lifted. Notably, the Inspector considered in some detail whether permission should be granted notwithstanding a material contravention having regard to the provisions of s. 37(2)(b) of the 2000 Act. Having done so she concluded that the settlement hierarchy and housing allocation stated in the Variation were in keeping with the policies and objectives of the National Planning Framework (NPF) and the RSES for the Eastern and Midlands Regional Assembly and would therefore be contrary to the proper planning and sustainable development of the area. The Inspector specifically addressed the possibility that the Board might disagree with her and conclude that the grant of permission was warranted under s. 37(2)(b) of the 2000 Act and stated that in view of the conflict between policies requiring sustainable growth and “ in the absence of any order of priority in the LAP” the development might be justified under s. 37(2)(ii) of the 2000 Act.

11 . In the Rycroft Decision, the Board decided to grant permission on the basis that the proposed development would be in accordance with proper planning and sustainable development of the area notwithstanding a material contravention of the CDP. According to the terms of the Board Direction in that case, it determined that although the Variation reflects certain objectives of the RSES, it:

“has been adopted without any associated dezoning, and in the opinion of the Board, without due regard to density or efficient land-use implications, and as such has not demonstrated itself to be wholly consistent with Sustainable Urban Development Guidelines, Residential Density Guidelines, and NPF compact growth objectives, etc.). The development is located on residentially zoned land in an existing urban settlement, within the Dublin MASP and is adjacent to existing infrastructure and services. The development provides linkages to a proposed school site, is well served and accessible to public transport (via the Sligo Dublin rail line), and as such is suitable for development and of a strategic and beneficial nature to the town of Kilcock.”

12 . Accordingly, notwithstanding that the grant of permission was incompatible with the varied CDP, permission was granted by the Board on appeal in respect of the Rycroft...