Kimmage Dublin Residents Alliance CLG v an Board Pleanala and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 13 May 2024
• Neutral Citation: [2024] IEHC 261
• Court: High Court
• Docket Number: Record No.2022/ 987 JR

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000, As Amended and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Kimmage Dublin Residents Alliance CLG

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

1 Terenure Land Limited, Ben Dunne, Dublin City Council, South Dublin County Council

Notice Parties

[2024] IEHC 261

Record No.2022/ 987 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDGMENT of Ms. Justice Emily Farrell delivered the 13 ^th day of May 2024.

Introduction

1 An Bord Pleanála granted planning permission for a development comprising of 208 apartments and associated works at Carlisle, Kimmage Road West, Terenure, Dublin 12 (ABP-313043–22). The development comprises 104 one-bedroom apartments and 104 two-bedroom apartments. The Applicant challenged this grant of permission on ten core grounds, but Core Grounds 8 and 9 have been abandoned. The Board does not oppose the application for an order of certiorari on the basis of Core Ground 5 (as particularised in the Statement of Grounds). No concession is made in respect of the other grounds on which leave to apply for judicial review was granted.

2 The First Notice Party is the developer who has been granted this permission. The developer opposes the grant of certiorari on Core Ground 5, and on all grounds.

3 As the Supreme Court has clarified in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2024] IESC 4, a notice party is entitled to defend judicial review proceedings in which an order of the Board is challenged, despite a concession having been made by the Board. There is no requirement that the developer must meet a threshold in order to defend these proceedings. The onus remains on the Applicant to persuade the court that the Board's decision, which is presumed to be valid, ought to be quashed.

4 It is not in dispute that the Board granted permission in material contravention of the Development Plan in relation to height. Section 16.7 of the Dublin City Development Plan 2016 – 2022 provides that the maximum height permitted for a residential or commercial development in the area in which this site is situated is 16m. The proposed development comprises of five blocks, each of which exceeds 16m at their maximum, and three of which exceed 20m. Subsequent to the Development Plan being made, the Urban Development and Building Height Guidelines 2018 were made by the Minister for Housing, Planning and Local Government under section 28, Planning and Development Act 2000. Those Guidelines were in effect when the Board made the decision on this application.

5 The Board made an express finding that the grant of permission was made in material contravention of the Development Plan. The Board Order contains the following justification for granting permission in material contravention of the Development Plan:

“ • With regard to section 37(2)(b)(i) Planning and Development Act 2000, as amended, the proposed development is in accordance with the definition of Strategic Housing Development, as set out in section 3 of the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, and delivers on the Government's policy to increase delivery of housing from its current under supply as set out in Rebuilding Ireland Action Plan for Housing and Homelessness issued in July 2016.

• With regard to section 37(2)(b)(iii) Planning and Development Act 2000, as amended, the proposed development in terms of height is in accordance with national policy as set out in Project Ireland 2040 National Planning Framework, specifically National Policy Objective 13 and National Policy Objective 35, and is in compliance with the Urban Development and Building Height Guidelines for Planning Authorities, issued by the Department of Housing, Planning and Local Government in December 2018, in particular Specific Planning Policy Requirement 3. In addition, the unit mix and number of apartments per core is in compliance with the Sustainable Urban Housing: Design Standards for New Apartments, Guidelines for Planning Authorities issued by the Department of Housing, Planning and Local Government in December 2020, in particular Specific Planning Policy Requirement 1 and Specific Planning Policy Requirement 6.”

6 The validity of the first of these paragraphs is impugned at Core Ground 7. No concession has been made in respect of Core Ground 7. The first paragraph benefits from the presumption of validity and the challenge based on Core Ground 7 does not require determination at this time. The specific justification for granting permission in material contravention of the Development Plan in respect of unit mix and the number of apartments per core is not impugned.

7 There are two elements to Core Ground 5 — that the Board erred in its interpretation and application of Section 3 of the Urban Development and Building Height Guidelines 2018 in respect of public transport capacity and that the Board failed to give adequate reasons in rejecting the submissions made identifying an absence of public transport capacity.

Material before the Board

8 An issue arose as to the entitlement of the developer to rely on information relating to the capacity of the buses in the Parking Provision Report, rather than within the Planning Report which includes the Material Contravention Statement and Statement of Consistency. Counsel for the Applicant submitted that it had not been relied upon by the developer as the justification for SPPR3 in the Planning Report.

9 I am satisfied that the Parking Provision Report was incorporated into the Planning Report by reference, and that the Board was entitled to take account of all of the information provided by the developer in deciding whether or not Section 3.2 of the Building Height Guidelines was complied with and if SPPR 3 applies. The Planning Report comprises nine chapters, Chapter 7 is the Statement of Consistency and Planning Policy Review and Chapter 8 is the Material Contravention Statement. The Parking Provision Report is referred to in the introductory chapter of the Planning Report, which states that “ the various specialist technical reports and drawings enclosed with this application should be relied upon as the primary source material.” While the stated purpose of the Parking Provision Report relates to parking provision rather than density and the application of the Building Height Guidelines, the Board was entitled to have regard to its contents in deciding whether Section 3.2 of the Building Height Guidelines had been complied with, and if SPPR3 applied. The frequency of the bus services close to the site is specified at para. 6.2 of the Parking Provision Report and is also included at page 5 of the Planning Report. The question of capacity of the bus routes serving the site was not addressed in the Parking Provision Report.

10 The Inspector did not refer to the contents of the Parking Provision Report in considering whether permission should be granted in material contravention of the Development Plan. However, for the reasons set out below, I do not consider that anything turns on this.

11 I accept the proposition that it is impossible for a developer to provide perfect information in relation to capacity of public transport which serves the site; in particular that a developer cannot specify the number of people who will seek to avail of public transport when a proposed development is completed. That the information which can be provided to the Board cannot be perfect was accepted by Holland J. in Ballyboden v An Bord Pleanála I [2022] IEHC 7. As Holland J. stated in Mulloy v. An Bord Pleanála & Knockrabo Investments DAC [2024] IEHC 86:

“Perhaps, the approach may be affected by the availability of research and data. But what is essential is practicality. I note, for example, that it is routine to estimate, in traffic analysis, the car trips likely to be generated by a development and that was done in the present case.”

12 The proposed development contains 208 apartments, of which 104 will be one-bedroom apartments and the remainder will have two bedrooms. The figure given by the developer for the expected number of residents of the development, which is referred to in the observations of the Applicant and others, is 416. The developer has estimated that 17% of the residents of the proposed development would be reliant on public transport, specifically buses. This estimate was generated by reference to the results of the most recent census regarding the breakdown of modes of transport used by residents in the area. On that basis, it is anticipated by the developer that 71 residents will be reliant on public transport.

13 No issue has been taken by the Applicants, or by any other party before the Board, with the way in which the developer identified the likely number of residents who would be dependent on public transport, nor has the proportion of residents who are likely to use public transport been challenged. The Applicant's case is not that there was a flaw in the manner in which the developer assessed demand for public transport, but rather that there is a dearth of evidence as to the capacity of public transport.

14 In the Statement of Consistency, the site is described as being “ located within a well-established area, and which is within walking distance of a multitude of services, exceptional public transport options and very good local amenities.” It is stated that the site is well connected to “ excellent public transport services” and close to “ high quality public transport”.

15 In the Material Contravention Report submitted by the developer, a table is provided to demonstrate “ the following compliances with the Development Management Criteria in the Guidelines:” within the Material Contravention Statement. The first...