Leech and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 12 November 2024
• Neutral Citation: [2024] IEHC 599
• Docket Number: RECORD No. 2022 / 437 JR

In the Matter of Section 50, 50A and 50b of the Planning and Development Act, 2000

And in the Matter of the Planning and Development (Housing) and Residential Tenancies Act, 2016

Between:

Paul Leech and Frank McDonald

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

HPREF HSQ Investments

Notice Party

[2024] IEHC 599

RECORD No. 2022 / 437 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

Planning and development – Material contravention – Cone of vision – Applicants seeking an order of certiorari quashing the grant of permission for a development – Whether the first respondent granted permission in material contravention of the Development Plan in respect of the cone of vision

Facts: An application was made to the first respondent, An Bord Pleanála (the Board), for permission for a development comprising five blocks, primarily of residential use, which range in height from 3 to 18 storeys over a double basement at the Heuston South Quarter, St John’s Road West/Military Road, Kilmainham, Dublin 8. The application was made as a strategic housing development application under the Planning and Development (Housing) and Residential Tenancies Act 2016 and was therefore made directly to the Board and subject to the provisions of that Act. On 31st March 2022, the Board granted permission subject to 31 conditions. The applicants, Mr Leech and Mr McDonald, applied to the High Court seeking an order of certiorari quashing the grant of permission dated 31st March 2022. The applicants complained that the Board granted permission in material contravention of the Development Plan in respect of the cone of vision and that, in so doing, the Board had failed to make its decision in accordance with the 2016 Act.

Held by Farrell J that guiding Principle 8 under SDRA 7 provides protection for the views from the cone of vision which is described therein. Whilst development within the cone of vision is not precluded by the terms of the Development Plan, “Any new developments within this ‘cone’ shall not adversely affect this view”. Having regard to the policies and objectives set out in the Development Plan, I am satisfied that the grant of permission for a development which would contravene this aspect of the Plan would amount to a material contravention. Whilst it was open to the Board to grant permission in material contravention of this provision of the Plan, that could only be done by applying s. 9(6)(a) and (c), which was not done. The proposed development is partially within the cone of vision. The findings of the Inspector, as adopted by the Board, and in the Board’s Direction and Order indicate that the Board found that the proposed development would adversely affect the cone of vision and the protected view. While the Board found that this would not warrant the refusal of permission or that there was not an undue adverse effect on the cone of vision, the assessment of the extent of an adverse effect or justification for the grant of permission despite an adverse impact were matters which required the Board to invoke s. 9(6). For this reason, I have found that the Board did not address the question of material contravention by reference to the cone of vision lawfully.

Farrell J granted an order of certiorari quashing the grant of permission dated 31st March 2022.

Application granted.

Judgment of Ms. Justice Emily Farrell delivered the 12 ^th day of November 2024:

Introduction:

1 An application was made to An Bord Pleanála (ABP-311591-21) for permission for a development comprising five blocks, primarily of residential use, which range in height from 3 to 18 storeys over a double basement at the Heuston South Quarter, St John's Road West/Military Road, Kilmainham, Dublin 8.

2 The site is within the designated Strategic Development and Regeneration Area SDRA 7 – Heuston Station and Environs and is zoned with Zone Objective Z5. The objective of City Centre — Zone Z5 is set out at para. 14.8.5 of the CDP as follows:

“ To consolidate and facilitate the development of the central area, and to identify, reinforce, strengthen and protect its civic design character and dignity. The primary purpose of this use zone is to sustain life within the centre of the city through intensive mixed-use development.”

3 The site of the proposed development is approximately 1.08ha and forms part of the wider Heuston South Quarter urban block which has been partly built upon and is bounded by Military Rd. to the east, St. John's Road West to the north and by the grounds of the Royal Hospital Kilmainham to the south and west. The Royal Hospital Kilmainham (or ‘RHK’) is identified in the Record of Protected Structure in Volume 4 of the Dublin City Development Plan 2016–2022. In the SHD Architectural Heritage and Visual Impact Assessment submitted as part of the application, the RHK is described as “ indisputably Ireland's most significant public building, a fact recognised by its inclusion on both the Record of Protected Structures and the NIAH, which deems it to be of international significance….” The site shares a common boundary with the RHK. The ground levels on the site had previously been reduced and the formal gardens of the RHK are elevated above the site.

4 The development as proposed comprises five blocks which varied in height from 3 to 18 storeys, over podium (Blocks A, B and C) and over basement (Blocks D and E). The plans included an arch or bridge between Block A (12 – 18 storeys) and Block C (part of which is 12 storeys). Block B is 8 – 12 storeys and Blocks D and E were designed as 5 storey buildings. Blocks D and E are close to the perimeter of the Royal Hospital's Gardens, and Block B is furthest from the RHK. Permission was sought for a mainly residential development which would have comprised 399 build to rent residential units (46 studio apartments, 250 1-bedroom apartments, 90 two-bedroom four person apartments and 13 two-bedroom three-person apartments) internal communal ancillary residential services and amenities including a shared co-working area, lounges, a gym, a TV room and foyer. An independent retail unit was proposed within Block B. The application included the provision of a double basement providing carparking and bicycle parking areas, and alteration of pedestrian crossings and realignment of a footpath. Communal outdoor amenity space proposed by way of rooftop terraces and the creation of a public plaza and games and play areas for children are also included.

5 The application was made as an SHD application under the Planning and Development (Housing) and Residential Tenancies Act, 2016 and was therefore made directly to the Board and subject to the provisions of that Act. One of the characteristics of the SHD process is that the Board was not entitled to seek or receive additional information from the Developer, who is the Notice Party to these proceedings after the application was made.

6 Third party submissions were made to An Bord Pleanála by 14 individuals and organisations including the Applicants, the Department of Housing, Local Government and Heritage, the Heritage Council, An Taisce, the Office of Public Works, the National Architect, Irish Water and the NTA. The Chief Executive prepared a report under section 8(5) of the 2016 Act, taking account of the submissions made. It was recommended that the Board grant permission subject to certain conditions, including the setback from the boundary with the RHK of Blocks D and E or a reduction in their height, and the reduction of the height of Block A to 13 storeys together with the omission of the arch between Blocks A and C.

7 The Board's Inspector recommended that the permission sought be granted subject to conditions, which included the following, at condition 3:

• — The height of Blocks D and E shall be reduced by two floors (L03 and L04 omitted) to a maximum of three storeys over lower ground level;

• — The heights of proposed Blocks D and E shall not exceed the maximum height of the adjoining RHK boundary wall; The height of Block A shall be reduced by five storeys to a maximum height of 13 storeys;

• — Omission of proposed arch between Blocks A and C.

8 The reason given by the Inspector for this proposed condition was “ in the interests of the protection of the architectural heritage of the adjacent Royal Hospital Kilmainham; in the interests of the protection of visual and residential amenities; to safeguard the amenities of future occupants; in the interests of protecting ecology and in the interest of proper planning and sustainable development of the area.”

9 On 31 ^st March 2022, the Board granted permission subject to 31 conditions. In doing so, the Board expressly adopted the reasoning in the Inspector's Report in relation to Environmental Impact Assessment and Appropriate Assessment. The Board's decision was made “ generally in accordance with the Inspector's recommendation”, but the Board declined to accept the Inspector's recommendation that Block A be reduced by five floors to thirteen storeys. The Board considered that, subject to compliance with the 31 conditions imposed, the proposed development constitutes an acceptable residential density in the urban location in question with respect to the existing character and architectural heritage of the area, would not seriously injure the residential visual amenities of the area, and would be acceptable in terms of urban design, height and quantum of development, and pedestrian and traffic safety. Condition 3 requires agreement to be reached between the Developer and Dublin City Council, the relevant planning authority, in respect of revised details arising from a number of amendments to the proposed scheme, including the reduction height of Blocks D and E by two floors, by the omission of L03 and L04, and the removal of the proposed arch linking blocks A and C is to be omitted.

10 The first...