Manley Construction Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IEHC 147
• Court: High Court
• Docket Number: Record No. 2021/No.492JR

In the Matter of the Planning and Development (Housing) and The Residential Tenancies Act 2016

And in the Matter of an Application Pursuant to Section 50, 50A and 50B of the Planning and Development Act 2000

Between:

Manley Construction Limited

Applicant

and

An Bord Pleanála

Respondent

[2022] IEHC 147

Record No. 2021/No.492JR

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Strategic housing development – Planning and Development (Housing) and Residential Tenancies Act 2016 s. 9(6)(b) – Applicant seeking a strategic housing development planning permission to build residential units – Whether Highlands Residents Association v An Bord Pleanála [2020] IEHC 622 was distinguishable

Facts: The applicant, Manley Construction Ltd (Manley), owned a 5.6 ha site at The Spires, The Commons, Navan Road, Duleek, County Meath (the site). It lay about 750m west of Duleek town centre. The respondent, An Bord Pleanála (the Board), by order dated 29 March 2021 (the impugned decision), in conformity with its Inspector’s report and recommendation, refused Manley’s application for a Strategic Housing Development planning permission to build 142 residential units – 82 houses and 60 apartments – on the site. That decision was made pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016. Manley applied to the High Court seeking to quash that decision. The substance of the Board’s reasoning was that permission in the case would have materially contravened “the development plan…in relation to the zoning of the land” because, as zoned A2 New Residential Phase II, the Plan identified the lands as “not available for residential development within the life of the Development Plan”. It was common case that the Board took this view on the basis of the decision of McDonald J in Highlands Residents Association v An Bord Pleanála [2020] IEHC 622 (Highlands Residents) – a case which involved the interpretation of the Drogheda Southern Environs Local Area Plan. Manley argued, in essence, that the Board erred in that Highlands Residents was a decision made in a different context and was distinguishable accordingly. Manley argued in the alternative that Highlands Residents was wrongly decided. The Board defended the impugned decision on the basis that the Board was correct in applying Highlands Residents.

Held by Holland J that the decision in Highlands Residents, as to the application of s. 9(6)(b) of the 2016 Act, governed this case. Holland J could see no basis for distinguishing that decision.

Holland J dismissed the application for judicial review.

Application refused.

Contents

JUDGMENT OF MR JUSTICE HOLLAND DELIVERED THE 16th MARCH 2022	2
INTRODUCTION & IMPUGNED DECISION	2
MEATH DEVELOPMENT PLAN, VARIATION #2	4
DULEEK WRITTEN STATEMENT & DROGHEDA SOUTHERN ENVIRONS LAP – SP3 & SP1	8
THE INSPECTOR'S REPORT AND THE BOARD'S DIRECTION	15
HIGHLANDS RESIDENTS	16
PROVISIONAL CONCLUSION	22
THAT IMPUGNED DECISION DEPRIVED THE SITE OF ITS ZONING and some other issues	22
POSITED DIFFERENCES BETWEEN DROGHEDA SOUTHERN ENVIRONS LAP AND DULEEK WRITTEN STATEMENT	24
Textual Differences	24
Housing Shortfall	26
Planning Application After 2019	27
PRE-APPLICATION CONSULTATIONS & ESTOPPEL	29
EIA/AA	32
CONCLUSION	32
Appendix	32

JUDGMENT OF Mr Justice Holland DELIVERED THE 16 ^th MARCH 2022

INTRODUCTION & IMPUGNED DECISION

1 The Applicant (“Manley”) owns a 5.6ha site at The Spires, The Commons, Navan Road, Duleek, County Meath (“the Site”). It lies about 750m west of Duleek town centre. The Respondent (“the Board”) by Order dated 29 March 2021 (the “Impugned Decision”) in conformity with its Inspector's report and recommendation, refused Manley's application for a Strategic Housing Development (“SHD”) planning permission to build 142 residential units – 82 houses and 60 apartments — on the site. That decision was made pursuant to the Planning and Development (Housing) and Residential Tenancies Act, 2016 (“the 2016 Act”) which provides a fast track planning permission procedure by way of direct application to the Board for planning permission for substantial housing developments which fall within the definition of “strategic housing development” in s.3 of the 2016 Act. Manley seeks to quash that decision.

2 It is common case that the Development Plan relevant to the Impugned Decision was the Meath County Development Plan 2013 – 2019 (the “2013 Development Plan”). As the Impugned Decision is dated 29 March 2021, it is necessary to record that the duration of the 2013 Development Plan was extended such that it remained current at the date of the Impugned Decision.

3 In terms identical, save in one respect to which I will return, to its Inspector's recommendation, the Board's Order recorded the basis of its refusal of permission as follows:

“The subject lands are zoned ‘A2’ in the Meath County Development Plan 2013–2019 as varied, the objective of which is “to provide for new residential communities with ancillary community facilities, neighbourhood facilities and employment uses as considered appropriate for the status of the centre in the Settlement Hierarchy”. The lands are identified as Phase II lands in Variation Number 2 of the County Development Plan where Strategic Policy SP3 seeks to operate an Order of Priority for the release of residential lands with Phase II lands stated as not available for residential development within the life of the Development Plan. Having regard to section 9(6)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended the Board is precluded from granting permission for the development and, therefore, permission is refused.”

4 S.9(6)(b) of the 2016 Act (“S.9(6)(b)”) provides as follows:

“(6) (b) The Board shall not grant permission under paragraph (a) where the proposed development, or a part of it, contravenes materially the development plan or local area plan relating to the area concerned, in relation to the zoning of the land.”

5 The substance of the Board's reasoning therefore is that permission in this case would have materially contravened “ the development plan ….. in relation to the zoning of the land” because, as zoned A2 New Residential Phase II 1, the Plan identified the lands as “ not available for residential development within the life of the Development Plan.” 2 It is common case that the Board took this view on the basis of the decision of McDonald J. in Highlands Residents 3 — a case which involved the interpretation of the Drogheda Southern Environs 4 Local Area Plan. Manley argues, in essence, that the Board erred in that Highlands Residents was a decision made in a different context and is distinguishable accordingly. Manley argues in the alternative that Highlands Residents was wrongly decided. The Board defends the impugned decision on the basis that the Board was correct in applying Highlands Residents.

6 The case can be reduced to a net point: was the Board correct in applying Highlands Residents in making the impugned decision?

7 Some sense of the significance of the matter from Manley's point of view can be gleaned from the fact that the Inspector's report records that the Draft Meath County Development Plan 2021–2027 envisaged that the Site would be downzoned to a ‘Rural Area’ zoning and so placed outside the Duleek settlement boundary. This, it seems, on the basis that future residential development of Duleek will take a more sequential approach — prioritising lands closer to the town centre and business park and under-utilised infill and brownfield lands.

8 By agreement of the parties I have been provided with copies of, and have considered for the purposes of this judgment, some documents addition to those exhibited. I have listed them in an appendix below.

MEATH DEVELOPMENT PLAN, VARIATION #2

9 Though the position was a little unclear at trial, the Site seems to have been residentially zoned in the previous, 2009, Development Plan and Duleek Local Area Plan.

10 The 2013 Development Plan explicitly envisaged its own variation within a year of its adoption. Its Core Strategy included “CS” objectives, amongst which Objective CS OBJ 2 envisaged variation to introduce land use zoning objectives and an order of priority for the release of lands in, inter alia, Drogheda Environs, to be followed by publication of, inter alia, an amended Drogheda Environs Local Area Plan “consistent with the Development Plan, as varied, and particularly the settlement strategy, core strategy and household allocations outlined in Table 2.4. of the Development Plan”. Objective CS OBJ 3 envisaged variation to provide development and zoning objectives for, inter alia, Duleek to “give effect to and be consistent with the core strategy, policies and objectives of the Development Plan” – to be followed by revocation of the earlier Duleek Local Area Plan. Objective CS OBJ 5 was to ensure that those reviews, inter alia, of planning policy for Drogheda Environs and Duleek, “achieve consistency with the core strategy of the Meath County Development Plan 2013–2019 by only identifying for release during the lifetime of the Meath County Development Plan 2013–2019 the quantity of land required to meet household projections as set out in Table 2.4”.

11 It was clear therefore, from the adoption of the 2013 Development Plan, that significant residential zoning changes were likely to ensue in early course and would involve limiting release of land for residential development. It was also clear that the review of zoning of Drogheda Environs and Duleek was part of a systematic zoning review of 29 urban centre in County Meath with an overview to “ consistency with the core strategy”.

12 As thus envisaged, Variation Number 2 of the 2013 Development Plan (“Variation #2”) ensued in May 2014 – as...