Monkstown Road Residents' Association v an Bord Pleanála
Jurisdiction | Ireland |
Judge | Mr Justice Holland |
Judgment Date | 31 May 2022 |
Neutral Citation | [2022] IEHC 318 |
Court | High Court |
Docket Number | Record No: 2020/737JR |
and
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[2022] IEHC 318
Record No: 2020/737JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr Justice Holland delivered 31 May 2022 | 4 |
INTRODUCTION | 4 |
Figure 1 — the Existing Site | 5 |
Figure 2 — Site layout plan as proposed in planning application | 7 |
Figure 3 — ADS Massing Study | 8 |
THE PLANNING PERMISSION APPLICATION | 10 |
THE IMPUGNED PERMISSION | 11 |
THE PLEADINGS & ISSUES | 14 |
2nd Amended Statement of Grounds | 14 |
Reliefs Sought | 14 |
Grounds | 15 |
Scope of the Trial | 18 |
State and Irish Water not Participating | 18 |
The Derogation Licence | 18 |
Irish Water Correspondence, Appropriate Assessment & Ringsend WwTP capacity | 20 |
Scope of this Judgment — Grounds at Issue | 27 |
Table 1 | 27 |
Table 2 — Grounds for decision in this judgment | 28 |
Opposition Papers | 38 |
PLEADINGS — GENERAL OBSERVATIONS | 43 |
INFORMATION BEFORE THE BOARD | 45 |
THE ROLE OF THE COURT & LAW OF JUDICIAL REVIEW | 46 |
Presumption of Validity; General Principles, Irrationality & Reasons | 46 |
Inadequacies of EIA and AA | 49 |
ADEQUACY OF REASONS — GENERAL OBSERVATIONS | 50 |
ADEQUACY OF REASONS — IN THIS CASE | 55 |
PROTECTED STRUCTURE — EXTENT OF CURTILAGE | 56 |
Introduction | 56 |
Protected Structures & Curtilage — the Law | 57 |
Protected Structure & Curtilage — Identification of | 60 |
Conclusion — Protected Structure — Extent of Curtilage | 66 |
EIA SCREENING — “Significance of Effects” | 67 |
EIA SCREENING — PROTECTED STRUCTURE | 77 |
EIA Screening report | 77 |
The Inspector's Report — EIA Screening — & Comment thereon | 81 |
The Impugned Permission — EIA Screening | 91 |
EIA Screening — Reasons | 92 |
The Board's Arguments | 94 |
Conclusion — EIA Screening, Cultural Heritage | 95 |
EIA SCREENING — BIRDS & GREEN SITES NETWORK | 96 |
Bird Surveys | 96 |
Pleadings & Submissions | 96 |
The Information before the Board & the Evidence in the Judicial Review | 98 |
Discussion & Conclusion | 100 |
Impact on wider network of green sites | 101 |
SCIENTIFIC EXPERTISE OF THE BOARD | 106 |
BUILDING HEIGHT — MATERIAL CONTRAVENTION & APPLICATION OF SPPRs | 106 |
S.9(3) & (6) of the 2016 Act, S.37(2)(b) PDA 2000 & S.28 PDA 2000 | 106 |
SPPR1 & Material Contravention — The Impugned Decision, the Pleadings & Submissions | 108 |
Clonres | 110 |
Pembroke Road | 112 |
O'Neill | 113 |
Conclusion on the Board's reliance on SPPR1 | 114 |
The Board's reliance on SPPR3 | 114 |
Height Guidelines — SPPR 3, §3.1 “Development Management Principles” and §3.2 “Development Management Criteria” | 114 |
Pleadings | 116 |
Discussion | 117 |
Density Gradient Issue | 120 |
SPPR3 — Conclusion | 121 |
MATERIAL CONTRAVENTION — “PRECAUTIONARY APPROACH” & PREJUDGMENT BIAS | 121 |
MATERIAL CONTRAVENTION — FAILURE TO COMPLY WITH THE PROPER PLANNING LIMITATION | 124 |
AA SCREENING — RINGSEND WWTP OVERLOAD | 125 |
Pleadings | 125 |
Irish Water correspondence, HHQRA & AA Screening Report | 127 |
The Inspector's Report, the Board's Decision on AA Screening & comment thereon | 132 |
Dublin Cycling | 135 |
Evidence | 139 |
Meaning of In-Combination Effects | 143 |
AA Screening — Conclusion | 145 |
BATHING WATERS | 146 |
Pleadings & Submissions | 146 |
Discussion & Conclusion | 150 |
CONCLUSIONS | 154 |
JUDGMENT of Mr Justice Holland delivered 31 May 2022
The Applicants, a local residents association (“MRRA”) and local residents, seek, primarily, to quash the decision of the First Respondent, [“the Board”] made by order ABP-306949-20 dated 25 th August 2020, under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 [“the 2016 Act”] to grant the First Notice Party [“Lulani”] planning permission for a strategic housing development [“SHD”] on a site [“the Site”] of approximately 3.66 hectares at Dalguise House, Monkstown Road, Monkstown, Blackrock, County Dublin – [the “Impugned Permission”/“Impugned Decision”]. The site is in the functional area of the 2 nd Notice Party [“DLRCC”] as planning authority.
Dalguise House, a large 19 th Century two-storey over basement residence, is a protected structure 1. Lulani's Architectural Design Statement 2 (“ADS”) describes it as shown on the 1837 Ordnance Map and traces its development via later maps. Its walled garden, stable blocks and paddock lie to its rear (south) with, to the front (north), lawns, a curved main avenue, a service road along the western boundary, a tennis court and a lower garden area beyond the main avenue. The Stradbrook stream forms the northern boundary of the Site. The existing general layout is shown on Figure 1 below.
In the DLRCC Development Plan 2016–2022 [the “Development Plan”], the Site is zoned “A — “To protect and/or improve residential amenity” 3. Development “ Permitted in Principle” is listed in that zoning objective as including “Residential”.

Figure 1 – the Existing Site 4
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• Monkstown Road is to the North, running east/west.
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• The existing avenue from Monkstown Road enters at the north-western corner of the site.
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• The words “Clifton Ln” are misleading. The feature indicated is the avenue to Dalguise House.
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• Stradbrook stream runs west to east at the northern Site boundary.
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• South and southeast of Dalguise House is a walled garden
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• Only a small part of the Site — the northern “half” of each of the two links to Monkstown road 5 — is in the Monkstown Architectural Conservation Area [“ACA”] of the Development Plan.
While Lulani sought permission in March 2020 for 300 residential units, the following are the main elements (the “Proposed Development”) of the Impugned Permission:

Figure 2 – Site layout plan as proposed in planning application 7
Notes

Figure 3 – ADS Massing Study 9
Notes
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• 290 residential units, of which,
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○ 24 are houses, of which 2 will occupy Dalguise House itself and 2 will occupy existing buildings,
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○ 266 are apartments – in 8 blocks of which the highest, Block E, will be 9 storeys and the others from 5 to 8 storeys 6,
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○ the resultant residential density is approximately 82 units per hectare.
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• A creche in the basement of Dalguise House.
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• The relocation and refurbishment within the Site of an existing glasshouse/vinery. By Condition 26, the possibility of relocation and refurbishment within the Site of a second existing glasshouse is to be proposed by Lulani.
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• The proposed new, eastern, egress to the Monkstown Road is via Purbeck Lodge, where a new bridge will cross the Stradbrook stream. 8
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• The apartment blocks are depicted as, roughly, dark green rectangles. Houses are depicted as, roughly, grey rectangles.
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• Three future pedestrian accesses are indicated at boundaries with Arundel, Richmond Park, and the former Cheshire Home site, “subject to agreement”.
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• This figure represents the SHD Planning application rather than the Impugned Permission. It does not reflect the Board's imposed alterations to building height. Therefore it is intended for present purposes only as a general impression of the Proposed Development.
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• The proposed new eastern entrance off Monkstown Road is not depicted.
§E.3 of the 2 nd Amended Statement of Grounds sets out the Factual Grounds on which the Applicants rely – which the Board admits save in one respect. Much of this content is set out above. In addition, the Applicants say:
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• The Applicants and others made submissions in the planning application process opposing the Proposed Development as, essentially, “ too big and too dense” 10
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• DLRCC submitted a report to the Board as required by S.8(5) of the 2016 Act 11.
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• The Board's Inspector's 146-page report is dated 24 July 2020.
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• The Proposed Development would require the removal of three rows of trees 12 which traverse the site from east to west. One is at the northern edge of the site, along the Stradbrook Stream. The middle row runs along the northern section of the main avenue to Dalguise House. The third crosses that avenue as it swings south towards Dalguise House.
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• The Board granted permission authorising a material contravention of the Development Plan as to building height. The Plan's Building Heights Strategy 13 allows for a maximum building height of 2 to 3 storeys, subject to upward and downward modifiers 14, but the Board considered that the Special Planning Policy Requirements (“SPPR”) in the Height Guidelines 2018 15 warranted permitting a development that would exceed the Building Heights Strategy limits by as many as 6 storeys.
○ As will be seen, while authorisation of the material contravention is agreed, the precise basis of that authorisation by reference to SPPRs is in dispute.
It is not possible, nor desirable, here to describe comprehensively the information before the Board in making its decision, but it included the following submitted in the Planning Application and exhibited in the proceedings. I will refer to certain further information later in this judgment.
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• Covering Letter and Application Form
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• Statement of Consistency with the Development Plan and relevant Ministerial Guidelines issued under S.28 PDA 2000 16 and other relevant national, regional and local policy.
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• Statement of Material Contravention of the Development Plan. This is non-committal whether there is a material contravention but is directed in considerable part, if not primarily, at the question of building height in the context of the Development Plan...
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