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

Between:

Monkstown Road Residents' Association, James Barry, Bairbre Stewart and Christopher Craig

Applicants

and

An Bord Pleanála The Minister for Housing, Heritage and Local Government, Ireland and Attorney General and Irish Water

Respondents

and

Lulani Dalguise Limited

and

Dún Laoghaire Rathdown County Council

Notice Parties

[2022] IEHC 318

Record No: 2020/737JR

THE HIGH COURT

JUDICIAL REVIEW

Contents

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

INTRODUCTION

1 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.

2 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.

3 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

• • Monkstown Road is to the North, running east/west.

• • The existing avenue from Monkstown Road enters at the north-western corner of the site.

• • The words “Clifton Ln” are misleading. The feature indicated is the avenue to Dalguise House.

• • Stradbrook stream runs west to east at the northern Site boundary.

• • South and southeast of Dalguise House is a walled garden

• • 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.

4 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

• • 290 residential units, of which,

  • ○ 24 are houses, of which 2 will occupy Dalguise House itself and 2 will occupy existing buildings,

  • ○ 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,

  • ○ the resultant residential density is approximately 82 units per hectare.

• • A creche in the basement of Dalguise House.

• • 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.

• • The proposed new, eastern, egress to the Monkstown Road is via Purbeck Lodge, where a new bridge will cross the Stradbrook stream. 8

• • The apartment blocks are depicted as, roughly, dark green rectangles. Houses are depicted as, roughly, grey rectangles.

• • Three future pedestrian accesses are indicated at boundaries with Arundel, Richmond Park, and the former Cheshire Home site, “subject to agreement”.

• • 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.

• • The proposed new eastern entrance off Monkstown Road is not depicted.

5 §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:

• • The Applicants and others made submissions in the planning application process opposing the Proposed Development as, essentially, “ too big and too dense” 10

• • DLRCC submitted a report to the Board as required by S.8(5) of the 2016 Act 11.

• • The Board's Inspector's 146-page report is dated 24 July 2020.

• • 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.

• • 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.

THE PLANNING PERMISSION APPLICATION

6 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.

• • Covering Letter and Application Form

• • 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.

• • 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...