Monkstown Road Residents' Association v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 19 January 2023
• Neutral Citation: [2023] IEHC 9
• 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

2023 IEHC 9

Record No. 2020/737JR

THE HIGH COURT

JUDICIAL REVIEW

Certification – Points of law – Exceptional public importance – First respondent seeking a certificate to allow it to appeal – Whether an appeal was desirable in the public interest

Facts: The High Court (Holland J), by judgment delivered 31 May 2022, decided to quash the decision of the first respondent, An Bord Pleanála (the Board) made by order ABP-306949-20 dated 25 August 2020, under s. 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 to grant the first notice party, Lulani Dalguise Ltd (Lulani), planning permission for a strategic housing development (the Proposed Development) on a site of approximately 3.66 hectares at Dalguise House, Monkstown Road, Monkstown, Blackrock, County Dublin (the Quashed Decision). Holland J decided to quash it as: (a) erroneously reliant on Special Planning Policy Requirement 1 (SPPR1) of the Height Guidelines; (b) failing to give adequate reasons for its Environmental Impact Assessment (EIA) Screening decision as to insignificance of effect on cultural heritage; (c) erroneous by reason of the Board’s finding that Lulani’s EIA Screening Report identified and described adequately the effects of the Proposed Development on the environment and so adopting a report which did not describe those effects adequately and could not of itself, in law, provide an adequate basis for or reasons for an EIA screening determination that EIA was not required. The Board sought a certificate to allow it to appeal the judgment of 31 May 2022. The applicants, Monkstown Road Residents’ Association, Mr Barry, Ms Stewart and Mr Craig, opposed certification. The Board’s argument canvassed three points of law of alleged exceptional public importance in respect of which it alleged an appeal was desirable in the public interest. It alleged error as to the law relating to: (i) reliance on SPPRs in granting permissions despite material contravention of development plans; (ii) the standard of judicial review of EIA Screening; and (iii) reasons with respect to EIA Screening.

Held by Holland J that if the judgment of 31 May 2022 erred in concluding that the Board relied on the EIA Screening report as to significance of effect, this was an error of interpretation of the Board’s decision. He held that an error of interpretation of the Board’s decision could not amount to a certifiable point of law of exceptional public importance. As the Board no longer asserted that a “reasons” point was certifiable, he held that its arguably certifiable points of law as to EIA screening must be confined to the allegations that the judgment of 31 May 2022 impermissibly and in breach of the law as to irrationality substituted his own view of significance of effect for the Board’s and also erred in concluding that the Board relied on the EIA Screening report as to significance of effect. He held that such allegations were based on a misinterpretation of the judgment of 31 May 2022. He held that the Quashed Decision was quashed for inadequacy of reasons, not for irrationality. He held that the alleged point of law did not arise from the judgment and so was not certifiable. Even if, contrary to its proper interpretation, the judgment of 31 May 2022 were viewed as based on the substitution by him of his substantive views of significance of effect on cultural heritage for those of the Board, he held that it was notable that the Board did not impugn the correctness of the statement in the judgment of the law as to the role of the Court in judicial review. That being so, he held that the Board’s complaint was of the misapplication of clear and well-established principles to the facts of the case and was not certifiable for appeal.

Holland J declined to certify any point of law for appeal in the case.

Certification refused.

JUDGMENT OF Mr Justice Holland DELIVERED 19 JANUARY 2023

Contents

INTRODUCTION & THE POSITED POINTS OF LAW	1
THE LAW ON CERTIFICATION OF POINTS OF LAW FOR APPEAL	4
SPPR1	9
EIA SCREENING – Reasons	16
EIA SCREENING – STANDARD OF REVIEW	17
The Board's Decision	17
Irrationality/Reasons	17
EIA Screening Report	22
EIA Screening – Conclusion	28
CONCLUSION TO THIS POINT	28
EXCEPTIONAL PUBLIC IMPORTANCE/APPEAL IN THE PUBLIC INTEREST	28
CONCLUSION	30

INTRODUCTION & THE POSITED POINTS OF LAW

1 By judgment delivered 31 May 2022 (“the judgment of 31 May 2022”) I decided to quash the decision of the First Respondent [“the Board”] made by order ABP-306949–20 dated 25 August 2020, under s.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” and “the Proposed Development”] on a site [“the Site”] of approximately 3.66 hectares at Dalguise House, Monkstown Road, Monkstown, Blackrock, County Dublin [the “Quashed Permission”]. I decided to quash it as:

a. erroneously reliant on SPPR1 1 of the Height Guidelines.

b. failing to give adequate reasons for its EIA Screening decision as to insignificance of effect on cultural heritage. This related to the fact that the Proposed Development would occupy all or all but all of the curtilage of Dalguise House, a protected structure 2.

c. erroneous by reason of the Board's finding that Lulani's EIA Screening Report identified and described adequately the effects of the Proposed Development on the environment and so adopting a report which did not describe those effects adequately and could not of itself, in law, provide an adequate basis for or reasons for an EIA screening determination that EIA was not required.

2 The Board now seeks a certificate to allow it to appeal the judgment of 31 May 2022. The Applicants (“MRRA 3”) oppose certification. Both made written and oral submissions on the certification issue. Lulani did not participate on the certification issue.

3 The Board's argument essentially canvassed three points of law, of alleged exceptional public importance, in respect of which it alleged an appeal was desirable in the public interest. It alleged error as to the law relating to

These themes were elaborated in the following points of law proposed in the Board's written submissions. I have reordered them thematically 4:

SPPR1

1. It was error to conclude that the Board's recitation of SPPR1 amounted to reliance on it qua SPPR1 such that the aforesaid recitation rendered the Board Decision unlawful. It is not correct to equate recitation of SPPR1 for the policies stated therein with reliance on SPPR1 for the mandated directive to planning authorities as to the adoption of a variation of a development plan. The context of description of matters which are otherwise legally relevant considerations (being the policies cited therein) cannot render that description legally irrelevant if, by their own force, those matters are legally relevant.

• • reliance on SPPRs in granting permissions despite material contravention of development plans.

• • the standard of judicial review of EIA Screening.

• • reasons with respect to EIA Screening. This point was not really pursued.

EIA Screening — Standard of Review

• 1. Having regard to the appropriate standard of review, the Court was incorrect to conclude that the Board's EIA screening, as to architectural or cultural heritage, was inadequate in law.

• 2. The Court, erroneously having regard to the appropriate standard of review and/or existing jurisprudence, determined the significance of the likely impact of the Proposed Development on the environment on a first instance basis.

• 3. The Court was incorrect in law to conclude that a methodology in a document prepared by the developer (insofar as it was held not appropriate as a guide to understanding the predicted likely significant effects on the environment), proves that the Board misunderstood and misapplied the correct test particularly where there was information before the Board on the de facto nature of the Proposed Development and all it entailed to the protected structure and the curtilage. In this respect, the Court's conclusion that the Board incorrectly understood “significance” is inconsistent with existing jurisprudence.

EIA Screening – Reasons

4 The Court's identification of the “main issues” on which the “main reasons” were required was inappropriate insofar as it involved the Court determining, without regard to the appropriate standard of review, what the “main issues” were.

5 The Court, in ascribing a lack of reasons to the Board, required of the EIA screening determination an excessive degree of textual output and overt textual treatise (whether called reasons or otherwise).

THE LAW ON CERTIFICATION OF POINTS OF LAW FOR APPEAL

4 S.50A(7) PDA 20005 provides that the Court's decision of an application for judicial review

“… shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court”.

That section may be read as if the references to the Supreme Court were references to the Court of Appeal, to which Court any appeal, if certified, would proceed 6.

5 There was little, if any, dispute as to the well-established principles of law applicable in an...