Monkstown Road Residents' Association v an Bord Pleanála

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

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 application for a certificate of leave to appeal. The starting point is identified by Barniville J in CHASE 7:

“The clear intention of the Oireachtas in enacting s.50A(7) (and its statutory predecessors) was that, in most cases, the decision of the High Court on an application for leave to seek judicial review in respect of a planning decision or on an application for judicial review of such a decision should be final and should not be the subject of an appeal”.

6 The posited ground of appeal must involve a point, or points, of law 8.

7 I must assume for the purpose of this application that, as to that point of law, my decision may well be wrong: see Callaghan 9 and Dublin Cycling. 10 In this regard, the Court should not concern itself with the merits, strength or weakness of the parties' arguments on the point or prospects of success on any appeal. The Court should take the intended appellant's case on the point at its height: see CHASE. However, the Board agreed at hearing before me, in my view correctly, that this principle must be understood subject to the caveat that, taken at its height, the point of law must be stateable. Clearly, an unstateable point of law cannot be of exceptional public importance and it cannot be desirable in the public interest that an appeal be heard on an unstateable point of law.

8 Thereafter, the overarching principles are those identified in s.50A(7) PDA 2000 — that the point of law be of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. On those bases, the principles applicable, though not set in stone 11, have been elaborated in the cases and were summarised by MacMenamin J. in Glancré. 12 That summary has been approved and glossed in many cases since. I attempt to synthesise the current state of the Glancré principles as follows. 13 I have indicated where I have drawn some inferences from the principles.

a. The application for certification of leave to appeal should be made promptly — ideally within the normal appeal period. 14

b. The jurisdiction to certify must be exercised sparingly. Most applications for a certificate to appeal fail. 15

c. The point of law must arise out of the decision of the High Court and not merely from discussion or consideration of a point of law during the hearing. A point the court did not decide cannot amount to a point of law of exceptional public importance.

d. I would add that it seems to me to be a necessary implication of the principle that “ The point of law must arise out of the decision of the High Court” that the point of law must reflect a correct understanding of the decision of the High Court, read as a whole.

e. The point of law should be actually determinative of the proceedings, not one which, if answered differently, would leave the result of the case unchanged. 16 The same point can be phrased in terms that a point of law is moot if it raises no dispute the resolution of which in the posited appeal is capable of leading to the reversal or variation of the order made by the High Court. 17

f. The point of law must be formulated with precision so that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal. 18

g. It seems to me to be a necessary implication of the principle that the point of law should be determinative that certification should be refused if points of law otherwise certifiable would leave unimpugned one ground upon which certiorari was granted, such that the result of the case will remain unchanged.

h. The requirement goes substantially further than that a point of law emerges in or from the case. That it be of exceptional public importance is a clear and significant additional requirement.

i. Normal...