O'Neill v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 22 July 2020
• Neutral Citation: [2020] IEHC 356
• Docket Number: [2020 No. 45 J.R.]
• Court: High Court
• Date: 22 July 2020

BETWEEN

RITA O'NEILL (ON BEHALF OF GLENHILL ESTATE AND PREMIER SQUARE RESIDENTS D.11)

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

RUIRSIDE DEVELOPMENTS LIMITED

AND

DUBLIN CITY COUNCIL

NOTICE PARTIES

[2020] IEHC 356

Denis McDonald J.

[2020 No. 45 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Declaratory relief – Applicant seeking an order of certiorari quashing the respondent’s decision to grant planning permission – Whether the height and density of the proposed development materially contravened the relevant Dublin City Development Plan

Facts: The applicant, Ms O’Neill, was a resident of Glenhill Road in Dublin 11. By order made by Meenan J on 27th January, 2020, Ms O’Neill was given leave to apply by way of an application for judicial review for an order of certiorari quashing the decision made by the respondent, An Bord Pleanála (the Board), on 15th November, 2019 to grant planning permission to the first notice party, Ruirside Developments Ltd, for the construction of a strategic housing development comprising 245 apartments, a childcare facility and all associated works on part of the former Premier Dairies site, Finglas Road, Dublin 11. By the same order, Ms O’Neill was also given leave to seek a series of declarations relating to the proposed development. Among the declarations sought by Ms O’Neill was a declaration that both Ruirside and the second notice party, Dublin City Council, failed to comply with the European Communities (Assessment and Management of Flood Risks) Regulations 2010, that they failed to comply with the planning guidelines for local authorities and that they failed to apply the requirements of the Habitats Directive. Ms O’Neill, in her submissions to the High Court, confined herself to the following areas of concern: (a) flooding, flood risk and foul drainage; (b) the pre-planning consultation with the Board (which she maintained was in respect of a different development to that subsequently pursued in the application for permission); (c) aerials and antennae; (d) the height and density of the proposed development materially contravenes the relevant Dublin City Development Plan; (e) shading analysis and daylight and sunlight analysis; (f) insufficiency of photomontages and the distortion and lack of clarity relating to photographs and other images submitted by Ruirside with the planning application; (g) issues with regard to flora and fauna; and (h) a denial of fair procedures.

Held by McDonald J that Ms O’Neill was entitled to an order of certiorari quashing the decision of the Board to grant planning permission to Ruirside for the proposed development. McDonald J granted this relief on the ground that, as pleaded in para. 1 of Part D of Ms O’Neill’s statement of grounds, the proposed development materially contravened the Dublin City Development Plan 2016-2022 and, as pleaded in para. 2 of Part E of the statement of grounds, the height of the proposed development exceeded the maximum height of 16 metres permissible under the said Development Plan and on the basis that, contrary to the contention made in paras. 17-18 of the Board’s statement of opposition and in para. 34 of Ruirside’s statement of opposition, the materials before the court did not disclose that SPPR 3(A) applied to the proposed development such as to permit the Board to grant permission notwithstanding the material contravention of the said Development Plan. McDonald J also granted the declaration sought by Ms O’Neill in para. 11 of her statement of grounds namely a declaration that the Board failed to state main reasons and considerations for contravening materially the Dublin City Development Plan 2016-2022 and therefore acted contrary to the requirements of s. 10(3) of the Planning and Development (Housing) and Residential Tenancies Act 2016. This seemed to McDonald J to be the relevant statutory provision rather than s. 34(10) of the Planning and Development Act 2000 which had been invoked by Ms O’Neill in para. 11 of Part D of her statement of grounds. McDonald J made this declaration on the grounds stated in para. 11 of Part E of Ms O’Neill’s statement of grounds.

McDonald J held that he would make no order in relation to that part of Ms O’Neill’s case dealing with photomontages as the question of the adequacy of matters such as the photomontages seemed to be matters that fell to be determined by the Board by reference to its expertise. McDonald J refused Ms O’Neill’s application in respect of the balance of the relief claimed by her as against the Board. In so far as the Council and Ruirside were concerned, McDonald J dismissed Ms O’Neill’s application in so far as she sought relief directly against them or either of them.

Reliefs granted in part.

JUDGMENT of Mr. Justice Denis McDonald delivered on 22nd July, 2020

The relief which Ms. O'Neill seeks from the court

1 The applicant, Ms. Rita O'Neill, is a resident of Glenhill Road in Dublin 11. By order made by Meenan J. on 27th January, 2020, Ms. O'Neill was given leave to apply by way of an application for judicial review for an order of certiorari quashing the decision made by the respondent (“the Board”) on 15th November, 2019 to grant planning permission to Ruirside Developments Ltd, the first named notice party, (“Ruirside”) for the construction of a strategic housing development comprising 245 apartments, a childcare facility and all associated works on part of the former Premier Dairies site, Finglas Road, Dublin 11. By the same order, Ms. O'Neill was also given leave to seek a series of declarations relating to the proposed development. Among the declarations sought by Ms. O'Neill are a declaration that both Ruirside and the second named notice party, Dublin City Council (“the Council”) failed to comply with the European Communities (Assessment and Management of Flood Risks) Regulations, 2010 (“the Flood Risk Regulations”), that they failed to comply with the planning guidelines for local authorities and that they failed to apply the requirements of the Habitats Directive.

Background

2 As noted above, Ms. O'Neill lives on Glenhill Road which immediately adjoins the site of the proposed development. Glenhill Road is situated at the top of an incline and is approached by a road which runs up the incline from the junction with Finglas Road. This junction lies directly across from the roadway to the Clearwater Shopping Centre (which is a low rise warehouse type development on the opposite side of Finglas Road).

3 The development site comprises vacant brownfield land. It previously formed part of a Premier Dairies facility which replaced the old Merville Dairies operated for many years by the Craigie family. The site has an elongated configuration with a maximum depth of 70 metres. There are trees and hedgerows along the boundaries of the site with a frontage of approximately 270 metres along the Finglas Road. Development to the south of the site consists of an apartment scheme of between four and seven stories high called Premier Square. However, the lands to the north and east of the site are occupied by low density housing. In particular, the houses along Glenhill Road are typical two storey residential properties with front and back gardens.

4 The proposed development will comprise 245 apartments accommodated in three buildings ranging in height from six to ten storeys. Under the permission granted by the Board, Block 1 will range in height from six to nine storeys and will accommodate 80 apartments with a childcare facility. Block 2 will range in height from nine to ten storeys and will accommodate 102 apartments. Block 3 will range in height from six to eight storeys and will accommodate 63 apartments. There will also be a number of car parking spaces and other facilities.

5 The height of the proposed development is significantly in excess of what was permitted under any previous development proposed for the same site. Thus, for example, in October, 2005 permission was refused by the Council for a mixed retail and residential scheme comprising 104 units. In refusing permission, the Council considered that the retail element was too large. More pertinently, the Council also refused permission on the grounds that the proposed development would seriously injure the residential amenities of other property in the vicinity, in particular the houses on Glenhill Road, and also that it was contrary to the proper planning and sustainable development of the area.

6 In 2007, the Board refused permission for a proposed development of 160 apartments on the site together with 176 car parking spaces and a crèche. The height of the apartment blocks proposed at that time ran from six to seven storeys. The reason for refusal stated that the proposed residential development would, by reason of its height, massing, linear layout and proximity to the heavily trafficked Finglas Road, be “overbearing and would have a detrimental visual impact on the residential amenities of the area. It would also result in overlooking of adjoining properties to the south and would be overbearing in relation to the residential properties to the east. The proposed development would, therefore, seriously injure the amenities of the area and/or property in the vicinity and be contrary to the proper planning and sustainable development of the area”. In the report of the Board's inspector in that case, it was stated that the height of the proposed development on the site should be a maximum of 4/5 storeys depending on the ground level adopted.

7 However, in September 2010, permission was granted by the Board for a development on the site comprising 72 apartments in a single apartment building comprising five to six storeys over basement together with a crèche. In that case, the inspector appointed by the Board had recommended refusal of permission. However, the Board decided to grant...