Protect East Meath Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 19 May 2025
• Neutral Citation: [2025] IEHC 276
• Court: High Court
• Year: 2025
• Docket Number: Record No.: 2022/52 JR

In the matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between/

Protect East Meath Limited

Applicant

and

An Bord Pleanála

Respondent

and

Rockmill Limited

Notice Party

[2025] IEHC 276

Record No.: 2022/52 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

Judicial review – Planning permission – Material contravention – Applicant seeking an order of certiorari of the respondent’s decision to grant planning permission to the notice party – Whether the permission granted materially contravened the Meath County Development Plan 2021-2027

Facts: The notice party, Rockmill Ltd, applied for planning permission for 201 apartments and associated works on a site comprising c.1.74 hectares adjacent to the Southgate Centre in Drogheda, Co Meath on 5 August 2021. On 11 November 2021, the inspector of the respondent, An Bord Pleanála (the Board), recommended that planning permission be granted subject to 23 conditions. The Board considered the application and documents including the Chief Executive’s report and the inspector’s report at its meeting on 19 November 2021, when it decided to grant permission generally in accordance with the inspector’s recommendation. By order dated 23 November 2021, the Board granted permission under s. 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 for 201 residential apartments and associated works subject to 28 conditions. Leave to seek an order of certiorari of the Board’s decision and other orders was granted on 7 February 2022 on the grounds set out at paragraph E of the second amended statement of grounds, as amended on 3 February 2022. Core Ground 6 and 8 were not pursued at the hearing. Core Ground 1, as particularised, related to the timing of the application, and in particular the question whether the Board had jurisdiction to determine the application, or grant the permission sought, after the Meath County Development Plan 2021-2027 came into force. The applicant, Protect East Meath Ltd, contended that the permission granted materially contravened the 2021 Plan having regard to the provision of car parking spaces, accessible car parking spaces, ducting and wiring for electric vehicles and bicycle parking spaces at Core Grounds 2 –5 inclusive.

Held by the High Court (Farrell J) that the complaint that the Board erred in law in concluding that the proposed development did not materially contravene the Plan in relation to the provision of car parking spaces was made out. Having regard to the fact that 181 car parking spaces were included in the proposed development instead of the 452 which were required by the Plan, a 60% reduction, subject to the exercise of the Board’s discretion, and as the Board did not validly exercise that discretion, Farrell J considered that there had been a material contravention of the Plan. Farrell J was satisfied that providing two-thirds of the minimum number of accessible spaces required by the Development Plan was a material contravention. As the Board did not invoke s. 9(6) of the 2016 Act and did not consider the appropriateness of granting permission in material contravention of the Plan for the reasons set out in s. 37(2)(c) of the Planning and Development Act 2000, Farrell J held that it failed to fulfil its statutory obligations. By reason of the findings made in respect of material contravention at Core Grounds 2 and 3, Farrell J held that it was not necessary to determine the remaining issues.

Farrell J granted an order of certiorari of the Board’s order dated 23 November 2021 to grant permission to the notice party subject to conditions for the development proposed.

Application granted.

JUDGMENT of Ms. Justice Emily Farrell delivered the 19 ^th May 2025:

Introduction

1 The hazards of making an application at the cusp of a change of development plan have been highlighted by the issues arising in this case. The SHD process, as prescribed by the Planning and Development (Housing) and Residential Tenancies Act 2016, does not provide for what is to occur if a development plan changes between the date on which an application is made, and the date on which it is determined by An Bord Pleanála. A feature of an SHD application (which can no longer be made) is that the Board has no power to request further information and require facilitation of further public participation in respect of information received after the application has been made. Timing is everything, or so the Applicant contends. Many of the issues and arguments in these proceedings would have been avoided had the Notice Party made its application more quickly after the Board had issued its Opinion on the pre-application consultation, or waited until Meath County Development Plan 2021 – 2027 had come into effect.

2 The Notice Party engaged with the Board in a pre-application consultation process in respect of an intended application for planning permission under the 2016 Act for a strategic housing development of a site comprising c.1.74 hectares adjacent to the Southgate Centre in Drogheda, Co Meath. The Board issued its pre-application consultation Opinion on 16 ^th January 2020, which concluded that the pre-application request constituted a reasonable basis for an application under section 4 of the 2016 Act.

3 The Notice Party made an application for permission for 201 apartments and associated works on that site on 5 ^th August 2021. The public notice referred to a material contravention of the Development Plan or Local Area Plan, without providing any details thereof. The Notice Party made the application on the basis that the development as proposed may represent a material contravention in Section 11.9 of the Meath County Development Plan 2013 – 2019, which was then in effect. A Material Contravention Statement was submitted which proposed a justification for the grant of permission in the event that the Board considered the proposed development to materially contravene the 2013 Development Plan. A Statement of Consistency which was described in the planning application as demonstrating consistency “ with the Meath County Development Plan (2013–2019 and the draft 2020–2026 document…” was also included with the application.

4 On 22 ^nd September 2021, Meath County Council adopted a new County Development Plan, Meath County Development Plan 2021 – 2027, which came into effect on 3 ^rd November 2021. Until the Plan was adopted, it was not possible to know whether the Plan would be adopted with or without the Material Amendments, or whether any minor amendments would be made. Once the Plan was adopted, it was predictable that the Plan would come into effect on 3 ^rd November 2021 in accordance with section 12(17) of the 2000 Act, subject only to any amendments required by the Minister for Housing, Local Government and Heritage in the exercise of his powers under Section 31 of the 2000 Act.

5 On 11 ^th November 2021 the Board's Inspector completed her report and recommended that planning permission be granted subject to 23 conditions. The Board considered the application and documents including the Chief Executive's Report and Inspector's Report at its meeting on 19 ^th November 2021, when it decided to grant permission generally in accordance with the Inspector's recommendation. By Order dated 23 ^rd November 2021, the Board granted permission under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 as amended for 201 residential apartments and associated works subject to 28 conditions (ABP-311028–21). The development, as authorised, comprised 201 apartments within five five-storey blocks and included 181 car parking spaces (of which six are accessible spaces) and a minimum of 10% of which must be provided with functioning electric vehicle charging stations or points. Ducting is required for the remaining carparking spaces to facilitate the installation of electric vehicle charging stations points at a later date. Condition 10 requires the number of bicycle spaces provided on the site to be increased to comply with the standards set out in the Meath County Development Plan 2021–2027.

6 Leave to seek an order of certiorari of the Board's decision and other orders was granted on 7 ^th February 2022 on the grounds set out at paragraph E of the second amended Statement of Grounds, as amended on 3 ^rd February 2022. Core Ground 6 and 8 were not pursued at the hearing.

7 Core Ground 1, as particularised, relates to the timing of the application, and in particular the question whether the Board had jurisdiction to determine the application, or grant the permission sought, after the 2021 Plan came into force. The Applicant contends that the permission granted materially contravenes the 2021 Plan having regard to the provision of car parking spaces, accessible car parking spaces, ducting and wiring for electric vehicles and bicycle parking spaces at Core Grounds 2 – 5 inclusive.

8 By reason of the findings made in respect of material contravention in particular at Core Grounds 2 and 3, it is not necessary to determine the remaining issues. In accordance with the principle of judicial restraint, whilst I have dealt with Core Grounds 5 and 1, my comments in relation to those core grounds are necessarily obiter.

Core Grounds 2 – 5 Material Contravention

9 Section 9(6) of the 2016 Act provides that the Board may grant permission for a proposed SHD development which materially contravenes the development plan except where the material contravention relates to zoning. However, this may only be done “ where [the Board] considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development.”

10 Section 37(2)(b) of the 2000 Act provides:

“( b) Where a planning authority has decided to refuse permission...