Protect East Meath Ltd v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 19 June 2020
• Neutral Citation: [2020] IEHC 294
• Docket Number: [2020 No. 44 JR]
• Court: High Court
• Date: 19 June 2020

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, THE MINISTER FOR HOUSING, PLANNING & LOCAL GOVERNMENT, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

RAVALA LIMITED

AND

LOUTH COUNTY COUNCIL

NOTICE PARTIES

[2020] IEHC 294

Denis McDonald J.

[2020 No. 44 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Defence – Applicant seeking judicial review – Whether the notice party should be entitled to continue to defend the proceedings notwithstanding that the respondent was prepared to consent to an order of certiorari

Facts: The applicant, Protect East Meath Ltd, by an order made by Simons J on 23 January, 2020, was given leave pursuant to O.84 r.20 of the Rules of the Superior Courts and s. 50 of the Planning and Development Act, 2000 to apply, by way of an application for judicial review, for an order of certiorari of the decision of the first respondent, An Bord Pleanála (the Board), of 27 November, 2019 granting permission for the construction of 450 dwelling units and associated office space, crèche and associated site works on lands south of Marsh Road, Drogheda, County Louth (the development constituted a strategic housing development under the Planning and Development (Housing) and Residential Tenancies Act 2016), together with the balance of the relief claimed in Part D of the applicant’s statement of grounds. The proceedings were subsequently served on the respondents and the notice parties. By letter dated 18 February, 2020 the solicitors acting on behalf of the Board wrote to all parties to confirm that the Board would consent to an order of certiorari on the following grounds: “The Board accepts that in light of the recent decision of the Board dated 11th February, 2020 in case ABP-305703-19, and in particular the treatment of the impact of that proposed development on Boyne Estuary SPA, the Board erred in law in this case by screening out significant effects on the Boyne Estuary SPA and that there was not sufficient evidence before the Board to reach such a conclusion”. The High Court was required to determine whether the first notice party, Ravala Ltd, should be entitled to continue to defend these proceedings notwithstanding that the Board was prepared to consent to an order of certiorari quashing its decision of 27 November, 2019.

Held by McDonald J that he did not believe that Ravala could be said to have established a sufficient case to persuade the court that it should be allowed to defend the proceedings notwithstanding that the Board proposed to consent to an order of certiorari. Bearing in mind, mutatis mutandis, the principle of judicial restraint discussed in Usk v An Bord Pleanala [2007] IEHC 86 and in Fitzgerald v Dun Laoghaire Rathdown County Council [2019] IEHC 890, it seemed to McDonald J that there was no sufficient basis established to justify why the order of certiorari signalled in the Board’s solicitors’ letter of 18 February, should not be made.

McDonald J held that there would be an order of certiorari made on the grounds set out in the letter of 18 February, 2020.

Order granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on 19 ^th June, 2020

The issue before the court

1 The issue which I am required to determine at this stage of the proceedings is whether the first named notice party ( “Ravala”) should be entitled to continue to defend these proceedings notwithstanding that the first named respondent (“the Board”) is prepared to consent to an order of certiorari quashing its decision of 27 ^th November, 2019 by which planning permission was granted for the construction of 450 dwelling units and associated office space, crèche and associated site works on lands south of Marsh Road, Drogheda, County Louth. The development in question constitutes a strategic housing development under the Planning and Development (Housing) and Residential Tenancies Act, 2016 (“the 2016 Act”). Under the 2016 Act, applications for permission in respect of strategic housing developments are made directly to the Board.

Relevant facts

2 By an order made by Simons J. on 23 ^rd January, 2020, the applicant was given leave pursuant to 0.84 r.20 of the Rules of the Superior Courts and s. 50 of the Planning and Development Act, 2000 ( “the 2000 Act”) to apply, by way of an application for judicial review, for an order of certiorari of the Board's decision of 27 ^th November, 2019 granting permission for the development described in para. 1 above together with the balance of the relief claimed in Part D of the applicant's statement of grounds.

3 The proceedings were subsequently served on the respondents and the notice parties. By letter dated 18 ^th February, 2020 the solicitors acting on behalf of the Board wrote to all parties to confirm that the Board would consent to an order of certiorari on the following grounds:-

“The Board accepts that in light of the recent decision of the Board dated 11 ^th February, 2020 in case ABP-305703-19, and in particular the treatment of the impact of that proposed development on Boyne Estuary SPA, the Board erred in law in this case by screening out significant effects on the Boyne Estuary SPA and that there was not sufficient evidence before the Board to reach such a conclusion”.

4 This concession on the part of the Board must be read against the backdrop of the case made in the statement of grounds with regard to the Boyne Estuary SPA (“the SPA”). The qualifying interests of the SPA include Lapwing. Because of the proximity of the development site to the SPA (and to a number of other Natura sites) Ravala had submitted a screening report for appropriate assessment to the Board in July 2019. The report referred to a site visit conducted on 24 ^th May, 2018. In its statement of grounds, the applicant complained that the report did not contain any consideration of ex-situ impacts on birds and the applicant also complained that no survey effort of any sort was undertaken to establish if the qualifying interests in the SPA utilised the development site for foraging purposes. This was raised by the applicant in its submission to the Board in response to the application for development consent. The submission also noted that potential impacts from increased anthropogenic disturbance had not been assessed. As I understand it, the reference to anthropogenic disturbance relates to disturbance of the environment resulting from human activity. In its submission, the applicant also referred to the fact that the Board had refused permission (ref 302948) for a nearby proposal for the change of use of a golf driving range to a tourist campsite in Mornington, County Meath on 23 ^rd April, 2019 on the basis, inter alia, that the developer had failed to assess the ex-situ impacts on the SPA. It should be noted that the Board's decision to refuse permission in respect of that development (namely decision ref. 302948) relates to a different development to that described in the Board's solicitor's letter of 18 ^th February, 2020 (quoted in para. 3 above) namely the decision of 11 ^th February, 2020 in case ABP-305703-19. The latter decision post-dates the commencement of these proceedings and it does not, therefore, feature in the applicant's case.

5 In its statement of grounds, the applicant made the case that the Board was not entitled to screen out the possibility of significant effects on the SPA in circumstances where (on the case made by the applicant) no survey work had been undertaken to establish whether, when and to what intensity the development site is utilised by the qualifying interests of the SPA, in particular Lapwing. The applicant also referred to surveys carried out by the National Parks and Wildlife Service ( “NPWS”) which the applicant claimed showed significant concentrations of Lapwing foraging in the area of the SPA closest to the development site. In its statement of grounds, the applicant referred to the note prepared by the in-house ecologist which referenced the possibility of anthropogenic disturbance and ex-situ impacts, In relation to that issue, the ecologist had noted that the introduction of 450 units could result in increased numbers of people seeking safe areas for recreational walking including dog walking but that the area of the SPA in closest proximity to the proposed development had not been identified as subject to disturbance pressures. The ecologist noted that the area was therefore “unlikely to be used by numbers of recreational walkers or new residents walking dogs that could have any measurable effect on the adjacent SPA”. In paras. 25 and 26 of the statement of grounds, the applicant criticised the approach taken by the ecologist (and subsequently by the inspector and the Board itself). The applicant contended that the Board was not entitled to screen out the possibility of significant effects via anthropogenic disturbance or ex-situ effects in circumstances where ( inter alia) there was no assessment as to whether and to what extent the proposed development will lead to increased disturbance from walkers, dogs and cyclists. The applicant complained that the ecologist had no survey information and therefore no scientific evidence upon which she could possibly have determined the magnitude of any such disturbance. It was claimed that this was all the more significant in circumstances when this type of disturbance and loss of ex-situ feeding sites had been specifically identified by the NPWS. In addition, it was contended that the ecologist had conducted no qualitative analysis of the alternative alleged available sites to assess their suitability in terms of size, level of anthropogenic disturbance, fragmentation, food resource and ecological resource. The...