Redmond v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 10 March 2020
• Neutral Citation: [2020] IEHC 151
• Docket Number: 2019 No. 709 J.R.
• Court: High Court
• Date: 10 March 2020

IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

MICHAEL REDMOND

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

DURKAN ESTATES CLONSKEAGH LIMITED

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

NOTICE PARTIES

[2020] IEHC 151

Garrett Simons J.

2019 No. 709 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Residential development – Judicial review – Applicant seeking an order of certiorari setting aside the respondent’s decision – Whether the decision to grant planning permission was invalid

Facts: The applicant, Mr Redmond, applied to the High Court seeking to question the validity of a decision of the respondent, An Bord Pleanála, made on 10 May 2019, to grant planning permission for a large scale residential development (134 units). The principal issue which arose for determination was whether the lands, the subject-matter of the planning application, were designated as “institutional lands” under the development plan. If this designation was held to apply, then a number of subsidiary issues would arise for determination by the court, including (i) whether the designation represented a zoning objective, and (ii) whether the proposed development constituted a material contravention of the development plan objectives applicable to “institutional lands”. A number of separate grounds of challenge had been advanced by the applicant for judicial review.

Held by Simons J that An Bord Pleanála erred in law in its interpretation of the development plan. He held that, on its proper interpretation, the “institutional lands” designation applied to the lands the subject-matter of the planning application, i.e. the application site. He noted that the entirety of the lands, including the application site, had been in the ownership and occupation of the religious congregation as of the date of the adoption of the 2016–2022 development plan (March 2016). He noted that the application site accommodated part of the hockey pitch associated with the secondary school, and open lands in institutional use. He held that, as recognised by An Bord Pleanála in its decision of March 2019 to grant planning permission for a new all-weather hockey pitch, the former hockey pitch continued to have an established use for sports and recreation, and this use was ancillary to an institutional use. He held that the relevant policies and objectives of the development plan were intended to inform the determination of planning applications which sought permission to authorise a material change in the use of lands which had an established use as “institutional lands”. He held that these policies and objectives could not be by-passed by the simple expedient of the sale of the lands. He held that the application site remained subject to the “institutional lands” designation notwithstanding the transfer of the ownership of the lands from the religious congregation to the developer in October 2017. He held that the proposed development involved a material contravention of the development plan policies and objectives applicable to institutional lands in respect of (i) housing density and (ii) public open space. He held that the decision to grant planning permission was invalid in circumstances where An Bord Pleanála did not seek to invoke its statutory power to grant planning permission in material contravention of the development plan (s. 9(6)(c) of the Planning and Development (Housing) Act 2016). He held that the inspector’s report did consider and engage with the reasons for refusal recommended in the chief executive’s report, as required under s. 9(1)(a) of the 2016 Act. He held that this engagement did, however, disclose an error of law in respect of the interpretation of the development plan. He held that, save with the exception of the issues concerning the implications of the proposed residential development for the possible future expansion of the existing schools, the inspector’s approach could be imputed to An Bord Pleanála. He held that there had been a breach of s. 9(1)(a) insofar as the board had failed to explain in its decision what approach it took to the question of the possible future expansion of the existing schools and as to why it disagreed with the first of the recommended reasons for refusal set out in the chief executive’s report. He held that the grounds of challenge in respect of pre-application consultations and the Habitats Directive had not been made out.

Simons J held that the decision to grant planning permission was invalid and an order of certiorari would be made setting aside An Bord Pleanála’s decision.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 March 2020

INTRODUCTION	1
NOMENCLATURE	6
THE APPLICATION SITE	10
“INSTITUTIONAL LANDS” DESIGNATION	13
INTERPRETATION OF DEVELOPMENT PLAN: LEGAL PRINCIPLES	16
INTERPRETATION IS A QUESTION OF LAW FOR THE COURT	22
DOES THE DESIGNATION APPLY TO THE APPLICATION SITE?	29
SALE OF THE APPLICATION SITE	48
MATERIAL CONTRAVENTION OF ZONING OBJECTIVE?	60
MATERIAL CONTRAVENTION OF NON-ZONING OBJECTIVE?	73
MISINTERPRETATION IS AN ERROR OF LAW	94
CHIEF EXECUTIVE'S REPORT	95
PRE-APPLICATION CONSULTATIONS	132
HABITATS DIRECTIVE: BATS	149
SUMMARY OF CONCLUSIONS	157
FORM OF ORDER	163
APPENDIX

* References are to paragraph numbers

INTRODUCTION

1 The within proceedings seek to question the validity of a decision of An Bord Pleanála to grant planning permission for a large scale residential development (134 units). The decision to grant planning permission was made on 10 May 2019, and bears the An Bord Pleanála reference “PL06D.304420”.

2 The impugned decision was made pursuant to the special statutory procedure which governs applications for “strategic housing development” (as defined). One of the key features of this procedure is that the application for planning permission is made to An Bord Pleanála directly, i.e. there is no first-instance application to the local planning authority.

3 Notwithstanding that the planning authority does not have a formal decision-making function in respect of such applications, the authority continues to have a significant role to play. First, it is a statutory consultee and An Bord Pleanála is required to consider the report and recommendation prepared on behalf of the planning authority by its chief executive. Secondly, An Bord Pleanála must have regard to the planning authority's development plan in determining the application for planning permission. The board is precluded from granting planning permission if the proposed development would involve a material contravention of a zoning objective of the development plan or local area plan. In the case of a non-zoning objective, i.e. an objective other than one in relation to the zoning of land, the board has jurisdiction to grant planning permission in material contravention of the objective provided that certain prescribed statutory criteria are fulfilled.

4 The principal issue which arises for determination in this judgment is whether the lands, the subject-matter of the planning application, are designated as “institutional lands” under the development plan. If this designation is held to apply, then a number of subsidiary issues arise for determination by the court, including (i) whether the designation represents a zoning objective, and (ii) whether the proposed development constitutes a material contravention of the development plan objectives applicable to “institutional lands”.

5 This judgment will also address a number of separate grounds of challenge which have been advanced by the applicant for judicial review. The legal issues presented by these other grounds can be disposed of more shortly. The lion's share of this judgment will be taken up with the issues identified in the preceding paragraph.

NOMENCLATURE

6 The following shorthand will be used to describe the parties to the proceedings. The applicant for judicial review, Mr Michael Redmond, will be referred to as “the objector”. The applicant for planning permission, Durkan Estates Clonskeagh Ltd., will be referred to as “the developer”. (The use of the term “applicant” to describe either of these parties will be avoided as it is apt to lead to confusion between the applicant for judicial review, and the applicant for planning permission). The decision-maker, An Bord Pleanála, will be referred to as either “An Bord Pleanála” or “the board”. Dun Laoghaire Rathdown County Council will be referred to as “the planning authority”.

7 The underlying legislation, the Planning and Development Act 2000, and the Planning and Development (Housing) Act 2016, will be referred to by the abbreviations “PDA 2000” and “PD(H)A 2016”.

8 The lands the subject-matter of the planning permission impugned in these proceedings will be referred to as “the application site”.

9 The development plan imposes certain policies and objectives in the case of what are described as lands in “institutional use” or “institutional lands”. The relevant provisions of the 2016–2022 development plan are set out in an appendix to this judgment. I will refer to lands subject to these policies and objectives as lands which have been “designated” as “institutional lands”. The term “designated” is employed in contradistinction to the term “zoned”. This is because, as explained at paragraph 60 et seq., the objectives and policies do not amount to a zoning objective.

THE APPLICATION SITE

10 The application site is located in Goatstown, some 5 kilometres from Dublin city centre, and is in the functional area of Dun Laoghaire Rathdown County Council. The general area in the vicinity of the application site is primarily in residential use. The application site itself measures some 1.969 hectares. The application site had previously formed part of an overall landholding of 6.4 hectares which had been in the...