Save Roscam Penisnsula CLG and Others v an Bord Pleanála and Others

JurisdictionIreland
JudgeHumphreys J.
Judgment Date07 June 2024
Neutral Citation[2024] IEHC 335
CourtHigh Court
Docket Number[H.JR.2021.0001110]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between
Save Roscam Peninsula CLG, Sophie Cacciaguidi-Fahy, Martin Fahy and Philip Harkin
Applicants
and
An Bord Pleanála, Galway City Council, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General
Respondents

and

BML Duffy Property Limited (By Order)
Notice Party

[2024] IEHC 335

[H.JR.2021.0001110]

THE HIGH COURT

PLANNING & ENVIRONMENT

(No. 6)

JUDGMENT of Humphreys J. delivered on Friday the 7th day of June, 2024

1

. Judicial review is a mechanism for scrutiny of the legality, as opposed to the merits or correctness, of a decision. The primary question in this challenge to the lawfulness of a planning permission granted by the board is whether the applicants' planning-related concerns have been adequately translated into valid grounds for certiorari, or whether, leaving aside unpleaded points and arguments based on factual misunderstandings or false premises, such concerns constitute merits-based complaints that fall outside the remit of the judicial branch of government.

Judgment history
2

. In Save Roscam v. An Bord Pleanála (No. 1) [2022] IEHC 202, [2022] 4 JIC 0809, I decided certain issues on costs protection adversely to the applicants and also decided to refer certain related issues to the CJEU.

3

. In Save Roscam v. An Bord Pleanála (No. 2) [2022] IEHC 328, [2022] 6 JIC 0903, I granted leave to appeal on the costs issue.

4

. In Save Roscam v. An Bord Pleanála (No. 3) [2022] IEHC 425, [2022] 7 JIC 1402 I made certain directions in relation to the reference to the CJEU.

5

. In Save Roscam v. An Bord Pleanála (No. 4) [2022] IEHC 426, [2022] 7 JIC 1403, I made the formal order for reference to the CJEU. That reference was subsequently withdrawn following clarification of domestic law on costs by the Supreme Court.

6

. In Save Roscam v. An Bord Pleanála (No. 5) [2024] IEHC 156, [2024] 3 JIC 2501 I allowed a further amendment to the statement of grounds.

7

. I now deal with Module I of the substantive challenge.

Geographical context
8

. The development is proposed for a semi-rural area lying between existing settlements. It occurs in a largely rural environment not far from the coast to the south, and about 850m from the edge of Roscam village to the east (with Oranmore beyond that), 1.2 km from Murrough (which is in effect a suburb of Galway City since there is a continuously built-up settlement from there to the centre) to the west, and perhaps a similar distance to the built up area around Merlin Park Hospital to the north. There is a small recent residential enclave (Ross Alta) to the north.

9

. The north-east corner of the development site is in or near:

https://www.google.com/maps/@53.2724439,-8.9828965,3a,75y,240.76h,88.36t/data=!3m7!1e1!3m5!1srN0bMtdA-oPLhXQFlYIzmg!2e0!6shttps:%2F%2Fstreetviewpixels-pa.googleapis.com%2Fv1%2Fthumbnail%3Fpanoid%3DrN0bMtdA-oPLhXQFlYIzmg%26cb_client%3Dmaps_sv.tactile.gps%26w%3D203%26h%3D100%26yaw%3D4.102387%26pitch%3D0%26thumbfov%3D100!7i16384!8i8192?coh=205409&entry=ttu (this image is equivalent to the one included at p. 187 of the Macroworks report submitted by the developer).

10

. The built up part of Roscam lies to the south of the Oranmore to Galway road (the N67, or “new” Dublin Road), and north of the coast road, beyond which, to the south, is Galway Bay.

11

. To the west of Roscam village is the “old” Dublin Road (R338 – referred to seemingly inaccurately in the statement of grounds as the L5037) which passes Merlin Park University Hospital. To the south of that is the Dublin to Galway railway line, and the development site is to the immediate south of that again.

12

. The applicants challenge the validity of a permission to build 102 residential units (houses and apartments) on a former pitch and putt course. The inspector sets out the geographical context at para. 2.1.1 of her report along the lines mentioned above and continues:

“Rosshill Park Woods, a public woodland amenity, is also situated to the north of the railway line (with entrance and car parking area opposite the new housing development). The SHD site is physically separated from the residential suburbs to the north-east and west by the woodland and the railway. The wider area south of the railway line in the Roscam peninsula, is characterised by grazing farmland and detached one-off housing.”

13

. At para. 2.1.2 onwards she adds:

“2.1.2. The proposed development is bounded to the north by the Rosshill Road and the Galway-Dublin Rail Line. The Rosshill Road passes under the railway line north of the site. The eastern boundary of the site is formed by a rural road, which meets Rosshill Road at a T-junction at the northeast corner of the site. Rosshill Road connects to the Old Dublin Road/R338 approx. 800 metres to the north of the site. There is a footpath connection to the Old Dublin Road/R338 north of the railway line. There are retail and community facilities along the Dublin Road and in neighbourhood centres at Roscam and Murrough. The Old Dublin Road/R338 travelling west, connects to Galway City Centre and travelling east connects to the N67/N6 Ring Road around Galway. There is a bus lane along the Dublin Road.

2.1.3. The site, with a stated area of 4.7 hectares, is a greenfield site with a mixture of hedgerows and stone walls along the boundaries and a number of mature and semimature trees within the site. The site is part of a larger greenfield landholding of approx. 10 hectares that was formally used as a par 3 golf course. The landholding extends to the west and south of the site. The holding is in use as grazing land at present and there are a number of detached rural dwellings beyond this to the south, south-east and south-west. Lands to the south and east are zoned Low Density Residential, with lands proximate to the coast zoned Agriculture/High Amenity.

2.1.4. There are no watercourses on site. There are no ecological or environmental designations on site. There is an old farmstead in ruins immediately south of the site that encroaches slightly (modern silage concrete apron) into the site. Levels generally fall gently west across the site, however, there is a hill in the western section of the site that slopes steeply to the west.

2.1.5. The western boundary of the landholding is 136 metres (approx.) from the designated area of the Galway Bay Complex SAC (000268) and 260 metres (approx.) from the designated area of the Inner Galway Bay SPA (004031). The Galway Bay Complex pNHA covers the same area of the SPA and SAC proximate to the site. There is a folly set within an octagonal walled enclosure 100 metres (approx.) to the south of the site. The folly is a Recorded Monument and Protected Structure (RMP No. GA094-070/RPS 8803). The Rosshill Railway Bridge to the north of the site is also a protected structure (RPS 8806, NIAH 30409423).”

Facts
14

. The zoning of the lands in question appear to have been agricultural up to at the latest 2005. From then onwards they were low density residential (LDR).

15

. The Sustainable Residential Development in Urban Areas Guidelines were adopted in 2009 ( https://www.gov.ie/en/publication/a8c85-sustainable-residential-developments-in-urban-areas-guidelines-for-planning-authorities-may-09/) as statutory guidance under s. 28 of the 2000 Act. They were replaced in 2024 but the 2009 version was in force at the relevant time.

16

. The 2011 development plan retained the LDR designation.

17

. The Design Manual for Urban Roads and Streets (DMURS) was published in 2013 ( https://www.gov.ie/en/publication/3360b1-design-manual-for-urban-roads-and-streets/). This is non-statutory guidance, which is incorrectly described by the inspector as a guideline under s. 28 of the 2000 Act, although nothing was pleaded in relation to that error.

18

. The Galway City Development Plan 2017–2023 continued the low density residential zoning at the site.

19

. The National Planning Framework, Project Ireland 2040, was published in February 2018 ( https://www.npf.ie/project-ireland-2040-national-planning-framework/).

20

. The Urban Development and Building Height Guidelines for Local Authorities were adopted in 2018 ( https://www.gov.ie/en/publication/93d22-urban-development-and-building-height-guidelines-ud-bhg-2018/). These are statutory guidelines under s. 28 of the 2000 Act.

21

. The Regional Spatial and Economic Strategy for the North West 2020–2032 contains a strategic plan for the Galway Metropolitan Area, which does not envisage higher density housing on the site.

22

. The notice party developer applied for permission for the present development and submitted plans and particulars on 9th July, 2021.

23

. Galway County Council submitted an opinion on 9th September 2021 recommending refusal of the application. This did not include views of elected members.

24

. The board's inspector recommended the grant of permission. Her report references the submissions made and the following provisions of national, regional and local policy:

“6.1.1. Project Ireland 2040 — National Planning Framework

6.1.2. Section 28 Ministerial Guidelines

The following list of Section 28 Ministerial Guidelines are considered to be of relevance to the proposed development. Specific policies and objectives are referenced within the assessment where appropriate.

• Sustainable Residential Development in Urban Areas, Guidelines for Planning Authorities (2009) and the accompanying Urban Design Manual: A Best Practice Guide (2009)

• Sustainable Urban Housing, Design Standards for New Apartments, Guidelines for Planning Authorities (2020)

• Urban Development and Building Height Guidelines for Planning Authorities (December, 2018)

• Design Manual for Urban Roads and Streets (December 2013)

• Architectural Heritage Protection – Guidelines for Planning Authorities (2011)

...

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