Shadowmill Ltd v an Bord Pleanala

JurisdictionIreland
JudgeMr Justice David Holland
Judgment Date31 March 2023
Neutral Citation[2023] IEHC 157
CourtHigh Court
Docket Number2021 No 88 JR
Between
Shadowmill Limited
Applicant
and
An Bord Pleanala
Respondent

and

Lilacstone Limited and Dublin City Council
Notice Parties

[2023] IEHC 157

2021 No 88 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Mr Justice David Holland DELIVERED 31 MARCH 2023

Contents

INTRODUCTION

7

Figure 1 — The Site and Proposed Development

6

Figure 2 — Proposed Development

7

The Council's Refusal

8

Lilacstone's appeal

9

Grounds & Affidavits

10

Affidavit of Bernadette O'Connell — 28 March 2022 — for Lilacstone

10

The Earlier Permission

11

INSPECTOR'S REPORT

11

Residential Development

11

EIA

11

Bats

12

Stone Villa & Curtilage

12

Conclusion & Recommendation to Refuse

13

IMPUGNED PERMISSION

14

Grant — Stone Villa & Block A

15

Block B — Refusal/Omission & Condition 2

15

Omission of Block B — Note on Interpretation of Impugned Permission as to Tree Removal

16

EIA

16

Condition 6 — Work on Stone Villa

16

GROUND 2 — EIA PRELIMINARY EXAMINATION

17

2 — Article 4.3 & Annex III, EIA Directive — Article 109(2) & Schedule 7, PDR 2001

17

2 — Particulars

19

2 — Mistransposition Not Pleaded

20

2 — EIA — General Observations

21

Development Types and Subthreshold Development

21

EIA Screening & Preliminary Examination — Introduction

22

Screening & Significance of Effect on the Environment

22

Preliminary Examination compared to EIA Screening

24

2 — EIA — Was a Preliminary Examination done?

28

Was Preliminary Examination done? — Conclusion

34

2 — EIA — Adequacy of Preliminary Examination — 2 Issues — Nature of Development & Bats

35

2 — EIA — Nature of Development — Adequacy of Preliminary Examination

35

2 — EIA — Nature of Development — Adequacy of Preliminary Examination — Decision

36

2 — EIA — Bats — Adequacy of Preliminary Examination

38

2 — EIA & Protected Species — including Namur-Est and Holohan

38

2 — Disturbance of Protected Species — Commission Guidance, Morge & Skydda Skogen

43

2 — Bat Report & Arboricultural Report & Inspector's Report

47

2 — EIA — Bats — Shadowmill's Pleadings & Submissions

51

2 — EIA — Bats — The Board's & Lilacstone's Pleadings & Submissions

54

2 — EIA — Interpretation of the Inspector's report as to Bats — in light of the Bat Report

56

2 — EIA — Bats — Adequacy of Preliminary Examination — Decision

56

GROUND 3 — VALIDITY OF CONDITION 2 & JURISDICTION TO PERMIT A MODIFIED DEVELOPMENT

61

Statutory Provisions

62

3.1 — Omission of Block B — Pleadings & Arguments

62

3.1 — Omission of Block B — Fairness Case Not Pleaded

65

3.1 — Omission of Block B — Discussion — Split Decisions/Conditions for Omissions from 1963

68

Fortunestown, 1977 & Kent County Council, 1976 & Academic Commentary

70

Wheatcroft, 1980 & Granada Hospitality, 2000

73

Abenglen, 1982

76

Galligan, 1997 & cases cited therein

77

Irish Hardware, 2000

79

PDA 2000

80

British Telecoms v Gloucester, 2001

81

Dietacaron & White, 2004

83

Later Amendments of the PDA 2000 — and other Statutes

85

Statutory Interpretation by reference to later enactments.

87

Weston, 2008

88

Clinton, 2006 & MAK, 2018 & Mogul, 1976 — (Re-Enactment & Stare Decisis)

89

South-West Regional Shopping Centre, 2016 (Settled Practice)

90

Holborn & Suliman

92

3.1 — Omission of Block B — Conclusion

94

3.2 — Landscaping the Void — Pleadings & Arguments

99

3.2 — Landscaping the Void — Validity of Conditions for further Agreement — & Caselaw

100

Ashbourne Holdings Boland & Krikke

100

Kenny

103

Donnelly, Dooner & O'Connor

104

3.2 — Landscaping the Void — Discussion & Conclusion

105

GROUND 4 — PROTECTED STRUCTURE — CONDITION 6

109

4 — Introduction

109

Protected Structures — Law Generally

110

Protected Structures — PDR 2001

113

4 — Goodbody Conservation Report — for Lilacstone

114

4 — Protected Structure — DCC Conservation Officers' Report, Inspector's Report & Condition 6

116

4 — Protected Structure — Pleadings & Arguments

122

4 — Goodbody Affidavits — 28 March 2022 & 2 September 2022 — for Lilacstone

126

4 — Protected Structure — Discussion & Decision

127

Works on Stone Villa

129

The Boundary & Entrances

134

OVERALL DECISION

135

INTRODUCTION 1
1

The Applicant (“Shadowmill”) seeks to quash the Respondent Board's (“the Board”) decision of 16 th December 2020 to grant planning permission 2 (the Impugned Permission) to the 1 st Notice Party (“Lilacstone”) for 18 apartments at the 0.27-hectare site of “Stone Villa”,

297 North Circular Road, Phibsborough, Dublin (“the Permitted Development” and “the Site”)
2

Stone Villa is a 19 th century three-storey 3, three-bay, stone-faced, detached house with a two-storey rear return. It is a Protected Structure. 4 Its curtilage constitutes the Site. It is on the northern side of North Circular Road. The house is derelict and in very poor condition. The Site and the development for which permission was sought are illustrated in Figures 1 and 2 below.

3

The Dublin City Development Plan 2016–2022 (the “Development Plan”) applies and the zoning objective for the area seeks to protect, provide, and improve residential amenities.

4

Lilacstone acquired the property in or about 2019 and sought permission (the “Planning Application”) in November 2019 from Dublin City Council (“DCC”), for a development of 32 Apartments: 3 in renovations to Stone Villa (1 on each floor); 15 in Block A; 14 in Block B. Blocks A & B were to be of four storeys each (the “Proposed Development” 5). Block A is just behind Stone Villa and Block B was to be behind Block A, at the rear of the site. The application envisaged, inter alia, widening the existing vehicular entrance from North Circular Road, hard and soft landscaping; pedestrian access, boundary treatments and balconies (facing all directions) and provision of public open space.

5

DCC refused permission. On Lilacstone's appeal, the Board granted the Impugned Permission.

6

The Impugned Permission refused permission for Block B but otherwise granted permission largely as sought. 6 The “on the ground” significance of the omission of Block B will be, at least generally, apparent from Figures 1 and 2 below. No drawing or other illustration exists of the entire Permitted Development – i.e. omitting Block B or depicting what landscaping will take its place. But drawings exist of all that is to be developed.

Figure 1 – The Site and Proposed Development

Figure 2 – Proposed Development

• Stone Villa is the white building in the bottom right. Block A is behind it. Block B is behind Block A at the top of the figure.

  • • This is a ground floor plan but serves to depict the Site generally. The Site is outlined in red.

  • • The North Circular Road runs along the southern Site boundary.

  • • The yellow building at the “bottom” (south) of the layout is Stone Villa. Block A is the red, blue and orange building immediately behind it. Block B is the purple and orange building at the “top” of the layout.

  • • The Cherrymount residential development lies on the western boundaries of the Site. The Cherrymount houses adjacent Stone Villa and Block A have shorter gardens than those adjacent Block B.

  • • The Phibsborough Luas stop is close by to the east.

7

Lilacstone did not submit an EIA Screening Report or EIAR. It did submit a Landscape Masterplan 7 to the effect, inter alia, that the proposed open space layout was determined by advice from heritage consultants and based on the original layout illustrated on historic mapping. The proposed layout west of ‘Stone Villa’ is described as broadly reinstating the historic layout.

8

Lilacstone also submitted a Conservation Assessment 8 (the “Goodbody Conservation Report”) based on an inspection of 10 June 2019. Stone Villa was in situ, at lates, by 1849. It is described as “ an imposing house, though surprisingly modest in size. Its position on North Circular Road, set back from the street on a wide site, together with its height and stone front, give it an air of significance despite having just two rooms on each floor in the main house and a return of modest proportions”. The small rear rooms on each floor and in the rear return were blocked off and inaccessible. The internal fittings and decorative features are also of a relatively modest quality and the staircase is likely not the original – it is late 19 th or early 20 th Century. By way of conservation assessment it is said that, whereas a 2017 planning permission allowed extension of Stone Villa to the side and rear, the Proposed Development “ does not include any addition to the side of Stone Villa, leaving it as a freestanding building. As a result, the view of the house from the street frontage on North Circular Road will be respected and there will be minimal impact on the character and setting of the

protected structure.” The assessment describes Stone Villa as in “ extremely poor condition and is in need of urgent attention and also needs to be brought back into use as quickly as possible”. 9 It includes a description and photographs of the exterior and interior of Stone Villa which confirm its dereliction and poor condition — including structural condition. The assessment describes the intended internal works in general terms – primarily functional rather than conservational, though conservation is addressed. It is asserted that the works will allow repairs with minimal impact on the interior and exterior character of the house, leaving Stone Villa as a stand-alone building
9

Shadowmill describes itself as an NGO dedicated to the protection of the built and natural environment in Phibsborough. It made a...

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