Shadowmill Ltd v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 31 March 2023
• Neutral Citation: [2023] IEHC 157
• Court: High Court
• Docket Number: 2021 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...