Shadowmill Ltd v an Bord Pleanála
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 |
and
[2023] IEHC 157
2021 No 88 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT OFMr Justice David HollandDELIVERED 31 MARCH 2023
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 |
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”)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.
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.
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.
DCC refused permission. On Lilacstone's appeal, the Board granted the Impugned Permission.
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.
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.
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 buildingShadowmill describes itself as an NGO dedicated to the protection of the built and natural environment in Phibsborough. It made a...
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