Sinead Kerins and Mark Stedman v an Bord Pleanála, Ireland and the Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 31 May 2021
• Neutral Citation: [2021] IEHC 369
• Docket Number: [2020 No. 830 JR]

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000

Between

Sinead Kerins and Mark Stedman

Applicants

and

An Bord Pleanála, Ireland and the Attorney General

Respondents

and

DBTR-SCR1 Fund, A Sub Fund of CWTC Multi-Family ICAV

Notice Party

[2021] IEHC 369

[2020 No. 830 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Judicial review – Reference – Applicants seeking certiorari of the first respondent’s decision – Whether s. 28 of the Planning and Development Act 2000 is invalid

Facts: The notice party developer, a particular sub-fund of a specified Irish Collective Asset-Management Vehicle, engaged in pre-planning consultation on 21st January, 2020 and formally applied for permission on 25th May, 2020 under s. 4(1) of the Planning and Development (Housing) and Residential Tenancies Act 2016. The senior planning inspector of the first respondent, An Bord Pleanála, recommended refusal of the application on 20th August, 2020. The board disagreed and granted permission on 14th September, 2020. The applicants, Ms Kerins and Mr Stedman, applied to the High Court seeking certiorari of the board’s decision on the following grounds: (1) unlawful regard having being had to pre-consultation discussions; (2.1) and (2.2) a breach of the Environmental Impact Assessment (EIA) directive 2014/52/EU; (3.1) and (3.2) an error in terms of material contravention of the development plan regarding the provision of public open space; (3.3) the board erred in relying on the masterplan because it had not been subject to Strategic Environmental Assessment (SEA) and because it was not in compliance with Strategic Development and Regeneration Area (SDRA) 12; (4) the decision was inconsistent with the zoning; (5) condition 22 was invalid because it made provision for leasing of units to the housing authority rather than compliance with Part V of the Planning and Development Act 2000 in the normal way; (6) conditions 2 and 3 were void because they were a restriction on the right of alienation of apartments; (7) and (8) s. 28 of the 2000 Act is invalid or fails to transpose EU law or alternatively the board erred in the manner in which it relied on and applied s. 28 guidelines; (9) a breach of the habitats directive 92/43/EEC; (10) a failure to transpose the SEA directive 2001/42/EC; (11.1) the board made a fundamental error in the assessment of the issue of the tall buildings and building height; and (11.2) the inadequacy of the plans and particulars.

Held by Humphreys J that in all the circumstances, there were three referrable questions of EU law arising as follows: (1) does art. 2(a) of directive 2001/42/EC have the effect that the concept of “plans and programmes ... as well as any modifications to them ... which are subject to preparation and/or adoption by an authority at national, regional or local level...” includes a plan or programme that is jointly prepared and/or adopted by an authority at local level and a private sector developer as owner of adjacent lands to those owned by a local authority; (2) does art. 3(2)(a) of directive 2001/42/EC have the effect that the concept of “plans and programmes ... which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in annexes I and II to directive 85/337/EEC...” includes a plan or programme that is not in itself binding but which is expressly envisaged in a statutory development plan which is binding, or which proposes or envisages in effect a modification of a plan that was itself subject to SEA; (3) whether art. 2(1) of directive 2011/92/EU has the effect of precluding regard being had by the competent authority in the process of environmental impact assessment to mandatory government policies, in particular those which are not based exclusively on environmental criteria, being policies that define in certain circumstances situations where a grant of permission is not to be ruled out.

Humphreys J held that he would in principle make a reference to the CJEU in relation to the referrable questions as set out above subject to a formal order for reference, and would direct the parties to facilitate that in accordance with the procedure set out in Eco Advocacy CLG v An Bord Pleanála [2021] IEHC 265, and along the lines of the various specific directions and timescales provided for in that case.

Reference to the CJEU.

JUDGMENT of Humphreys J. delivered on Monday the 31st day of May, 2021

1 The site to which this application relates is situated in Dublin's south inner city, with the South Circular Road to the south, Rehoboth Place to the southwest, the Coombe Hospital to the west, and St. Teresa's Gardens and Donore Avenue to the east.

2 The Dublin Development Plan 2016 – 2022 was adopted by the city council on 23rd September, 2016 and came into force on 21st October, 2016.

3 The area is designated in the Development Plan as a Strategic Development and Regeneration Area (SDRA), with the title “St. Teresa's Gardens and Environs SDRA 12”. The overall SDRA includes two former industrial sites previously operated by Player Wills and Bailey Gibson.

4 A non-statutory development framework plan was prepared by the city council in July 2017 to implement SDRA 12. This included a proposed park measuring 0.2 hectares within the Bailey Gibson site.

5 The developer here is named in the proceedings as a particular sub-fund of a specified Irish Collective Asset-Management Vehicle (ICAV). The parent body, the ICAV, has legal personality under s. 15 of the Irish Collective Asset-management Vehicles Act 2015, and under s. 35 of the Act the sub-fund has separate liability, but is not in itself a body corporate. On the face of things, therefore, the applicant for permission, and thus the notice party here, should have been the ICAV trading as the sub-fund, but that is perhaps more for future reference because no issue was taken on that by anybody in the proceedings thus far.

6 A masterplan for the area was prepared jointly by the notice party's advisers (Hines) and the city council, dated January 2020. That was screened for Appropriate Assessment (AA) by the developer's planning consultants on 15th January, 2020. It was not subjected to Strategic Environmental Assessment (SEA). The masterplan includes the removal of the public open space from the Bailey Gibson site to be provided elsewhere at a later stage of development with a financial contribution from the developer.

7 The developer engaged in pre-planning consultation on 21st January, 2020 and formally applied for permission on 25th May, 2020 under s. 4(1) of the Planning and Development (Housing) and Residential Tenancies Act 2016. That was the first of four planning applications envisaged in relation to the site and environs within the masterplan.

8 The senior planning inspector of An Bord Pleanála recommended refusal of the application on 20th August, 2020. The board, however, disagreed, and granted permission on 14th September, 2020. The permission authorised a “Build to Rent” development allowing for the demolition of all existing structures on site and the construction of 416 dwellings in five blocks ranging from 2 storeys to 16 storeys as well as tenant amenities, communal open space, childcare facilities, commercial floor space, an ESB substation and associated works such as parking places.

9 The primary relief sought in the proceedings is certiorari of the board's decision. The applicants also seek a declaration that s. 28 of the Planning and Development Act 2000 is invalid as contrary to EU law, specifically the habitats directive 92/43/EEC and the Environmental Impact Assessment (EIA) directive 2014/52/EU, on the grounds that mandatory guidelines under that section interfere with the process of appropriate assessment or environmental impact assessment.

Facts regarding heights of the proposed buildings

10 The material contravention statement furnished with the application identifies the heights of the various buildings as follows:

(i). BG1 — 11 storeys — 57 metres;

(ii). BG2 — 16 storeys — 72 metres;

(iii). BG3 — 5 storeys — 38 metres;

(iv). BG4 — 4 storeys — 34 metres; and

(v). BG5 — 3 stories — 31 metres.

11 The statement expresses the heights in terms of Ordnance Datum (OD) to the parapet, that is the roofline of the top of the building minus plant on top of the building. Reference to OD currently is nowadays normally, and is here, a reference to Malin OD which reflects the mean sea level at Portmoor Pier, Malin Head, County Donegal as measured in the 1960s. That replaced an earlier Poolbeg OD which referred to the low water of spring tide at Poolbeg lighthouse on 8th April, 1837. I am told that some large developments such as factories may on occasion employ their own local datum.

12 Ground level at the site is OD + 20.8 metres, so subtracting that, only two buildings are mid-rise or higher as that term is defined in the development plan (chapter 16, p. 320), meaning between 24 and 50 metres in the inner city area. This is consistent with the Chief Executive's report at p. 16. Thus, the outcome of the permission was for three low-rise buildings, one mid-rise and one high-rise, although the latter only marginally so.

Domestic law issues

13 I propose to first examine the domestic law issues to ascertain whether any entitlement to relief has been made out under any of the headings pleaded.

Alleged unlawful regard to pre-consultation discussions

14 Core ground 1.1 complains of unlawful regard having being had to pre-consultation discussions. However, reference to those discussions in the papers before the board does not equate to unlawful reliance on those discussions. Generally, such...