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

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 04 October 2021
• Neutral Citation: [2021] IEHC 612
• Docket Number: [2020 No. 830 JR]
• Year: 2021
• Court: High Court

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

Between

Sinead Kerins and Mark Stedman

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

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

Notice Party

[2021] IEHC 612

[2020 No. 830 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Reference – Questions of law – Applicants seeking judicial review – Whether the masterplan formed part of or modified the development plan

Facts: In Kerins v An Bord Pleanála (No. 1) [2021] IEHC 369, the High Court (Humphreys J) rejected the case of the applicants, Ms Kerins and Mr Stedman, on domestic law points and decided in principle to refer certain questions to the CJEU subject to providing for the consideration of further submissions by the parties including as to proposed answers to the questions to be referred. The respondents, An Bord Pleanála (the board), and Ireland and the Attorney General (the State respondents), contended that certain factual and legal matters should be clarified first, before the order for reference was finalised. Three issues were raised by the board: (i) the relationship of the masterplan to the development plan; (ii) condition 24 attached to the grant of permission; and (iii) the building height guidelines. The State respondents raised 13 separate issues which they alleged required clarification, under the three headings of questions of fact, questions of law and questions in the judgment.

Held by Humphreys J that the masterplan did not formally form part of the development plan, however the masterplan was expressly envisaged by the development plan. Humphreys J held that the masterplan did not formally modify the development plan, but it envisaged developments being allowed that would not be consistent with the development plan as originally adopted. Humphreys J held that condition 24 did give effect to the masterplan; the purpose of the payment was to give effect to the masterplan to the extent of providing funding for public open space in the masterplan area. Humphreys J held that while that did not create a binding obligation to give effect to the masterplan in full, it earmarked the specific funds to be used for open space in the masterplan area. Humphreys J held that the imposition of condition 24 arose from the combination of the statutory framework, the development plan and the masterplan. Humphreys J rejected the board’s submission that compliance with the guidelines did not preclude any particular outcome; it precluded a decision by the board that the grant of permission was itself precluded by the development plan. Humphreys J did not see anything in the State’s questions of fact that had not already been adequately covered by the issues raised by the board. Humphreys J held that the State’s first question of law was tendentious and was really an attempt to raise the ultimate issue. Humphreys J held that there was no lack of clarity on the second and third points. Humphreys J held that, regarding the remaining questions of law, the State was right to the extent the Court may have to look at conforming interpretations in due course, but that did not take away the need for the reference which remained relevant to the validity of the specific individual decision. Humphreys J held that s. 28(1C) of the Planning and Development 2000 provides that where ministerial guidelines under the section contains specific planning policy requirements, the board shall comply with those requirements; that is mandatory. Humphreys J held that there was no real doubt about the impact in Irish law of guidelines issued under s. 28 where specific planning policy requirements are included; the board was obliged to comply with those guidelines and, therefore, was precluded from holding that the development plan or local area plan ruled out the grant of permission.

Humphreys J directed that: (i) this judgment should be read together with the No. 1 judgment for the purposes of the proceedings and as a combined basis for any further submissions for the purpose of the order for reference; (ii) all parties be given the option, within two weeks from the delivery of this judgment, of submitting revised proposed answers to the questions for the CJEU that were previously offered by the parties in line with the Eco Advocacy directions (Eco Advocacy v An Bord Pleanála [2021] IEHC 265) given in the No. 1 judgment; and (iii) following the expiry of that period the order for reference would be finalised, having regard to any further submissions made by that point.

Reference to CJEU.

(No. 2)

JUDGMENT of Humphreys J. delivered on Monday the 4th day of October, 2021

1 In Kerins v. An Bord Pleanála (No. 1) [2021] IEHC 369, ( [2021] 5 JIC 3102 Unreported, High Court, 31st May, 2021), I rejected the applicants' case on domestic law points and decided in principle to refer certain questions to the CJEU subject to providing for the consideration of further submissions by the parties including as to proposed answers to the questions to be referred.

2 The board and the State respondents now contend that certain factual and legal matters should be clarified first, before the order for reference is finalised, and I am now dealing with that submission.

Issues raised by the board

3 Three issues were raised by the board:

• (i). the relationship of the masterplan to the development plan;

• (ii). condition 24; and

• (iii). the building height guidelines,

4 I will deal with those issues in turn.

Relationship of masterplan to development plan

5 The board requests clarification of the following question: “Does the Masterplan form part of or modify the Development Plan?” I think the answer to that is fairly obvious from the No. 1 judgment but if it helps I can say the following. The masterplan is not made under any specific statutory provision nor does it formally form part of the development plan. However, the masterplan is expressly envisaged by the development plan and is to that extent and in that sense made “under” the statutory development plan, i.e., it is a specific measure taken to implement the development plan that is envisaged by the development plan.

6 The masterplan does not formally modify the development plan, but it envisages developments being allowed that would not be consistent with the development plan as originally adopted.

7 The Chief Executive of the city council has authority to act in relation to a wide range of matters on behalf of the council without the positive approval of elected members. That doesn't make his acts any less acts of the council. Such actions include agreement to a masterplan. Under s. 149 of the Local Government Act 2001, sub-s. (4) provides that “[e]very function of a local authority which is not a reserved function is, for the purposes of this Act, an executive function of such local authority.” Subsection (3)(a) provides that the Chief Executive shall “exercise and perform in respect of each local authority for which he or she is the chief executive”. Hence, all functions of a local authority are matters for the Chief Executive except those that are specifically provided by statute to be “reserved functions” for the elected members. Hence, it is completely irrelevant that the elected members did not approve the masterplan.

8 I also reject the board's interpretation that the masterplan was adopted in the council's capacity as “landowner”. That is, I'm afraid, a complete misunderstanding in context. The adoption of the masterplan is clearly not limited to the council's role as landowner because it also envisages works on land not owed by the council. But even if it related to the council's land alone, it engages the council's function as local authority.

9 It is true that in relation to particular developments, the council is sometimes the competent authority and sometimes the developer — a distinction reflected in for example art. 9(a) of the EIA directive 2011/92/EU, as amended by directive 2014/52/EU. Insofar as developments on lands owned by the notice party to these proceedings are concerned, the council is clearly not the developer. But as a matter of domestic law, even where the council is both the landowner and the developer, it still acts in its capacity as the council within the clear public law and statutory framework applicable to it.

10 While specific substantive rights might accrue to a council as landowner as opposed to a statutory body, there is no provision in Irish law for the council to carry out any act “as landowner” divorced from its statutory regulatory context and functions “as council”. Any formal act like the agreement of a masterplan, is carried out within the statutory context of its capacity as local authority even if it is also in its capacity as landowner.

11 In addition, given that the development plan was adopted in the council's capacity as planning authority, and that it envisages a masterplan guiding future planning, any such masterplan (this plan as it turns out) must also be taken to be in law an act of the council in its capacity as planning authority. The notice party argued that there was “no evidence” that it was adopted by the...