Sinead Kerins and Mark Stedman v an Bord Pleanála, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Humphreys J. |
| Judgment Date | 30 November 2021 |
| Neutral Citation | [2021] IEHC 733 |
| 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
and
[2021] IEHC 733
[2020 No. 830 JR]
THE HIGH COURT
JUDICIAL REVIEW
Housing development – Planning permission – Reference – Applicants seeking an order quashing a decision of the first respondent to grant planning permission for a housing development – Whether s. 28 of the Planning and Development Act 2000 is invalid as contrary to EU law
Facts: The applicants, Ms Kerins and Mr Stedman, sought an order quashing a decision of the first respondent, An Bord Pleanála (the board), as competent authority for development consent, to grant planning permission for a housing development. The applicants also sought 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 2011/92/EU as amended by directive 2014/52/EU on the grounds that mandatory guidelines under that section interfere with the process of appropriate assessment (AA) or EIA. In Kerins v An Bord Pleanála (No. 1) [2021] IEHC 369, the High Court (Humphreys J) dismissed the applicants’ case on domestic law points and indicated an intention to refer certain EU law questions to the CJEU. In Kerins v An Bord Pleanála (No. 2) [2021] IEHC 612, Humphreys J issued certain clarifications of the No. 1 judgment at the request of the parties. Humphreys J then made the formal order for reference, and somewhat amended the questions from what was provisionally proposed in the No. 1 judgment.
Held by Humphreys J that he would refer the following questions to the CJEU pursuant to art. 267 of the TFEU: (a) 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; (b) 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 required by legislative, regulatory or administrative provisions” includes a plan or programme that is expressly envisaged by a local authority’s statutory development plan (that development plan having been made under a legislative provision) either in general or where the development plan states that the local authority “will prepare area-specific guidance for the strategic development and regeneration areas...using the appropriate mechanisms of local area plans...schematic masterplans and local environmental improvement plans”; (c) 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 strategic environmental assessment; (d) 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 direct the applicant to lodge hard copy books of all pleadings by making direct contact with the Principal Registrar within 28 days for transmission to the CJEU and would adjourn the balance of the matter pending the decision of the CJEU.
Reference to CJEU.
(No. 3)
JUDGMENT of Humphreys J. delivered on Tuesday the 30th day of November, 2021
In Kerins v. An Bord Pleanála (No. 1) [2021] IEHC 369, ( [2021] 5 JIC 3102 Unreported, High Court, 31st May, 2021), I dismissed the applicant's case on domestic law points and indicated an intention to refer certain EU law questions to the CJEU.
In Kerins v. An Bord Pleanála (No. 2) [2021] IEHC 612, ( Unreported, High Court, 4th October, 2021), I issued certain clarifications of the No. 1 judgment at the request of the parties.
I now make the formal order for reference, and have somewhat amended the questions from what was provisionally proposed in the No. 1 judgment.
The applicant seeks an order quashing a decision of An Bord Pleanála (the board), as competent authority for development consent here, to grant planning permission for a housing development. The applicants also seek a declaration that s. 28 of the Planning and Development Act 2000 (the 2000 Act) is invalid as contrary to EU law, specifically the habitats directive 92/43/EEC and the environmental impact assessment (EIA) directive 2011/92/EU as amended by directive 2014/52/EU on the grounds that mandatory guidelines under that section interfere with the process of appropriate assessment (AA) or EIA.
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.
The Dublin Development Plan 2016 – 2022 was adopted by Dublin City Council (the council), as the planning authority, on 23rd September, 2016 and came into force on 21st October, 2016.
The making of a development plan is a statutory obligation (s. 9(1) of the 2000 Act).
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.
A non-statutory development framework plan was prepared by the council in July 2017 to implement SDRA 12. This included a proposed park measuring 0.2 hectares within the Bailey Gibson site.
Ministerial guidelines entitled Urban Development and Building Height Guidelines, were adopted in 2018 under s. 28 of the 2000 Act. The guidelines were themselves subjected to strategic environmental assessment (SEA).
The guidelines do not mandate grant of permission, but allow for such permission. However the designation “permissive” (argued for by the board) is not totally accurate in the sense that the guidelines require the grant of permission to be an available option, even where specific objectives of the city or county plan, or local area plans, or related environmental considerations, would dictate otherwise. Hence a conclusion that permission cannot be granted by reference to such factors is precluded by the guidelines.
Paragraph 3.1 of the 2018 guidelines baldly states that “it is Government policy that building heights must be generally increased in appropriate urban locations. There is therefore a presumption in favour of buildings of increased height in our town/city cores and in other urban locations with good public transport accessibility.”
It is clear that that approach, which in turn animates the binding SPPRs later in the document, is based on government housing policies and not on purely environmental considerations. Thus the case specifically raises the issue of the lawfulness of mandatory guidelines that have their origin in policies motivated primarily, albeit not exclusively, by non-environmental considerations.
Specific Planning Policy Requirement 3 (SPPR 3) states as follows:
“It is a specific planning policy requirement that where;
(A)1. an applicant for planning permission sets out how a development proposal complies with the criteria above; and
2. the assessment of the planning authority concurs, taking account of the wider strategic and national policy parameters set out in the National Planning Framework and these guidelines;
then the planning authority may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise.”
I reject the board's submission that compliance with the guidelines does not preclude any particular outcome. It precludes a decision by the board that the grant of permission is itself ruled out by the development plan. Admittedly, the board might go on to refuse permission in any event on other grounds, but the one thing that is absolutely clear is that, if the foregoing applies, then the board is not entitled to refuse permission because “specific objectives of the relevant development plan or local area plan may indicate otherwise”.
The fact that there are some permissive-type terms used in the phraseology of SPPR 3(A) is a matter of wording rather than substance because under the statutory provision in s. 28, compliance is mandatory. The board submits that the “criteria above” referred to in SPPR 3(A) includes the criterion that “[r]elevant environmental assessment requirements, including SEA, EIA, AA and Ecological Impact Assessment, as appropriate” are satisfied. However, that doesn't answer the question as to how the SPPR impacts on that process.
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