Southwood Park Residents Association v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 10 July 2019
• Neutral Citation: [2019] IEHC 504
• Docket Number: 2019 No. 191 J.R.
• Court: High Court
• Date: 10 July 2019

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

SOUTHWOOD PARK RESIDENTS ASSOCIATION

APPLICANT

AND

AN BORD PLEANÁLA MINISTER FOR CULTURE HERITAGE AND THE GAELTACHT

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

CAIRN HOMES PROPERTIES LTD.

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

NOTICE PARTIES

[2019] IEHC 504

Simons J.

2019 No. 191 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Judicial review – Preliminary issue – Applicant seeking judicial review – Whether the decision to grant planning permission ought to be set aside

Facts: The first respondent, An Bord Pleanála, had purported to grant planning permission for a large-scale residential development. The planning application had been made pursuant to the special statutory regime governing applications for “strategic housing development” as defined. It was a requirement of the relevant regulations that the applicant for planning permission, i.e. the developer, must make a copy of the planning application available for inspection on a dedicated website. It appeared that, through inadvertence, one of the documents submitted as part of the planning application had not been posted online. The omitted document contained information relating to the potential impact of the proposed development on various species of bat which were protected under EU law. An earlier version of this document had been posted online in error. None of the parties were seemingly aware of this error until after the judicial review proceedings had been instituted. On learning of the error, the applicant, Southwood Park Residents Association, sought to amend its statement of grounds to include a further complaint that there had been non-compliance with the regulations. The other parties to the proceedings consented to the proposed amendments. The developer went further and conceded that in circumstances where the requirements of the regulations had not been fulfilled, the decision to grant planning permission should be set aside on that narrow ground. An Bord Pleanála conceded that there had been a breach of the requirements of the regulations, but contended that this breach was de minimis and did not affect the validity of the decision to grant planning permission. The judicial review proceedings came on for hearing before the High Court (Simons J) on 9 July 2019. All parties agreed that the legal consequences which the breach of the regulations had for the validity of the planning permission should be addressed as a preliminary issue, in advance of hearing any of the other grounds of judicial review. That preliminary issue was fully argued before Simons J, and he reserved judgment overnight.

Held by Simons J that the breach of the requirements of the regulations was fatal to the validity of the planning permission; the regulations could not be clearer in their terms, and the failure to post the correct version of the document online represented a breach of those regulations. Simons J held that An Bord Pleanála’s reliance on case law in relation to de minimis breaches was misplaced and that the breach in this case could not be characterised as trivial, technical or insubstantial; the content of the omitted document—which consisted of (i) the results of surveys of bat activity in the vicinity of the application site, and (ii) proposed mitigation measures—was significant.

Simons J proposed making an order setting aside the decision to grant planning permission. Simons J held that the order would recite that the only grounds upon which the court had adjudicated were those in relation to public participation and the requirement to make a full copy of the planning application available online. Simons J’s judgment had nothing to say—one way or another—about any of the other grounds of challenge.

Order granted.

JUDGMENT of Mr Justice Garrett Simons delivered 10 July 2019.

SUMMARY

1 This judgment addresses the circumstances, if any, in which it is legitimate to treat a breach of the public participation requirements of the planning legislation as de minimis. The issue arises as follows. An Bord Pleanála has purported to grant planning permission for a large-scale residential development. The planning application had been made pursuant to the special statutory regime governing applications for ‘strategic housing development’ as defined. It is a requirement of the relevant regulations that the applicant for planning permission, i.e. the developer, must make a copy of the planning application available for inspection on a dedicated website.

2 It appears that, through inadvertence, one of the documents submitted as part of the planning application had not been posted online. The omitted document contained information relating to the potential impact of the proposed development on various species of bat which are protected under EU law. An earlier version of this document has been posted online in error. None of the parties were seemingly aware of this error until after the within judicial review proceedings had been instituted. On learning of the error, the Applicant sought to amend its statement of grounds to include a further complaint that there had been non-compliance with the regulations. The other parties to the proceedings, very sensibly, consented to the proposed amendments. Indeed, the Developer went further and conceded that in circumstances where the requirements of the regulations had not been fulfilled, the decision to grant planning permission should be set aside on that narrow ground. It would not then be necessary for the court to consider the other grounds of judicial review.

3 Perhaps surprisingly, An Bord Pleanála has adopted a different approach. The Board concedes that there has been a breach of the requirements of the regulations, but contends that this breach was de minimis and does not affect the validity of the decision to grant planning permission.

4 The judicial review proceedings came on for hearing before me on Tuesday, 9 July 2019. All parties agreed that the legal consequences which the breach of the regulations has for the validity of the planning permission should be addressed as a preliminary issue, in advance of hearing any of the other grounds of judicial review. This preliminary issue was fully argued before me, and I reserved judgment overnight.

5 For the reasons set out herein, I have concluded that the breach of the requirements of the regulations is fatal to the validity of the planning permission. The regulations could not be clearer in their terms, and the failure to post the correct version of the document online represented a breach of those regulations. An Bord Pleanála's reliance on case law in relation to de minimis breaches is misplaced. The breach in this case cannot be characterised as trivial, technical or insubstantial. The content of the omitted document—which consisted of (i) the results of surveys of bat activity in the vicinity of the application site, and (ii) proposed mitigation measures—was significant.

6 The effect of the breach was twofold. First, it undermined public participation in the planning process in that members of the public, including the Applicant, did not have an opportunity to consider and make submissions on the survey results and mitigation measures relied upon by the Developer. Secondly, it distorted the interpretation of the planning permission itself. One of the conditions of the planning permission had required that the mitigation and monitoring measures which had been submitted as part of the planning application be carried out in full. A member of the public who examined the online version of the planning application would only have sight of an earlier version of the mitigation measures. This has the potential to undermine the right of access to the courts within the eight-week time period allowed under section 50 of the Planning and Development Act 2000 (‘ the PDA 2000’).

7 In the premises, I propose to make an order setting aside the decision to grant planning permission. The order will recite that the only grounds upon which this court has adjudicated are those in relation to public participation and the requirement to make a full copy of the planning application available online. (Ground E.25 of the amended statement of grounds). This judgment has nothing to say—one way or another—about any of the other grounds of challenge.

BACKGROUND

8 These proceedings seek to challenge a decision of An Bord Pleanála dated 13 February 2019. The application for planning permission had been made pursuant to the special statutory scheme established under the Residential Tenancies and Planning and Development (Housing) Act 2016 (‘ the PD(H)A 2016’). This Act allows for the making of an application directly to An Bord Pleanála in the case of ‘strategic housing development’ as defined.

9 The procedure governing the making of an application is set out, principally, at section 8 of the Act, and under Ministerial Regulations made pursuant to the Act, namely the Planning and Development (Strategic Housing Development) Regulations 2017 ( S.I. No. 271/2017). The Ministerial Regulations take effect by inserting an additional Part into the principal planning regulations, i.e. the Planning and Development Regulations 2001.

10 Article 301(3) of the Planning and Development Regulations 2001 (as amended) provides as follows.

‘(3) The applicant shall make a copy of an application available for inspection on the Internet at a web address set up for the purpose for the period commencing on the date of making the application and expiring 8 weeks following the sending by the Board to the applicant of a copy of its decision on the application.’

11 An applicant for planning permission is required to provide a declaration to the effect that, to the best of their knowledge and belief, the copies of the application documents...