Stapleton v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 13 February 2024
• Neutral Citation: [2024] IEHC 3
• Docket Number: 2022/157JR
• Court: High Court

Between

Martin Stapleton

Applicant

and

An Bord Pleanála

and

The Minister for Housing, Local Government and Heritage Ireland and The Attorney General

Respondents

and

Savona Ltd

and

Dublin City Council

Notice Parties

[2024] IEHC 3

2022/157JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

JUDGMENT OF Mr Justice David Holland, DELIVERED 13 FEBRUARY 2024.

Contents

INTRODUCTION & ISSUES	5
DAYLIGHT — Ground 2	6
Introduction	6
Regard to Daylighting Guidelines — Caselaw	8
Pleadings, Evidence and Submissions	9
The Applicant's Pleadings & Submissions	9
The Board's Pleadings & Submissions & Some Initial Observations	10
Savona's Pleadings, Evidence & Submissions	13
The Experts'- Littlefair & McCabe — and their Conflict	14
The Importance of Daylight	18
The Daylight Report & the BRE Guide	19
The Inspector's Report	23
What General Daylight ADF Target is set by the BRE Guide & BS 8206?	25
Daylighting — Decision	28
SUSTAINABILITY — GENERAL	29
Introduction	29
Proper Planning and Sustainable Development	30
The Board's Decision — and Comment Thereon	37
The Effort Sharing Regulation and the European Climate Law/ Climate Neutrality Regulation	44
SUSTAINABLITY — ARTIFICIAL LIGHTING — Ground 4	49
Pleadings & Submissions	49
Discussion	51
Decision	55
PUBLIC TRANSPORT — Ground 3	55
Pleadings & Submissions	55
The Applicant's Pleadings & Submissions	55
The Board's & Savona's Pleadings & Submissions	59
Not an SPPR3 Issue	60
The Policy Context, The Inspector's Report & some Comment thereon	61
“Regular & Reliable” Encompasses Capacity	63
The #130 Bus and the Residents' Objections	64
BusConnects	65
Savona's Transport Survey	67
Information from Dublin Bus as to Adequacy of Public Transport	69
A Pleading Issue	69
The Evidence & Comment thereon.	69
Would it have Made a Difference?	79
Taking Planning Applicants' Materials “at face value”.	80
Disputes as to Fact & Addressing Submissions	81
The Inspector noted the Absence of the Dublin Bus Correspondence & General Practice as to Enclosure of Documents	85
Was the Board Obliged to Address Transport Capacity, What Does it Mean to Do So & Did it Do So?	88
Inference of the Board's Reasoning	90
Could the Board, procedurally, have taken further the issue of the view of Dublin Bus?	91
Oral Hearing?	91
Article 302(6) SHDR 2017	94
The Board's Position Prior to Making the Impugned Decision	97
The Pleadings & Submissions Revisited	101
Public Transport — Decision	101
SUSTAINABLITY — PUBLIC TRANSPORT — Ground 5	102
Mr Stapleton's Pleadings & Submissions	102
Discussion	105
Introduction	105
The Effort Sharing Regulation, the European Climate Law/Climate Neutrality Regulation & The NPF	106
Decision	108
MATERIAL CONTRAVENTION — COMMUNAL OPEN SPACE — Ground 1	108
Introduction	108
Pleadings, Evidence & Submissions	110
The Applicant's Pleadings & Submissions	110
The Board's Pleadings & Submissions	112
Savona's Pleadings, Evidence & Submissions	113
The Development Plan	114
The Council's View	116
Savona's Architectural Design Statement	116
The Inspector's Report	119
Discussion & Decision	121
The Issue is not General Planning Merit	121
Openness of the Space — Standard Of Review	123
General Significance of the Issue, Interpretive Principle and the Development Plan Definition	124
Estoppel from raising Material Contravention Issue as to Open Space	125
Openness of the Space — Discussion	127
Open Space — Conclusion	130
VALIDITY OF HEIGHT GUIDELINES & CONSTITUTIONALITY OF s.28(1C) PDA 2000	131
Introduction	131
Pleadings & Submissions — Stapleton	132
Discussion	135
Worldport	135
Conway	136
Other issues	141
Decision	142
CONCLUSIONS	143
APPENDIX — COMMUNAL OPEN SPACE FIGURES	143

INTRODUCTION & ISSUES

1 By Order 1 (“the Impugned Permission” or “the Impugned Decision”) made on 23 December 2021 under s.4 of the 2016 Act, 2 An Bord Pleanála (“the Board”) granted Savona Limited (“Savona”) planning permission for a Strategic Housing Development (“SHD”) of 131 Build-to-Rent 3 apartments 4 in 4 blocks of up to 6 storeys around a central roof-covered courtyard (“the Proposed Development” 5) on a site at ‘Redcourt’, Seafield Road East, Clontarf, Dublin 3 (“the Site”).

2 The Site is in the functional area of Dublin City Council (“the Council”) as planning authority and the Dublin City Development Plan 2016 – 2022 (“the Development Plan”) applied. The Board's Direction records that it “ decided to grant permission generally in accordance with the Inspector's recommendation”. Absent the Board's apparent disagreement with the Inspector on specific issues, I can therefore attribute the Inspector's reasoning to the Board.

3 The Applicant in these proceedings (“Mr Stapleton”) seeks to have the Impugned Permission quashed on the basis of allegations which can be briefly described as follows:

A ground as to asserted requirements of the Water Framework Directive 8 was abandoned at trial.

• • The Board failed to

  • ○ have adequate and reasonable regard to relevant guidelines as to the availability of natural daylight in the proposed apartments.

  • ○ validly resolve a dispute ventilated in the planning process, as to the adequacy of public transport to serve the Proposed Development.

  • ○ adequately address the sustainability of the Proposed Development as to both Daylight provision and adequacy of public transport.

  • ○ identify a material contravention of the Development Plan requirements for communal open space.

• • The Height Guidelines 6 are ultra vires s.28(1C) PDA 2000 7 and/or s.28(1C) is unconstitutional.

4 It will assist in understanding what follows to note that the 4 rectangular apartment blocks are arranged in 2 connected L-shaped pairs – such that the entire layout, seen in plan, forms a rectangle around an internal courtyard (the “Courtyard”). 9 It is proposed that a roof formed of a steel frame be built over the Courtyard, on which is supported inflated cushions made of a translucent plastic material – ETFE. 10

DAYLIGHT – Ground 2

5 There are overlapping pleas as to the issues of daylighting and artificial lighting of the apartments internally. While they cannot be entirely disentangled, Ground 2 relates to the issue of adequacy of daylighting, whereas Ground 4 relates to the issue of sustainability of the Proposed Development having regard to the greenhouse gas (“GHG”) emissions of power generation required to artificially light the Proposed Development due to the alleged inadequacy of daylighting.

Introduction

6 By s.9(6) of the 2016 Act, the Board may grant SHD permissions in material contravention of a development plan only in limited circumstances – where the contravention does not relate to zoning and where the Board considers that, were s.37(2)(b) PDA 2000 to apply, it would grant permission. S.37(2)(b) applies, inter alia, where permission should be granted having regard to planning guidelines issued under s.28 PDA 2000. The Height Guidelines 11 are s.28 guidelines.

7 The Impugned Permission oddly records that the Board considered that permission “could” materially contravene §16.7.2 of the Development Plan as to building height. I say “oddly” as it seems to me that the Board should have decided that issue one way or the other – even if that decision is subject to the final decision of the Courts. However,

that is not the legal issue pleaded. The Board considered that, despite any such material contravention, permission would nonetheless be justified in accordance with s.37(2)(b) PDA 2000, by reason of Specific Planning Policy Requirement 3 (“SPPR3”) of the Height Guidelines. §3.1 of the Height Guidelines records Government policy that building heights must be generally increased in appropriate urban locations. Put broadly, SPPR3 essentially enables material contravention of Development Plans to that end. Compliance with the criteria set by §3.2 of the Height Guidelines is a precondition of application of SPPR3. By s.28(1C) PDA 2000, 12 where those criteria are satisfied, the application by the Board of SPPR3 is mandatory (though the terms of SPPR3 itself are discretionary). §3.2 requires, inter alia, that:

I will refer to the documents cited above as, respectively, the “BRE Guide” and “BS 8206”. The former is expressly based on the latter. They can be read together. 13 Both were exhibited.

• • “ Appropriate and reasonable regard should be taken of quantitative performance approaches to daylight provision outlined in guides like the Building Research Establishment's ‘Site Layout Planning for Daylight and Sunlight’ (2nd edition) or BS 8206–2: 2008 – ‘Lighting for Buildings – Part 2: Code of Practice for Daylighting’”.

• • “Where a proposal may not be able to fully meet all the requirements of the daylight provisions above, this must be clearly identified and a rationale for any alternative, compensatory design solutions must be set out, in respect of which the planning authority or An Bord Pleanála should apply their discretion, having regard to local factors including specific site constraints and the balancing of that assessment against the desirability of achieving wider planning objectives. …”

8 While it will be necessary to consider them further later, it will help at this point to note that the BRE Guide and BS 8206,

• • quantify the daylight reaching a room in terms of an Average Daylight Factor (“ADF”).

• • describe a “well-daylit” space as having an ADF of at least 5%.

• • describe a “predominantly-daylit” space as having either,

  • ○ an ADF of at least 5% or

  • ...