The Board of Management of St. Audoen's National School v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 July 2021
• Neutral Citation: [2021] IEHC 453
• Court: High Court
• Docket Number: 2020 No. 134 JR

In the Matter of Sections 50 and 50A of the Planning and Development Act 2000 (As Amended)

Between

The Board of Management of St. Audoen's National School

Applicant

and

An Bord Pleanála

Respondent

Merchants Quay Ireland CLG

Notice Party

[2021] IEHC 453

2020 No. 134 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Development – Applicant seeking to challenge the validity of the respondent’s decision to grant planning permission – Whether the respondent’s failure to properly address the applicant’s submissions and to explain the reasons for which they were not accepted represented a breach of the statutory requirement to state the main reasons and considerations for the decision

Facts: The respondent, An Bord Pleanála, purported to grant planning permission for development consisting of what was described as a “medically supervised injection facility”. The users of illegal drugs would be permitted to inject themselves with controlled drugs at the facility. The controlled drugs would not be provided by the operator of the facility, but rather would have been purchased by the drug users in advance of their attendance at the facility. Thereafter, the possession of the controlled drugs for immediate personal consumption by injection at a licensed facility would not be subject to the Misuse of Drugs Act 1977 (as amended). The sale and supply of the drugs would, however, continue to be subject to the Act. The facility was to be located immediately adjacent to a primary school. The applicant, the board of management of the primary school, submitted a detailed objection to the proposed development, citing in particular the adverse consequences which it would have on the pupils and staff at the school. It was submitted that the proposed development would cause a de facto “drugs marketplace” to be created in the area. Those objections were not addressed, in terms, in An Bord Pleanála’s decision. There was no reference at all in the decision to the school or its pupils. The school board instituted judicial review proceedings which sought to challenge the validity of An Bord Pleanála’s decision.

Held by the High Court (Simons J) that An Bord Pleanála’s decision, even when read in conjunction with the inspector’s report as per Connelly v An Bord Pleanála [2018] IESC 31, did not engage adequately with the applicant’s submissions. Simons J held that the decision was not saved by reference to the fact that planning permission had been granted on a temporary basis only. Simons J noted that the stated reason for the three year limitation on the authorised use was to allow for a review thereafter, but there was no reference to the impact on the school or its pupils. Simons J held that the failure to properly address the school board’s submissions and to explain the reasons for which they were not accepted represented a breach of the statutory requirement to state the main reasons and considerations for the decision. Simons J held that this breach was enough, on its own, to invalidate the planning permission. Simons J also concluded that the planning permission was invalid on the separate ground that, in the absence of any explanation for same, the decision to permit the authorised use for three years was unreasonable.

Simons J proposed making an order of certiorari setting aside the decision to grant planning permission. His provisional view was that the matter should then be remitted to An Bord Pleanála for reconsideration.

Application granted.

Appearances

Jim O'Callaghan, SC and Aillil O'Reilly for the applicant instructed by Flynn O'Driscoll

Aoife Carroll for the respondent instructed by Philip Lee

Eamon Galligan, SC and Sonja O'Connor for the notice party instructed by Crowley Millar

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 July 2021

INTRODUCTION

1 An Bord Pleanála has purported to grant planning permission for development consisting of what is described as a “medically supervised injection facility” (“ the facility”). The users of illegal drugs will be permitted to inject themselves with controlled drugs at the facility. The controlled drugs will not be provided by the operator of the facility, but rather will have been purchased by the drug users in advance of their attendance at the facility. Thereafter, the possession of the controlled drugs for immediate personal consumption by injection at a licensed facility will not be subject to the Misuse of Drugs Act 1977 (as amended). The sale and supply of the drugs will, however, continue to be subject to the Act. The persons involved in the supply of the drugs will, presumably, be guilty of an offence.

2 One of the striking features of the proposed development is that the facility is to be located immediately adjacent to a primary school. The board of management of the primary school (“ the school board”) had submitted a detailed objection to the proposed development, citing in particular the adverse consequences which it would have on the pupils and staff at the school. It had been submitted that the proposed development would cause a de facto “drugs marketplace” to be created in the area. These objections are not addressed, in terms, in An Bord Pleanála's decision. Indeed, there is no reference at all in the decision to the school or its pupils.

3 The school board has since instituted these judicial review proceedings which seek to challenge the validity of An Bord Pleanála's decision.

AN BORD PLEANÁLA'S DECISION

4 An Bord Pleanála made a decision on 23 December 2019 to grant planning permission for the facility on a temporary basis. The permission allows the premises at Merchants Quay to be used for the purposes of a medically supervised injection facility for a period of three years, beginning on the date of first operation.

5 This is provided for under Condition No. 2 of the planning permission as follows:

“2. The use of the premises as a Medically Safe Injecting Facility shall cease on or before three years from the date of first operation, unless before the end of that period, permission for the continuance of the use beyond that date shall have been granted.

Reason: To allow for a review of the development having regard to the circumstances then pertaining and in the interest of residential amenity and public safety.”

6 This condition differs materially from that recommended by An Bord Pleanála's inspector; the latter had recommended that the use be permitted for a period of two years only, not three. I will return to consider the consequences of this discrepancy at paragraphs 38 et seq. below.

7 An Bord Pleanála is obliged, under section 34(10) of the Planning and Development Act 2000 (“ PDA 2000”), to state the main reasons and considerations on which its decisions are based. The statement of reasons and considerations for the decision impugned in these proceedings reads as follows.

“Reasons and Considerations

Having regard to the zoning objective for the area, the pattern of existing and permitted development in the area, the site's inner city location, the range of services already on offer at the subject facility, the monitoring and evaluation proposed and the pilot scheme nature of the proposed development, it is considered that, subject to compliance with the conditions set out below, the proposed development would not seriously injure the amenities of property in the vicinity, would not adversely impact on the residential amenity or character of the area and would be acceptable in terms of public safety and convenience. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area.”

8 On a literal reading, this statement might appear to suggest that An Bord Pleanála had made definitive findings in respect of the impact of the proposed drug injection facility on the proper planning and sustainable development of the area. It might appear, for example, that the board had concluded that the proposed development “would not adversely impact on the residential amenity or character of the area”. If this were so, then the logic of the imposition of a condition limiting the permitted use to a period of three years, to allow for a subsequent review of the development, would be difficult to comprehend.

9 Counsel on behalf of An Bord Pleanála has explained, however, that An Bord Pleanála should be understood as having decided that it would be appropriate to grant a temporary planning permission for the operation of this facility for a limited duration only, to allow it to operate on a monitored basis. Counsel further explains that this would then allow a review of the facility to take place, to see whether it could operate successfully and to see whether it could achieve the stated aims of the project and achieve the benefits to the local area which were suggested would arise.

10 This interpretation of An Bord Pleanála's decision is said to flow from a reading of the decision in conjunction with the inspector's report. Counsel relies in this regard on the judgment of the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31; [2018] 2 I.L.R.M. 453.

11 It is necessary, therefore, to consider the content of the inspector's report. The inspector had identified the core issue on the planning appeal as follows (at §7.7.1 of her report). (The abbreviation “MQI” refers to the notice party developer, Merchants Quay Ireland).

“I note the very high level of dissatisfaction with the existing operation of MQI expressed by so many of the immediate community in the area. The predominant complaint expressed by the Observers is that public drug use, anti-social and criminal behaviour occurs daily around the existing facility. It is submitted by many that existing MQI efforts to control such behaviours are simply not effective, that MQI have a poor track record and therefore there is...