Waltham Abbey v an Bord Pleanála ; Pembroke Road Association v an Bord Pleanála

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 July 2022
• Neutral Citation: [2022] IESC 30
• Docket Number: S:AP:IE:2021:000147

Between/

Pembroke Road Association

Appellant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage

Respondents

and

Derryroe Limited and Dublin City Council

Notice Parties

Between/

Waltham Abbey Residents Association

Applicant/Respondent

and

An Bord Pleanála

Respondent/Appellant

and

Ireland and The Attorney General

Second and Third Respondents

and

O'Flynn Construction Co. Unlimited Company

Notice Party

[2022] IESC 30

MacMenamin J

Charleton J

O'Malley J

Baker J

Hogan J

S:AP:IE:2021:000147

S:AP:IE:2021:000146

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Planning permission – Strategic housing development – Article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 – Appellant challenging the validity of the decision of the respondent to grant planning permission for a development – Whether the word ‘statement’ in Article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 requires a distinct identifiable document to be included in a planning application for a strategic housing development

Facts: The respondent in the Waltham Abbey proceedings and the appellant in the Pembroke Road Association proceedings, challenged the validity of the decisions of the appellant/respondent, An Bord Pleanála (the Board), to grant planning permission for developments on the basis that the developers had failed to comply with Article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 and, therefore, the Board should not have entertained the planning applications. In Waltham Abbey Residents Association v An Bord Pleanála [2021] IEHC 587, Humphreys J granted the application for judicial review. In Pembroke Road Association v An Bord Pleanála [2021] IEHC 403, Owens J dismissed the application for judicial review. In its determination dated 1st March 2022 the Supreme Court considered that it would be appropriate to deal with both appeals together because both decisions raised an identical question of law, namely, whether the word ‘statement’ in Article 299B(1)(b)(ii)(II)(C) requires a distinct identifiable document to be included in a planning application for a strategic housing development. There were two further issues that arose out of Pembroke Road Association only. The first issue concerned the use of s. 146A of the Planning and Development Act 2000 in order to allow the Board to amend Condition 26 in its grant of planning permission along with the related question of whether the High Court was correct to consider that amendment to be non-material. This issue raised a question as to the scope of the jurisdiction granted to the Board by s. 146A(1)(iii) of the 2000 Act. The second issue concerned the interpretation of the Urban Development Building Height Guidelines and, in particular, whether the Board was required to expressly consider whether the relevant Development Plan was consistent with the National Planning Framework or whether the Board could consider this to be ‘self-evident’.

Held by Hogan J that the ordinary and natural meaning of the word “statement” as it appears in Article 299B and as viewed in isolation by reference to that provision must, to some degree, be viewed as having been overridden by a consideration of the Regulations as a whole. He considered that Owens J was correct in the circumstances to adjourn the judicial review proceedings in order to allow the Board to avail of the s. 149A jurisdiction and, in turn, to correct the statutory reference because this was simply an error which did not go to the heart of the question of whether the Board had been correct to accept a financial contribution in lieu of the requirement to provide public open space. Hogan J could not fault the analysis of the issue conducted by Owens J in the High Court. Hogan J considered that it had not been shown that the Board erred in law in the manner in which it departed from the development plan.

Hogan J dismissed the appellant’s appeal in Pembroke Road Association and allowed the appeal of the Board in Waltham Abbey.

Appeal allowed in Waltham Abbey. Appeal dismissed in Pembroke Road Association.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 4 ^th day of July 2022

I. Introduction

1 . Si monumentum requiris, circumspice (“if you seek (his) monument, look around”). This was the famous epitaph of the greatest architect and master builder of his day, Sir Christopher Wren. Yet the modern architects and builders who look around in this State are as likely to be daunted by the sight of an almost impossibly complex system of planning laws and regulations as much as being enthralled by any great architecture or vaunted public buildings. In their own way these two appeals (which were heard together) provide ample testimony of all of this, presenting as they do issues of statutory interpretation of no little difficulty and complexity.

2 . These appeals arise out of two separate decisions of the High Court: the first is the decision of Owens J. in Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (dated 16 ^th June 2021) and the second is the decision of Humphreys J. in Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 587 (dated 10 ^th May 2021). In its Determination dated 1 ^st March 2022 this Court considered that it would be appropriate to deal with both appeals together because both decisions raise an identical question of law, namely, whether the word ‘statement’ in Article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 (“the 2001 Regulations”) (as inserted by the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 ( S.I. No. 296 of 2018)) requires a distinct identifiable document to be included in a planning application for a strategic housing development. This is the central issue to be determined.

3 . There are, however, two further issues that arise out of Pembroke Road Association only. The first issue concerns the use of s. 146A of the Planning and Development Act 2000 (“the 2000 Act”) in order to allow the An Bord Pleanála to amend Condition 26 in its grant of planning permission along with the related question of whether the High Court was correct to consider this amendment to be non-material. This issue therefore essentially raises a question as to the scope of the jurisdiction granted to the Board by s. 146A(1)(iii) of the 2000 Act. The second issue concerns the interpretation of the Urban Development Building Height Guidelines (“Building Height Guidelines”) and, in particular, whether the Board is required to expressly consider whether the relevant Development Plan is consistent with the National Planning Framework or whether the Board can consider this to be ‘self-evident’.

4 . I propose to set out and address the background and issues concerning the interpretation of the Article 229B question first, before turning to the two additional issues which arise in the Pembroke Road appeal.

II. Article 299B

5 . Article 299B(1)(b)(ii)(II)(C) of the 2001 Regulations requires the Board to satisfy itself that a developer has provided a “statement indicating how the available results of other relevant assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Impact Assessment Directive have been taken into account.” The question to be determined by this Court is whether this “statement” must be provided in a separate identifiable document or whether the obligation under this article can be fulfilled if, to the Board's satisfaction, the relevant information has been included generally in the planning application and can be ascertained from a reading of that document.

6 . In Waltham Abbey Humphreys J. held that Article 299B(1)(b)(ii)(II)(C) of the 2001 Regulations does require a distinct identifiable document to be included as part of an application for planning permission for a strategic housing development. He accordingly found in favour of the Waltham Abbey applicant having concluded that there was no such document included in the developer's planning application. It followed, therefore, that the Board's decision to grant permission was invalid.

7 . In Pembroke Road, however, Owens J. disagreed with this decision and held that Article 299B(1)(b)(ii)(II)(C) of the 2001 Regulations instead requires simply some evaluative material to be included in the planning application which the Board can then assess and consider at its own accord – and with a due margin of appreciation – to determine whether the article has been complied with. Owens J. held that this information had been included in the planning application and therefore found in favour of the Board, even though it was not in fact contained in a separate accompanying statement.

8 . This Court is accordingly called upon to determine which of these decisions is correct. Before proceeding to a consideration of this issue, however, it is first necessary to set about some details concerning the background to these appeals.

Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403

9 . The Pembroke Road Association proceedings concerned a planning application in which the developer sought permission for a development which included an apartment building comprising of 112 units, an ‘aparthotel’ with 10 suites, and associated development at Herbert Park in Ballsbridge in Dublin. Pembroke Road Association challenged the validity of a decision of An Bord Pleanála to grant planning permission for this development on the basis that, inter alia, the application failed to include a statement prescribed by Article 299B(1)(b)(ii)(II)(C) of the 2001 Regulations and that the Board ought to have refused to entertain the application for planning permission as a result.

10 . In his judgment dated 16 ^th June 2021, Owens J. indicated that he was aware of the judgment...