Wendy Jennings and Adrian O'Connor v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] IEHC 14
• Docket Number: 2021/750 JR

In the matter of Sections 50, 50A and 50B of the Planning and Development Act 2000 and in the matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Wendy Jennings and Adrian O'Connor

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Colbeam Limited

Notice Party

2023 IEHC 14

2021/750 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Mr Justice David Holland DELIVERED 17 February 2023.

Contents

INTRODUCTION	7
Figure 1: Site Location Map	9
Figures 2A & 2B: Aerial Views of Site & Context	10
Figure 3A: General Impression #1 of Proposed Development viewed from the south-west	11
Figure 3B: General Impression #2 of Proposed Development viewed from the east	12
Figure 4: General Impression #3 of Proposed Development — in Plan	12
The Applicants, The Grove & Roebuck House	12
The Proceedings — Course to Trial	13
Colbeam's Motion as to Applicants' Supporters	14
10 GROUNDS & Sub-grounds	14
THE IMPUGNED PERMISSION — and its intended Amendment	16
IRRATIONALITY — GENERAL LAW	19
Keegan (1986) — O'Keeffe (1993) — Meadows (January 2010) — Weston (July 2010)	19
NM — (2016) — AAA (2017)	26
Redrock — 2019	28
FIE — 2020	29
Other & Recent Cases	30
Burke — 2022	36
Comment	38
MATERIAL CONTRAVENTION — the GENERAL Law	38
Permission in Material Contravention — S.9(6) of the 2016 Act, S.37(2)(b) PDA 2000	39
Material Contravention — Standard of Review	39
Browne — 2021	41
Byrne v Wicklow — 1994	43
O'Reilly v O'Sullivan — 1996 & 1997	43
Wicklow Heritage Trust — 1998 (& cases considered therein)	45
Cork City Council v An Bord Pleanála 2006 & CIT v An Bord Pleanála 2013	50
CHASE — 2021 & Decisions Cited Therein	50
Redmond — 2020 & Ballyboden — 2022	51
Conclusion on Material Contravention, Standard of Review	54
THE DEVELOPMENT PLAN, PLANNING HISTORY & REDMOND v AN BORD PLEANÁLA	57
Development Plan Map 1	57
Figure 5 — Extracts from Development Plan Map 1 & Legend	57
Development Plan Policies	58
Institutional Lands — §2.1.3.5 Policy RES5	58
Institutional Lands — §8.2.3.4(xi)	59
Open Space and Recreation — §8.2.8	60
The 2019 Permission & Redmond v An Bord Pleanála	60
POSITION IN THE SHD PROCESS OF THE SCHOOLS, THE DEPARTMENT OF EDUCATION AND THE PLANNING AUTHORITY	62
Schools & Department of Education	62
Chief Executive's Report	63
GROUNDS 1 & 2 — OPEN SPACE, OPEN CHARACTER & INSTITUTIONAL DESIGNATION	64
Introduction	64
General Observations on Open Space, Open Character and Recreational Amenity of the Campus	65
Grounds 1 & 2(a) — Open Space Requirements	66
Ground 2(b) Open Character	72
Introduction & Pleadings	72
Redmond on the Site — Open Space and Open Character & the present Inspector's Report	74
Open Character — Conclusion	79
Ground 2(c) — Density	80
Density — Introduction	80
Density — Inspector's Report & Impugned Decision	81
Density — Grounds & Applicants' Submissions	83
Density — Opposition & Board's & Colbeam's' Submissions	84
Densities — Discussion and Decision	86
Ground 2(d) — Future Institutional Use	95
Future Institutional Use — Applicants' case	95
Future Institutional Use — Opposition	97
Chief Executive's Report & Department of Education	98
Future Institutional Use — Inspector's report	99
Future Institutional Use — Conclusion	100
GROUND 3 — PART V	100
Part V — Introduction	101
Part V — The Statutory Scheme	101
Ss.94, 95 & 96 PDA 2000	102
S.2 PDA 2000 — Definition of House	103
S.3 of the 2016 Act — Definition of Student Accommodation & Strategic Housing Development	103
Other Provisions	104
Legislation postdating the Impugned Permission	105
Part V — Residential Tenancies Acts 2004 to 2019 — definition of “dwelling”	107
Part V — Rebuilding Ireland — Action Plan for Housing and Homelessness — July 2016	108
The Planning Authority Chief Executive's report & the Inspector's Report & Impugned Decision	111
Part V — The Applicants' Pleadings & Written Submissions	113
Part V — The Board's & Colbeam's Pleading & Written Submissions	113
Part V — The Essential Issue	115
Part V — Discussion & Decision	115
GROUND 4 — SPPR3, HEIGHT GUIDELINES 2018 — Urban/Suburban	123
SPPR3 — Introduction	123
SPPR3 & SPPR4	123
SPPR3 — The Applicants' Pleadings & Submissions	125
SPPR3 — The Board's & Colbeam's Pleading & Submissions — SPPR3	126
SPPR3 — Discussion & Decision	127
“Urban”/“Suburban”	127
Guidelines & SPPRS	128
Height Guidelines 2018 & SPPR3	132
SPPR4	138
SPPR4 — Greenfield & Infill	139
SPPR3 & Height — Conclusion	141
GROUND 5 — SPPR3 & DAYLIGHT	143
Daylight — Introduction	143
Daylight — Grounds	144
Daylight — Opposition & Some Comment	145
Daylight — Height Guidelines 2018 & SPPR3 — “have regard to” or “comply”?	146
Daylight — Apartment Design Guidelines 2020	148
Daylighting Code & BRE Guide	149
Daylight — Atlantic Diamond & Walsh	153
Colbeam's Daylight/Sunlight Report & Analysis Thereof	160
Figure 6A — Floor Plan — communal Living/ Kitchen/ Dining room.	163
Figure 6B — elevation — communal Living/ Kitchen/Dining room.	163
Daylight — Dalton Affidavit sworn 13 January 2022	168
Daylight — Dalton Affidavit — Conclusion	170
Daylight — Inspector's report & Planning Authority Report	170
Different Daylight Standards for Students	172
Roebuck House & Permitted Building to its Rear	173
Daylight — Conclusion	174
GROUND 6 — PUBLIC TRANSPORT CAPACITY	176
GROUND 7 — STRATEGIC OR NATIONAL IMPORTANCE	178
Importance — Introduction	178
Importance — Clonres/Conway #2 & “Strategic”	180
Importance — Pembroke Road, Killegland, Foley & Redmond	184
Importance — Conclusion as to Validity of Reasons	185
Importance — Excision of the Invalid Reason	186
Importance — Conclusion — Ground 7	190
GROUND 8 — TREE REMOVALS	190
Trees — The Development Plan	191
Trees — Applicants' Pleadings & Submissions	192
Trees — The Board's & Colbeam's Pleading & Submissions	193
Moot	194
The Meaning of the Objective	194
Failure to demonstrate/interrogate necessity of tree removal	194
Tree Replacement	196
Trees — Zoning — Decision	196
Trees — Moot?	197
Arguments	197
Decision — Ground 8 as to Trees Not Moot	199
Decision — Commensurate Planting of Replacement Trees and Other Plant Material — Not Moot	201
Trees — Colbeam's Response to the Board's Pre-Application Consultation Opinion, Material Contravention Statement, Landscape Report & Arboricultural Report	201
Trees — The Chief Executive's View	207
Trees — The Inspector's Report	209
Trees — Decision on The Applicants' First Two Points	211
Trees — Decision on The Applicants' Third Point — Commensurate Planting	213
Implemented by Condition	215
Trees — Conclusion	216
GROUND 9 — MATERIAL CONTRAVENTION STATEMENT	216
GROUND 10 — EIA UNLAWFULLY EXCLUDED AT PRELIMINARY EXAMINATION	222
EIA — Introduction & the Concept of Preliminary Examination	222
EIA — Colbeam's AA Screening Report, Ecological Impact Assessment Report & Environmental Report	223
EIA — The Inspector's Report, the Preliminary Examination Form & the Board's Decision	227
EIA — The Applicants' Pleadings & Submissions & Some Comment Thereon.	230
Grounds	230
Submissions	231
EIA — The Board's & Colbeam's Pleadings & Submissions	232
EIA — Discussion and Decision	233
Reasons — Nature & Scale of Development & Sub-Threshold Development	233
The Article 109 Point	234
Birds & Bats	234
EIA as to Bats & Birds — Moot/Discretion & Conclusion	244
CONCLUSIONS	245

INTRODUCTION

1 The Applicants, local residents who participated in the planning process before the First Respondent (“the Board”), seek to have quashed the Board's decision dated 3 June 2021, on foot of a planning permission application dated 12 February 2021, to grant planning permission (the “Impugned Permission” or “Impugned Decision”) to the Notice Party (“Colbeam”) for, essentially, construction of 698 bedspaces of student accommodation (“the Proposed Development”). 679 of the bedspaces are to be in 99 clusters of 5 to 8 bedspaces. The Planning Application form states 1 and the Board's Inspector notes 2 that “Each cluster includes a communal Living / Kitchen / Dining room” – though, as will be seen, that is controversial. The remaining 19 bedspaces are to be accessible studios. The student accommodation will comprise 8 blocks of up to 7 storeys, on a 2.12-hectare site at Our Lady's Grove, Goatstown Road, Dublin 14 (“the Site”). The Proposed Development will include public open space, communal open space, communal residential amenity spaces 3 and parking. 4 The Site lies about 5km south of Dublin city centre, 1km north-east of Dundrum, 850m south-west of University College Dublin, Belfield and about 180m west of Goatstown Road.

2 The Impugned Permission was granted pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 (“the 2016 Act”) as applicable to Strategic Housing Developments (“SHD”). The relevant development plan is the Dun Laoghaire-Rathdown County Development Plan 2016 – 2022 (the “Development Plan”).

3 The Board's Inspector (“the Inspector”), in her report dated 13 May 2021 (“the Inspector's Report”), describes the Site as being in a suburban area. It comprises essentially the southwestern quadrant of a larger (6.0264...