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
and
2023 IEHC 14
2021/750 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT OF Mr Justice David Holland DELIVERED 17 February 2023.
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 |
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.
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”).
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...
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