harp graphic.
THE HIGH COURT
PLANNING AND ENVIRONMENT
[2025] IEHC 209
Record No. 2022/806 JR
In the matter of Section 50, 50A and 50B of the Planning and Development Act 2000
Between/
eglington residents association AND DAVID CLARKE
Applicants
and
An Bord Pleanála, ireland and the Attorney General
Respondents
and
RED ROCK DONNYBROOK LTD
Notice Party
JUDGMENT of Ms. Justice Emily Farrell delivered the 15th April 2025:
1.The Notice Party applied to Dublin City Council for planning permission to redevelop a site at the junction of Donnybrook Road and Brookvale Road, Donnybrook, Dublin 4, which site is currently occupied by Circle K. Permission was sought to demolish the service station on the site and develop a 12-story mixed use block comprising 84 Build to Rent apartments, together with a café/restaurant, a retail unit and associated works.
2.Permission was refused by Dublin City Council on 14th April 2021 for reasons which included that the proposed development would result in excessive height and mass, provided insufficient car parking, and may prejudice the future provision of public transport infrastructure. The Notice Party appealed the refusal to An Bord Pleanála and included within the documents submitted, were a number of revised reports and architects' drawings.
3.The Inspector recommended refusal of permission for two reasons. As appears from the Report, she considered that, even with the proposed revision of to a 10-storey building, the height was such that it was considered by her not to comply with section 3.2 of the Urban Development and Building Heights - Guidelines for Planning Authorities, 2018 and to be contrary to the proper planning and sustainable development of the area. Secondly, it was considered to constitute overdevelopment of the site and to be out of character with the development in the vicinity and to result in an unacceptable negative visual impact on this prominent site within Donnybrook Village.
4.On 10th August 2022, the Board granted permission to the Notice Party for the demolition of existing structures and the construction of a 10-storey mixed use development which includes 67 apartments (Build to Rent) and associated works (Reg. Ref. ABP-310204-21).
5.The Applicants were granted leave to seek judicial review in the terms of their third amended Statement of Grounds, which was filed on 27th January 2023. Core Grounds 8 - 10 were modularised by Order of 21st February 2023 and have been adjourned generally. Core Ground 6A is linked to those Core Grounds and has not been heard. The Applicants did not proceed with Core Ground 2.
6.Six grounds were advanced at the hearing:
(a) Unilateral amendment of the proposed development in the appeal documents (Core Ground 1);
(b) Reliance on irrelevant considerations, namely SPPR 1 and SPPR3 of the Urban Development and Building Height Guidelines 2018 (Core Ground 3);
(c) Flood risk assessment (Core Ground 4):
(d) Public Open Space requirement (Core Ground 5);
(e) Failure to make the file available for inspection in accordance with section 146(5) of the Planning and Development Act, 2000 (Core Ground 6);
(f) Validity of the decision not to require an EIA (Core Ground 7).
Preliminary objections
7.Two preliminary objections were raised by the Board in respect of the case as presented by the Applicants.
8.Firstly, the Board submits that the issues raised at Core Grounds 4 and 7 were not raised any submissions before the Board. It also complains that no objection was raised in the planning process as to the Board's jurisdiction to consider the Notice Party's revised plans, which is the subject matter of Core Ground 1, or that SPPR1 was not a relevant consideration (Core Ground 3).
9.In general, a person must raise an issue before the Board in order to raise it in Judicial Review proceedings, however if the issue goes to the Board's jurisdiction the failure of an individual to raise it in submissions to the Board does not have the effect of expanding the jurisdiction of the Board: Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230. The requirement of access to justice in EU law entitles a "member of the public concerned" to advance arguments which have not been advanced before the decision maker.
10.The second of the Board's objections is that the Applicants' arguments go beyond the grounds on which they were granted leave to seek judicial review. This objection is raised in respect of arguments advanced under Core Grounds 3 and 4, and the contention that the Board breached section 48 of the 2000 Act, in respect of condition 24, at Core Ground 5.
11.As Baker J. stated, in Casey v. An Bord Pleanála [2021] IESC 42 "the pleadings in a case set the parameters and fix the issues in dispute between the parties and those to be determined by the court." Subsequently in Concerned Residents of Treascon & Clondoolsk v. An Bord Pleanála [2024] IESC 28 Murray J. stated, at para. 43: "... The parties are expected to identify the alleged legal frailties in a challenged decision before they seek leave for judicial review ... The grant of leave is the extension of a permission to pursue that ground of challenge, not the opening of an investigation into whether the decision or process is unlawful on any grounds that might subsequently present themselves in the course of the ultimate hearing of the matter." The requirement is that a case must be pleaded in terms which make it "acceptably clear" what is asserted: per Humphreys J. in Eco Advocacy v. An Bord Pleanála (No. 4) [2023] IEHC 713 (para. 39).
12.Insofar as it is necessary to determine the preliminary objections for each Core Ground, they will be considered further below.
Core Ground 1: Modification of plans in Appeal to the Board
The decision to grant planning permission on 10 August 2022 for the Build to Rent development ('the impugned decision') is invalid and ultra vires as the Board granted permission pursuant to section 37 of the Planning and Development Act 2000 for a development which was not subject to a decision by the Planning Authority pursuant to section 34 of the Planning and Development Act 2000.
13.In Core Ground 1, and particulars thereof, the Applicants complain that the application which was considered by the Board, included an "unilateral and unsolicited amendment of the proposed development" or that the Notice Party had included two proposed developments in the appeal. Accordingly, they contend that the Board had no jurisdiction to determine the appeal as it was not an appeal from the refusal of Dublin City Council. They submit that section 37 of the Planning and Development Act, 2000, does not permit it to determine a 'new application' for the first time.
14.Section 37 allows for an appeal against "the decision of the planning authority". The Applicants submit that in proposing a modified application, the Notice Party effectively changed the application from the application which had been the subject of the public participation process before Dublin City Council and was the subject of the Council's decision. The Applicant contends that the reduction in height of the proposed development from 12 storeys (39.5 metres) to 10 storeys (33.5 metres), and fact that it will result in allegedly lesser impacts on the receiving environment, is not relevant to the jurisdiction of the Board.
15.The Applicant complains that there has been insufficient public participation, and that the public has been deprived of an opportunity to make submissions or observations on the new proposal, the 10-story development.
16.The Notice Party submits that only one application was made, and that the appeal to the Board was an appeal against the refusal of the Council to grant permission in respect of the original 12-storey development but that modifications were suggested as an alternative to take account of the reasons for the refusal. The Board agrees with this submission, stating that the Notice Party had provided information for a modified development to cater for the possibility of the Board agreeing with the Council that a 12-storey development was too high for that site, and to reduce the plot ratio and density and to respond to the Council's assessment in relation to the proximity to the BusConnects Core Bus Corridor. The Applicant submits that offering two alternative proposed designs to the Board would be even more problematic as the Regulations do not permit an appellant to put forward alternative designs.
17.The application which was made to Dublin City Council in accordance with the 2000 Act and the 2001 Regulations was an application for a 12-storey development. That application was refused under section 34(1) for the reasons set out in the Council's decision. The Notice Party appealed to the Board against the decision of the planning authority under with section 37(1).
18.Insofar as the Applicants raise a jurisdictional argument in the proceedings which had not been raised before the Board, I am satisfied that this is permissible having regard to Reid v. An Bord Pleanála (No. 1). The jurisdiction of the Board cannot be extended by the failure of a third party to raise an issue of jurisdiction before the Board. Therefore, if the Board did not have jurisdiction to receive the Notice Party's appeal, this is a matter which could be raised in these proceedings despite the Applicants not having questioned the Board's jurisdiction in their observations. It is desirable however, that the pleadings identify the basis on which a lack of jurisdiction is asserted. I do consider that the issue has been raised with acceptable clarity in the third amended Statement of Grounds, and that it is within the parameters of the case as fixed by the pleadings, although the Applicants did not refer to section 127 of the 2000 Act.
19.Section 37 provides that an applicant for permission may appeal against a decision of the planning authority under section 34, which appeal shall be determined by the Board as if it had been made to the Board in the first instance. It is also provided, at subsection (5), that no application for permission for the same development or for development of the same description as an application for permission for development which is the subject of an appeal to the Board under this section, shall be made before the appeal is determined, withdrawn or dismissed. This prevents a situation where there are separate concurrent applications for the same development, or developments of the same description which might result in different decisions being made through the exercise of planning judgement.
20.Section 127 of the 2000 Act provides that an appeal shall "state in full the grounds of appeal or referral and the reasons, considerations and arguments on which they are based". An appeal which does not comply with the requirements of subsection (1) is invalid, per subsection (2). Subsection (4) provides:
"(a) An appeal or referral shall be accompanied by such documents, particulars or other information relating to the appeal or referral as the appellant or person making the referral considers necessary or appropriate.
(b) Without prejudice to section 132, the Board shall not consider any documents, particulars or other information submitted by an appellant or person making the referral other than the documents, particulars or other information which accompanied the appeal or referral."
21.No grounds of appeal or documents may be submitted by the applicant for permission after the appeal has been submitted, unless requested by the Board under section 132.
22.Neither the Act nor the Regulations expressly preclude the submission of a modified proposed development as part of an appeal, but the Applicants contend that they are not permitted. Article 73 of the 2001 Regulations provides that the Board may invite the applicant for the permission to submit "revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the appeal relates, and an applicant so invited may submit to the Board such number of plans, drawings or particulars as the Board may specify." This power was not invoked in this case, but the modified plans and proposal were included in the appeal.
23.The Applicants rely on Illium Properties Ltd v. Dublin City Council [2004] IEHC 327, in which case O'Leary J. found that the request for additional information had been served "as a device to extend illegally the time to consider the application.". The power to seek additional information arose only in respect of matters on which the Council did not have sufficient information to determine the appeal. When exercised, the service of such a request prevents the applicant from obtaining permission by default. O'Leary J. concluded that the planning authority may not "seek to mould an application to its will" and that it is required simply to adjudicate on the application before it.
24.The Oireachtas has provided, in section 127(4)(b), that subject to the power of the Board to require additional information, information may only be provided by an appellant in the appeal. However, the Oireachtas has not limited the nature of the materials which can be placed before the Board in the appeal in a similar way. Section 142(2) and (3), provide that the Regulations may include a power on the part of the Board to seek revised plans, drawings or particulars, and to require public notice be given of such revisions. The nature of the documents which may be submitted with the appeal under subsection (4) has not been circumscribed.
25.The 2001 Regulations require publication of the proposed application before it is made to the Board: Articles 17 - 19. This requires details including the identification of the number of houses (or apartments) included in a proposed development in the public notices. It is not in dispute that the statutory notices referred to a 12-storey proposed development, which included 84 apartments. The planning authority was required, by Article 68, to make a copy of the appeal documents available for inspection and the Council was also required to notify any person who had made observations or submissions on the application of the appeal by Article 69. It was necessary to include the appeal in the Weekly List published by the planning authority and the Board: Articles 32 and 70, and 71. The Applicants have not pointed to any prejudice arising as a result of the instruction of the modified plans at the appeal stage, nor is there any evidence of any other person being disadvantaged by the inclusion of modified plans in the appeal. In any event, the Applicants cannot rely on potential prejudice arising to another person. The Applicants both referred to the modified plans in their submissions to the Board.
26.Section 142(4), which the Board and Notice Party rely upon, provides:
"Without prejudice to the generality of subsection (1), the Board may require any party to an appeal or referral to give such public notice in relation thereto as the Board may specify and, in particular, may require notice to be given at the site or by publication in a newspaper circulating in the district in which the land or structure to which the appeal or referral relates is situate." (emphasis added)
27.No complaint was made by the Applicants that the Board had failed to exercise its power under that section, nor that their rights to participate publicly or fair procedures had been breached. I do not accept the interpretation of section 142(4) advanced by the Applicants, that it applies only to publication of revised plans, drawings or particulars referred to in subsection (2). Both subsections (2) and (3) which must be read together, and subsection (4) are expressed to be without prejudice to the generality of subsection (1). Subsection (4) is not limited by reference to subsection (2) expressly or implicitly. Section 142(1) empowers the Minister to make regulations providing for incidental and consequential procedural matters. Nothing in the Act leads to the interpretation that section 142(4) is limited in its scope to the provision of revised plans or drawings.
28.As there is a dispute between the parties as to the nature of appeal, it is necessary to consider, in detail, the contents of the first party appeal to the Board against the Council's refusal to grant permission for the application with reference number 2244/21. The Appeal includes the following statements:
"1.1 On behalf of the applicant, Red Rock Donnybrook Ltd., ... we John Spain Associates, 39 Fitzwilliam Place, Dublin 2, hereby lodge a first party appeal against the notification of decision of Dublin City Council dated 14th April, 2021, to refuse planning permission under Reg. Ref.: 2244/21 for the proposed mixed use development (retail and cafe/restaurant use at ground level and "Build to Rent" at 1st to 11th floors at the junction of Donnybrook Road and Brookvale Road, currently occupied by the Circle K petrol filling station, in Dublin 4.
1.2 The subject appeal is for the demolition of the existing buildings on the site and the construction of a 12 no. storey mixed use development. The proposed development was refused by Dublin City Council for three reasons ....
1.3 This appeal will demonstrate that the site can provide for a 12 storey building at this location; that servicing at ground floor level is appropriate and safe and that the proposed development can accommodate the NTA's requirements in relation to the proposed Core Bus Corridor which is to run on Donnybrook Road. Should An Bord Pleanala have any concerns about the appropriateness of a 12 storey building, a 10 storey alternative has been designed and included with this appeal. This would involve the omission of two floors of the scheme as applied for by condition."
29.Reference is made at para. 2.6 and 5.2 of the Appeal to the grant of redevelopment permission at a height of 12 storeys at the other end of the triangular plot of land which includes the site. The proposed development as submitted in the planning application to the Council is described as a 12-storey development at para. 3.1.
30.At para. 5.17 of the Appeal, it was stated:
"The above demonstrates that the proposed development is considered acceptable in itself. However, should the Board have any remaining concerns, an alternative 10 storey design has been provided for consideration. Revised drawings, a revised ADS and a revised TVIA are submitted with this appeal for a 10 no. storey scheme. Should the Board consider it necessary and appropriate, the applicant is would be willing to accept a condition requiring the height of the proposed development to be reduced by 2 storeys in accordance with drawings submitted with this appeal."
31.At Table 1 and from para. 5.18 onwards, the changes between the "Applied for Scheme Reg. Ref. 3966/20" and the "Revised Scheme submitted as part of this appeal" were explained by reference to the Architectural Design Statement submitted with the appeal. At para. 5.33- 34 it is stated:
"5.33 The above demonstrate that the proposed development does not seriously injure the visual amenities of the area. The information provided in the Architectural Design Statement and Housing Quality Assessment demonstrate that the proposed development, as revised on appeal, meets all required site standards. Therefore, while the plot ratio (although reduced by 20% on appeal) and the density are relatively high, this is a function of the small site, rather than being problematic, per se. Therefore the concerns of overdevelopment of the site, in terms of plot ratio and density do not translate into any loss of amenity.
5.34 The planning authority considers that the proposed development is overbearing. The revised design on appeal reduces the proposed development by 2 storeys. The TVIA describes the revised design as dominant, but very significantly beneficial in visual impact terms. ... " (original emphasis)
32.In respect of the first reason given by the Council for refusing the application, the Notice of Appeal states:
"5.40 The amendments proposed as part of this appeal are considered to fully address the concerns raised by the planning authority, should An Bord Pleanála have any concerns about the proposed development as submitted to the planning authority. and provide for a significant improvement to the streetscape and overall quality of the area as well as providing a significantly high residential amenity to each of the proposed residents."
33. The second reason for refusal related to the location of the site on a heavily trafficked road and Qualify Bus Corridor, and planned Core Bus Corridor. As appears from para. 5.42 "the proposed development, as amended on appeal" has no vehicular access requiring crossing of the public footpath. Para. 5.52 also refers to "the amendments to the set down area... made on appeal" and the "amendment to the basement in the revised drawing submitted with this appeal..." is referred to at para. 5.57. The Board is referred to revised drawings at para. 5.61, which stated:
"5.61 ... Please refer to revised drawings by DTA Architects as submitted with this appeal incorporating this setback. It is respectfully that An Bord Pleanala grant permission with a condition requiring the development to be implemented in accordance with the revised drawings and details submitted with this appeal. The basement area beneath the footpath has been brought back to the same setback line. Please see the enclosed drawings for further detail.
...
5.64 The external line of the basement has been amended and is set further back from both Donnybrook Road and Brookvale Road, to enable the future taking in charge of these areas by Dublin City Council. It is understood that Dublin City Council do not take in charge public footpaths which are over private basements.
...
5.68 Should An Bord Pleanála granting planning permission for the proposed development, the applicant would be willing to accept a condition requiring the detailed design of the loading bay, parking spaces and footpaths along Brookvale Road. Any works to the public realm outside of the site boundary would be subject to agreement with and carried by or on behalf of Dublin City Council under exempted development powers.
5.69 The reduction is such that car parking in the basement is no longer feasible. Therefore, the decision was made to remove the car parking from the proposed development. ..."
34.In the conclusion of the Appeal document, it was described as a "1st party appeal ... against the decision of Dublin City Council dated 14th April 2021 to refuse planning permission for a mixed use at Circle K, Donnybrook, Dublin 4." It was stated:
"6.2 The traffic concerns of reasons two and three of the planning authority. Adequate space has been provided for servicing and the proposed development is now a car free development, as provided for under SPPR8 (iii) of the Apartment Guidelines. Revised drawings have been submitted with this appeal to address these concerns, including a set-back at ground floor level on Brookvale Road frontage to facilitate the NTA's emerging BusConnects proposal.
6.3 The height of the proposed development as submitted is at 39.5 metres with 12 storeys. However, an alternative scheme of 33.5 metres (10 storeys) in height has been presented at appeal. Revised and updated drawings and reports are submitted as part of this appeal. The revised proposal reduces the height of the development from 12 no. storeys to 10 no. storeys and introduces set backs and articulation to the building façade reducing the overall scale and massing of the building, resulting in a 21% reduction in the overall floor area of the building, significantly reducing the scale of the development in this regard. In addition, the internal layout of the development has been revised to reduce the overall number of units from 84 no. to 67 no..
6.4 Furthermore, the revised proposal has been assessed in relation to visual impact to the surrounding area.
...
6.9 In this regard, it is respectfully requested that An Bord Pleanála overturn the decision of Dublin City Council and grant permission for the proposed development in accordance with the proper planning and sustainable development of the area and is consistent with the policies and objectives of the statutory planning framework nationally and for the subject site."
35.Undoubtedly, most of the details of the submissions made in respect of the Council's reasons for refusing the permission at section 5 of the Appeal relate to the revised plans, but the appeal did not ask the Board to consider the application for a 10-storey development rather than the 12-storey development which had been proposed in the application to the Council and refused. The "revised scheme" was referred to in the Report of Stephen Reid Consulting, as having "been put forward by the First Party as an alternative option for the consideration of the Board". Counsel for the Notice Party described the "target of the appeal" as the challenge to the refusal of the 12-storey development. I am satisfied that this is an accurate description of the appeal. The Notice Party very clearly submitted to the Board that the 12-storey development proposed in the original application can be provided for on the site, while accommodating the Bus Corridor. The proposed development is described as a car free development in the appeal, but the original application proposed that there would be six car spaces. This modification was proposed in response to the reason for the Council's related to the Bus Connects bus corridor. The Notice Party had indicated that if the Board found that the 12-storey development was not consistent with the proper planning and development of the area, that it would "be willing to accept" a condition reducing the height by two storeys.
36.The Applicants point to the fact that the documents submitted with the appeal relate to the modifications referred to in the appeal. This is to be expected as the Notice Party had already submitted reports to the Council, but the Notice Party included information to support the contention that, if the Board considered a 12-storey development to be too high and to have too high a density, that 10-storey development would be consistent with the proper planning and sustainable development of the area. I do not consider that the fact that these reports were submitted took away from the submission in the Appeal that permission should be granted for the 12-storey proposed development. Having regard to the entirety of the material submitted by the Notice Party as the appeal, I reject the contention that the proposed development which was relied upon by the Notice Party in its appeal was effectively a new application for permission. The appeal did relate to the planning application which had been lodged with Dublin City Council and was refused.
37.In its submissions to the Board, the first Applicant stated:
"We note that the appellant has offered to remove two floors from the proposed development. This would not mitigate the damage caused by the proposed development. Either way, the proposed height is not tailored to the existing size and type of settlement where it is located. It is also is an inappropriate attempt, in our opinion, to treat the Bord as a marketplace at which bargains can be struck. We ask that you reject that approach.
The core statistics of the proposed development of the site remain - excessive site coverage, excessive plot ration (sic), compromising of the potential to provide better transport infrastructure by building beyond the established building line and the lack of any provision of adequate open space."
38.The second named Applicant's submissions referred to the 10-storey proposal and urged the Boart to refuse permission therefor. His submission also included an extracted 3D image from the Design Report and a sketch of an alternative proposal for the site, with a maximum height of five storeys, which he suggested would be more appropriate for a number of reasons. This sketch represents a much more radical amendment of the proposed development than the 10-storey proposal included with the Notice Party's appeal.
39.The Inspector considered that the changes proposed by the Notice Party were not significant and that the public had had a sufficient opportunity to consider them. The proposed development as further modified in the appeal documents was considered by the Inspector as follows:
"The proposed amendments to the subject building are not considered significant. They mirror the sort of amendments that frequently form the basis of conditions attached to Planning Authority and An Bord Pleanála grants of permission. With the exception of car parking provision, all of the proposed amendments result in lesser and fewer impacts on the receiving environment. Further, given the extent of public participation at both application and appeal stage, I am satisfied that notice of the proposed development and any amendments thereto has been sufficient."
40. The Inspector relied on the modified proposal in considering the impact of the proposed development on the Bus Corridor.
41.The Applicants submit that the Board treated the modified plans as an amendment to the planning application. The Board Order described the proposed development as the 12-storey development which had been refused by Dublin City Council and found that, subject to the conditions attached thereto, the grant of permission for the proposed development was in accordance with the proper planning and development of the area. The Board was satisfied that the proposed development "as amended on appeal" would successfully integrate into the area and would comply with the Building Heights Guidelines. The Board found that it was not an overdevelopment of the site and would not detract from the character and setting. Conditions included the requirement that it be carried out in compliance with the plans and particulars received by the Board on 11th May 2021, i.e. the revised plans and particulars, except as otherwise required by the conditions.
42.It is not in dispute that the Board is entitled to grant permission for a development which imposes conditions modifying a proposed development. As the Inspector noted, the nature of conditions which may be imposed by the Board does include conditions reducing the height of a proposed development, stepping a building back within the site, and/or reducing the number of car parking spaces to be provided. It cannot be said that the modifications radically altered the proposed development, nor has the nature or character of the proposed development been fundamentally changed.
43.The Notice Party put forward a modified design which had been prepared with a view to alleviating the concerns of the Council, in the event that those concerns were shared by the Board i.e. that a 12-storey development was too high for the site and resulted in overdevelopment of the site. As noted above, the second named Applicant had also submitted a modified development, which was significantly more radical than that contained in the revised plans submitted by the Notice Party.
44.The Applicants' complaint is that the modification of the proposed development was imposed in a manner consistent with, and as a result of, the developer proposing modifications in the appeal. They argue that it was necessary to make a new planning application to the Council rather than appealing to the Board in this manner. The Applicants described this as a "unilateral and unsolicited amendment of the proposed development". It is correct to say that the modified plans were provided by the Notice Party on a unilateral and unsolicited basis. The Applicants submit:
"the Board and the planning authority has express authority to be impose conditions, which may have the effect of modifying the permission. There is no such express (or implied) authority on a developer. Secondly, there is a significant difference between the planning authority or Board, having assessed the application including all the submissions, determining that the development sought should be granted subject to modification and a developer mid-stream and uninvited by the planning authority or Board, deciding to alter the proposed development"
45.The only difference is that unlike a situation where the Board may have decided to modify the development in a manner which would result in the same authorised development, the Board and any person who wished to make observations on the appeal had the benefit of revised drawings and reports, which could be used to analyse or visualise the development ultimately authorised. This facilitates the making of observations in relation to the development which may be authorised in due course; any such observations must be considered by the Board in determining the appeal.
46.The Applicants rely on the phrase in section 37(1) that the applicant for permission or any person who made submissions observations on the application "may ... appeal to the Board against a decision of a planning authority under section 34." The decision was to refuse permission for a 12-storey development.
47.Neither the 2000 Act nor the 2001 Regulations provide expressly for the submission of modified plans with an appeal by an applicant for permission. They do not expressly preclude the inclusion of such plans with an appeal either. Section 127(4)(a) is expressed in very broad terms - an appeal "shall be accompanied by such documents, particulars or other information relating to the appeal or referral as the appellant or person making the referral considers necessary or appropriate." In this case, the Notice Party considered the revised plans and reports submitted by it to be necessary or appropriate for the determination of its appeal. The power of the planning authority or the Board to request revised plans under Articles 34 and 73 of the Regulations respectively does not lead to the interpretation of section 127(4) as excluding "revised plans or other drawings modifying, or other particulars providing for the modification of, the development to which the appeal relates." The planning authority or the Board has the power to require further public notices if it considers that the response to the request for further information contains significant further material. In the instant case, whilst further public notices were not required, the fact of the appeal had been made public and brought to the attention to anyone who had made submissions or observations to the Council.
48.The Applicants rely on South-West Regional Shopping Centre v An Bord Pleanála [2016] 2 IR 481, Hynes v. An Bord Pleanála [1997] IEHC 182, Seery v An Bord Pleanála (Unreported, High Court, Quirke J., 26th November 2003) and McCallig v An Bord Pleanála [2013] IEHC 60 in support of their argument. The judgments in these cases were concerned with a situation where the validity of the initial application to the council was in issue and it was held that the Board would not have jurisdiction if the application itself was invalid. In South-West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84, Costello J. held that "The decision of the Board on the appeal will involve, inter alia, a decision as to whether or not there was a valid application for planning permission in the first place. Therefore any questioning of the validity of the decision of the Board on the appeal can include a challenge to the validity of the application for planning permission." I do not consider these judgments to support the Applicants' argument that the developer cannot suggest modifications when appealing from the refusal of the planning authority to grant the permission sought.
49.The Applicants also refer to Sweetman v. An Bord Pleanála [2021] IEHC 390 in which case Humphreys J. found that the requirement that a planning application include plans and particulars did not allow a sufficient degree of flexibility to permit a "widely-variable-design application where the designs, dimensions or locations of structures are not specified in the application itself, either by reference to precise terms or to a reasonably limited range that could not in itself raise any reasonable planning objection." In that case, "the design and dimensions were couched in terms of what is typical, what is maximum, and what is worst case". He stated that, assuming that the application could be read as limiting the locations of the turbines to a reasonably concise footprint albeit not to a to-the-millimetre positioning, the location aspect of the plans and particulars was not massively problematic. In this case, the appeal in respect of the refusal to grant permission for the 12-storey development, but a the modified 10-storey modified proposal suggested as an alternative in the event that the Board agreed with the Council that the proposed development was too high and amounted to an overdevelopment of the site. This is not comparable to Sweetman.
50.The Applicants submit that the fact that the proposed development as modified would have a lesser impact on the environment is not relevant to the jurisdiction of the Board. It is relevant to the case advanced by the Applicants, as it is inconceivable that any person who would object to the 10-storey proposal would not also object to the 12-storey proposal. Whether objection might reasonably be anticipated is relevant to the question whether a contravention of a development plan is material: Roughan v. Clare County Council, unreported, Barron J., 18th December 1996. Similarly, when deciding whether the Board may leave details to be agreed between a developer and planning authority, a relevant factor is whether a planning issue is created thereby, such that a person might reasonably object: Boland v. An Bord Pleanála [1996] 3 IR 435
51.It is clear that the extent to which the Board may modify a proposed development itself is also limited by the extent to which the development authorised was substantially different to that proposed: State (Abenglen) v. Corporation of Dublin [1984] IR 381; Shadowmill. A planning decision-maker's decision whether there is a substantial difference is an exercise of judgment with which the courts will not ordinarily interfere, save for irrationality.
52.In Shadowmill, Holland J. held that there was an implied power to grant permission for part-only of a development for which permission had been sought in section 34(1). He considered the relevant authorities in commendable detail, and I do not consider it necessary to do likewise to determine the issue in this case.
53.In this case, whilst no public notices referred to the modifications proposed in the revised drawings, the public had been made aware of the application for a 12-storey development and had been made aware of the appeal from the Council's refusal to grant permission for that application. Holland J. considered that there was at least appreciable weight in the observation made on behalf of the Board in Shadowmill that:
" "what we have here is the omission of something and permission granted for what the public did have an opportunity to comment on" and where the difference between the sought and permitted development is subtraction from that sought, then, at least as a general proposition and where no evidence to the contrary is adduced, " everything for which permission has been granted [and sought] has been subject to public consultation and is capable of assessment" such that " on balance, omission is, .. less likely to be objectionable." "
That is true in this case.
54.Holland J. expressed the view that "S.34(4) does not render objectionable a planning condition requiring the omission of part of a proposed development, such as was imposed in this case. The list of potential planning conditions set out in S.34(4) PDA is explicitly without prejudice to the generality of the power under S.34(1) to impose conditions and is a non-exclusive list – Ashbourne Holdings [Ashbourne Holdings v An Bord Pleanála and Cork County Council [2003] 2 IR 114] and Weston [Weston v An Bord Pleanála and South Dublin County Council [2008] 2 IRLM 542]." (para. 302)
55.I agree with Holland J. and with his finding that a condition requiring the omission of part of a development for which an application was made is within the scope of the power of the Board to grant permission subject to conditions. This is clear from Abenglen. The power to impose conditions is a broad one. As the Supreme Court held in Ashbourne Holdings, once a condition is not within the scope of the 17 specified circumstances which must be strictly construed, to be justified a condition "must rationally accord with the stated objectives of proper planning and sustainable development."
56.Holland J. also found that conditions are frequently imposed by planning decision-makers to reduce the number of houses or excise floors from buildings without the benefit of modified drawings or plans. Subject to the need to ensure fairness to participants in the planning system, such flexibility in the system is desirable. As Holland J. stated, the absence of such a power would constitute a considerable bureaucratic impediment to desirable development which is consistent with proper planning and sustainable development. The Applicants submit that the flexibility of the system outlined in Shadowmill would be completely undermined if amendments such as those advanced by the Notice Party may be proposed in the appeal to the Board. I disagree, although it is not necessary for me to decide the outer limits of the extent to which such modifications may be proposed. If a fundamentally different proposal were put forward that would not be permissible, particularly if prejudice could be shown. However, I am satisfied that the nature of the modifications proposed in the appeal in the instant case is within the limits of the Board's jurisdiction to modify a proposed development by conditions.
57.In Bernard Wheatcroft Limited v. Secretary of State for the Environment (1982) 43 P & CR 233, the developer proposed an amendment when it appealed the refusal of permission at first instance. It proposed that instead of the 420 dwellings on a 35-acre site which had been applied for, the Secretary of State should grant permission for 250 dwellings on a 25-acre site. It is noteworthy that not only was there a 40% reduction in the number of dwellings, but the site was reduced by almost 30%. Forbes J. held that the question to be determined was whether the amendments altered the substance of the application. He asked: "Is the effect of the planning permission to allow development that is in substance not that which was applied for? ... The main, but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation." That judgment was considered in British Telecommunications Plc v. Gloucester City Council (2002) JPL 993, which was followed by Quirke J. in Dietacaron Ltd v An Bord Pleanála and Ors [2005] 1 ILRM 32.
58.In Dietacaron, which was considered in turn by Holland J. in Shadowmill, Quirke J. stated:
"Dialogue between an applicant and a decision making body is often expressly contemplated and permitted by the legislation, provided that other participants (including members of the public) are notified of such dialogue and permitted to participate in the process.
It is that right of public participation in the planning process that the courts will be concerned to protect and vindicate."
59.In that case, the applicant failed in its challenge to the validity of a Notice seeking modified drawings by way of further information issued by the Board on the grounds that the modifications sought were of a nature that they fundamentally altered the proposed development, giving rise to a new and entirely different development from that applied for.
60.More recently, in Coyne v An Bord Pleanála [2023] IEHC 412, the question arose as to whether the Board could grant permission for a modified development where the modifications had been proposed by the developer in response to a third-party appeal. Holland J. followed Shadowmill and rejected that argument. He also rejected the submission that Dietacaron was distinguishable stating that he did not see that "anything of consequence turns on who took the initiative in that regard."
61.The Board decided the appeal having regard to the modified plans submitted by the Notice Party as part of the appeal. I have found that the appeal did not amount to an entirely new development, but rather that the appeal was against the Council's refusal to grant permission for the 12-storey proposed development. As part of the appeal, the Notice Party indicated that it would be willing to accept a condition reducing the height of the proposed development by two storeys and it included plans and reports in relation to a modified development, the main aspects of which was the omission of two storeys, the stepping back of the proposed building from the BusConnects bus corridor and the omission of the six carparking spaces originally proposed.
62.The statutory scheme permits the Board to modify the proposed development either of its own motion, or where modifications are proposed by the developer in response to a third-party appeal. As in Coyne, I do not consider that anything turns on the fact that the author of the modification of the proposed development required by Condition 1 was the Notice Party developer. Not only did the Applicants have an opportunity of making observations in respect of the modifications proposed but they availed of that opportunity. The second Applicant proposed an alternative modified development, which was more radical than that proposed by the Notice Party. As submitted by the Notice Party, the effect of condition 1 was the same as if the Board had required development to be modified by the removal of the top two floors. It also required the stepping back of the development and omission of the six car spaces originally proposed. The difference between the imposition of Condition 1 in this case and an autonomous decision by the Board to reduce the height of the block by two storeys was that the Board, and anyone who accessed the appeal documents, knew what the design effect of removing those floors would be.
63.To interpret sections 34 and 37 as precluding the Board from considering modifications proposed in an appeal, or as an option advanced as part of an appeal, where members of the public had the opportunity to make observations, would be anomalous. There is nothing in the statutory scheme which prevents the Board from considering modifications proposed in an appeal by a developer, whether as an alternative or otherwise, or from granting permission with conditions which alter the proposed development in a manner which is consistent with the revised plans. It would be absurd if a modification which would otherwise have been open to the Board must be excluded from its consideration of the appeal because it had been proposed by developer in the course of a first-party appeal rather than as a response to a third-party appeal as in Coyne. I do not consider that such an interpretation of sections 34 and 37 is necessary or appropriate having regard, in particular to the lack of a restriction on the documents which may be submitted in support of an appeal in section 127(4)(a), and the power of the Board to require public notice in section 142(4).
64.If, which is not contended to be the case here, a modification would give rise to a material contravention of the applicable development plan, the Board would be required to comply with section 37(2) and to apply section 37(2)(b) if appropriate.
65.I note that the modifications in question in both Shadowmill and Coyne were much more significant in planning terms than the modifications required by Condition 1. In Shadowmill one of the two blocks of apartments proposed was omitted and in Coyne, an Energy Centre proposed as part of the development which comprised mainly of Data Centre blocks, was omitted.
66.Reference was also made by the Applicants to sections 287A and 287B of the 2000 Act, which were inserted by the Planning and Development, Maritime and Valuation (Amendment) Act 2022. I do not consider that these sections are instructive in relation to the issue to be determined. These provisions (which were not in force when the Board determined the application the subject of these proceedings) apply only to applications for developments in maritime areas under Chapter III of Part XXI.
67.In conclusion, I am satisfied that the Board had jurisdiction to grant permission for a development which differed from the application which had been refused by the Council. The appeal was not tantamount to the submission of a different proposed development, which could avoid public participation. The express power to impose conditions for a range of purposes does not exclude the imposition of conditions modifying the development in accordance with revised plans submitted as part of an appeal. This is not a case, as the Applicants suggested, of the developer wishing to abandon an application previously made and seek planning permission for a different development on appeal. Accordingly, Core Ground 1 is not made out.
Public Open Space
The impugned decision is invalid as the Board failed to attach any condition for the purposes of levying a financial contribution in lieu of public open space and/or Condition 24 is void for uncertainty and/or the Board was obliged to consider whether the proposed development constituted a material contravention of section 16.10.3 of the CDP, further details of which are contained at Part 2 below.
68.The Board says that Condition 24 is a general development contribution condition and does not, and was not, imposed to cater for the absence of public open space, by reference to section 16.10.3 of the Dublin City Development Plan 2016 - 2022. On that basis, the Applicants withdrew the plea in respect of Condition 24. Neither Condition 24 nor the reason given for imposing it refers to public open space.
69.The issue raised at Core Ground 5, including the particulars thereof, is that as the proposed development does not include public open space, the Development Plan required the Board to impose a condition requiring a financial contribution in lieu thereof or to consider whether this amounted to a material contravention procedure.
70.The following matters are not in dispute:
- The proposed development does not include public open space;
- A financial contribution has not been imposed by the Board in lieu of public open space (Condition 24 does not have that effect);
- The Board did not make an express finding as to the whether the Development Plan required a financial contribution because the proposed development did not include 10% open space.
71.It must be noted that this is not an SHD application and that section 37(2)(a) of the 2000 Act provides that "(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates." The Council had not decided to refuse permission based on a material contravention relating to the provision of public open space. Therefore subsection (b) does not apply.
The Development Plan
72.It is necessary to consider the terms of the Development Plan, having regard to the XJS method of interpretation: In re XJS Investments Ltd [1986] IR 750; Sherwin v. An Bord Pleanála [2024] IESC 13. In Sherwin Woulfe J. explained that "the development plan is not to be treated as if it were a piece of primary or secondary legislation emanating from skilled draughtsmen, and inviting the exceptive canons of construction applicable to such material. Instead, a development plan falls to be construed in its ordinary meaning as it would be understood by members of the public without legal training, as well as by developers and their agents, unless the document, read as a whole, necessarily indicates some other meaning." (para. 96). The interpretation of the Development Plan must be carried out in a holistic way and that an excessively technical or over legalistic manner must be avoided : Navan Co-ownership v. An Bord Pleanála [2016] IEHC 181, Eoin Kelly v. An Bord Pleanála [2019] IEHC 84, Ballyboden v. An Bord Pleanála [2023[ IEHC 722 and Grafton Group plc v. An Bord Pleanála [2023] IEHC 725. However, the nature of the review of the Board's decision will depend on the degree of flexibility, discretion or planning judgment left by the Plan to the decision makers: Sherwin (paras. 90 - 105); Jennings v. An Bord Pleanála [2023] IEHC 14 (paras. 112 - 113).
73.Section 16.10.3 provides:
"16.10.3 Residential Quality Standards - Apartments and Houses
Public Open Space
The distinction between public and private open space has become less clear with the increasing prevalence of higher density developments containing communal open space. Public open space is genuinely accessible to the general public. Public open space is open space which makes a contribution to the public domain and is accessible to the public for the purposes of active and passive recreation, including relaxation and children's play. Public open space also provides for visual breaks between and within residential areas and facilitates biodiversity and the maintenance of wildlife habitats. In new residential developments, 10% of the site area shall be reserved as public open space. All public open spaces shall be of a high quality in terms of design and layout, be located in such a manner as to ensure informal supervision by residents and be visually and functionally accessible to the maximum number of dwellings. Existing features, such as mature trees, shall be retained and enhanced by the open space provided. A landscaping plan will be required for all developments, identifying all public, communal (semi-private) and private open space. The design and quality of public open space is particularly important in higher density areas. Consideration should be given to the provision of community gardens and/or allotments in new developments. Where feasible, proposed development adjoining a river or canal bank should provide a linear walkway along the bank which is accessible to the general public and connects to any existing contiguous walkway along the bank.
Public open space will normally be located on-site, however in some instances it may be more appropriate to seek a financial contribution towards its provision elsewhere in the vicinity. This would include cases where it is not feasible, due to site constraints or other factors, to locate the open space on site, or where it is considered that, having regard to existing provision in the vicinity, the needs of the population would be better served by the provision of a new park in the area (e.g. a neighbourhood park or pocket park) or the upgrading of an existing park. In these cases, financial contributions may be proposed towards the provision and enhancement of open space and landscape in the locality, as set out in the City Council Parks Programme, in fulfilment of this objective."
74.Although the Statement of Grounds does not expressly refer to Section 16.3.1 and 16.3.4 or Policy GI13, it is necessary to consider the Plan holistically to decide the issues raised at Core Ground 5.
75.Chapter 10 of the Plan includes the Council's policies on Green Infrastructure, Open Space & Recreation. The Council's Policy includes:
"GI113: To ensure that in new residential developments, public open space is provided which is sufficient in quantity and distribution to meet the requirements of the projected population, including play facilities for children."
76.Chapter 16 also includes the following:
"16.3.4 Public Open Space - All Development
(See also Chapters 10 and 14)
In order to progress the city's green infrastructure network, improve biodiversity, and expand the choice of public spaces available, the provision of meaningful public open space is required in development proposals on all zoned lands.
There is a 10% requirement specifically for all residential schemes as set out in Section 16.10.1. This requirement also relates to other zonings such as Z6 and Z10. In the case of developments on Z12 zoned lands, the requirement will be 20% accessible open space, and for Z15 zoned lands the requirement will be 25% accessible open space and/or provision of community facilities.
Depending on the location and open space context, the space provided could contribute towards the city's green network, provide a local park, provide play space or playgrounds, create new civic space/plaza, or improve the amenity of a streetscape. Green spaces can also help with surface water management through integration with sustainable urban drainage systems. Soft landscaping will be preferred to hard landscaping which will be given consideration only in schemes where soft landscaping would not be viable or appropriate. Where adjacent to canals or rivers, proposals must take into account the functions of a riparian corridor and possible flood plain.
Financial contribution in lieu: In the event that the site is considered by the planning authority to be too small or inappropriate (because of site shape or general layout) to fulfil useful purpose in this regard, then a financial contribution towards provision of a new park in the area, improvements to an existing park and/or enhancement of amenities shall be required (having regard to the City's Parks Strategy).
"16.10.1 Residential Quality Standards - Apartments
The standards for apartment developments are set out in the Department of Environment, Community and Local Government guidelines entitled Sustainable Urban Housing: Design Standards for New Apartments - Guidelines for Planning Authorities (December 2015), (www. environ.ie), hereafter referred to as the 2015 Department Guidelines. In addition, proposals for apartments shall comply with the standards set out below and with the requirements of other relevant development standards including public open space, play space, safety and security, and acoustic privacy standards."
77.While SPPR 7 of the Sustainable Urban Housing: Design Standards for New Apartments 2020 imposes certain flexibilities in relation to development criteria, flexibility is not introduced in relation to public open space. The Board has not relied on SPPR 7 but contends that the terms of the Development Plan allows flexibility and it relies on the use of the word "may" in Section 16.10.3. The Notice Party adopted the submissions made on behalf of the Board. Further submissions were advanced on its behalf, from a slightly different angle. In particular, the Notice Party submitted that the approach taken in Pembroke Road Association should be followed if I find that the Board was required to impose a financial contribution as the proposed development does not include public open space. The Notice Party also submits that section 16.10.3 does not require a financial contribution but rather allows for a contribution where a proposed development does not provide for sufficient public open space.
78.The Board and Notice Party rely on para. 21 of the judgment of Humphreys J. in Kerins v. An Bord Pleanála [2023] IEHC 280, a judgment on the application for leave to appeal to the Court of Appeal. Although leave was granted, it does not appear that the appeal proceeded.
79.In the substantive judgment in Kerins [2021] IEHC 369 Humphreys J. stated:
"At core grounds 3.1 and 3.2, the applicants allege an error in terms of material contravention of the development plan regarding the provision of public open space. The development plan itself however provides that "[p]ublic open space will normally be located on-site, however in some instances it may be more appropriate to seek a financial contribution towards its provision elsewhere in the vicinity" (para. 16.10.3). That does not amount to a sufficiently definite criterion which could be said to have been breached here. Paragraph 15.1.1.15 of the plan envisages that at least 20% of SDRA 12 would be maintained as public open space, but that is an overall requirement which does not render a particular application regarding a portion of the SDRA a material breach of the plan."
80.At para. 21 of the judgment on the application for leave to appeal, Humphreys J. stated, referring to Section 16.3.4 of the Development Plan:
"That provision appears to prescribe precisely when a financial contribution should be required - if the site is too small or inappropriate to fulfil a useful purpose. However, another provision of the plan is worded in different and more permissive terms at para. 16.10:
"Public open space will normally be located on-site, however in some instances it may be more appropriate to seek a financial contribution towards its provision elsewhere in the vicinity. This would include cases where it is not feasible, due to site constraints or other factors, to locate the open space on site, or where it is considered that, having regard to existing provision in the vicinity, the needs of the population would be better served by the provision of a new park in the area (e.g. a neighbourhood park or pocket park) or the upgrading of an existing park. In these cases, financial contributions may be proposed towards the provision and enhancement of open space and landscape in the locality, as set out in the City Council Parks Programme, in fulfilment of this objective.""
81.Having considered the terms of the Development Plan, in particular the statement at section 16.10.3 "In new residential developments, 10% of the site area shall be reserved as public open space", I am satisfied that the Development Plan requires 10% of a site area for new residential development to be reserved as public open space. No argument has been advanced to suggest that the development in question should not be regarded as residential development. The Plan does allow the planning authority to seek a financial contribution towards the contribution of public open space off-site, but I do not consider that a reasonable interpretation of the Plan allows a planning authority to dispense with the requirement for 10% open space without a financial contribution in lieu.
82.The Board relies on the use of the word "may" in Section 16.10.3, but it must be read in context. The relevant passage is:
"Public open space will normally be located on-site, however in some instances it may be more appropriate to seek a financial contribution towards its provision elsewhere in the vicinity. This would include cases where it is not feasible, due to site constraints or other factors, to locate the open space on site, or where it is considered that, having regard to existing provision in the vicinity, the needs of the population would be better served by the provision of a new park in the area (e.g. a neighbourhood park or pocket park) or the upgrading of an existing park. In these cases, financial contributions may be proposed towards the provision and enhancement of open space and landscape in the locality, as set out in the City Council Parks Programme, in fulfilment of this objective." (emphasis added)
83.Section 16.3.4 provides that a financial contribution in lieu "shall" be required where a planning authority considers that the site is too small or inappropriate, because of its shape or general layout, to provide meaningful public open space which "is required in development proposals on all zoned lands". Section 16.10.3 states that "it may be more appropriate" to require a financial contribution, which I consider contrasts with the requirement to provide public open space. Both Sections refer to the need to provide public open space in mandatory terms. The word "more" at Section 16.10.3 is significant. The Development Plan does allow for flexibility as to the circumstances in which it may be more appropriate to require financial contribution rather than public open space. The flexibility to which Humphreys J. refers in the judgments in Kerins relates to the decision when to apply a financial contribution in lieu of the public open space requirement. I do not consider that I am bound to find that the Development Plan includes a flexibility which would permit the Board to dispense with the requirement for a financial contribution if the particular proposed development does not include public space, having regard to the findings made in the Kerins judgments. None of the parties invited me to apply the Worldport principles nor do I consider it necessary to consider applying the Worldport principles. I do not read the judgments of Humphreys J. in Kerins as having found that the Development Plan allows for the third option proposed by the Board, i.e. not requiring a financial contribution in lieu where a proposed development does not include public open space. At para. 20 - 22 of the judgment on the application for leave to appeal, Humphreys J. referred to para. (or Section) 16.10 being "worded in different and more permissive terms" than Section 16.3.4. However, he refers to the prescription of "precisely when a financial contribution should be required". At para. 16 of the judgment of Humphreys J. in Kerins (No. 2) [2021] IEHC 612, he stated:
"The masterplan didn't specifically require the imposition of condition 24, but the imposition of such conditions is reflected in the development plan which provides (at para. 16.10.3) that "[p]ublic open space will normally be located on-site, however in some instances it may be more appropriate to seek a financial contribution towards its provision elsewhere in the vicinity"."
84.The Board had imposed a financial contribution requirement in Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403. The reason for that condition was: "[i]t is considered reasonable that the payment of a development contribution should be made in respect of the delivery of public open space within the wider masterplan area given that no public open space is provided for within the boundary of the application site". Therefore, the question of a third option, requiring neither open space nor a financial contribution was not before the High Court. Owens J. held that it was clear that the Board would not have granted the permission without requiring financial contribution in lieu of open space. (para, 14.)
85.I consider the following dictum of Hogan J. in the Supreme Court, ([2022] IESC 30 to accord with the way in which I have interpreted the Development Plan:
"58. In order to appreciate the background to all of this, one may first note that Chapter 16 of the Dublin Development Plan contains a requirement that 10% of the site of any residential development should be reserved for the provision of public open space. The development plan also permits a contribution to be made in lieu of the provision of such space."
86.The term "in lieu" which is used in the Development Plan is consistent with a binary choice - provision of open space or a financial contribution in lieu thereof. If the third option suggested by the Board were open, financial contribution would be entirely optional rather than in lieu of open space. Although, as Humphreys J. held in Kerins, there may be a difference in the degree of flexibility in respect of the identification of circumstances in which a financial contribution might be required in lieu of open space, or "may be more appropriate" in adopting the Development Plan, the Council wished to set parameters for a decision to opt for a financial contribution rather than open space. The interpretation of the Plan as proposed by the Board is not consistent with the policy of the Council as specified in Policy GI113 or Sections 16.3 and 16.10 of the Plan. The Board's interpretation would amount to an unfettered power to decide to dispense with the requirement to provide open space without requiring a financial contribution in lieu thereof. No rationale for such an interpretation of the Plan has been advanced or would be consistent with the Plan.
87.In this case, the Inspector adverted to the Planner's Report noting that no public open space is proposed, the insufficiency of open space having been raised in third party observations and the fact that the Planner's Report had quoted Policy GI113 and Section 16.3.3[4] of the Development Plan stating that "In the event that the site is considered by the Planning Authority to be too small or inappropriate ... , then a financial contribution ... shall be required ..." The Board made no other reference to public open space, whether in the Inspector's Report, the Board Decision or Board Order. This is not comparable to Pembroke Road where the Board had made a decision to require a financial contribution but had done so applying an incorrect statutory basis.
88.The Board's Inspector noted that the identified issue of the lack of public open space had been raised by a number of objectors and that the Developer's Planning Report had indicated that there was compliance with private and communal open space requirements but that no public open space was proposed. The issue of public open space was not addressed elsewhere by the Inspector or the Board.
89.The Planner's Report submitted by Dublin City Council referred to a number of extracts from the Development Plan including Policy GI113 and Section 16.3.3. It was stated that "No proposals have been made regarding public open space, while communal open space and private open space have been addressed." The Planner's Report noted the contents of the Notice Party's Planning Report, which acknowledged, at para. 6.28 that "development plan standards specified that in new residential developments, 10% of the site area shall be reserved as public open space." The Notice Party's Planning Report also stated that "No public open space is being provided with this application. The applicant will accept a condition requiring a financial condition in lieu of open space, in accordance with Section 16.3.4 of the development plan ..." (para. 6.29)
90.The Developer refers to Condition 24 and highlights the fact that a section 48 contribution may be made in respect of public infrastructure and facilities which include or may include the provision of open spaces. The Board has disavowed the interpretation of Condition 24 as having been imposed as an alternative to satisfying the 10% public open space requirement, and the Applicants have withdrawn their challenge to that condition. Nothing in the condition or the reason provided therefor links it to public open space. I am satisfied that Condition 24 is not relevant to the issues before the court as it does not amount to a financial contribution in lieu of public open space.
91.The Board submits that it was entitled to grant permission to the Notice Party even if the proposed development contravened the Development Plan. This application was brought under the 2000 Act rather than as an application for a strategic housing development under the Planning and Development (Housing) and Residential Tenancies Act, 2016. Section 37 (2)(a) of the 2000 Act provides that, "Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates." Paragraph (b) does not apply as the Council had refused permission but had not found there to be a material contravention of the Plan.
92.Having regard to the significance of the policy of the requirement to provide public open space within the Development Plan, I consider that a decision to grant permission for the proposed development, which provides no public open space, without a financial contribution in lieu thereof, would amount to a material contravention of the Development Plan, applying the test in Roughan v. Clare County Council, unreported, High Court, Barron J. 18th December 1996. That is not to say that the Board was required to expressly find that doing so would amount to a material contravention, nor was it required to apply section 37(2)(b). However, the policy relating to the provision of public open space was an important policy within the Development Plan and was relevant to the appeal before the Board.
93.The Board is obliged to consider appeals having regard, inter alia, to the applicable development plan: section 37(1)(b) and section 34(2). This can only be done lawfully where the Board correctly interprets the plan. The Board must state the main reasons and considerations on which its decision is based, and the main reasons for any conditions imposed: section 34(10)(a). As the Board departed from the recommendation of the Inspector to refuse permission, it was also required to provide the main reasons for not accepting that recommendation. The Inspector had recommended that permission be refused for reasons which did not include the lack of public open space or financial contribution.
94.As the interpretation of the Development Plan is a matter of law, the review of the Board's interpretation is a full-blooded review: Jennings v. An Bord Pleanála [2022] IEHC 14; Sherwin v. An Bord Pleanála [2024] IESC 13. The obligation to correctly interpret the Development Plan is not limited to cases in which the statutory scheme restricts the jurisdiction of the Board to grant permission in material contravention of the applicable plan.
95.In the context of deciding the standard of review applicable in relation to material contravention, Woulfe J. held in Sherwin, having endorsed Jennings:
"where an application for judicial review is made on grounds asserting that the grant of permission constitutes a material contravention, the first issue which arises is the correct interpretation of the relevant development plan, which is a matter of law for the courts. Thereafter, a second issue arises as to whether the development plan, once correctly interpreted, has been correctly applied to the facts of the planning application."
96.The Plan requires 10% public open space for developments of the type proposed. However, the Plan acknowledges that this will not be appropriate for every site and provides flexibility in that it authorises the imposition of a condition requiring a financial contribution in lieu thereof, in some cases. The circumstances which may lead to the imposition of a financial contribution in lieu of open space as set out in the Plan must be interpreted with due regard to the flexibility afforded to the planning authority in respect thereof. As considered above, the circumscription of the circumstances in which a financial contribution may be more appropriate is described differently in Section 16.3.4 and Section 16.10.3. By its nature, it would be most unusual for a situation to arise where an application would be refused by reason of a material contravention of this policy - if a planning authority considered it appropriate to grant permission without the requisite public open space, it may do so without contravening the Plan simply by imposing a financial contribution condition. It is difficult to envisage circumstances in which a planning authority might consider that the public interest would best be served by contravening the Plan by dispensing with a financial contribution, bearing in mind its obligation to decide the appeal having regard to the proper planning and sustainable development of the area. The rationale of doing so is not immediately apparent. The proposed development is a commercial venture by a private developer.
97.As the decision of the Council was to refuse permission, the question of requiring a financial contribution or of granting permission in material contravention of that provision did not arise. It was also not considered by the Inspector, who recommended refusal of the permission and did not propose conditions to be imposed in the event that the Board decided to grant permission despite her recommendation. The Inspector did not analyse the requirement to provide open space in the Development Plan, or to provide a financial contribution in lieu, but she did advert to it as an issue which had been raised in the third-party observations and by the Planning Authority. The Planner's Report had quoted Policy GI13 and noted the absence of public open space. The Inspector identified a number of relevant policies of the Council at para 5.5 of her Report, but she did not include Policy GI113.
98.The fact that the Board may grant permission in material contravention of the Plan without complying with section 34(2)(b) does not lessen its obligation to have regard to all relevant considerations, which includes relevant policies and objectives in the Plan. As Simons J. stated in Redmond v. An Bord Pleanála [2020] IEHC 151:
"23. ... An Bord Pleanála enjoys a broad discretion in determining planning applications, and its decision on whether proposed development is in accordance with proper planning and sustainable development is subject only to the most limited merits-based review under the principles in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. The board is, however, required to "have regard to" the provisions of the relevant development plan. ..."
99.The Plan has been described as "an environmental contract between the planning authority, the Council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing these objectives on itself.": Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99, 113 per McCarthy J..
100.McKechnie J. agreed in Byrne v. Fingal County Council [2001] 4 IR 565, 580, adding:
"In my opinion, a development plan, founded upon and justified by the common good and answerable to public confidence, is a representation in solemn form, binding on all affected or touched by it, that the planning authority will discharge its statutory functions strictly in accordance with the published plan. This implementation will be carried out openly and transparently, without preference or favour, discrimination or prejudice. By so doing and by working the plan as the law dictates, the underlying justification for its existence is satisfied and those affected, many adversely, must abide the result. They must suffer the pain, undergo the loss and concede to the public good."
101.These dicta were followed by Woulfe J. in Sherwin, who stated:
"The development plan informs the public of the approach that will be followed by the planning authority (and the Board) in decision-making, unless there is good reason to depart from it as may be permitted by the planning legislation, subject to particular procedures being followed." (para. 92).
The Board's decision
102.The Applicants contend that the permission granted is invalid, by reason of the failure of the Board to attach a condition requiring a financial contribution, or considering whether or not the proposed development, without such a condition, materially contravenes Section 16.10.3 of the Development Plan.
103.The presumption of validity applies to the Board's decision, but it is a rebuttable presumption. The decision must also be interpreted applying the XJS principles.
104.It is beyond doubt that the Board had jurisdiction to grant permission in material contravention of the Plan without satisfying section 34(2)(b). Where a policy in a development plan is of importance and is relevant to a proposed development, the Board must consider it. The clearest way of demonstrating that such a policy has been considered is to refer to it and /or to expressly decide whether to comply with or contravene it. When section 34(2)(b) does not apply, the reasons why the Board may opt to depart from the policy are not restricted by that provision.
105.In this case, the provision of public open space was a significant and relevant policy within the Plan and no rationale for contravening this policy is readily apparent or been suggested. This issue was squarely before the Board. It was specifically referred to, and quoted in the Planner's report. It was raised in third-party observations, and by the Notice Party who stated that it "will accept a financial contribution in lieu of open space, in accordance with Section 16.3.4 of the development plan". The policy restricts the circumstances in which the planning authority may consider it more appropriate to require a financial contribution than satisfy the 10% public open space requirement. As I have found, the Plan is unequivocal; it does not offer the third option proposed by the Board i.e. to dispense with the need for public open space and a financial contribution. The decision has not been challenged on the basis of the traditional failure to give reasons ground, but the rationale of the judgments including Connelly v. An Bord Pleanála [2018] IESC 31 and Balz v. An Bord Pleanála [2019] IESC 90 is instructive in relation to the interpretation of the Board's decision.
106.The Board states in its Direction and Order that it considered the policy objectives in the Plan. Specific policies were identified as relevant by the Inspector in her Report, but she did not refer to the public open space policy as set out in Section 16.3.4 and Section 16.10.3 or of Policy GI113, save insofar as it was noted that it had been raised as an issue in the third-party observations and Planner's Report. There is a complete absence of analysis of the policy.
107.As the Board did not consider whether it was appropriate to require a financial contribution in lieu of public open space, insofar as there is flexibility in relation to the circumstances in which it may be more appropriate to impose a financial contribution than require open space, the flexibility in the Development Plan in that regard was not exercised.
108.The lack of a reference to the policy indicates that the Board adopted the erroneous interpretation of the Plan advanced in the proceedings or disapplied the policy, whether through inadvertence or intentionally. The first two options were certainly not open to the Board. If the Board misinterpreted the Plan or failed to consider the policy through inadvertence, the Board's decision would be invalid. It should not be presumed that the Board made either of these errors.
109.The third possibility is that the Board interpreted the Plan correctly but decided not to apply it but did so silently. This is not consistent with the submissions made in response to these proceedings - the Board advanced an interpretation of the Plan which I have found to be incorrect. It was not suggested that the Board had considered the policy as interpreted by me, nor is there any material in the Board's decision which would support such a finding. The Board has not expressly stated that it decided not to apply the policy nor, if it did so, has an explanation been offered for opting not to comply with the policy.
110.The absence of evidence of engagement with the policy or reasons, coupled with the interpretation of the Plan advanced by the Board in the proceedings, leads me to infer that the Board did not decide, albeit silently, to depart from the policy in the Plan. No party to the process had recommended or proposed that the policy should be disapplied - the Board's Inspector had recommended refusing the appeal, the planning authority had refused the application and the Planner's Report referred to the absence of public open space, quoting the Plan's policy in that regard. The third-party observations had also raised the absence of public open space as an issue and the Notice Party had indicated a willingness to accept a condition requiring a financial contribution as the proposed development did not include public open space.
111.The reason why the Board decided, if such a deliberate decision was made, not to impose a financial contribution in this case is not obvious or implicit from the context. There is no obligation to provide reasons for what is obvious: Killegland Estates v. Meath County Council [2022] IEHC 393; [2023] IESC 39. In Rana v. Minister for Justice [2024] IESC 46 (para. 96 -99), O'Malley J. held that while it is highly desirable that decision makers should state clearly and concisely the reasons for their decisions, so that there can be no confusion about what was considered relevant and what was not. However, in that case, it was held that there could be no doubt as about the reasoning of the decision makers or the justification for their decisions. The same cannot be said in relation to the absence of a condition requiring a financial contribution in this case.
112.Albeit in the context of material contravention, Woulfe J. agreed with the trial judge in Sherwin, that "there is strictly no second-guessing because there was not even a first guess". Woulfe J. quashed the Board's decision on the basis of a failure to take relevant considerations into account, those considerations being the relevant provisions of the development plan and s. 9(6) of the 2016 Act.
113.While the Board was not required to apply section 37(2), I am satisfied that it was not open to the Board to disapply a policy of such significance as the public open space policy, particularly as it had been raised by the planning authority and in third-party observations, without expressly adverting to the fact that such a decision had been made and providing some explanation therefor. This is linked to the obligation to provide reasons. I find that the presumption that the Board considered the policy, as properly interpreted, has been rebutted.
114.The Inspector had adverted to the objections based on the lack of public open space and did not consider any of the provisions of the Development Plan which were relevant to that issue. Had the Board adopted the recommendation of the Inspector to refuse the appeal, this would not have given rise to any issue, nor would it have been reasonable to infer that the Board had failed to consider the public open space policy in the Development Plan, which had been raised before it. Whether a financial contribution should be required in lieu of satisfying the public open space requirement was not a matter which required determination unless permission were granted.
115.The public open space requirement is included as one of the Policies of the Council - Policies GI10 -GI14 relate to it, and Section 16.3.4 refers to the provision of "meaningful public open space". The benefits of public open space in housing and apartment developments are that it "makes a contribution to the public domain and is accessible to the public for the purposes of active and passive recreation, including relaxation and children's play. Public open space also provides for visual breaks between and within residential areas and facilitates biodiversity and the maintenance of wildlife habitats." The flexibility left to planning authorities in the Plan relates to the circumstances in which a planning authority may consider it more appropriate to impose a financial contribution condition in lieu. As the Inspector noted, this issue was raised in the third-party observations and by the Planner's Report. I am satisfied, for the reasons set out above, that the grant of permission without a financial contribution in this case is not envisaged by the Development Plan. The Board was entitled to grant permission in material contravention of that provision. However, that must be done consciously and deliberately and cannot be done by omission or inadvertence.
116.In the circumstances, I find that the grant of permission for the proposed development, which does not include any public open space, without a financial contribution was unlawful.
Appropriate remedy
117.The Notice Party states that, at all times, it has indicated a willingness to accept the fact financial contribution in lieu of public space should the court consider such as necessary having regard to section 16.10.3 of the City Development Plan. The court is invited to adopt the approach of allowing an application to be made to the Board to amend the permission granted under section 146A of the 2000 Act as occurred in Pembroke Road Association v. An Bord Pleanála [2021] IEHC 545 and [2022] IESC 30.
118.The situation in Pembroke Road was explained by Hogan J. as follows:
"49. The Dublin City Council Development Plan 2016–2020 ("the Development Plan") contains a requirement that 10% of the site of new residential developments should be reserved for public open space. The Development Plan, however, permits a developer to commit to the payment of a financial contribution in lieu of the provision of public open space which is used to support the provision and enhancement of open space and landscape in the locality.
50. In Pembroke Road the developer lodged a planning application for a proposed development that did not include the provision of any public open space. Given, however, the proposed development's proximity to Herbert Park, the Chief Executive Officer's Report indicated that the payment of a financial contribution in lieu of public open space was acceptable. The Inspector agreed with that recommendation and the Board attached condition 26 to the grant of planning permission which required the developer to make a payment of a financial contribution "as a special contribution under section 48(2)(c) of the Planning and Development Act, 2000 in lieu of the provision of public open space within the site" with the amount to be agreed with the Planning Authority.
51. In his first judgment dated 16th June 2021, however, Owens J. in the High Court held that condition 26 was invalid as the Board had wrongly relied on s. 48(2)(c) of the 2000 Act. He considered (at paragraph 14) that condition 26 was not severable since "it is clear that the Board would not have granted this permission without requiring financial contribution in lieu of public open space."
119.The Applicant opposes this and contends that certiorari is the appropriate relief if the substance of Core Ground 5 is made out.
120.Section 146A provides for rectification of errors in or amendment of planning permissions to reflect the decision actually made. Section 146A provides:
"Amendments of permissions, etc. of clerical or technical nature.
"146A.—(1) Subject to subsection (2)—
(a) a planning authority or the Board, as may be appropriate, may amend a planning permission granted by it, or
(b) the Board may amend any decision made by it in performance of a function under or transferred by this Act or under any other enactment,
for the purposes of—
(i) correcting any clerical error therein,
(ii) facilitating the doing of any thing pursuant to the permission or decision where the doing of that thing may reasonably be regarded as having been contemplated by a particular provision of the permission or decision or the terms of the permission or decision taken as a whole but which was not expressly provided for in the permission or decision, or
(iii) otherwise facilitating the operation of the permission or decision.
(2) A planning authority or the Board shall not exercise the powers under subsection (1) if to do so would, in its opinion, result in a material alteration of the terms of the development, the subject of the permission or decision concerned.
(3) A planning authority or the Board, before it decides whether to exercise the powers under subsection (1) in a particular case, may invite submissions in relation to the matter to be made to it by any person who made submissions or observations to the planning authority or the Board in relation to the permission or other matter concerned, and shall have regard to any submissions made to it on foot of that invitation.
(4) In this section "term" includes a condition."
121.As is clear from the submissions made on behalf of the Board, it is not contended that the Board decided to impose a financial requirement, but somehow failed to give effect to that decision. The fact that imposing such a condition would provide an answer to the Core Ground 5 is not a basis authorised by section 146A for amending the permission.
122.Owens J. considered that the "operation" of the permission would be "otherwise facilitat[ed]" within the statutory language by the replacement of the ineffective and invalid condition with "something legally effective which implements its decision that the developer should make a financial contribution to Dublin City Council in lieu of provision of public open space." Such a correction was held not to involve a material alteration of the terms of the development.
123.In agreeing with Owens J's analysis of section 146A, Hogan J. stated:
"The Board clearly intended that a financial contribution should be levied, but identified the wrong statutory provision for this purpose. The Board sought to rectify this error by amending the condition so as to include the correct reference. This correction does not in any sense materially affect the original permission: it would be different if, for example, the Board now sought to amend the condition so as to impose a financial contribution for the first time."
124.The purpose of section 146A is to allow the correction or variation of a permission to reflect the decision actually made, whether by reason of a typographical error, or rectify an error in identifying the correct legal basis for a decision (including to impose a condition) which had been made by the Board. The power to amend a permission to " otherwise facilitate[e] the operation of the permission or decision." does not empower the Board to add a new condition which had not been contemplated. The permission granted by the Board did not purport to require a financial contribution to compensate for the absence of public open space, nor is there any evidence to suggest that it had intended to do so. Considering section 146A, and its context, I am satisfied that the Oireachtas did not intend to confer a power on the Board to amend a permission by the consideration of a matter which had not been considered or the inclusion of a decision which it ought to have made, but did not make. Quite clearly the Board did not decide to impose a financial contribution in lieu of open space. As I have found above, the sole reference to the issue of public open space was made by the Inspector, who referred to open space, public and private, in the recitation of the observations made and she stated that the Planning Report had noted that no public open space was proposed. As the Planning Authority had decided to refuse the permission sought and the Inspector had recommended, neither proposed draft conditions to be imposed if permission were granted. The question of the imposition of condition requiring a financial contribution did not arise.
125.Adjourning the proceedings to allow the Board to consider making an order under section 146A adding a condition to require a financial contribution in lieu of public open space is not a viable alternative remedy in this case. Nor does section 146A allow the Board amend its decision to consider a policy which had not been considered and decide whether it is appropriate to comply with or contravene it.
CORE GROUND 6
Non-publication of the file on the ABP website as required by section 146(5).
126.It is common case that the Board did not make all the documents relating to the Notice Party's appeal available for inspection at the premises within three days of its decision to grant permission. This does amount to a failure to comply with section 146(5). The Applicants no longer seek an order of certiorari by reason of this breach of the Board's obligations, but they do seek a declaration in the terms set out at paragraph D (3) of the third amended Statement of Grounds.
127.While acknowledging that there was an administrative error, the Applicants assert that the evidence before the Court demonstrates a systems failure on the part of the Board and submit that a declaration should be granted to mark the court's disapproval. Although the Board denied a breach of section 146(5) in the Statement of Opposition, it was accepted at the hearing that it had failed to comply with that section and submitted that there was no dispute as to the Board's obligations thereunder.
128.The Board's decision was made on 10th August 2022. The Board Direction, Board Order and the Inspector's Report were put on the Board's website on 13th August 2022. Due to the volume of papers involved, the remaining documents were put into a box which was separated from the folder containing the Board Direction, Board Order and Inspector's report. The folder was sent to the depository, and it would appear it was available for inspection within the three-day period. The fact that the box was not available for inspection was adverted to on 30th August 2022, when the Applicants' solicitor sought access to the complete file. In the verifying affidavit sworn on behalf of the Board it is averred that "after the Board had considered all of the documents at the meeting of 25 July 2022, the documents were returned to the relevant administrative section - the Board secretariat - for filing to our deposit area but, due to an administrative error, while the document folder file was filed in the deposit area, the associated box of documents did not accompany the document folder file and was not deposited with it." The box was located in the office of the Board's Secretariat on or before 3rd October 2022. It is also averred that contact was made by the Board with Mr Logue to arrange for him to access the said box. It is common case that this was not inspected by Mr Logue in October 2022.
129.Mr Logue avers, in his undated affidavit, filed on 18th October 2023, that he had not received an email notifying him that the box of documents had been found and that it is the exclusive practice of the Board's public access service to communicate with him by email. He avers "As far as I am aware, the first time, I was given notice that the box was found was when Ms Morrin's affidavit was served." He does not dispute the fact that the box was found between 28th September 2022 - 3rd October 2022.
130.A further affidavit was sworn by Ms. Matthews on behalf of the Board. She is a member of the Facilities and Environment Division and was involved in looking for and finding the box. Ms. Matthews avers that she recalled making a telephone call to Mr. Logue to inform him that the box had been located. In an internal email dated 3rd October 2022, Ms. Matthews wrote:
"Following the location of the box, it appeared that the process from the Secretariat was sending files to deposit and the boxes followed separately. I have since spoken with the staff and it appears that the issue is now resolved. I informed Fred [Logue] by telephone that we had the complete file for him to view."
131.It is also averred by her that, while the usual practice of the Board is to communicate with people requesting access to documents by email, on occasion they are contacted by telephone and that this is what had occurred in the instant case. I note that at para. 5 of his first affidavit, Mr. Logue refers to a telephone call on 12th September 2022 informing him that the box, could not be located, but that he could view the folder of documents and would be informed if/when the box was located.
132.Mr. Logue did not file an affidavit in response to the averment in Ms. Matthews' affidavit, that she had informed him by telephone that the box had been found and that she recalled making that phone call, nor was an application made to cross-examination her.
133.I am not satisfied that the Applicants have discharged the burden of establishing that they were not informed when the box was located in the period between 28th September 2022 - 3rd October 2022. Mr. Logue states that, as far as he was aware, he was first notified that the box had been located when the replying affidavit was served. It is not necessary for the Applicants to establish that he was not so notified, as the obligation of the Board was to make the entire contents of the file available for inspection at the Board's offices within three days of the Board's decision. This it failed to do, a fact which is not in dispute. The Board was not obliged to make the contents of the file available online, but had a discretion to do so, or to make it available at any additional location.
134.The Applicants submit that declaratory relief should be granted, in particular to mark the court's disapproval of Board's failure to make the file available as required by section 146(5). This is not the function of declaratory relief. No prejudice to the Applicants has been asserted, although a general complaint regarding public participation was made in their submissions. There is no basis for believing that any other person or body was impeded in bringing proceedings, and the Applicants cannot rely on jus tertii. That said, the absence of prejudice is not a bar to the grant of declaratory relief, but an order granting such relief must have a purpose.
135. Order 84 r.18(2) provides that a declaration may be granted where it is "just and convenient" to do so. Walsh J. stated that "It is also to be observed that the fact that the declaration is needed for a present interest has always been a consideration of great weight." in Transport Salaried Staffs' Association & Ors. v. CIE [1965] 1 IR 180. While the grant of a declaration is a discretionary remedy, it will normally be granted once the plaintiff's legal argument is upheld: Recorded Artists Actors Performers Limited v. Phonographic Performance (Ireland) Limited & Ors [2022] IECA 8. In this case, there was no dispute as to the law - the Board now accepts that it was obliged to make the complete file available under section 146(5), and its evidence is to the effect that the delay in doing so was due to an administrative error. It was admitted that it was not available for inspection until 28th September 2022 at the earliest.
136.In Save Cork City Community Association CLG v. An Bord Pleanála [2021] IEHC 509, declaratory relief was granted because the evidence disclosed that there was a systemic issue rather than a one-off lapse.(para. 71) In granting declaratory relief, Humphreys J. stated that it "puts down a formal marker so that any future non-compliance can be assessed by reference to whether there has been a pattern of action or inaction that amounts in effect to disregard of the legal obligations concerned." A pattern of non-compliance is not necessarily required for it to be appropriate to grant declaratory relief. The internal email dated 12th September 2022 refers to Mr. Logue's outstanding request for access to this file and three other outstanding requests, but no other information in respect of those requests is before the court. Mr. Logue is a very experienced solicitor who interacts with the Board on a regular basis. He has not given evidence of any comparable situation having occurred.
137.In Clifford & Sweetman v. An Bord Pleanála (No. 3) [2022] IEHC 474, Humphreys J. held that prejudice to an applicant is not necessary for declaratory relief to be granted. He stated: "When it comes to declaratory relief, the court has a broader scope to clarify the law and the legal position in the interests of the rule of law and the proper administration of the statute."
138.The cases of Southwood Park Residents Association v. An Bord Pleanála [2019] IEHC 504 and Dalton v. An Bord Pleanála [2020] IEHC 27 are distinguishable. The error in this case occurred after the Board had made its decision and it did not have the potential to affect the validity of the Board's decision. In Dalton, it was held that the Board could not expand its jurisdiction by overlooking a failure on the part of a putative appellant to comply with the requirements of the Act, particularly as the Act specifically provides that if the requirements of section 127(1) were not complied with, an appeal is not valid. The Applicants also referred to Environmental Trust v. An Bord Pleanála [2022] IEHC 542 ( [2022] IEHC 520 ) in their written submissions; the appropriateness of granting declaratory relief was not considered in Environmental Trust nor in PKB Partnership v. An Bord Pleanála [2022] IEHC 542.
139.It was not argued by the Applicants that the file being split between a box and folder was an intrinsically inadequate system. I accept the Board's submission that this is reasonable in cases where the volume of papers is such that it is not possible to include them in a single folder. The system of separating folders and boxes containing the papers relating to an appeal before moving them to the depository has the obvious weakness of increasing the likelihood of an administrative error such as occurred in this case. Whilst it is not clear that there is currently an effective system in place for moving the files to the depository where they are stored and can be made available for inspection, the evidence of the Board is equivocal in that regard.
140.At its height, it is stated in the email of 3rd October 2022 exhibited by Ms. Matthews that "I have since spoken with the staff and it appears that the issue is now resolved." It is unclear whether this refers to the issue regarding the particular box relating to the appeal by the Notice Party, or that the system of separating folders from boxes has been changed. Reading the email in its entirety, I consider it more likely to refer to the specific incident than that the system has been changed. I am not satisfied that the inference which the Board urges should be drawn from the email, that it is no longer the case that folders and boxes are moved separately to the depository, can reasonably be drawn, particularly in light of the subsequent denial of non-compliance with section 146(5) in the Statement of Opposition. At hearing, counsel for the Board submitted that there "is not evidence that this is an ongoing issue" and that "the evidence that's available to the Court through the combination of Ms. Matthews' affidavit and the exhibit to it, supports the view that the issue is quite a simple system issue that was resolved and hasn't been repeated" I am not satisfied that the system has been changed to avoid the risk of further non-compliance with section 146(5). The fact that the evidence relates to a single breach of the provision does not preclude the grant of a declaration. The extent of deficiencies in the system of making files available for inspection under section 146(5), is not as stark as the evidently ad hoc system of charging for a copy of the NIS in Save Cork Community Association v. An Bord Pleanála [2021] IEHC 509.
141.Having reviewed the authorities in Grafton Group plc v. An Bord Pleanála [2023] IEHC 725, I granted declaratory relief as I found that it could not be said that the grant of such relief would serve no purpose. In that case, the declaration granted corrected the Board's erroneous interpretation of its obligations under the 2001 Regulations.
142.I am satisfied from the oral submissions made, that the Board does not labour under a misunderstanding of its obligations under section 146(5). However, in the Statement of Opposition it was denied that there had been a failure to comply with section 146(5). It was pleaded that there had been substantial compliance with the provision, as the Applicants' solicitor was contacted after the box was found between 28th September and 3rd October 2022 and that contention was repeated in the written submissions.
143. Unlike Grafton Group, there was no conscious but erroneous decision on the part of the Board not to make the box available in compliance with section 146(5). However, undoubtedly the Board had a system in place which increased the risk of a failure to comply with its obligations and it is not clear from the evidence, or the email of 3rd October 2022, that the Board has amended its practice to minimise that risk. I am not in a position to find that a declaration would be of no practical use, and therefore, it is appropriate to grant that relief.
Conclusion
144. The Notice Party's appeal to the Board was an appeal from the Council's refusal to grant it permission for the 12-storey development proposed in its application. The appeal documents included modified plans and reports related thereto, which were advanced as part of the appeal in respect of the 12-storey development. The Notice Party did not seek permission for a different development to that which had been sought from the Council, but offered a modification which was prepared by reference to the reasons provided by the Council for refusing the application. The Notice Party submitted that the 12-storey development proposed was consistent with the proper planning and sustainable development of the area, but indicated a willingness to accept a condition reducing the height of the building by two storeys if the Board agreed with the Council that a 12-storey development was not appropriate for the site. I do not consider that the appeal amounted to a new application as submitted by the Applicants.
145. The Board was entitled to consider the appeal and to grant permission for the proposed development subject to conditions which modified the proposed development. The Board was entitled to do this by granting permission for the proposed development subject to Condition 1 which required the proposed development to be carried out in accordance with the modified plans, save as otherwise amended by the conditions attached to the permission. The fact that the modifications were proposed by the Notice Party developer as part of a first-party appeal, or that the proposed development was described as "the proposed development, as amended on appeal" did not prevent the Board from having the power to grant permission subject to those amendments.
146. The Board was required to consider the relevant policies in the Dublin City Development Plan 2016 - 2022 when determining the appeal. The public open space policy requires 10% public open space for residential developments or a financial contribution in lieu. The circumstances in which a financial contribution condition may be imposed instead of public open space are provided in Section 16.3.4 and Section 16.10.3 of the Plan. The public open space policy is included as a policy of the Council at Policy GI13. It is a significant policy which the Board was required to consider. The Board did not interpret and consider that policy correctly. Contrary to the Board's submission, I have found that the policy requires the provision of 10% public open space for residential developments such as the proposed development, or a financial contribution in lieu if that is considered more appropriate by the Board. The proposed development does not include public open space, and a financial contribution is not required by the conditions. Save insofar as the Inspector referred to this policy being raised by the Council and in third party observations, the Board's decision is silent in relation to the policy. The presumption that the Board considered the relevant policy correctly is rebutted by the terms of the Board's decision, in particular by the lack of any analysis of the policy, a decision whether the circumstances were met for the imposition of a financial contribution condition in lieu and the absence of a decision to disapply the policy. Furthermore, the Board advanced an interpretation of the Plan which I have found to be incorrect. The Policy does not allow the third option proposed by the Board, namely that permission may be granted in accordance with the Plan for a development which does not satisfy the 10% public open space requirement, and which does not require a financial contribution in lieu.
147.Although the Board was not required to comply with section 37(2)(b) of the 2000 Act, it was necessary either to comply with the public open space policy or consciously depart from that policy if that is what it did.
148. I am satisfied that Core Ground 5 is made out. Section 146A of the 2000 Act does not confer jurisdiction on the Board to amend a decision to grant permission to consider a policy, as correctly interpreted or at all, or to amend a permission granted to include a condition which the Board had not decided should be imposed.
149. The Board has accepted that it failed to comply with section 146(5) of the 2000 Act. As the papers could not fit into a single folder the papers were placed into a folder and a box. The Board's system in place when the Board failed to make the papers related to the appeal available for inspection within three days of its decision was intrinsically weak as the folder and box were separated and were not moved together from the Secretariat to the depository after the decision was made. On the basis of the evidence before the Court, I am not satisfied that there would be no benefit in granting a declaration. I am not satisfied that it is possible to draw the inference that the system has been changed, which the Board urges should be drawn from an email exhibited by it. If the system had been changed, that is a matter which could have been stated in the Statement of Opposition or in one of the affidavits sworn on behalf of the Board. Prior to the hearing, the Board had maintained that there had been substantial compliance with the section, despite the box not having been made available for inspection.
150. I do not consider it necessary to determine Core Grounds 3, 4 or 7 in light of the findings made in relation to Core Ground 5.
Order
151. I shall grant an order of certiorari of the Board's Order dated 10th August 2022 (ABP Ref 310204-21) to grant permission to the Notice Party subject to conditions for the demolition of existing structures and construction of the development proposed. I also consider it appropriate to grant a declaration in terms of para. D 3 of the third Amended Statement of Grounds.
152.As this judgment is being delivered electronically, I express the provisional view that the Applicants should be entitled to an order for their costs as against the Respondent, such costs to be adjudicated in default of agreement. I will list the matter before me on 12th May 2025 to address any arguments that may be required about the form of final orders. However, I invite the parties to seek to come to an agreement in advance of that date on those matters.
Emily Farrell