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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Concerned Residents of Coolkill Sandyford Downs and Lamb's Brook & Anor v An Bord Pleanala (Approved) [2025] IEHC 265 (19 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC265.html
Cite as: [2025] IEHC 265

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THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

 

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT (HOUSING) AND RESIDENTIAL TENANCIES ACT 2016

 

Record No. 2023/1106 JR

Between


CONCERNED RESIDENTS OF COOLKILL, SANDYFORD DOWNS AND LAMB'S BROOK


and


AONGHUS O'KEEFFE

Applicants


and


An Bord Pleanála

Respondent


and


midsal homes limited

Notice Party

 

 

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 19 MAY 2025

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 19 MAY 2025. 1

INTRODUCTION.. 3

Figure 1 - Scheme Layout - as Proposed in the Planning Application. 5

Brief Chronology. 6

GROUND 1 - MATERIAL CONTRAVENTION - DENSITY - INTERMEDIATE URBAN LOCATION.. 7

Core Ground 1. 7

CDP §12.3.3.2 & PHP18 and Apartment Guidelines §2. 8

G1 - Inspector's Report. 10

§7, 8 & 9 - DLRCC, Objectors & An Taisce. 10

§10.3           Residential Density. 11

§10.9           Movement & Transport. 12

G1 - Coolkill's Particulars & Position. 13

G1 - Board's Position. 16

G1 - Discussion & Decision. 18

Is Material Contravention of CDP §12.3.3.2 Possible?. 18

Murphy & Graymount. 18

Observations. 20

Application of the Law & Decision. 22

GROUND 2 - MATERIAL CONTRAVENTION - CDP §12.9.6 - CLIMATE CHANGE. 25

Core Ground 2. 25

G2 - CDP §12.9.6. 25

G2 - Particulars. 26

G2 - Opposition. 26

G2 - Coolkill's Submissions. 27

G2 - Board's Submissions. 29

G2 - Material Contravention - Climate Change - Discussion. 30

Materiality of Contravention - Test. 30

Is Material Contravention of CDP §12.9.6 Even Possible?. 32

Form of Compliance with CDP §12.9.6 - Analogy with Waltham Abbey/Pembroke Road. 33

Form of Compliance with CDP §12.9.6 - Contravention - Conclusion. 39

Form Apart - to what Substantive Effects does CDP §12.9.6 Relate?. 39

Climate Change - Content of the Planning Application. 40

Other Reports & Conclusion on Substance of Planning Application as to Climate Change. 47

Onus of Proof of & Evidential Basis for a finding of Materiality of Contravention. 47

G2 - Material Contravention - Climate Change - Decision. 49

GROUND 3 - CHILDCARE - FAILURE TO APPLY CPD, RELEVANT CONSIDERATIONS & REASONS. 50

Core Ground 3. 50

G3 - Childcare Guidelines & CDP. 50

G3 - Development Proposal (Childcare Demand Assessment). 52

G3 - Inspector's Report. 54

G3 - Coolkill's Position. 54

G3 - Board's Position. 56

G3 - Discussion & Decision. 57

GROUND 4 - MATERIAL CONTRAVENTION - SEPARATION DISTANCES/AMENITY. 64

Core Ground 4. 64

G4 - CDP §12.3.5.2 & Objective PHP19 & Commentary. 65

CDP §12.3.5.2. 65

CDP Objective PHP19 & "Infill". 65

G4 - Material Contravention & SHD.. 68

G4 - Actual Separations - Opposing Windows - Staggering & Obscuring & Material Contravention Statement  69

G4 - Coolkill Objection, CE Report & Inspector's Report. 72

G4 - Coolkill's Position. 75

G4 - Board's Position. 77

G4 - Discussion & Decision. 79

Coolkill's Pleading Point. 79

Is Material Contravention of CDP §12.3.5.2 Possible?. 80

Material Contravention & Planning Guidelines. 81

Objective PHP19 & Effect on Amenity of Adjoining Developments. 81

Separation - Merely a Means to an End?. 83

Separation Distances - Blocks & Windows - CDP §12.3.5.2. 85

Separation Distances - Reasons & Relevant Considerations. 90

GROUND 5 - MATERIAL CONTRAVENTION - BEDROOM DIMENSIONS. 90

Core Ground 5. 90

CDP §12.3.4.2 - Habitable Rooms & Apartment Guidelines as to Apartment Floor Areas. 90

G5 - Particulars. 91

G5 - Applicants' Position & Text of Appendix 1 of the Apartment Guidelines 2020. 92

G5 - Board's Position. 94

G5 - Decision. 95

Materiality of Contravention. 97

GROUND 6 - PRE-APPLICATION CONSULTATIONS AS TO DIFFERENT DEVELOPMENT TYPE. 97

Core Ground 6. 97

G6 - Coolkill's Position. 97

G6 - Board's Position. 98

G6 - Factual Notes. 99

G6 - Pre-Application Consultations - Discussion and Decision. 100

Confusion & Prejudice. 100

O'Neill & Irrationality. 102

Discretionary Remedy. 104

Standing and Disposal 105

GROUND 7 - EIA SCREENING (EXCAVATIONS). 106

Core Ground 7 & Particulars. 106

G7 - Opposition. 107

G7 - Information before the Board. 107

Information from Midsal 107

Information from the Applicants, Kalidone Developments & DLRCC. 111

G7 - Inspector's Report & Impugned Decision. 113

G7 - Law on EIA Screening - Waltham Abbey, Standard of Review & Significance of Effect. 115

The Scope and Standard of EIA Screening. 115

Standard of Judicial Review of EIA Screening. 119

Small Projects. 126

G7 - Proof & Evidence. 126

G7 - EIA Screening - Discussion and Decision. 127

Boland Condition - Noise Management Plan. 130

CONCLUSION.. 130

 

 

 

 

INTRODUCTION

1.                   The Applicants ("Coolkill") seek certiorari quashing the Respondent Board's Order [1] dated 9 August 2023 ("the Board" and "the Impugned Decision") granting planning permission to the Notice Party ("Midsal"), "generally in accordance with the Inspector's recommendation", [2] for an SHD [3] consisting of 116 apartments (1-, 2-, and 3-bed units), at a density of 140 units/ha, [4] in 4 blocks [5] (including a basement/ undercroft car park [6]) and associated works [7] on a 0.92 ha site [8] fronting onto Sandyford Road, Dublin 18 (the "Permitted Development" and the "Site"). While one may conveniently call them "Build to Sell" ("BtS") apartments, it is more correct to describe them negatively in that they are not "Build to Rent" ("BtR") apartments.

 

 

2.                   The Site is in the functional area of Dún Laoghaire/Rathdown County Council ("DLRCC") and its County Development Plan 2022-2028 adopted in March 2022 ("the CDP") applies. It zones the Site "Objective A" - "To provide residential development and improve residential amenity while protecting existing residential amenities". [9] The principle of residential development of the Site is not disputed.

 

 

3.                   The Board's Inspector describes the Site as in a "transitional location in the foothills of the Dublin Mountains on the urban fringe of Dublin". [10] Taken alone, that description might be thought to suggest a bucolic location. However, while the description is accurate, the word "transitional" is important and the application documents [11] make it clear that the transition is well advanced and the Site is in a suburban area. [12]

 

 

4.                   The Site is about 300m outside of and south of the M50 Motorway - which the Sandyford Road crosses en route north to Dundrum. It lies between the M50 and Lamb's Cross to the south. Sandyford village, which is also outside the M50, is about 315m to the north-east. Beyond the village lies the M50 Junction 14, about 590m north-east of the Site. In turn, just beyond Junction 14, further to the north-east and just beyond the M50, lies the Sandyford Business Park - a large employment area. Glencairn Luas stop lies about 2km east of the Site by road. [13] The Site is about 6km inland from the coast and is at an elevation of approximately 120m AOD. [14]

 

 

5.                   There is a large, wooded amenity area [15] across Sandyford Road to the west of the Site. Otherwise, the immediate context is of residential development - existing, being built and permitted. [16] The existing development is largely of houses in an extensive development pattern. The Site bounds the rear gardens of the Coolkill housing estate to the east, with the Sandyford Downs estate beyond. Cul Cuille, on the northern Site boundary, is a recently constructed estate of six houses with a three-storey block of six apartments facing Sandyford Road. The Pastures, on the southern Site boundary, has permission for 31 apartments in two blocks of up to 5 storeys - which permission under appeal. The Lamb's Brook housing estate lies beyond. The 4-5 storey Whinsfield development of 67 apartments in three 4-5 storey blocks is being built across the road from and somewhat to the south of the Site.

 

 

6.                   Both Applicants (amongst many objectors) participated in the planning process and have standing accordingly in these proceedings. Midsal has not participated in the proceedings.

 

 

7.                   By its Impugned Decision, the Board screened out EIA.

 

 

Figure 1 - Scheme Layout - as Proposed in the Planning Application [17]

·         North is to the left. Block A is on the left. Block D is on the right.

·         The numbers represent storeys and decrease towards the northern, eastern and southern boundaries.

·         Importantly, this is the layout proposed by Midsal. As permitted, the development omits

o   the 3- and 4-storey, northern, elements of Block A.

o   the second floor of Blocks C and D - thus preserving the decrease towards the boundaries.

 

 


Brief Chronology

 

8.                   Midsal, DLRCC and the Board attended a pre-application consultation [18] on 6 January 2022 in respect of an envisaged SHD of 147 BtR apartments in four blocks on the Site. By statutory opinion dated 14 January 2022, [19] the Board stated that the documents submitted by Midsal constituted a reasonable basis for an SHD planning application and identified specific information to be submitted with any resultant application.

 

 

9.                   On 28 April 2022, Midsal made an SHD planning permission application [20] for a development of 137 [21] apartments on the Site at a net density of 165 units/ha. The application included, inter alia, a Planning Report, an Architectural Design Statement, a Statement of Consistency, [22] a Material Contravention Statement, [23] a Transportation Assessment Report, a Childcare Demand Assessment and a Statement of Response. [24] Notably, the Statement of Response clearly identifies, as a "key change" in the proposal from that envisaged in the pre-application consultation, a "Change in residential typology from 'build-to-rent' to 'standard' residential".

 

 

10.               In response, Coolkill, by professional planning consultants, made observations opposing the Proposed Development on various grounds [25] - as did An Taisce. [26]

 

 

11.               The Chief Executive of DLRCC, by report dated 22 June 2022, [27] ("the CE Report") recorded a generally negative view of the proposal by DLRCC's elected members. While the report "welcomes the redevelopment of this underutilised infill site", it raised concerns about, inter alia, over-development, excessive density given relatively poor present access to high quality public transport, separation distances between blocks, and the absence of a creche given relative lack of proximity to available creche spaces. The report recommended refusal of the development "as is".

 

 

12.               However, it recommended approval on the basis of changes including a reduction to 109 units at a density of 131 units/ha and a revised layout to include removal of part of Block A and reconfiguration of Blocks B and C from an "L" shape to a rectangular shape (to increase separation distances between blocks), and conditions including a requirement to include a creche. Subject to these amendments, the Chief Executive considered that the proposal would be acceptable:

·         In its provision of amenity to its future residents;

·         Though the residents of existing dwellings in the immediate vicinity would experience a notable change in outlook and sense of privacy. As amended, the proposal would not adversely impact on the residential amenity of adjacent properties or the area by overshadowing, overlooking or overbearing appearance;

·         As in accordance with the proper planning and sustainable development of the area.

 

 

13.               Following Site visits [28] the Board's Inspector, by 138-page report dated 15 May 2023, recommended that permission be granted subject to reduction to 129 units at a density of 156 units/ha and that EIA be screened out. The Board generally adopted the Inspector's Report and granted permission by Direction dated 8 October 2023 and Order dated 9 August 2023. But it differed from the Inspector in some specific respects. By Condition #2 of its Decision it required:

·         Height reduction by omission of the second floor of Blocks C and D. Its Direction records that removal of an intermediate floor would retain the visual interest of the proposed roof profile;

·         Omission of the part three- and part four-storey northern element of Block A; and

·         Amalgamation of certain units to form three-bedroom units. [29]

Thus, the Board permitted 116 units only - at a density of 140 units/ha. Condition #13 required 340 bike spaces and Condition #14 required that at least 10% of car spaces have electric charging points.

 

 

14.               The proceedings issued on 3 October 2023. Leave to seek judicial review was granted on 16 October 2023.

 

 

GROUND 1 - MATERIAL CONTRAVENTION - DENSITY - INTERMEDIATE URBAN LOCATION

 

Core Ground 1 [30]

 

15.               Coolkill pleads that

 

"The impugned decision materially contravenes the Density requirements of the CDP

and/or the Board erred and/or misinterpreted the Apartment Guidelines [31]

in concluding that the Site was in an intermediate urban location relating to density

and/or gave inadequate reasons for such conclusion

and/or relied on irrelevant considerations in concluding that the density of the proposed development was in compliance with/not a material contravention of the CDP as to density

and/or the Board's decision contains material errors of law and fact."

 

 

16.               In essence, [32] Coolkill says that

·         The CDP §12.3.3.2 as to residential density incorporated the Apartment Guidelines.

·         The Guidelines state the criteria by which a site can be identified as an "Intermediate Urban Location".

·         The Site does not satisfy those criteria.

·         While the Guidelines criteria are non-exhaustive:

o   If they are not satisfied, satisfaction of other planning criteria is needed to justify finding an Intermediate Urban Location; and

o   the Board incorrectly invoke the very failures to comply with the criteria as the reason for disapplying them and finding the Site to be an Intermediate Urban Location.

·         There are no such other factors, the Board did no local assessment and any reasons given are inadequate to justify finding the Site to be an Intermediate Urban Location.

 

 

 

CDP §12.3.3.2 & PHP18 and Apartment Guidelines §2 [33]

 

17.               The CDP, as relevant, states as follows

 

"12.3.3.2             Residential Density

In general, the number of dwellings (houses or apartments) to be provided on a site should be

determined with reference to the Government Guidelines document [34]:

§  'Sustainable Residential Development in Urban Areas - Guidelines for Planning Authorities' (2009).

§  Sustainable Urban Housing: Design Standards for New Apartments - Guidelines for Planning Authorities (2020). [35]

As a general principle, and on the grounds of sustainability, the objective is to optimise the density of development in response to type of site, location, and accessibility to public transport. (See policy PHP18, Chapter 4)."

 

"4.3.1.1                Policy Objective PHP18: Residential Density

It is a Policy Objective to:

§  Increase housing (houses and apartments) supply and promote compact urban growth through the consolidation and re-intensification of infill/brownfield sites having regard to proximity and accessibility considerations, and development management criteria set out in Chapter 12.

§  Encourage higher residential densities provided that proposals provide for high quality design and ensure a balance between the protection of existing residential amenities and the established character of the surrounding area, with the need to provide for high quality sustainable residential development.

 

Density plays an important role in ensuring that the best use is made of land intended for residential

development. The Development Plan seeks to maximise the use of zoned and serviced residential

land. Consolidation through sustainable higher densities allows for a more compact urban growth

that, in turn, more readily supports an integrated public transport system. This together with the

'10-minute' neighbourhood concept, has the potential to reduce the urban and carbon footprint

of the County. The 'Sustainable Residential Development in Urban Areas' Guidelines and the accompanying 'Urban Design Manual' include recommendations regarding appropriate densities for various types of locations. Having regard to the Guidelines and consistent with RPO 3.3 and 4.3 in the RSES:

§  Where a site is located within circa 1 kilometre pedestrian catchment / 10 minute walking time of a rail station, Luas line, Core/Quality Bus Corridor and/or 500 metres / 5 minute walking time of a Bus Priority Route, and/or 1 kilometre / 10 minute walking time of a Town or District Centre, higher densities at a minimum of 50 units per hectare (net density [36]) will be encouraged."

 

 

18.               The CDP Core Strategy Map, [37] when cross-referenced to the other maps to hand, clearly shows the Site as within the urban area of DLR - the Development Plan Area. Of some note, CDP §12.3.5.1, albeit addressing an issue of dual aspect apartments, states that "in accordance with" the Apartment Guidelines [38] "DLR as a County is classified as a suburban or intermediate location".

 

 

19.               The Apartment Guidelines 2020, as relevant, state as follows:

 

"2.0        Apartments and Statutory Development Plans

Location

2.1         To meet housing demand in Ireland, it is necessary to significantly increase supply. This is a key pillar of the overarching Rebuilding Ireland Housing Action Plan. The National Planning Framework targets increased housing supply in Ireland's cities and urban areas in particular ... increased housing supply must include a dramatic increase in the provision of apartment development.

...

2.4          Identification of the types of location in cities and towns that may be suitable for apartment development, will be subject to local determination by the planning authority, having regard to the following broad description of proximity and accessibility considerations:

 

1)            Central and/or Accessible Urban Locations

Such locations are generally suitable for small- to large-scale (will vary subject to location) and higher density development (will also vary), that may wholly comprise apartments, including: ...

 

§  Sites within walking distance (i.e. up to 15 minutes or 1,000-1,500m), of principal city centres, or significant employment locations, that may include hospitals and third-level institutions;

§  Sites within reasonable walking distance (i.e. up to 10 minutes or 800-1,000m) to/from high capacity urban public transport stops (such as DART or Luas); and

§  Sites within easy walking distance (i.e. up to 5 minutes or 400-500m) to/from high frequency (i.e. min 10 minute peak hour frequency) urban bus services.

 

2)            Intermediate Urban Locations

Such locations are generally suitable for smaller-scale (will vary subject to location), higher density development that may wholly comprise apartments, or alternatively, medium-high density residential development of any scale that includes apartments to some extent (will also vary, but broadly >45 dwellings per hectare net), including:

§  Sites within or close to i.e. within reasonable walking distance (i.e. up to 10 minutes or 800-1,000m), of principal town or suburban centres or employment locations, that may include hospitals and third level institutions;

§  Sites within walking distance (i.e. between 10-15 minutes or 1,000-1,500m) of high capacity urban public transport stops (such as DART, commuter rail or Luas) or within reasonable walking distance (i.e. between 5-10 minutes or up to 1,000m) of high frequency (i.e. min 10 minute peak hour frequency) urban bus services or where such services can be provided;

§  Sites within easy walking distance (i.e. up to 5 minutes or 400-500m) of reasonably frequent (min 15 minute peak hour frequency) urban bus services.

The range of locations is not exhaustive and will require local assessment that further considers these and other relevant planning factors.

 

3)            Peripheral and/or Less Accessible Urban Locations

Such locations are generally suitable for limited, very small-scale (will vary subject to location), higher density development that may wholly comprise apartments, or residential development of any scale that will include a minority of apartments at low-medium densities (will also vary, but broadly <45 dwellings per hectare net), including:

§  Sites in suburban development areas that do not meet proximity or accessibility criteria;

...

The range of locations outlined above is not exhaustive and will require local assessment that further considers these and other relevant planning factors."

 

 

 

G1 - Inspector's Report

 

§7, 8 & 9 - DLRCC, Objectors & An Taisce

 

20.               The Inspector notes the views expressed in the CE Report, [39] by DLRCC members, objectors (including Coolkill) and An Taisce, that the Proposed Development density is excessive and would overdevelop the Site given:

·         That, per the Apartment Guidelines, the Site is not an Intermediate Urban Location but is a Peripheral and/or Less Accessible Urban Location (accordingly, her report is to be interpreted as responding to that dispute);

·         Distance to public transport;

·         Insufficient existing and planned public transport in the area - the Luas is at capacity;

·         That numerous SHD permissions remain to be built, such that there may be Luas capacity problems;

·         That the development will be car-dependent and that the roads are inadequate for those cars; and

·         Densities permitted on nearby/similar sites. [40]

 

 

 

§10.3     Residential Density

 

21.               The Inspector, having inter alia inspected the site and given her knowledge of the area, notes:

a.         CDP objective PHP18 [41] and §12.3.3.2 [42] - to encourage higher residential densities, subject to qualitative criteria, to promote compact urban growth in line with national planning policy;

b.         Objections of excessive density and overdevelopment out of keeping with the established character of the area and to the detriment of local amenities;

c.          That the accuracy of the proposed density at 165 units/ha is disputed - but she accepts it;

d.         The Sustainable Urban Residential Guidelines as to density recommendations and to the effect that, as to infill residential development in established residential areas, a balance must be struck between the reasonable protection of the amenities and privacy of adjoining dwellings, the protection of established character and the need to provide residential infill;

e.         Midsal's submission that:

§  the Site is in an 'intermediate' location within the meaning of the Apartment Guidelines given it is near the M50, and about 1.5km from the Beacon Hospital, 2.5km from Dundrum Town Centre and 2km (a 9 minute cycle) from Glencairn Luas stop, and

§  the Apartment Guidelines identify such locations are suitable for smaller scale, higher density developments - with no maximum density set;

f.           Objectors' submissions that the Site is in has a 'Peripheral and/or Less Accessible' Urban Location within the meaning of the Apartment Guidelines due to limited public transport in the area;

g.         That the Site is circa 2km - a circa 20-minute walk or 7-minute cycle [43] by cycle lane - from Sandyford business district - a major employment centre;

h.         That the Sandyford Road is served by several bus routes, with a stop adjacent the Site, and nearby stops in Sandyford village. The submitted Bus/Luas Capacity Assessment Report details existing bus services, which, combined, provide a maximum frequency of 20-30 minutes to and from the city centre in peak hours and have available capacity to cater for demand likely to be generated by the development;

i.           The Apartment Guidelines description [44] of Intermediate Urban Locations, states that it is explicitly not exhaustive and that further local assessment of listed and other relevant planning factors will be required;

j.           Objectors are correct that a similar SHD density was refused permission nearby at Lamb's Cross. [45] But it was refused for site/design specific reasons - not for density reasons and the Inspector's Report on that file states no objection on density grounds;

k.          The CE Report to the effect that the proposed density of circa 165 units/ha is excessive but recommending development at circa 131 units/ha.

 

 

22.               In those lights, the Inspector's assessment is that the Site does not "exactly" meet the Apartment Guideline parameters. But noting that they are not exhaustive and that local assessment of those and other relevant planning factors is required, she considers the Site generally within an Intermediate Urban Area given (i) its proximity to a major employment centre at Sandyford and (ii) the adjacent bus stop served by several bus routes. She adds that she later discusses transport issues and examines Midsal's Bus/Luas Capacity Assessment Report [46] "which demonstrates that existing public transport services in the area have capacity to cater for demand likely to be generated by the development." The Site's immediate context is characterised by traditional low-rise housing on large plots and it is relatively close to shops and services at Lamb's Cross and Sandyford village. She acknowledges that the proposed quantum of development is significantly higher than existing and approved developments nearby. But she nonetheless considers that the proposed scheme:

o   On zoned and serviced lands in an urban area, should be viewed in the changing context of the wider environs - including high density developments in the south-western fringe of Dublin;

o   As to quantum of development, accords with national policy to increase residential densities to support the consolidation of the urban environment.

 

 

23.               However, having regard to the transitional nature of the Site, the Inspector had some concerns at the overall height of the scheme and so recommended omission of 8 units [47] reducing density to 156 units/ha. As has been seen, the Board excised 21 units [48] reducing density to 140 units/ha.

 

 

 

§10.9     Movement & Transport

 

24.               As public transport is highly relevant to the classification of the site as an Intermediate urban location and as that classification is disputed and highly relevant the density issue and as the Inspector at §10.3 and as cited above, invoked in her analysis of those issues her later analysis of the public transport position, I note that in that regard she performed a detailed review. Inter alia, she noted:

·         The objections that there is limited public transport provision in the area, that the Site is therefore relatively inaccessible and so that it is unsuited to higher density residential development; and  

·         Midsal's Transportation Assessment and preliminary Mobility Management Plan (MMP) and Bus/Luas Capacity Assessment Report - providing details of existing sustainable transport options in the area. She sets out the detail - including the distances to services described above and that:

o   the 'worst case scenario' additional demand created by the development, of circa 16 bus seats during the 7-9am commuter peak, would be circa 2.5% of the existing total available capacity of circa 636 bus seats;

o   an April 2022 survey of the existing #44, #44B and #114 bus services found over 50% spare capacity in AM and PM peak periods;

o   bus service improvements are expected in the BusConnects project;

o   Luas Green Line services have recently been upgraded to increase overall capacity by 30%. The development will create an additional Luas demand of 0.4% of that capacity.

 

 

 

G1 - Coolkill's Particulars & Position

 

25.               Coolkill pleads the CDP provisions set out above as to densities, including the Apartment Guidelines and the CDP Policy Objective [49] to: "Plan for communities in accordance with the aims, objectives and principles of" the Sustainable Urban Residential Development Guidelines and its accompanying Urban Design Manual. [50] Coolkill pleads that Midsal's position was that the Site was an Intermediate Urban Location for the purposes of the Apartment Guidelines [51] and as follows:

 

"As noted in the Apartment Guidelines, 2020, 'the range of locations is not exhaustive and will require local assessment that further considers these and other relevant planning factors'.

 

... the subject site is within the administrative area of the Section 49 LUAS Development Contribution Scheme and is thus reasonably considered to be within the catchment area of the LUAS Green Line. The site is in proximity to the Glencairn Luas Stop which is c. 1.9 kilometres (c. 20 - 25 minute walk or c. 7 minute cycle from the site), which connects the area to the city centre.

 

The subject site is also located c. 1.5 kilometres to Beacon Hospital and c. 1.6 - c. 2 kilometres to Sandyford Business Park, a significant employment district area containing over 500 No. companies. In addition, the closest Dublin Bus stop offers routes No. 44 and 44B from the Sandyford Road towards the City Centre and south towards Enniskerry. GoAhead Ireland Bus route No. 114 towards Rockview and Blackrock DART Station serves Sandyford Road at Bus Stop. 6006/6007 (a c. 2-minute walk, c. 150 - 200 metres away from the subject site).

 

Having regard to the site's location within the catchment area of the Section 49 LUAS Development Contribution Scheme, the proximate Glencairn and Sandyford Luas stops, and existing bus stops, it is our professional planning opinion that the subject site can be considered an Intermediate Urban Location. The subject development has therefore been designed with increased building height and density in accordance with national level guidance." [52]

 

 

26.               Coolkill pleads to Midsal's said position as follows:

 

a.         The Site is

§  2km from and about a 24-minute walk to the Glencairn Luas Stop (as compared to the requisite "10 to 15 minutes" or "1,000-1,500m").

§  About a 20-minute walk to the Beacon Hospital and about a 30-minute walk to the middle of Sandyford Business Park (greatly in excess of the requisite "up to 10 minutes").

Therefore the Site does not meet either of the first two Apartment Guidelines criteria for an Intermediate Urban Location.

 

b.         Midsal's Transportation Assessment [53]

§  Confirms that the Site does not meet the third criterion as to distance from an urban bus service. [54] It states: "The site is clearly very accessible to the existing Bus Stops on Sandyford Road which are served by frequent Bus Services, which provide a beneficial link to Balally LUAS. The combination of these services provide a maximum frequency of 20-30 minutes to and from the city during peak commuter periods, with easy bus accessibility to/from the City Centre";

§  Incorrectly states that "Radial Routes 86, 87 and 88 will go along the Sandyford Road under the Bus Connects plan." In fact, the new Route 86 (every 30 minutes) will not go towards Dundrum or the city centre but goes back through Sandyford Village and via the Beacon to UCD, and the 87 and 88 (every 60 minutes) will replace the 44 and 44B.

 

c.          An Taisce submitted that public transport provision to the Site is very poor: that Midsal's Transportation Assessment [55]

 

"... shows that this part of Sandyford Road is served by the 44B bus route which runs from Glencullen to Dundrum Luas Stop and the 114-bus route which runs from Ticknock to Blackrock via Sandyford Luas Stop. As shown in Appendix A5, the 44b bus operates 5 times per day on weekdays, with no service on Saturday or Sunday. The 114 bus provides 17 services per day on Weekdays, with 1 service per hour on Saturdays and Sundays. Sandyford Village is also served by the 44 bus which runs between Enniskerry and DCU, through the City Centre. As shown in Appendix A, the 44 bus operates about once per hour."

 

d.         Members of the public and DLRCC Members observed [56] the insufficiency of public transport and that the Luas was at capacity and the CE Report [57] identified the Site's "relatively poor access to high quality public transport".

 

e.         The Site therefore meets none of the three Apartment Guidelines criteria for constituting an Intermediate Urban Location.

 

f.           Midsal's submission shows the Proposed Development as a complete outlier, in terms of the density proposed and the distance from quality public transport, compared to all other similar schemes in the vicinity. The Board refused the only similar scheme of similar density and distance from public transport (Fitzsimons Wood SHD).

 

 

27.               Coolkill further pleads that:

 

a.         The Board erred in law in concluding that the Site was an Intermediate Urban Location for the purposes of the Apartment Guidelines. It is completely wrong to say that it does not "exactly" satisfy the relevant requirements. In fact, it is not even remotely close to satisfying any of the criteria - it is 1.6km and a 20-minute walk from an employment location (rather than 800-1000m and a 10-minute walk), 2km and a 24 minute walk from the Luas (rather than 1000-1500m or 10-15 minutes), nowhere close to high frequency urban bus services, and served only by infrequent buses.

 

b.         The Inspector cannot conclude that the Site is an Intermediate Urban Location by reference to two factors identified in the Apartment Guidelines which the Site clearly does not satisfy. [58] This is a misinterpretation of the Guidelines and/or is irrational. While "The range of locations is not exhaustive and will require local assessment that further considers these and other relevant planning factors' there must actually be such additional planning factors.

 

c.          The only other factor cited by the Inspector is that existing public transport services in the area have capacity to cater for demand likely to be generated by the development." This is not correct. §3.4 of the Transportation Assessment is clear that no capacity assessment of either the bus or the LUAS was done and there is no evidence that the entirely inadequate bus provision and (three buses to the City Centre between 7am and 9am) and the LUAS (2km away) have capacity or will have capacity once the very significant developments in the Sandyford SUFP/Cherrywood SDZ have been completed.

 

d.         The Inspector does not explain how submissions, including by DLRCC members as to lack of existing capacity, are addressed.

 

e.         It is absolutely clear that the Site is a Peripheral Urban Location - outside the M50 and remote from employment locations. The Board's error in law in considering it an Intermediate Urban Location led it to not assess density on the correct basis that less than 45uph was appropriate. The Board granted permission on a flawed understanding of the Apartment Guidelines and its conclusion is vitiated by erroneous reasons.

 

f.           Further, this is a material contravention of §12.3.3.2 CDP which requires that density be generally determined with reference to the Apartment Guidelines. This material contravention was not identified in Midsal's Statement of Material Contravention and permission was not granted pursuant to s.37(2)(b) PDA 2000.

                 

 

28.               Coolkill submits that what is at issue here as to the identification of Intermediate Urban Locations are "simple, straightforward and mathematical" criteria which, as with the parking space requirement at issue in Clane, [59] confer no planning judgement on the decision-maker as to their application.

 

 

29.               Evidentially, Coolkill points out that:

·         The DLRCC members and the CE Report cite the inadequacy of public transport serving the Site.

·         By reference to the data set out in Midsal's Statement of Consistency [60] and what it considers the Apartment Guidelines minimum and specific criteria for an Intermediate Urban Location, the Site is 50% or 87% too far from Sandyford Business District and 66% or 100% too far from the Luas. [61]

·         Coolkill similarly considers the bus service inadequate by those criteria.

 

 

 

G1 - Board's Position

 

30.               Beyond traverses and repeating text of the relevant documents, the Board pleads and submits that

 

a.         No question of material contravention of CDP §12.3.2.2 arises as it is background text and not a CDP objective.

 

b.         In essence, Coolkill asserts that the Board 'got it wrong' in concluding that the Site was in an Intermediate Urban Location. Even if the Board 'got it wrong', that is not legal error.

 

c.          Coolkill has not pleaded how the Board misinterpreted the Apartment Guidelines. The Inspector correctly interpreted the CDP and Apartment Guidelines.

 

d.         The CDP and Apartment Guidelines allow appreciable flexibility, discretion and/or planning judgement in their application.

 

e.         CDP §12.3.3.2 cites Policy Objective PHP18 (as to increasing housing supply and densities to promote compact urban growth [62]) which incorporates additional flexibility in that that "as a general principle... the objective is to optimise the density of development...".

§  I observe that, as to flexibility, one may also cite the exercise of judgement required by PHP18's invocation of the need to balance protection of existing residential amenities and the established character of the surrounding area, with the need to provide for high quality sustainable residential development.

 

f.           Given that flexibility, discretion and/or planning judgement, the applicable standard of judicial review is highly deferential.

 

g.         There was ample material before the Board to allow it to locate the Site as Intermediate Urban per the Apartment Guidelines.

 

h.         The Inspector's conclusion that the Site is generally within an Intermediate Urban Location was correct and lawful. It was based on a local assessment and consideration of other relevant planning factors - citing §§10.3.1 - 10.3.7 and §10.9.1 - 10.9.6 of the Inspector's Report.

 

i.           Even on non-deferential review, the Inspector's reasoning that the Site is generally within an Intermediate Urban Location was correct.

o   As to buses:

§  a Bus/Luas Capacity Assessment Report was submitted - contrary to Coolkill's plea;

§  8 buses now pass near the Site in the 7-9am peak - equal to the frequency set out in the third bullet of the Apartment Guidelines §2.4(2); [63]

§  BusConnects will provide 10 buses in the 7-9am peak (one every 12 minutes); [64]

§  bus stops are at 150-200m, 550m, and 600m from the Site; [65]

§  This generally complies with the third bullet point of the Apartment Guidelines §2.4(2) and/or does so on the "ballpark" principle.

o   Independently, the reasoning was also based on local assessment and consideration of other relevant planning factors, as envisaged by the Apartment Guidelines. It included cycling infrastructure in the vicinity; cycle distances to employment locations, business districts and Glencairn Luas stop; capacity of buses and trams serving the area; [66] the general requirement for higher density development, particularly in infill sites close to public transport links and employment centres, as reflected in inter alia Policy PHP18; and the changing context of the wider environs, which include high density developments at various locations in the south western fringe of Dublin. [67]

 

 

31.               The Board pleads also that Coolkill failed, in breach of Order 84 Rule 20(3) RSC, [68] to give particulars of its plea in Core Ground 1 that the Board had regard to irrelevant considerations in finding the Site an Intermediate Urban Location. The pleaded considerations [69] to which the Inspector had regard were relevant.

 

 

32.               While traversing Ground 1 as to reasons, the Board pleads also that Coolkill's plea that the conclusion that the Site in an Intermediate Urban Area is vitiated by "erroneous reasons", is not a plea of legal error which can ground relief.

 

 

 


G1 - Discussion & Decision

 

Is Material Contravention of CDP §12.3.3.2 Possible?

 

33.               I reject the Board's plea that no question of material contravention of CDP §12.3.3.2 arises as it is background text and not a CDP objective. The Board cited no relevant authority. S.10 PDA 2000 requires that Development Plans contain "objectives". Whether particular content of a Development Plan is or is not an objective is a matter of interpretation on XJS principles [70] and is a matter of substance not of form. Labels are not decisive - Highland Residents. [71] Given s.10, it is striking that, in its regulation of material contravention issues, the PDA repeatedly uses the phrase "would contravene materially the development plan" [72] - not "would contravene materially an objective of the development plan". In my view, issues of material contravention raise the question not whether the plan content at issue is or is not an "objective" but whether the relevant content, on a proper interpretation in its context, is sufficiently prescriptive that a contravention of it can be sensibly discerned. In my view and thus considered, CDP §12.3.3.2 is capable, at least in principle, of being materially contravened.

 

 

 

Murphy & Graymount

 

34.               There is a dispute whether the Development Plan, on a proper interpretation, incorporated the Apartment Guidelines. Assuming it did, the resulting question, central to determination of ground 1, is whether the Inspector was entitled to consider the Site to be an Intermediate Urban Location within the meaning of the Apartment Guidelines. Two illuminating judicial decisions assist.

 

 

35.               Mr Murphy [73] sought to quash a permission for an SHD of 299 units - duplexes and apartments - inter alia for failure by the Board to recognise a material contravention as to density of the DLRCC Development Plan 2016 and/or misinterpretation of the Apartment Guidelines. As to the latter, the Board had found the site to be an intermediate urban site rather than a peripheral and/or less accessible site. Farrell J considered an argument as to car parking provision in which the same question as in the present case of identification of an Intermediate Urban Location arose. She noted [74] that (as has been seen above) the Guidelines at §2.4 provide that the range of locations specified are not exhaustive and for local assessment. Having recited the Guidelines' description of Intermediate Urban Locations and having noted the site-specific factors considered by the Inspector, she said:

 

"Having carried out a local assessment, the Inspector found ... that the location could be considered as an intermediate urban location in light of the public transport accessibility of the site and proximity to Deansgrange centre. In considering the site to be an intermediate urban location, the Inspector relied on the proximity of the site to each of the three amenities specified at para. 2.4 of the Apartment Guidelines, although the site is roughly twice the walking distances specified therein." [75]

 

She continued:

 

"The fact that the proposed development does not meet each of the factors does not preclude the Board from considering the proximity of the proposed development to public transport and/or an urban centre either cumulatively or together with other relevant planning factors. Therefore, I reject the contention that the site cannot be regarded as an intermediate urban location on the basis that none of the criteria in para. 2.4 are met, and that no entirely new or distinct planning matters were considered by the Inspector." [76]

 

 

36.               As in the present case, the question of identification of the Site as an Intermediate Urban Location also arose in Murphy as to an issue of density. Farrell J noted [77] that Mr Murphy, for various reasons, impugned the permission "by reason of the Inspector's finding that the site did not "conform exactly" with the description of intermediate urban locations under the Apartment Guidelines, yet she treated it as an intermediate urban location." Farrell J repeated her earlier finding in this regard and continued:

 

"... the Board is entitled to exercise planning judgement in classifying the type of location of the site of the proposed development having regard to para. 2.4 of the Apartment Guidelines. I am satisfied that it was open to the Inspector to rely on the three factors cumulatively, in carrying out her own local assessment of the site characteristics, with a view to assessing whether the site is an intermediate urban location rather than a peripheral or less accessible urban location, and that this is what was in fact done."

 

 

37.               In Graymount, [78] Barr J, as to an excessive density challenge, considered the Apartment Guidelines including the text cited above to the effect that "The range of locations is not exhaustive and will require local assessment that further considers these and other relevant planning factors." He considered that the Guidelines were "designed to be somewhat general in nature. They afford the planning authorities a wide margin of discretion in relation to the density to be applied in any particular development, having regard to local factors." He considered it clear from his report that the Inspector had looked at the issue of density

 

"... with some care. He came to the conclusion that the particular development in question, did not neatly fall within any one of the designated areas where higher density was deemed appropriate. However, it shared the characteristics of a number of such places in certain regards ... . [79]

... the Inspector had regard to the proposed development and to its place within the community generally, in terms of its closeness to a relatively frequent bus service and its proximity to Howth DART Station. ... in considering the guidelines, a level of latitude was given to the Inspector, within which he was called upon to exercise his planning judgment. ... in carrying out the analysis that he did of this issue, he applied his judgment in a reasonable and logical fashion.

 

... the Inspector approached this issue in a logical and sensible manner, having regard to the fact that the development shared a number of characteristics of various areas where it was appropriate to allow a higher density; ...".

 

 

 

Observations

 

38.               Leaving aside the question of the extent, manner or effect of the incorporation of the Apartment Guidelines in the CDP by §12.3.3.2 thereof, it seems to me that:

 

a.         Coolkill is only partly correct in saying that this issue boils down to the correct interpretation of the CDP and, by incorporation, the Guidelines, which interpretation is a matter for the Court in respect of which no deference is owed - citing Spencer Place. [80] The interpretation of the CDP and the Guidelines is a matter for me and no deference is owed on that issue. But this issue does not "boil down" merely to an issue of their interpretation. If, on a correct interpretation, the CDP and the Guidelines afford scope to the decision-maker for the exercise of discretion and judgement in their application to the facts and circumstances of the planning application and in the decision thereof, that decision is reviewable as to merit, as to the application of the CDP and the Guidelines, only for irrationality - Sherwin and Jennings. [81]

 

b.         In identifying locations "suitable for apartment development" in the three categories of "Urban Location" - "Central and/or Accessible", "Intermediate" and "Peripheral and/or Less Accessible", the Guidelines, in their:

§  use of the phrases "having regard to", "the following broad description of proximity and accessibility considerations" and "The range of locations is not exhaustive";

§  introduction of the listed types of each category of "Urban Location" with the word "including"; and

§  requirement of "local assessment that further considers these and other relevant planning factors";

make it apparent that no definition of the three categories is attempted. Rather, what is provided is a description.

 

c.          I unreservedly accept authorities such as O'Donnell and Murphy [82] to the effect that that the word "generally" and like words are not carte blanche to permit exceptions to eviscerate a norm or deprive quantified parameters of meaning - Ballyboden TTG (Shannon). [83] But here the text goes well beyond the mere use of words such as "generally" or "normally" and the limited flexibility they confer. Rather, what the Apartment Guidelines provide are descriptive indicators and examples - albeit in the case of the three listed types of "Intermediate Urban Location" of a specific quantified, but explicitly non-exclusive, sort. Contrary to Coolkill's submission, this is simply not an instance, such as that at issue in Clane, [84] in which the CDP set "simple, straightforward and mathematical" criteria which conferred no planning judgement.

 

d.         It follows that, in interpreting the Guidelines on XJS principles as if by an intelligent, informed layperson, emphasis must be placed on the ordinary meanings of the descriptors of the three categories of what are all "Urban Locations" - i.e. "Central and/or Accessible", "Intermediate" and "Peripheral and/or Less Accessible" and the comparison and contrasting of those descriptors as describing a spectrum of locations such that the divisors between the categories are not red lines but are matters of judgement.

 

e.         It further follows that the application of those descriptors to particular sites involves the exercise of appreciable planning judgement. Murphy and Graymount are clear to that effect. That implies local and multifactorial overall assessment of a site and its environs. In my view, the Inspector in the present case performed such an assessment.

 

f.           In that light, Coolkill's assertion that "There is no "ballpark" principle in the Guidelines and the parameters are 'hard-edged' as otherwise such parameters are meaningless" is correct only in the limited sense that falling within the three bullet-points of CDP §2.4 as to Intermediate Urban Location will deem a site to be such a location. But as the bullet-points are explicitly non-exclusionary and local and multifactorial overall assessment of a site and its environs may deem sites not falling within the bullet points to be, nonetheless, Intermediate Urban Locations, Coolkill's point does not avail them.

 

g.         That local and multifactorial overall assessment is to be made in the context of a policy which identifies the need to significantly increase housing supply, including a dramatic increase in apartment development, as a key pillar of the overarching Housing Action Plan and the National Planning Framework.

 

h.         The Board is correct in asserting that, read in context, the CDP objectives to "optimise the density of development" and "maximise the use of zoned and serviced residential" can be read as an objective, ceteris paribus in terms of proper planning and sustainable development, to maximise the density of development in suitable locations and on suitable sites. However, the full phrase is "optimise the density of development in response to type of site, location, and accessibility to public transport". In other words, depending on local circumstance, the suitability of the locations and sites may facilitate or restrain density.

 

i.           Stripping out the quantification and qualitative descriptions in the Guidelines, the factors identified as relevant to categorisation are those of walking distance to city or town centres, suburban centres and employment locations (including but not limited to hospitals, third level institutions and public transport) ("the walking distance factors"). However, it is clear that:

§  Conformity to any of the quantified and qualitative descriptors will generally suffice to enable categorisation: they are discrete examples, not cumulative requirements;

§  Non-conformity to all may suggest exclusion from the relevant category;

§  Such non-conformity is not necessarily determinative and the listed walking distance factors are not exhaustive of the factors relevant to categorisation.

 

j.           Coolkill's argument that the Guidelines don't refer to cycling distance as a factor relevant to the identification of Intermediate Urban Location is facile. It amounts to an argument that not merely must the Inspector rely on factors other than those identified in CDP §2.4, but those factors must be identified and quantified in the Guidelines. Formally, I see no such requirement. In substance, I see no reason to impose one. It seems to me entirely sensible, if not obvious, that in considering from an overall point of view whether a site is in an Intermediate Urban Location, the now common, and certainly desirable, practice of cycling to a public transport node or an employment area could contribute to a finding. And there was certainly information before the Board to that effect - including accessibility of the Sandyford business district by cycle lane and the Luas by a 9-minute cycle.

 

k.          Coolkill's argument, that national guidelines cannot be relied upon to avoid a finding of material contravention is generally correct but is misplaced here. Certainly, ceteris paribus, such guidelines cannot be relied upon to discount what, by reference to a development plan, would be a material contravention. But here, on a proper interpretation of the CDP, the guidelines are entirely relevant to

§  The prior question whether the site is in an Intermediate Urban Location;

§  Consideration of material contravention of a CDP stipulation which explicitly requires that density [85] on a site determined with reference to Government Guidelines.

 

l.           There was some discussion at trial as to the destinations of the three cited bus routes. Ultimately it was clarified that the #44 goes to the city centre, the #44B connects to the DART and the #114 connects to the Luas.

 

 

 

Application of the Law & Decision

 

39.               I accept the Board's calculations of distances from the Site to relevant employment and transport locations as broadly correct. [86] Inter alia, it illustrates that the Inspector's assertion [87] that the Site does "not exactly" meet the parameters of §2.4 of the Apartment Guidelines for an Intermediate Urban Location was unwise. It merely gave Coolkill a stick with which to beat the Impugned Decision. Better had she omitted the provocative, euphemistic and inaccurate word "exactly". But, more importantly, Coolkill's submissions mischaracterised the §2.4 parameters as "requirements" - which they are not. As I have said they are, albeit specific and quantified, descriptive and explicitly non-exclusive indicators.

 

 

40.               I find it difficult to meaningfully distinguish the arguments made by Coolkill in impugning the designation of the Site as an Intermediate Urban Location from those rejected by Farrell J in Murphy. Notably, she rejected arguments that a site cannot be regarded as an Intermediate Urban Location on the basis:

·         Merely that it does not conform to any of the three examples of Intermediate Urban Location listed in §2.4;

·         Of a cumulative consideration of the walking distance factors listed in §2.4 where it does not conform to the quantification of any those factors in §2.4;

·         Merely that no entirely new or distinct planning matters or factors other than the walking distance factors listed in §2.4 were considered.

 

 

41.               Farrell J was clear that even if an urban site does not conform to any of the three examples of Intermediate Urban Location listed in §2.4 in that it is further than each example envisages from all of city or town centres, suburban centres and employment locations (including but not limited to hospitals, third level institutions and public transport), it might nonetheless be possible, on a conspectus of the material before the Board and on an overall view as a matter of evaluative planning judgement, to conclude that the site was an Intermediate Urban Location. I see no reason to disagree with Farrell J - I share her view. I dismiss Ground 1 for her reasons.

 

 

42.               I should add that Coolkill's effort at trial to pick apart the Inspector's analysis of the facts of public transport provision (as to distance from, frequency, destinations and capacity of buses and the Luas), inter alia by poring over bus timetables, was an attack on the merits of the decision. They raised a factual issue as to bus frequency and capacity which I would resolve in the Board's favour. While they may have fairly criticised the method of the bus capacity survey, the assertions of incapacity, unlike in other cases which have come before this court, went no further than generalised mere assertion. In that context, and in the context also of the great margin for error in Midsal's analysis (which asserted that the Proposed Development demand would represent 0.4% of Luas capacity and that a.m. peak bus services had over 50% spare capacity at bus stops near the Site), Coolkill's assertion of the Inspector's failure to interrogate Midsal's fails to strike home. (I do accept that on other facts, the failure to ask Dublin Bus and other operators for relevant data could be problematic.) [88]

 

 

43.               In any event, the thrust of Coolkill's pleaded case and attack was on the Inspector's analysis of the facts as to public transport as she related them to the question whether the Site is an Intermediate Urban Location - rather than on any dispute of the facts as they related to public transport. Even if the Inspector got her analysis wrong, her error was not material error of fact in the sense required to prompt relief in judicial review and it falls into the category of error identified in Holohan [89] and repeatedly cited since: the court can't quash for irrationality if merely it considers that "the exercise by a decision-maker of a discretion, or a finding as to fact, is simply wrong (or even clearly wrong)". If it did so, the court would "be itself guilty of usurping power".

 

 

44.               I also agree with the Board that a decision is not impugnable for "erroneous reasons" - at least if the plea is that the reasons are erroneous in substance as opposed to inadequate in law. Adequacy of reasons in law turns not on their substantial merit but on the adequacy of their expression in the impugned decision to inform the reader of what, in substance, those reasons were. So, their adequacy has been described as a "logically anterior" issue to that of the substantive adequacy of a decision - such that a finding that a decision was not properly reasoned may render it unnecessary or inappropriate for the court to engage with remaining questions - Oates and Murphy v SIPO. [90] The function of reasons is to adequately inform the reader why the decision was made so that the reader can consider whether the decision was lawful and whether appeal or judicial review should be pursued. If they perform that and certain associated functions, they suffice. [91] One is not entitled to reasons with which one agrees - Connolly. [92] Disagreement with the substance of the reasons given does not, per se, render them unlawful. As to their substance, the legality of a decision turns on legal principles other than those related to adequacy of reasons - for example adequate reasons may disclose irrationality (including disproportionality), material error of fact, failure to consider relevant matters or consideration of irrelevancies. It must be said that these principles may not be entirely absolute - for example in Hickwell [93] reasons for adopting in a development plan an indicative road route were held erroneous on their face in asserting incorrectly that the particular road was an objective of the plan. Perhaps that conclusion could have been drawn on a basis other than inadequacy of reasons. However, egregiously patent error perhaps apart, these principles of the law of reasons are clear and general.

 

 

45.               If, on the other hand, Coolkill's plea here is that the Board's decision is defective in that its reasons are "erroneous" in the sense of being inadequate in law, the plea, of itself not particularised, does not add to the particulars of Ground 1 and serves merely to require a review of those particulars through the prism of adequacy of reasons. Thus viewed, I find the Inspector's reasons entirely adequate: disagree with her or not, one cannot say that she failed to state why she considered the Site an Intermediate Urban Location.

 

 

46.               I see nothing in Coolkill's unparticularised plea of irrelevant considerations: whatever about the adequacy to support the Board's decision of the considerations to which the Inspector had regard, they were not irrelevant.

 

 

47.               For these reasons, Ground 1 must be dismissed.

 

 

 

GROUND 2 - MATERIAL CONTRAVENTION - CDP §12.9.6 - CLIMATE CHANGE

 

 

Core Ground 2 [94]

 

"The impugned decision materially contravenes CDP §12.9.6 as to climate change which the Board could have permitted only once

§  it had been identified in the Statement of Material Contravention; and

§  the Board had satisfied itself that s.37(2)(b) PDA 2000 had been complied with

and/or

the decision was invalid as made on foot of a planning application which failed, in breach of s.8(1)(a)(iv)(II) of the 2016 Act, [95] to identify in its material contravention statement that the application materially contravened CDP §12.9.6."

 

 

48.               It will be seen that the predicate of Ground 2, in both its aspects, is material contravention of CDP §12.9.6.

 

 

 

G2 - CDP §12.9.6

49.               CDP §12.9.6 relates to the content of residential planning applications. It requires that planning applications for developments of 50+ residential units shall, inter alia: [96]

·         Include "A Construction Management Plan that includes the following elements (which can be standalone documents):

                        i.      A Construction Waste Management Plan.

                      ii.      A Construction Environmental Management Plan.

                    iii.      A Construction Traffic Management Plan.

·         Include "An Operational Waste Management Plan."

·         "Submit, prior to commencement of development, details of a Sediment and Water Pollution Control Plan in relation to the construction phase of such developments."

·         "Include an assessment of the impacts of climate change on their development and make provision for these impacts - particularly relating to drainage design, waste management, and energy use".

·         Be designed and constructed in accordance with the provisions of the Greater Dublin Strategic Drainage Study ("GDSDS") policy document titled 'New Development'.

·         Include "Sustainable Drainage Systems (SuDS) that balances the impact of urban drainage through the achievement of control of run-off quantity and quality and enhances amenity and habitat."

 

 

 

G2 - Particulars

 

50.               The essence of Coolkill's plea is that:

·         The assessment and provision required by CDP §12.9.6 relates to impacts of climate change on the development as opposed to impacts of the development on climate change. [97]

·         Midsal's SHD planning application failed to include the required assessment of, and provision for, the impacts of climate change on the development.

·         Midsal's CEMP [98] does not include such an assessment and provision. It does not even mention climate change - much less its effect on the Proposed Development.

·         The Impugned Decision is therefore invalid as it was taken on foot of a planning application which was a material contravention of CDP §12.9.6 such that the Board could validly have granted permission only if

o   that material contravention had been identified in the Statement of Material Contravention and by the Board, and

o   the Board satisfied itself that the requirements of s.37(2)(b) PDA 2000 had been met.

·         Neither criterion was satisfied.

 

 

 

G2 - Opposition

 

51.               Importantly, the Board traverses the assertion of material contravention and, specifically, that any contravention is material. Beyond traverses, it pleads that

 

a.         No question of material contravention of CDP §12.9.6 arises as it is background text and not a CDP objective.

 

b.         Ss.8(1)(a)(iv)(II) and 9(6)(c) of the 2016 Act, in terms, apply only where the proposed development, as opposed to the planning application, materially contravenes the development plan.

 

c.          Midsal complied with CDP §12.9.6. The Board relies on Midsal's Engineering Services Report, and also its CEMP, Resource Waste Management Plan ("RWMP"), Operational Waste Management Plan, Sustainability Report, Environmental Impact Assessment Screening Report, Ecological Impact Assessment Report, Flood Risk Assessment, Aboricultural Report, Building Life Cycle Report and Landscaping Plans.

 

d.         The Inspector:

§  Noted [99] that the Engineering Services Report detailed the proposed SuDS [100] surface water drainage system - which allowed a 20% climate change factor. [101] The Board pleads that it was not suggested in submissions to the Board, and there is no evidence before the Court to suggest, that this was inadequate provision for the effects of climate change on the Proposed Development;

§  Noted [102] that the Ecological Impact Assessment Report, the Engineering Services Report, and the Outline Construction Management Plan detailed measures, standard in urban construction, to prevent potential pollutants exiting the site during construction and operation (in respect of SuDs), including surface water management, material storage, waste management and other environmental management measures;

§  Was satisfied [103] that implementation and monitoring of the CEMP proposals (inter alia as to waste management) for the excavation and construction phases of the development would prevent significant adverse impacts on residential amenities;

§  Was generally satisfied [104] with Midsal's Sustainability Report, Building Lifecycle Report, and Property Management Strategy Report, which gave details of the materials, energy efficiency measures and ongoing management of the development.

 

e.         As the pleaded climate change argument was not made to the Board, Coolkill may not make it in these proceedings.

 

 

 

G2 - Coolkill's Submissions

 

52.               Coolkill characterises as absurd and as lacking statutory basis or authority in the caselaw, the Board's plea that no question of material contravention of CDP §12.9.6 arises as it is background text and not a CDP objective. §12.9.6 is a specific mandatory requirement of the environmental contract with the public constituted in the CDP and is not merely explanatory or background text. It represents an implementation by DLRCC in its CDP of s.15 of the Climate and Low Carbon Development Act 2015. Coolglass [105] is cited.

 

 

53.               Coolkill also impugns as absurd the Board's posited distinction between the planning application and the proposed development, as referred to in ss. 8 and 9 of the 2016 Act, to the effect that only the latter can be in material contravention of the CDP. The permitted development is a modified version of that proposed in the planning application and the absence of the climate impact assessment required by CDP §12.9.6 subsists to the grant of permission. The Board's argument is contra authority [106] in which the 'proposed development' has been identified as the development proposed in the application. Even were there a basis for the Board's distinction, departure from authority would require justification on Worldport [107] principles.

 

 

54.               Coolkill submits that the Board's argument that any contravention is immaterial fails as the Inspector did not so find and the Board does not explain why any contravention is immaterial.

 

 

55.               Coolkill submits that the Board's pleaded reliance indiscriminately [108] on "a melange of 10 documents" (as opposed to the three relied upon by Midsal) where, it says, the assessment might be found:

 

·         Expects Coolkill and the Court to trudge through hundreds of pages to identify the relevant passages of those documents;

 

·         Is flawed as lacking the precision required by Order 84 Rule 22(5) RSC, and as obfuscatory and lacking candour. In this respect Coolkill cites Murtagh and Quark [109] for the "... high duty on public authorities to assist the court with full and accurate explanations of relevant facts"; and

 

·         Does not satisfy the CDP requirement that Midsal provide what Coolkill says must be, if not a standalone document, at least a discrete assessment of and provision for the impacts of climate change on the development. The omission to include such an assessment and provision was a material contravention not identified as such by Midsal or the Board.

 

 

56.               In any event, Coolkill submits, neither the Developer nor the Inspector/Board relied on those documents as compliance with the CPD obligation to supply a climate change assessment - they did not address the issue at all. The Board can't, in judicial review, rewrite its decision by purporting to 'rely' on documents for a purpose for which neither the Developer nor the Board relied on them.

 

 

57.               Further, Coolkill submits, the Board still misunderstands CDP §12.9.6. The Board specifically pleads [110] only the incorporation of a climate change allowance standard in SuDS [111] and pleads that the Inspector [112] noted the various reports and proposed measures but the planning application failed to assess climate change impacts as CDP §12.9.6 requires. And the Property Management Strategy Report doesn't even mention climate change - let alone assess its impacts.

 

 

58.               Finally, Coolkill submits, the Board's plea that, as it did not raise it in submissions to the Board, Coolkill can't raise this material contravention issue now, is "obviously" wrong.

 

 

 

G2 - Board's Submissions

 

59.               Essentially, the Board submits that Coolkill's assertion of unrecognised material contravention of CDP §12.9.6 is without merit as:

 

·         First, the assessment/provision required by CDP §12.9.6 was included in the planning application.

 

·         Second, even if it was not included, that does not render the Proposed Development in material contravention of the CDP; rather, it constitutes a planning application in contravention of the CDP.

 

·         Third, in any event, any contravention of CDP §12.9.6 is not material.

 

·         Fourth, Midsal's planning application did address climate change and the Board considered it.

 

·         Fifth, Coolkill's pleadings identify no substantive climate change impact that should have been but was not considered by the Board and their evidence and submissions do not admissibly do so either.

 

 

60.               In more detail, the Board submits that

 

a.         Coolkill's submissions relate, apparently exclusively, to part only of the quoted text of CDP §12.9.6: i.e. that relevant planning applications shall include "an assessment of the impacts of climate change on their development".

 

b.         Coolkill's case relies on s.8(1)(a)(iv)(II) and s.9(6) of the 2016 Act and 37(2)(b) PDA 2000. All apply where the proposed development materially contravenes the development plan - not where the planning application documents do so.

 

c.          Coolkill's case does not relate to the nature of the development proposed in the application. Rather it relates to alleged failure to include a particular type of assessment in the application. At its height, the case is that the planning application contravenes the CDP. A planning application can't of itself be a material contravention of a development plan within the meaning of s.8(1)(a)(iv)(II) and s.9(6) of the 2016 Act and s.37(2)(b) PDA 2000. So breach of these provisions cannot arise. A flaw in a planning application could give rise to a formal illegality but not a material contravention.

 

d.         The caselaw [113] as to materiality of contraventions confirms that material contravention relates to the nature of the proposed development and not to the contents of application documents. The Board cites Roughan [114] in particular, to the effect that materiality is to be considered

 

"... in the light of the substance of the proposed development; whether or not any change of use would be significant; the location of the proposed development; [115] the planning history of the site or area; and the objectives of the development plan. What is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests. If there are no real or substantial grounds in the context of planning law for opposing the development, then it is unlikely to be a material contravention".

 

e.         None of the Atlantic Diamond [116] and Ballyboden TTG [117] judgments Coolkill cites map onto the present case. In those cases, error of law was found as:

§  SPPR3 [118] of the Building Height Guidelines allowed for material contravention only where §3.2 of the Building Height Guidelines had been met;

§  Information (as to public transport capacity in Ballyboden, and to daylight/sunlight in Atlantic Diamond), required by §3.2 of the Building Height Guidelines to be submitted, was not submitted.

 

(If I understand this point correctly, it is that those cases were concerned, not with the identification of material contraventions but with the circumstances in which, despite such identification permission might nonetheless be permissible. In my view the Board's point here is well-made.)

 

 

G2 - Material Contravention - Climate Change - Discussion

 

61.               Given the predicate identified above, absent material contravention of CDP §12.9.6 Ground 2 fails. Accordingly, the first question for consideration is whether there is a material contravention of CDP §12.9.6.

 

 

 

Materiality of Contravention - Test

 

62.               As has been seen, the Roughan test of materiality of contravention of development plans was urged on me. As was noted in Ballyboden TTG (Ardstone), [119] the Roughan test goes back to 1996 and is long-established via many cases (listed in Jennings [120] as including Byrnes , [121] Maye, [122] and Four Districts [123] - to which list may be added Ballyboden TTG (Shannon) [124]). Consideration of the test of materiality of contravention has tended, understandably in inter partes judicial review and in respect of a planning process characterised by public participation, to focus on the sentence in Roughan which reads "What is material depends upon the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests." This undoubtedly remains a proper focus - often the primary focus.

 

 

63.               But, as intimated in Stapleton, [125] I confess to doubting that the local opposition test now circumscribes, if it was ever intended to circumscribe, the issue of materiality. Since 1996, planning and environmental law, policy and practice, while still characterised by reconciliation of local interests, has become far more strategic. To appreciably greater degree, it reflects national and European as well as local concerns and interests. It is not difficult to conceive of important planning policies the significant contravention of which may provoke little local interest. It might be said, for example, that local interests, at least as they exist at the time of the planning process, are relatively remotely concerned with the vulnerability of a proposed development to climate change and its effect over the medium term on the amenities of future residents of the development - even less so with the effect (inevitably minor in itself) of a proposed development on climate change. Yet, in general terms, it would seem at very least counter-intuitive that, in the context of a "climate emergency" having "profound environmental and societal impact in Ireland" and which is "undoubtedly one of the greatest challenges facing all states" and "without doubt the defining challenge of our generation" - indeed the "single greatest threat facing humanity" [126] - contraventions of development plan requirements as to climate change would be deemed non-material merely for want of actual or likely local opposition. Yet anyone, even from outside the locality, may object in a planning process and thereby has standing in judicial review of any resulting planning decision - even if no locals object to the relevant proposed development and many support it. As planning and environmental law has developed since the last century, I do not think it tenable nowadays to suggest that, in appropriate circumstances, such objectors would necessarily fail, by reference to a "local interests" criterion, to establish material contravention of a CDP provision as to climate change.

 

 

64.               Later in this judgment, the issue of materiality of contravention of bedroom size requirements is considered. Leaving aside the particular facts of this case, it is easy to conceive that such contraventions might in many cases excite, of themselves, little local opposition but have considerable implications for the amenity of future residents. Indeed, circumstances are at least conceivable in which a proposed low-density residential development in contravention of planning policy strongly suggestive of high-density development on the site might receive local support rather than opposition - indeed, support in active opposition to the policy of high density development. At least as a general proposition, I would be reluctant to accept that the materiality of such contraventions would fall to be decided by reference, exclusively, to the likelihood of local objection.

 

 

 

Is Material Contravention of CDP §12.9.6 Even Possible?

Board's Posited Distinctions - "Proposed Development"/ "Planning Application" - "Background Text"/ "Objective"

 

65.               As has been said, the Board's position is that material contravention within s.8(1)(a)(iv)(II) (which requires that the planning application identify any material contravention) and s.9(6) of the 2016 Act and 37(2)(b) PDA 2000 (which together provide for permission despite material contravention) cannot arise as Ground 2 relates to alleged failure to include a particular type of assessment in the planning application and does not relate to the "nature" of the Proposed Development. The Board asserts that even if the planning application here was in breach of the CDP requirement of a climate change assessment, its absence would not place the Proposed Development in material contravention of the CDP. It seems to me that "nature" is the wrong word here. It could be taken as connoting merely very broad categories of development - for example "residential" as compared to "commercial". In my view, the word "substance" better expresses the Board's point at its height. Subject to that amendment, I do not say that the Board's could never be a valid point - depending on the nature of the CDP content allegedly materially contravened. However, here it appears to me clear that CDP §12.9.6 is intended to affect the substance of a proposed development.

 

 

66.               The underlying premise of the assessment and provision required by CDP §12.9.6 is that, in designing a proposed residential development, a planning applicant will have assessed the risks of climate change effects on the proposed development and designed it accordingly. Compliance with the CDP in this respect will, it seems to me inevitably, have either affected the substance of the proposed development or, at very least, have had the potential to do so. Indeed, it is notable that CDP §12.9.6 envisages that potential as to, specifically, residential developments.

 

 

67.               Viewed in this light, the requirement of CDP §12.9.6 that the planning application documents state the position in this regard is not an end in itself and cannot be dismissed as merely an assessment incapable of affecting, and distinct from, the substance of the proposed development. Rather, what is required is a means of ensuring, and allowing the decision-maker and the participating public to verify, first, that the necessary assessment has been done and, second, that provision has been made accordingly in the design of the proposed development. Substance, not form, is what matters as to material contravention of a development plan obligation which could just as easily have been framed in the following or similar terms:

 

"The design of the proposed development shall make adequate provision for impacts of climate change upon it, as subjected to expert assessment - particularly relating to drainage design, waste management, and energy use - and the planning application shall include a description of compliance with this requirement." [127]

 

 

68.               Though the underlying meaning I take from CDP §12.9.6 is discernible as a matter of relatively simple implication from its literal text and on XJS principles, I add that such meaning is entirely in accordance with a purposive consideration of the CDP in light of the importance of climate change issues - the recognition of which was recently reiterated by Humphreys J in an FoIE case [128] and in Coolglass. Response to, including adaptation to, climate change, must be about practical steps not mere statements. That such steps, such as SuDS, may be now predictable and standard in residential developments is not a diminution of the importance of compliance with requirements such as those imposed by CDP §12.9.6 - rather they reflect and are a proper response to the importance of such issues.

 

 

69.               Having found that CDP §12.9.6 does impose a requirement capable of affecting the substance of a proposed development, I reject the Board's plea that no question of material contravention of CDP §12.3.5.2 arises on the basis that it is background text and not a CDP objective. I do so for the essentially same reasons as those I have set out above rejecting the Board's similar plea as to CDP §12.3.3.2. Accordingly, in my view, material contravention of CDP §12.9.6 can arise within the meaning of s.8(1)(a)(iv)(II) and s.9(6) of the 2016 Act and s.37(2)(b) PDA 2000.

 

 

70.               I should add that while the primary purposes of CDP §12.9.6 are to procure the requisite assessment and provision by the developer and to convey their completion to the Board, it also serves the important purpose of enabling the participating public to make submissions to the Board as to the adequacy or otherwise of that assessment and provision.

 

 

 

Form of Compliance with CDP §12.9.6 - Analogy with Waltham Abbey/Pembroke Road

 

71.               CDP §12.9.6 required that Midsal's planning application "Include an assessment of the impacts of climate change on their development and make provision for these impacts". The Board says it did so and has pleaded ten documents in that regard as set out above. Coolkill says that is insufficient and that planning application content is required discretely identifiable as referable to the requirements of CDP §12.9.6.

 

 

72.               The Board relies, [129] by analogy, on Waltham Abbey/Pembroke Road, [130] in which a question arose as to compliance in the SHD process with Art. 299B(1)(b)(ii)(II)(C) PDR 2001. It requires the Board, in considering certain SHD planning permission applications, to "satisfy itself" in EIA screening that the developer has provided, "a statement indicating how the available results of other relevant assessments of the effects on the environment" done pursuant to EU legislation other than the EIA Directive "have been taken into account." . The question was whether this "statement"

·         Must be provided in a separate identifiable document or a specific distinct and identifiable section of a larger document - the view favoured by Humphreys J in Waltham Abbey

or

·         Could be considered provided if, to the Board's satisfaction, the relevant information has been included generally in, and can be ascertained from, the planning application - the view favoured Owens J in Pembroke Road.

The Supreme Court chose the latter answer - a separate identifiable document was not required. Nor, even, was specific distinct and identifiable section of a larger document required.

 

 

73.               The judgment of the Supreme Court (Hogan J) requires careful analysis. It should first be observed that the argument of the applicant for judicial review in that case was that the absence of the statement required by Art. 299B(1)(b)(ii)(II)(C) PDR 2001 invalidated the planning application as in breach of that Article. It was not an argument as to material contravention of a development plan, such as arises here. However, by Art. 299B(1)(b)(ii)(II)(C) PDR 2001, the Board's obligation to satisfy itself that such a statement had been submitted arose only:

·         After the planning application had been made and no EIAR had been submitted with it;

·         If, on preliminary examination, [131] the Bord had not concluded that there was no real likelihood of significant effects on the environment arising from the proposed development; and

·         If, on preliminary examination, the Board had concluded that there was significant and realistic doubt as to the likelihood of such effects.

 

 

74.               As to this issue, the judgment of Hogan J seems to me to contain three distinct parts. [132] Hogan J first conducted a literal interpretation of the word "statement" in a context confined to s.299B. He observed that

 

"26.       Quite obviously the word "statement" if taken in isolation is capable of a variety of different meanings. ... Like many English words, the word "statement" derives its meaning from the context in which it appears.

 

27.         In the context of art.299B alone, I agree that the reference to the word "statement" must be understood as a definite and clearly identified expression of views in a particular document. This is clear from the relevant words of this provision ... these very words nonetheless convey the requirement that the developer must supply a self-contained document (or a self-contained and separate part of a document) describing in a readily identifiable way how these other results have been taken into account. One might add that the consistent distinction drawn by the drafters throughout the 2001 Regulations between the use of the term "statement" in contra-distinction to "information" is too invariable and pronounced to be simply ignored."

 

28.         It is, perhaps, significant that the art. 299B requires the Board to be "satisfied" that the requisite statement has been supplied by the developer ...

 

29.          ... I find it difficult to see that the Board could properly have been "satisfied" in this sense in respect of either case. No such statement was prepared in Waltham Abbey. It is true that both an EIA Screening Report and a Stage 1 Appropriate Assessment Screening Report were submitted by the developer in this case. In the case of the AA screening report, it addressed the question of whether the proposed development was likely to have a significant potential impact on the Cork Harbour SPA from which the Ballincollig site is some 10km distant. But while this latter report is a valuable one, it does not - as Humphreys J. pointed out - set out in an identifiable form the various assessments which were carried out and the results of those assessments.

 

30.         In the case of Pembroke Road the developer's planning consultants produced a lengthy and complex document entitled "Environmental Impact Screening Report" from which the results of these environmental assessments could be ascertained. It is at one level a "statement" of these results, but it is not, I think, a "statement" in the sense required by art. 299B. As I have just said, this requirement presupposes the existence of a self-contained document (or part of a document) from which these results can be quickly and easily ascertained and digested. While the Environmental Impact Screening Report is admirably comprehensive, it requires a good deal of study and evaluation - even, perhaps, in the hands of a specialist - before these results can be understood and appreciated.

 

31.          To that extent, therefore, I prefer the construction of the word "statement" in the context of art. 299B favoured by Humphreys J. in Waltham Abbey as compared with that adopted by Owens J. in Pembroke Road. I further agree that the language ("shall") of art. 299B(1)(b)(ii)(II) and art. 299B(2)(a) would normally convey a mandatory legislative obligation, non-compliance with which cannot lightly be overlooked: ... [133] If, ceteris paribus, matters remained as they stood then, of course, the applicants would have to succeed by reason of this non-compliance with a statutory requirement."

 

 

75.               However, Hogan J second considered the terms of Art. 299B purposively. He noted in particular that the required statement is for the benefit of the Board in the process of preliminary examination for EIA and not for the benefit of the general public. The public have no role in that process. The requirement of the statement seeks to ensure:

 

"... in the interests of good administration that the Board has all the relevant information readily at its disposal. A statement of this kind [134] would doubtless facilitate the Board in its overall task by providing a ready means of ascertaining the degree of compliance with these requirements of EU environmental law. ... The failure to supply such a statement was not, of course, in any sense a real impediment to the discharge by the Board of its statutory functions, at least if the present cases were anything to go by. The Board was perfectly capable of interpreting the data and the analysis furnished by the developers and it is well used to navigating complex environmental and planning documents. ... there has been no real suggestion in either case that the Board did not conduct such an evaluation or assessment in the manner which EU environmental law requires." [135]

The clear thrust of this observation is that there was no purposive requirement that Art. 299B(1)(b)(ii)(II)(C) PDR 2001 be satisfied by a discrete identifiable statement.

 

 

76.               Third, Hogan J considered [136] Art. 299B in the wider context of the PDR 2001 as a whole. In this light he held that adopting the view he had first and provisionally taken of the meaning of "statement" would lead to an interpretation which was strange, contradictory and incoherent. He considered this position to derive essentially from two aspects of the matter:

 

·         "... no other relevant statutory provision - whether it be the 2001 Regulations, the 2000 Act or, for that matter, the 2016 Act - imposes such a requirement. Adapting, therefore, the words of Murnaghan J. in Kennedy it certainly would be a "curious practice" if a permission were to be invalidated for the failure on the part of the developer to supply such a statement when there was no such obligation on the part of the developer to lodge such a statement with the planning application in the first place."

 

·         the statutory SHD planning permission application form prescribed by the PDR 2001, [137] though it lists statements to be enclosed by the applicant developer, does not list or otherwise indicate that developers must complete or enclose a separate statement for the purposes of Art. 299B(1)(b)(ii)(II)(C).

 

Hogan J considered that to hold that the failure to comply with the statement requirement of Art. 299B invalidates the subsequent grant of permission, would in effect amount to a judicial endorsement of a contradictory interpretation of the relevant legislation. And it would do so unfairly to developers who had scrupulously and dutifully complied with Schedule 12 PDR 2001 by submitting the statements prescribed by Form 14 of that schedule.

 

 

77.               Hogan J concluded that the consequence of all of this is that"

 

·         the ordinary and natural meaning of the word "statement" as it appears in art.299B and as viewed in isolation by reference to this provision must, to some degree, be viewed as having been overridden by a consideration of the Regulations as a whole.

 

·         the developer's failure to supply a "statement" in the narrow and particular sense envisaged by art.299B(i)(b)(ii)(II)(c) cannot in itself result in the invalidation of any subsequent grant of planning permission.

 

 

 

 

Waltham Abbey - Application to the Present Case

 

78.               The second element of the reasoning of Hogan J does not apply to CDP §12.9.6. In contrast to the situation which presented itself to Hogan J, CDP §12.9.6 does not aim to provide information only to the expert Board in a process from which the public is excluded. The public are entitled to consider the planning application with a view to discerning whether a proposed development would be in material contravention of CDP §12.9.6 in the sense in which it requires that assessment of and provision for the risk of climate change effect on the proposed development has successfully informed its design and what, if any, submissions to make to the Board on that issue.

 

 

79.               On that basis, Hogan J's rationale that a discrete statement did not inhibit the expert Board's preliminary examination for EIA does not apply to an assessment required by a development plan and intended, inter alia, to inform the non-expert public and equip it to participate in the planning process. Put another way, Hogan J's rationale at least suggests that an assessment intended for public consumption should present the information required identifiably, conveniently, reliably and reasonably readily in a single location and the public should not be expected to search hundreds of pages across multiple documents to itself sift the relevant content from the content irrelevant to that issue and assemble the assessment like a jigsaw.

 

 

80.               The third element of the reasoning of Hogan J does not, it seems to me, apply either to CDP §12.9.6. The question of a distinct obligation, found elsewhere, to submit a statement or an assessment does not arise and no question arises of an intermediate decision in the planning application, analogous to preliminary examination for EIA. Put simply, CDP §12.9.6 requires that the planning application include both the assessment of and provision for climate change effects on the proposed development. Nor is it asserted that requiring a discrete assessment would be strange, contradictory or incoherent having regard to other content of the CDP.

 

 

81.               It seems to me that the first element of the reasoning of Hogan J applies by analogy to the terms of CDP §12.9.6. In its literal, ordinary and textual meaning, the requirement of "an assessment" requires, at least, an assessment in a specific discrete and identifiable section of a larger document. Indeed, the single article "an" emphasises the point. Accepting that such an assessment might encompass various discrete issues and expertises, no doubt a summary assessment in a single location referring the reader to the relevant more detailed content elsewhere in the application documents might well suffice. However, in the end, what is required is the inclusion of discrete and identifiable content in the planning application recording the assessment of the impacts of climate change on the development and the provision made accordingly. It must be discrete and identifiable because that is the literal, ordinary and textual meaning of CDP §12.9.6 in the context in which such content must be reasonably discernible to the non-expert public, as opposed to merely the expert Board - a context significantly different to that found by Hogan J in Waltham Abbey/Pembroke Road.

 

 

 

Climate Change Context

 

82.               There is a further, contextual and purposive, reason for the view I take as to the proper interpretation of CDP §12.9.6 as it relates to the form of compliance it requires. I accept Coolkill's argument that CDP §12.9.6 represents an implementation (if only in small part) by DLRCC in its CDP of s.15 of the Climate and Low Carbon Development Act 2015. S.15 requires, inter alia, that DLRCC, in so far as practicable, perform its functions in a manner consistent with various listed climate change considerations, including "(e) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State." I refer below, if reference is needed, to the authoritative identification of climate change as the "single greatest threat facing humanity". As is well-established in law, inter alia in the Aarhus Convention (the full title to which [138] identifies public participation as a central norm and objective), a high value is placed on the importance of public participation in planning and environmental law processes. For example, it has been noted that, as the earth can't speak for itself, the law in appreciable degree "crowdsources" environmental protection by the public for the benefit of the community as a whole – e.g. Atlantic Diamond, ETI, Ballyboden TTG (Ardstone), Edwards and Jennings. [139] One may also mention McQuaid Quarries [140] and Finch. [141] The latter identifies public participation as important and:

·         necessary to increase the democratic legitimacy of decisions which affect the environment; and

·         serving an important educational function, contributing to public awareness of environmental issues.

 

 

83.               Purely Irish public participation law is, in general terms, no less demanding than European law and is underlain by the same substantive concerns - Southwood Park and ETI. [142] I do not say that these combined considerations of the importance of climate change and of public participation themselves and alone mandate the interpretation of CDP §12.9.6 which I have adopted. I am also conscious that, depending on circumstance, public participants may need to roll up their sleeves and plunge into the complexities of a planning application - Connelly. [143] Many such complexities are inevitable but those which are unnecessary should not be imposed. Where it is open to interpret CDP §12.9.6 as requiring, as it were, a "public participation-friendly" presentation of a planning application by way of discrete identifiable compliance with CDP §12.9.6, contextual and purposive considerations weigh in favour of the adoption of such an interpretation.

 

 

 

 

Form of Compliance with CDP §12.9.6 - Contravention - Conclusion

 

84.               It follows in the present case, on the evidence before me and given the underlying premise and purpose of CDP §12.9.6, that the absence of a discrete, identifiable, inclusion in the planning application of an assessment of the impacts of climate change on the development and record of the provision made accordingly in the design and intended execution of the Proposed Development, placed the Proposed Development in contravention of CDP §12.9.6.

 

 

85.               However, it remains to be considered whether that contravention was material.

 

 

 

Form Apart - to what Substantive Effects does CDP §12.9.6 Relate?

 

86.               Coolkill argues that much of the content to which the Board points as representing compliance with CDP §12.9.6 is in fact irrelevant to such compliance. It argued that such irrelevant content relates to mitigation of potential effects of the Proposed Development on climate change as opposed to adaptation to potential effects of climate change on the Proposed Development. In fairness I should say that Coolkill accepted in argument that this distinction was too rigid [144] but as it was not fully abandoned I think I should deal with it.

 

 

87.               I observe that:

 

·         Effect on climate change is an issue of mitigation of climate change. Effect on a development is an issue adaptation to climate change. [145] To pick a simple, illustrative, correlative pair of examples: mitigation of climate change involves measures to limit GHG [146] emissions with a view to reducing global temperature rise; adaptation to climate change involves measures to minimise adverse effects of such temperature rise as may occur despite mitigation of climate change.

 

·         The distinction between mitigation of climate change and adaptation to climate change is obvious, important and well-established. For example, Chapter 21 of the Climate Action Plan 2021, entitled "Adaptation", records that "Climate change is expected to have diverse and wide-ranging impacts on Ireland's environment, society and economic development, ... The most immediate risks to Ireland from climate change are predominantly those associated with changes in extremes, such as floods, droughts and storms." [147] And it cites the National Adaptation Framework 2018 which envisaged sectoral adaptation plans - the first iterations of which issued in 2019. [148] As has been seen, s.15 of the Climate and Low Carbon Development Act 2015 cites "the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State."

 

·         However, for all that mitigation of climate change and adaptation to climate change are distinct concepts, and that in some contexts it may be important to think of them distinctly, they are obviously closely linked. First, they are both a response to climate change. Second, and, at least at a strategic level, the degree of adaptation required and the degree of its success is at least in appreciable part a function of the success or otherwise of mitigation. Third, and as will be seen, particular measures in response to climate change may contribute to both mitigation and adaptation.

 

 

88.               CDP §12.9.6 relates to the content of residential planning applications. In a sense this might imply prioritisation of adaptation - as, ceteris paribus, adaptation is likely to be more significant to future residents of a proposed development than mitigation of its GHG emissions will be infinitesimally significant, in the great scheme of things, in reducing global warming. However, such reasoning would be an example of the "drop-in-the-ocean fallacy" rejected by Humphreys J in Toole [149] and Coolglass. [150]

 

 

89.                In these lights, I think that Coolkill argues for an excessively literal interpretation of CDP §12.9.6. It must be interpreted on XJS principles as if by an intelligent, informed, layperson. In my view, such a person would be disposed to consider

·         the interaction of climate change and a proposed residential development in the round; and

·         that measures required in mitigation of climate change, such as insulation and energy efficiency, are themselves effects wrought, even if arguably indirectly, by climate change on the development.

Anyone even slightly acquainted with changes in residential construction in recent decades cannot but be aware of the considerable changes to fabric, materials, temperature control, power supply and construction methods wrought on buildings by way of response to climate change. Indeed the energy-efficiency of buildings in the cause of mitigating climate change has been central to their construction for some decades now and is well-ensconced in the public consciousness. And the same insulation which helps reduce energy consumption in winter in mitigation of indirect GHG emissions will doubtless help adaptation to climate change by way of temperature control in climate-change induced summer heatwaves. Similarly, energy will be required to heat the building in winter and may be required to cool it in summer and both requirements are to be minimised. I am fortified in this view by the express reference in CDP §12.9.6 to "waste management, and energy use". These are issues readily associated with mitigation of climate change - perhaps more readily than with adaption to climate change.

 

 

 

Climate Change - Content of the Planning Application

 

90.               As has been seen, the Board points to content of no less than ten discrete documents enclosed with Midsal's planning application as containing the assessment of and record of provision required by CDP §12.9.6. Coolkill says that even that content includes only a record of provision and no record of the assessment necessary to inform it.

 

 

 

SuDS, Flood Risk Assessment & Engineering Services Report

 

91.               As the Climate Action Plan 2021 recognises, Ireland is, by reason of climate change, at risk of extreme weather, including higher temperatures and more frequent and intense storms, rainfall and flooding.

 

 

92.               No doubt simplifying considerably, and as I understand it:

 

a.         In undeveloped land, the run-off of precipitation to watercourses is typically mediated by the saturation capacity of the land. The soil absorbs part of the precipitation and releases it gradually to the watercourses. The rate at which precipitation, thus mediated, runs-off to watercourses is termed the "greenfield run-off rate".

 

b.         Where surface water run-off exceeds the capacity of available watercourses (natural or artificial) to receive precipitation, flooding tends to result. Climate change is expected to increase precipitation in Ireland - thus increasing the risk of fooding by surface water run-off.

 

c.          Heretofore, development typically substituted hard non-absorbent surfaces - roofs, roads, pavements etc - for much of the absorbent surfaces on a site. The result is that precipitation absorption is reduced and a greater volume of precipitation runs off quickly to watercourses. Cumulatively in urban areas the result may be to overwhelm watercourse capacity and cause flooding.

 

d.         Generally, Sustainable Drainage Systems (a.k.a. Sustainable Urban Drainage Systems and SuDS) are now ubiquitous in new developments of any size. [151] CDP §10.2.2.6 states Objective EI6 to ensure that all development proposals incorporate SuDS by reference to standards identified in §10.2.2.6. CDP §12.9.6 requires that all residential developments incorporate SuDS. [152]

 

e.         The broad purpose of SuDS in development proposals is to balance the impact of urban surface water drainage by limiting run-off to greenfield rates and controlling its quality. This is done by various means - for example, the use in development of absorbent surfaces and materials instead of hard surfaces, facilitation of evaporation, and attenuation by the provision of tanks to store precipitation in the short term for gradual release to watercourses.

 

f.           As climate change is expected to increase precipitation, a SuDS system designed to cope with historic precipitation rates will, as precipitation rates increase due to climate change, struggle and/or fail to maintain precipitation run-off to watercourses at present greenfield rates and, at least generally, the risk of flooding will increase.

 

g.         Accordingly, it is now standard practice to increase the precipitation rate assumptions informing SuDS design in an attempt to future-proof SuDS systems to cope with climate change-induced increased precipitation rates and so reduce the risk of climate change-induced flooding.

 

 

93.               Clearly, incorporating in SuDS design and provision an increase in the precipitation rate assumptions is a climate adaptation measure directed at mitigating the risk of flooding due to climate change. As, ceteris paribus, at least in general and absent SuDS adequate to climate-induced increased precipitation, such flooding would be broadly expected to occur on or in the general vicinity of the Site and taking, as I think proper in this context, a broad view of effect on the Proposed Development it seems to me that SuDS incorporating a climate change factor would be, even if one accepted Coolkill's narrow interpretation of §12.9.6 (which I have rejected), a provision for the risk of climate change effect on the development within the meaning of CDP §12.9.6.

 

 

94.               In that light it is significant to note the Inspector's Report [153] to the effect that

 

"The development will connect to the existing surface water infrastructure in the area. The submitted Engineering Services Report provides details of the proposed surface water drainage design which includes SuDS measures allowing for a 20% climate change factor and a 10% allowance for urban creep as required under the current development plan. The proposed SuDs measures comprise green roofs, permeable road and path areas and a stormwater attenuation tank. The system will attenuate discharge in accordance with the Greater Dublin Strategic Drainage Study. DLRCC Drainage Planning states no objection subject to conditions."

 

Elsewhere, she refers to "satisfactory surface water management and site services and satisfactory flood risk assessment". [154] Clearly the Inspector was satisfied with the provision for climate change in the design of the Proposed Development - at least in this regard. I also note that Condition 16 of the Impugned Decision requires, inter alia, that on completion of the development, an audit to demonstrate that SuDS measures installed are working as designed be submitted to DLRCC for written agreement.

 

 

95.               Turning to the location of the content of Midsal's planning application as to SuDS, its expert Flood Risk Assessment, submitted with its planning permission application, states:

 

a.         That the Flood Risk Management Guidelines [155] set out the best practice standards for flood risk assessment. It cites them and the GDSDS as requiring that the predicted effects of climate change are incorporated into any proposed design;

 

b.         At Table 3.2, the assumptions of 20% increases in rainfall and river flow due to climate change.

 

c.          That an additional 10% rainfall intensity allowance has been made in accordance with the CDP (though it is not precisely stated, this is required for urban creep [156]);

 

d.         That a review of relevant data [157] identifies the Site as in fluvial [158] Flood Zone C. This is the lowest-risk zone - in which the risk is less than 0.1% annually or 1 in 1000 years. On that basis, the Site is not deemed vulnerable to fluvial flood events and its development does not require a justification test. [159] In other words, development is not contraindicated by flood risk such that, to be permissible, it would require justification despite that risk;

 

e.         That a review of local OPW data showed no history of pluvial flooding near or on the Site;

 

f.           The assessment that adequate storm water drainage systems will minimise pluvial flood risk and any issues can be adequately dealt with in the stormwater management system phase;

 

g.         That storm water will be discharged to a dedicated municipal 450mm diameter storm drain under Sandyford Road;

 

h.         That the proposed SuDS system will minimise risk of off-site flooding - see further below;

 

i.           That the proposed drainage network has been designed to ensure there is no increase in the flood risk to the Site or downstream catchment - even in exceedance flows. [160]

 

 

96.               Much of the content of the Flood Risk Assessment  is echoed in Midsal's Engineering Services Report. It states: [161]

 

a.         DLRCC guidelines for the design of surface water drainage require the incorporation of SuDS as per the GDSDS Regional Drainage Policies.

 

b.         The design intention is to utilise as many SuDS features as possible - primarily green roofs (approx. 90% of the total roof area), permeable road & path pavements, interception storage, flow attenuation and a stormwater attenuation tank.

 

c.          The assumptions, permissible discharge calculations and other calculations and designs adopted. Relevant drawings are supplied.

d.         As required by the GDSDS, a 20% climate change factor [162] has been allowed. [163]As required by the CDP, an additional 10% has been allowed for urban creep.

 

e.         A 100-year return storm would require a 272m3 stormwater attenuation tank. 434m3 will be installed to cater for exceedance flows. [164]

 

f.           Infiltration trenches linked to the storm water system will freely drain two other 'low points' within the development with the potential for water to pool in the event of a major storm far in excess of 1:100 year storm.

 

g.         Further storage capacity is available in the pipe network and infiltration trenches provided in the green areas of the Site. [165]

 

h.         The surface water network model also accounted for a 50% blockage in critical lengths of pipe before the attenuation tank for a 1:5 and 1:100 year storm return. Such a blockage will result in the manholes surcharging but not overflowing.

 

i.           The result will be that during extreme storms, Site discharge will be limited to greenfield runoff rates and, more generally, surface flooding will be very unlikely.

 

 

97.               The Engineering Services Report addresses as follows the possibility that even if the foregoing provision is beaten:

 

"... any water overflowing from the attenuation tank will overflow onto the internal road network. A 150mm high ramp has been provided at the entrance to the below ground car park to act as a bund, which will allow the road between blocks A and B to act as a further temporary water storage area providing with approx. 70 cubic metres of additional temporary water storage.

The finish Floor levels of the lowest occupied units are significantly higher than the car park and

internal access roads, thus if the bund was overtopped, the residential units would not be impacted, although water would enter the car park.

There will be a float switch and alarm activation warning residents that the water level is rising close to the top of the ramp. This will mean activation of the emergency plan and installation of flood protection measures, i.e. flood barriers at the car park entrance. This will need to be incorporated into the maintenance plan for the building to ensure the alarm is services and the floor barriers are always in working order."

 

 

98.               The Engineering Services Report also responds to issues raised by DLRCC as to storm drainage in the pre-application process. [166]

 

 

99.               As to the requirements of CDP §12.9.6, I consider that, as to Flood Risk Assessment and as to SuDS, the Flood Risk Assessment and the Engineering Services Report, taken together, conveniently, accessibly and substantively describe a very considerable - perhaps the major - aspect of assessment of and provision for climate change risk to the Proposed Development. That is, the risk of pluvial flooding due to precipitation increased by climate change. Nor does it seem to me that it is unacceptable that, by way of assessment and instead of reinventing the wheel, Midsal applied the 20% uplift factor required by the GDSDS - design in accordance with which is required by CDP §12.9.6 itself - the alleged material contravention of which is the basis of Ground 2.

 

 

100.           The CE Report does not criticise the SuDS proposal - it proposes planning conditions accordingly. Neither does the Coolkill objection, submitted by planning consultants, criticise the Flood Risk Assessment, the Engineering Services Report or the SuDS proposal or, as to those matters, even mention climate change. Nor, in the proceedings, did Coolkill suggest that the planning application or the Proposed Development was inadequate in those respects. In the end, counsel for Coolkill more or less accepted that as to SuDS no very particular assessment was required beyond the standard calculations used as to such matters. [167]

 

 

 

Sustainability Report

 

101.           Midsal submitted an expert Sustainability Report with its planning application. It

·         explicitly and notably recognises the need for "Climate change assessment items as determined by the local authority";

·         identifies certain building design principles as an "overarching philosophy" for tackling climate change by enabling "maximisation of CO2 savings [168] at each stage of the design process from early concept selection through to detailed design and realisation at later stages";

·         seeks to demonstrate the mechanical & electrical systems strategy, including the energy performance and the sustainability of construction, of the Proposed Development; [169]

·         addresses primarily reduction of the energy consumption and resultant indirect GHG emissions of the building;

·         states, inter alia, that

 

"The design will place high emphasis on passive solar design, combining external local shading with

high performance glazing to minimise solar heat gain in accordance with the Part L solar overheating

criteria while maximising natural daylight access.

Key features of the energy-efficient design ... include enhanced building fabric performance, mechanical ventilation heat recovery and high-efficiency lighting ... The primary heating system will either be electric with hot water heating, or will utilise natural gas heating, to be agreed with the housing provider with the aim of best meeting the needs of future tenants. The proposed energy strategy as detailed in this report is compliant with the requirements of Part L and achieves NZEB."

 

 

102.           "NZEB" is the "Nearly Zero-Energy Building" standard introduced by Directive 2010/31/EU [170] on the energy performance of buildings. That Directive requires that performance be determined in accordance with Annex 1 thereof as implemented in Member States. The Directive defines the 'energy performance of a building' as "the calculated or measured amount of energy needed to meet the energy demand associated with a typical use of the building, which includes, inter alia, energy used for heating, cooling, ventilation, hot water and lighting." Notably, the Sustainability Report expresses the NZEB concept adopted in the Directive as "a very high energy performance, as determined in accordance with Annex 1, The nearly zero or very low amount of energy required should be covered to a very significant extent by energy from renewable sources including energy from renewable sources produced on-site or nearby".

 

 

103.           Even looking at it through the prism of Coolkill's narrow interpretation (which I have rejected) of CDP §12.9.6, it seems to me notable, in the context of both an intended energy-efficient installation and of any risk of effect on the Proposed Development by temperature rise due to climate change, that, first, NZEB encompasses the need for not merely energy-efficient heating but also energy-efficient cooling and ventilation of a building, and second, the Sustainability Report envisages:

·         "combining external local shading with high performance glazing to minimise solar heat gain in accordance with the Part L solar overheating criteria";

·         a reasonably airtight building with purpose provided ventilation; and

·         that each habitable room will be fitted with a supply ventilation grille delivering air at a temperature designed to maintain the apartment setpoint and all rooms will be controlled by a thermostat.

 

 

 

Resource Waste Management Plan & Operational Waste Management Plan

 

104.           CDP §12.9.6 cites the need for particular attention to "waste management". Midsal's RWMP addresses primarily the management of construction and demolition ("C&D") waste to ensure maximum recycling, reuse and recovery of waste with diversion from landfill, wherever possible. Midsal's Operational Waste Management Plan addresses primarily the waste quantities and types estimated as likely to be produced in the operation of the development to ensure maximum recycling, reuse and recovery of waste with diversion from landfill, wherever possible. It is fair to say that both make minimal explicit mention of climate change but both prominently cite and seek to apply the 'Waste Action Plan for a Circular Economy'. [171] This they describe as prepared in response to the 'European Green Deal' which sets a roadmap for a transition to an altered economic model, where climate and environmental challenges are turned into opportunities. It must be remembered that, while they are important and compliance with them is important, such waste management plans are by now relatively standard in their content and well-understood in the context of residential developments. It is not apparent to me that these particular plans have, as to their substance, been effectively criticised in these proceedings. Nor were they impugned in Coolkill's submission to the Board.

 

 

 

Other Reports & Conclusion on Substance of Planning Application as to Climate Change

 

105.           Despite the Board's plea of ten reports submitted with the planning application as together comprising compliance with CDP §12.9.6, I was referred in argument only to the few of which I have given an account above. There is little, and in most instances no, mention of climate change effects on the Proposed Development, in the CEMP, the Landscaping Plans, Building Life Cycle Report, [172] Arboricultural Report, EIA Screening Report, [173] and the Ecological Impact Assessment Report. This is in substance more a criticism of the Board's unhelpful scattergun plea, without pleading particular content, than of the documents themselves. The plea had the regrettable effects of

·         prompting appreciable judicial study of documents which proved more or less irrelevant; and

·         conveying the erroneous impression that the consideration in Midsal's planning application of climate change effects on the Proposed Development was dissipated widely and obscurely amongst a large number of documents.

Given the strict rules of pleading in judicial review, and tempting though it is to hold that plea against the Board, I do not think that Midsal's non-participation in the proceedings prevents me from considering that to do so would be unjust to Midsal.

 

 

106.           On an overview of the materials I have analysed above, it seems to me that, at least prima facie and as to substance and form of its proposed response to climate change issues as required by CDP §12.9.6 Midsal, by its Flood Risk Assessment, Engineering Services Report, Sustainability Assessment and Waste Management Plans has complied in very large measure with §12.9.6.

 

 

 

Onus of Proof of & Evidential Basis for a finding of Materiality of Contravention

 

107.           In light of the conclusion just drawn, I should ask whether Coolkill has upset that prima facie view. In that regard, the following seem to me significant:

 

a.         In judicial review, Coolkill bears the onus of proof not merely of an unrecognised contravention of CDP §12.9.6 but of the materiality of that contravention. [174]

 

b.         Coolkill has tendered no evidence that, as to the substance of its consideration of and response to issues relating to climate change, Midsal's planning application was deficient.

 

c.          Coolkill has tendered no evidence that, as to the form of Midsal's compliance with CDP §12.9.6, it or anyone was, or was likely to have been, discommoded in any practical way by the contravention of the requirement for a discrete identifiable response to CDP §12.9.6 or by the fact that the substance of the planning application response to climate change issues was distributed amongst multiple reports.

 

d.         As to that distribution amongst multiple reports, it seems to me that the relevant content was in fact to be found just where an informed intelligent lay participant in the process would have expected to find it, as indicated by the titles to those reports. The one arguable exception is the "Engineering Services Report" but the reader was readily directed there by the Flood Risk Assessment. [175] Coolkill's argument that it should not be expected to rummage through hundreds of pages to find the relevant content is greatly overblown. - both as to the content of the planning application and as to its pleading point against the Board. As to the latter and recollecting Duffy [176] to the effect that pleading requirements are strict but the touchstones remain fairness and acceptable clarity, it seems to me that while the Board's plea may have been justly criticised as imprecise the imprecision falls quickly away on consideration of content of the documents pleaded.

 

e.         Coolkill was represented by a planning consultant in making its submission to the Board. Whatever about members of the public, it is not credible to suggest (nor, in fairness was it suggested) that such a consultant would have been discommoded in this instance by any formal non-compliance with CDP §12.9.6. The position of such consultants is generally analogous to the position of the Board as identified by Hogan J in Waltham Abbey/Pembroke when he said: "The failure to supply such a statement was not, of course, in any sense a real impediment to the discharge by the Board of its statutory functions, at least if the present cases were anything to go by. The Board was perfectly capable of interpreting the data and the analysis furnished by the developers and it is well used to navigating complex environmental and planning documents." This observation as to Coolkill's planning consultant is significant:

 

o   First, and by reference to the Roughan "local opposition" criterion of materiality of a contravention, it is notable that the planning consultant did not complain either of non-compliance with CDP §12.9.6 in form or in substance or that the planning application inadequately addressed climate change.

 

o   Second, it disables Coolkill from any complaint that it was discommoded by any formal non-compliance with CDP §12.9.6.


G2 - Material Contravention - Climate Change - Decision

108.           Coolkill was unable to identify possible substantive climate change effects on the Proposed Development in respect of which provision was or might be lacking in the planning application. [177] Its case was essentially formal as to the identifiability of the assessment and provision required by CPD §12.9.6 and that even where provision was made, the required prior assessment was lacking. There is, ultimately, an air of unreality to this ground. In light of that position, I think I can take judicial notice that climate change effects on Proposed Developments such as this are expected to consist at least primarily, of:

·         flood risks and erosion due to sea level rise - the Site is a long way from the sea and no more need be said in that regard;

·         flood risks, pluvial and fluvial, due to extreme weather events and increased precipitation; and

·         temperature rise.

 

 

109.           Though dependent on a degree of local assessment of risk, much of the required assessment is built in to standards, such that any requirement of assessment "bespoke" to the Site is much reduced. The obvious examples are the requirement of a 20% climate change uplift of precipitation allowances and the application of the NZEB standard introduced by Directive 2010/31/EU. It is unnecessary, impractical and I suspect impossible, at least ordinarily and as to well-understood types of development, to make site-specific or local assessment from first principles of likely climate change-induced precipitation increases such that the resultant quantification would depart from the 20% assumption to a degree that makes any practical or worthwhile difference. This, indeed, reflects one function of standards - to avoid unnecessary and wasteful reinvention of the wheel.

 

 

110.           As to the wastefulness of reinventing the wheel when standards are to hand and as to the degree of analysis required either in the assessment by the developer or the analysis by the Inspector, Coolkill's reliance on Sherwin [178] was misconceived. As counsel ultimately conceded, the degree of analysis required of the inspector in Sherwin was a function of the highly unusual - even extreme - circumstances of that case and does not map onto consideration here of what climate changes issues require of what is, in the end, a fairly ordinary apartment development. Indeed Sherwin says as much:

 

"... this approach does not impose an obligation to engage in a mechanical or legalistic analysis when considering each and every allegation of contravention of the Development Plan. It does, however, require some level of engagement with the relevant provision where that provision is of fundamental importance in the context of the particular planning application ...".

 

In fairness, counsel accepted that, as to this Proposed Development and as compared to the issue in Sherwin, the issue of the Climate Change assessment was not of fundamental importance. [179]

 

 

111.           While I see no defect in the Inspector's Report or Board's decision as to its consideration of these issues, it is in any event the case that Ground 2 in essence impugned Midsal's failure to identify and the Board's failure to recognise Midsal's non-compliance with CDP §12.9.6. In my view, it is clear that Midsal's Flood Risk Assessment, Engineering Services Report, Sustainability Report and Waste Management Reports did include assessment of and provision for the effects of climate change on the Proposed Development, as required by CDP §12.9.6. This they did primarily in their local assessment of flood risk (pluvial and fluvial), in their reliance on relevant standards - in particular the 20% climate change precipitation uplift, in their consideration of temperature control measures, in their application of the NZEB standard and in their provision for waste management. Further, the intelligent, interested, informed layperson, reading the planning application and aware of the primary possible effects of climate change would have readily found the treatment of these issues where (s)he would have expected to find them - in the relevant reports. Further again, Midsal has adduced no evidence that such treatment was in any degree flawed or that there is any appreciable risk that the Proposed Development is more vulnerable to the effects of climate change than it ought to be or more likely to exacerbate climate change than it ought to be.

 

 

112.           On this basis and whether or not I am correct in finding a contravention of CDP §12.9.6 as to the form of compliance with it, any contravention was not material and it follows that Ground 2 fails.

GROUND 3 - CHILDCARE - FAILURE TO APPLY CPD, RELEVANT CONSIDERATIONS & REASONS

 

Core Ground 3 [180]

 

"The Board misinterpreted and/or failed to apply the CDP requirement that childcare provision be in accordance with Sections 2.4, 3.3.1 and Appendix 2 of the 'Childcare Facilities Guidelines for Planning Authorities'

and therefore failed to take into account relevant considerations, in particular Appendix 2,

and/or gave no adequate reasons for accepting the developer's childcare demand assessment."

 

 

 

G3 - Childcare Guidelines & CDP

 

113.           §2.4 of the Childcare Facilities Guidelines for Planning Authorities 2001, [181] states that appropriate locations for childcare facilities "would include" "New communities/Larger new housing developments." The accompanying text reads as follows

 

"Planning authorities should require the provision of at least one childcare facility for new housing areas unless there are significant reasons to the contrary for example, development consisting of single bed apartments or where there are adequate childcare facilities in adjoining developments. For new housing areas, an average of one childcare facility for each 75 dwellings would be appropriate. (See also paragraph 3.3.1 and Appendix 2 below). The threshold for provision should be established having regard to the existing geographical distribution of childcare facilities and the emerging demographic profile of areas. Authorities could consider requiring the provision of larger units catering for up to 30/40 children in areas of major residential development on the basis that such a large facility might be able to offer a variety of services - sessional/drop in/after-school, etc."

 

 

114.           §3.3.1 adds that in "new housing areas, a standard of one childcare facility providing for a minimum 20 childcare places per approximately 75 dwellings may be appropriate. This is a guideline standard and will depend on the particular circumstances of each individual site."

 

 

115.           Appendix 2 cites §2.4 to require "at least one childcare facility for new housing areas and other areas of residential development unless there are significant reasons to the contrary. For housing, a benchmark provision of one childcare facility per 75 dwellings is recommended." And "Any modification to the indicative standard of one childcare facility per 75 dwellings should have regard to" various listed factors including the make-up of the proposed residential area, i.e. an estimate of the community mix the housing area seeks to accommodate. In this respect, an example is given as follows:

 

"(If an assumption is made that 50% approximately of the housing area will require childcare then in a new housing area of 75 dwellings, approximately 35 will need childcare. One facility providing a minimum of 20 childcare places is therefore considered to be a reasonable starting point on this assumption. Other assumptions may lead to an increase or decrease in this requirement.)"

 

 

116.           Much of this is rather aspirational and imprecise. For example, what does "larger" mean in practical terms and is a "Larger new housing development" a "new housing area"? In practical terms, what is meant by "The threshold for provision should be established having regard to the existing geographical distribution of childcare facilities and the emerging demographic profile of areas"? What might be the "Other assumptions" which "may lead to an increase or decrease in this requirement"? It is clear that the "significant reasons to the contrary" given are examples. There would seem to be no good planning or other reason to insist that taking account of existing provision elsewhere be limited to "adjoining" developments as long as such provision is reasonably accessible to the residents of the new development.

 

 

117.           It is also clear that the Guidelines are entirely non-prescriptive and non-quantified as to methodology of approach to such factors as "existing geographical distribution of childcare facilities", "the emerging demographic profile of areas" or "Other assumptions" which "may lead to an increase or decrease in this requirement". Nor are we told how an "assumption" might be made that "50% approximately of the housing area will require childcare" - or how any other percentage might be assumed. Notably, no quantified radius is identified as limiting the distance to a childcare facility.

 

 

118.           This imprecision and non-prescription may or may not be considered outdated, unfortunate or, for that matter, wise. But its presence necessarily confers appreciable discretion and evaluative judgement on the decisionmaker.

 

 

119.           CDP §4.2.1.5 Policy Objective PHP6 seeks, in part, to:

 

"Encourage the provision of appropriate childcare facilities as an integral part of proposals for new residential developments ... In general, at least one childcare facility should be provided for all new residential developments subject to demographic and geographic needs.

 

The accompanying text [182] states:

 

"In general, where a new residential development is proposed - with 75+ dwellings ... - one childcare facility shall be provided on site in accordance with Sections 2.4, 3.3.1 and Appendix 2 of the 'Childcare Facilities Guidelines for Planning Authorities' (2001). The provision of childcare facilities within new, and indeed existing, residential areas shall have regard to the geographical distribution and capacity of established childcare facilities in the locale and the emerging demographic profile of the area."

 

 

120.           It does not appear to me that the CDP is any more prescriptive or precise than the Childcare Facilities Guidelines and it likewise necessarily confers appreciable discretion and evaluative judgement on the decisionmaker.

 

 

121.           It is necessary to add that the Apartment Guidelines refer to the Childcare Facilities Guidelines and state:

 

"One bedroom or studio type units should not generally be considered to contribute to a requirement for any childcare provision and subject to location, this may also apply in part or whole, to units with two or more bedrooms."

 

 

 

G3 - Development Proposal (Childcare Demand Assessment)

 

122.           Midsal proposed no on-Site childcare provision. It submitted a Childcare Demand Assessment by KPMG in response to the Board's statutory opinion which had advised a

 

"Childcare demand analysis by way of assessment and report on demographic profile of the

wider area, and including analysis of childcare capacity / services in the immediate area and the likely demand for childcare places resulting from the proposed development."

 

It also responded to DLRCC's view in the pre-application consultation process that Midsal's childcare assumptions were conservative and should be revisited.

 

 

123.            KPMG set out its methodology (which, it states, has previously been accepted by the Board) as involving the following steps:

·         1. Defining a Study Area, centred on the subject site;

·         2. Determining the extent and provision of childcare facilities within the Study Area;

·         3. Undertaking a study of the demographic composition of the population of the Study Area; and

·         4. Estimating the level of demand for childcare facilities that may arise from the development proposal

It asserts that the inclusion of all two-bedroom units yielded a demand assessment likely higher than reality.

 

 

124.           KPMG sought [183] to establish a baseline of existing childcare capacity via what they asserted was comprehensive desktop research using publicly available information and sources including Tusla [184] data - which they considered the most definitive accurate and appropriate source. The identification of facilities was based on their data. The Dún Laoghaire Rathdown County Childcare Committee [185] was consulted but was unable to provide any recent childcare capacity analysis for the Study Area or even anecdotal information as to childcare needs in the area. It suggested an independent audit of services - which KPMG did.

 

 

125.           The Demand Assessment used 2016 census data. While at this remove, that is hardly reassuring and on any view it will be a decade of general high population growth out of date by the time any children live in the Proposed Development, the fact remains that Midsal had to use the best census data to hand. Coolkill argued but adduced no evidence that later census data could and should have been used. On the other hand, KPMG confirmed that in the Dublin region only 25% of pre-school children attend a childcare facility. Wisely (given attendance may for various reasons fail to fully reflect demand generally or from apartment dwellers), KPMG acknowledged 25% as a conservative figure and assumed 40%. On that basis they projected a demand of 10 childcare spaces as generated by the Proposed Development of 137 units. [186] They estimated 85 spaces available in existing childcare facilities within a 2-2.5km radius. [187] However "ample" forthcoming childcare spaces (343 - 430) in the area were identified on review of DLRCC's Online Planning Register. So KPMG considered it clear that the childcare demand generated by the Proposed Development "will most likely be absorbed by the existing facilities network and the planned facilities".

 

 

 

 

G3 - Inspector's Report

 

126.           The Inspector notes:

·         Objections (including by Coolkill [188]) and elected members' views that existing childcare facilities within reach of the Site are oversubscribed due to a severe lack of facilities and that Midsal's assumptions as to the childcare demand generated by the Proposed Development are not credible;[189]

·         That the CE Report expressed concern that facilities included in the Childcare Demand Assessment are too far from the Site and so recommended a planning condition requiring a creche; [190]

·         That Dún Laoghaire Rathdown County Childcare Committee were notified of the application but, as far as her report records, it did not respond. [191]

 

 

127.           The Inspector's assessment [192] recites the relevant guideline content and that of Midsal's Childcare Demand Assessment. She accepts its approach. She emphasises CDP Objective PHP6 to the effect that 'In general, at least one childcare facility should be provided for all new residential developments subject to demographic and geographic needs'. She notes,

 

"that many of the existing facilities referred to in the Childcare Demand Assessment are within a 2km radius, albeit not accessible by public transport. There are also several facilities within a 1 km radius. I consider that this is adequate provision given the very limited childcare demand likely to be generated by the development and I therefore do not recommend that the development is altered by condition to provide an on-site creche."

 

 

 

G3 - Coolkill's Position

 

128.           Coolkill pleads that

 

·         Appendix 2 of the Childcare Facilities Guidelines prescribes regard to two specific matters before there can be any modification to the requirement of one childcare facility per 75 dwellings:

o   An estimate of the community mix the housing seeks to accommodate. In that regard, it specifies assumptions that 50% of the new housing area will require childcare and that a minimum of 20 childcare places is a reasonable starting point for a new housing area of 75 dwellings;

o   The results of any childcare needs analysis carried out as part of a county childcare strategy or local area or development plan.

 

·         Midsal's Childcare Demand Assessment omits reference to Appendix 2 and sets out an entirely different methodology for modification to the general standard for calculating childcare needs set out in Appendix 2. It includes a whole range of flawed assumptions:

o   It starts with an existing childcare facilities study area of a 2km radius of the Site - notwithstanding that CDP §12.3.2.1 "Development within Sustainable Neighbourhood Infrastructure Lands", in referring to new SNI facilities, (which include childcare) requires such assessment within 1km / a 10-minute walk. The 2km was particularly inappropriate given the very poor public transport in the area;

o   Excludes one-bedroom units - leaving 105 units;

o   Assumes an average household of 2.5 persons - a total of 263 occupants;

o   As those aged 0-6 were 9.6% of the national population, calculated the number of children aged 0-6 in the proposed development at 25;

o   On the basis that only 25% of pre-school children attend childcare calculated a demand of six children but acknowledged this was conservative and allowed for ten;

o   Finally, calculated there were 84 spaces available for children in existing childcare facilities within 2km of the Site and therefore there was no need for a childcare facility to be provided within the development.

 

 

129.           Those assumptions were flawed as:

·         Based on national not specific local demographics;

·         Based on the 2016 census not the 2022 census (which results were available in May 2023);

·         The average household of 2.5 persons includes 1-bedroom units which are not included in the 105 units;

·         68 units - 50% - of the Proposed Development comprises 2-bedroom units for four persons;

·         On this basis 263 persons is a gross underestimation - the 68 two-bedroom units for four persons alone would amount to 272;

·         That only 25% pre-school children attend childcare is a metric of actual use not of need.

 

 

130.           Coolkill also pleads that the Inspector and the Board likewise,

·         Failed to cite the same requirements of Appendix 2 of the Guidelines;

·         Failed to have regard to the fact that Appendix 2 provides that any estimate of childcare needs would be based on a county wide assessment rather than a developer's ad hoc analysis based on flawed assumptions drawn from an out of date national census;

·         Failed to analyse and simply accepted Midsal's figures without giving reasons and failed to explain her rejection of contrary submissions as to lack of childcare in the vicinity of the Site;

·         In the case of the Board, failed to list the Childcare Facilities Guidelines as a matter to which it had had regard.

 

 

131.           Thus, Coolkill also pleads, the Board failed to have regard to relevant considerations and had regard to irrelevancies.

 

 

132.           Coolkill further pleads that the Board failed to consider and/or apply the CDP requirements that childcare be "in accordance with Sections 2.4, 3.3.1 and Appendix 2 of the 'Childcare Facilities Guidelines for Planning Authorities". Any modification to childcare provision was not assessed in accordance with Appendix 2 of the Guidelines as required by the CDP. Alternatively, the Board failed to give adequate reasons to justify the absence of any childcare facilities, insofar as it adopted the flawed calculations of the developer, and failed to assess them by reference to the methodology contained in Appendix 2 of the Guidelines.

 

 

133.           Coolkill submits that:

·         Its plea that the Board had "failed" to "apply the development plan" is a material contravention argument by another name with a failure to have regard to the Guidelines as a fall-back and, at very least, is "tolerably clear";

·         The CDP (via the Childcare Guidelines) requires 20 childcare places for every 75 residential units;

·         Midsal's objection to the Board [193] asserted Midsal's evasion of their responsibilities under the Childcare Guidelines by producing incredibly low estimates of the number of children expected in a Scheme which includes 2-bed and 3-bed units. The Scheme must offer its own residents creche places given the large numbers of units in the area which will come online in the coming years. If every scheme successfully argues away their childcare responsibilities based on a snapshot at any given time of places in a given area, then no childcare capacity increase will be achieved in this area over time;

·         The Board erred in accepting Midsal's flawed Childcare assessment that materially underestimated the number of children that the Proposed Development would be expected to generate;

·         The Board compounded the error by justifying the absence of a childcare facility without reference to the criteria in Appendix 2 of the Childcare Guidelines.

 

 

134.           Helpfully and sensibly, counsel for Coolkill accepted in argument that if, as a fact ,adequate childcare to serve the Proposed Development was available within a reasonable distance, there was scope in principle for omitting childcare provision from the Proposed Development. It is the manner of arriving at that conclusion which Coolkill impugns. [194]

 

 

 

G3 - Board's Position

 

135.           Beyond traverses and pleas that it considered all relevant matters and complied with all relevant obligations and gave adequate reasons, the Board pleads and submits, inter alia, as follows:

 

a.         It is not clear what legal error Coolkill alleges. Coolkill appears to plead or rely on a generalised obligation on the Board to comply with the Development Plan but there is no such obligation. The only legal obligations potentially relevant to Coolkill's pleas are to have regard to the Development Plan [195] and to refrain from granting permission in material contravention of the Development Plan save in accordance with s.9(6)(b) of the 2016 Act and s.27(2)9b) PDA 2000. But Coolkill pleads breach of neither obligation and so cannot argue them.

 

b.         Coolkill bears and has not discharged the onus of proof of error. It has adduced no relevant evidence.

 

c.          Coolkill's pleas of non-compliance with Appendix 2 are in reality a disagreement with the merits of the Impugned Decision as to childcare provision. Also, they are not evidentially based.

 

d.         Any question of material contravention as to childcare provision involves the exercise of discretion in the application of flexible CDP principles to the facts of the case - which exercise is reviewable only for irrationality as to merit and/or for illegality, and/or procedural irregularity. But Coolkill pleads no such errors and so cannot argue them. In any event, it is denied that any such errors occurred.

 

e.         Coolkill pleads non-compliance with Appendix 2 of the Childcare Guidelines. The Inspector in fact had regard to Appendix 2 and to the two issues in question: community mix and childcare needs analysis. [196] As to the latter, Midsal's audit was done on the advice of the DLRC Childcare Committee - which, as a prescribed body, did not respond to the application. [197]

 

f.           Appendix 2 of the Childcare Guidelines does not, as Midsal pleads, set out mandatory assumptions for analysis purposes. It explicitly states that other assumptions may be used which may lead to an increase or decrease in the childcare requirement. The Inspector considered Midsal's assumptions consistent with Appendix 2.

 

g.         As to Midsal's choice of a 2km radius study area, CDP §2.3.2.1 is irrelevant.

 

h.         The claim that Midsal "materially underestimated" the number of children is a disagreement on the merits with Midsal's assessment.

G3 - Discussion & Decision

 

136.           In her assessment, the Inspector acknowledged the possibility of amending the development by condition requiring a creche. Relatively, it would have taken little to impose such a condition. In other words, the much greater step of refusal of permission was not at stake. The Inspector clearly made a positive and considered decision not to recommend that the Board require a creche.

 

 

137.           The Board failed to list the Childcare Facilities Guidelines as a matter to which it had had regard. It should have listed them. But it explicitly lists regard to the Inspector's Report which, in turn, explicitly canvasses those guidelines. It would, in reality, be impossible to sensibly have regard to the Inspector's Report without having regard to the Childcare Facilities Guidelines. Coolkill's plea is formalistic and insubstantial and certiorari on this ground would be entirely disproportionate.

 

 

138.           Coolkill makes a brave submission that it did not plead "the phrase 'material contravention' but this is irrelevant" as its plea that the Board had "failed" to "apply the development plan" "is a material contravention argument by another name with a failure to have regard to the Guidelines as a fall-back and, at very least, is 'tolerably clear'". As a matter of logic and substance there may just about be something in that and one must beware of requiring "magic words" in pleadings. But it is fair to ask: taking pleadings to be expertly drafted, considered and deliberate documents, and even allowing for the relatively short time-scales within which they must be prepared, why would one decide to plead "another name" for such a well- known concept as material contravention? The requirement of precision in pleadings in judicial review is strict - as is well-known. A pleader cannot have the benefit of any genuine doubt, ambiguity or imprecision in pleadings - 100m Tall and Ballyboden TTG. [198] I do think that the point has been reached, in the evolution of judicial review and of pleadings in judicial review, at which the court is entitled to expect the assistance of pleaders in that certain landmark concepts and categories of unlawfulness - for example, irrationality and inadequacy of reasons - will be expressed in terms. In planning judicial review, material contravention is such a landmark concept and the court is entitled to expect that a pleader alleging it will do so in terms: those terms being "material contravention" or "materially contravened" or cognates. In respect of such concepts, and at least generally, the presumption must be that their non-expression in terms makes it "acceptably clear" that they are not alleged. Applicants should not be surprised to be shut out of such allegations in such circumstances. I reject Coolkill's submission in this regard. There is no plea of material contravention. And, other than avoidance of material contravention, the Board bore no duty to "apply" the CPD.

 

 

139.           It is easiest to comment on certain of Coolkill's pleas in tabular form:

 

Coolkill's plea

Comment

Appendix 2 of the Childcare Facilities Guidelines prescribes regard to two specific matters before there can be any modification to the requirement of one childcare facility per 75 dwellings.

Appendix 2 does not prescribe that regard may be had only and exclusively to these matters.

Nor is there any "requirement" of one childcare facility per 75 dwellings - as the Appendix makes explicitly clear, there is something quite different - a "benchmark" or "indicative standard".

·         An estimate of the mix of the community the housing seeks to accommodate.

In that regard it "specifies assumptions" that 50% of the new housing area will require childcare and that a minimum of 20 childcare places is a reasonable starting point for a new housing area of 75 dwellings.

This plea is wrong.

Appendix 2 does not "specify assumptions" that 50% of the new housing area will require childcare. The reference to a 50% assumption begins with words which the plea unfortunately omits - "If an assumption is made ...".

 

And the passage ends with the words "Other assumptions may lead to an increase or decrease in this requirement".

This makes perfect sense as, for example, a 50% assumption would be far too high as to a development largely of 1-bed and studio apartments and perhaps too low as to an estate of 3- and 4-bedroom houses.

o   The results of any childcare needs analysis carried out as part of a county childcare strategy or local area or development plan

No-one suggests that any such analysis existed to be taken into account.

·         Midsal's Childcare Demand Assessment omits reference to Appendix 2 and sets out an entirely different methodology for modification to the general standard for calculating childcare needs set out in Appendix 2. It includes a whole range of assumptions - all of which are pleaded as flawed:

Appendix 2 prescribes no methodology of any detail. I do not see that KPMG's methodology is inconsistent with such method as Appendix 2 sets out.

o   It starts with an existing childcare facilities study area of 2km of the Site - notwithstanding that CDP §12.3.2.1 "Development within Sustainable Neighbourhood Infrastructure Lands", in referring to new SNI facilities, (which include childcare) requires such assessment within 1km / a 10-minute walk. The 2km was particularly inappropriate given the very poor public transport in the area.

CDP §12.3.2.1 is concerned specifically with "Development within Sustainable Neighbourhood Infrastructure Lands".

By CDP §12.3.2, SNI lands are those zoned as such or subjected to SLOs [199] 10 and 22. No-one suggested to the Board or to me that the Site is in such an area.

 

In fact, the requirement appears in §12.3.2.2 Sustainable Neighbourhood Infrastructure - Future Provision. It relates only to new residential communities identified in CDP Figure 2.9. No-one suggested to the Board or to me that the Site is in such an area.

o   Excludes one bedroom units - leaving 105 units.

As the Childcare Demand Assessment explicitly and accurately records, the Apartment Guidelines explicitly authorise this approach.

o   Assumes an average household of 2.5 persons - a total of 263 occupants.

o   As those aged 0-6 were 9.6% of the national population, calculated the number of children aged 0-6 in the proposed development at 25.

o   On the basis that only 25% of pre-school children attend childcare calculated a demand of 6 children but acknowledged this was conservative and allowed for 10

o   Calculated there were 84 spaces available for children in existing childcare facilities within 2km of the site and therefore there was no need for a childcare facility to be provided within the development.

 

They were flawed as:

 

·         Based on national not specific local demographics.

This plea is wrong.

The Childcare Demand Assessment states explicitly that "The estimated childcare space demand was also informed having regard to census data and age profiles for the locality. The 2016 census data confirms that 9.6% of the population of the Study Area was aged between 0-6 years old."

·         Based on the 2016 census not the 2022 census (which results were available in May 2023)

This plea ignores the fact that the planning application was made in April 2022.

It is on public record that even the preliminary results of the 2022 census were not published until June 2022.

Even then I do not know and cannot assume those preliminary results preliminary results included localised data such as the 2016 data cited by KPMG.

·         The average household of 2.5 persons includes 1-bedroom units which are not included in the 105 units.

This is correct as far as it goes.

But, as the Board argues, one may also say that the 105 units include a lower proportion of 3- and 4-bed dwellings than does the national housing stock. To draw any conclusion would require both expertise and evidence - both of which Coolkill has not adduced and the Court lacks.

·         68 - 50% - of the development comprises 2-bedroom units for 4 persons.

·         On this basis 263 persons is a gross underestimation - the 68 2-bedroom units for 4 persons alone would amount to 272.

This makes the unevidenced assumption that all 2-bed/4-person units are occupied by 4 persons.

·         That only 25% pre-school children attend childcare is a metric of actual use not of need.

This is correct as a statement of fact.

But at this point of the pleading the assertion of a flawed assumption ignores the fact that 25% was recognised by KPMG as too low and increased to a 40% - i.e. a 60% uplift. [200]

 

 

140.           Additionally, Coolkill's plea, that the Inspector and the Board failed to have regard to the fact that Appendix 2 provides that any estimate of childcare needs would be based on a county-wide assessment rather than a developer's ad hoc analysis based on flawed assumptions drawn from an out-of-date national census, is clearly misconceived.

 

·         First, Appendix 2 does not so provide. It provides that such estimates "should have regard to the results of any childcare needs analysis carried out as part of a county childcare strategy or carried out as part of a local or action area plan or as part of the development plan". The word "any" acknowledges that there may be no such analysis to which regard might be had. It is not suggested that there was any such analysis relevant to this matter. As I have said, Appendix 2 does not exclude consideration of any substantively relevant matter. And, clearly, the KPMG report was in substance relevant to the childcare issue. On that basis, I reject the allegation of regard to irrelevancies.

 

·         Second, I have dealt above with allegations of "flawed assumptions drawn from an out of date national census".

 

·         Third, the denigration of an "ad hoc analysis" is facile. It ignores the facts that

o   Midsal's Childcare Demand Assessment was in response to a direct request by the Board, made in its statutory opinion in the pre-consultation process; and

o   the childcare facilities audit in that Demand Assessment was in response also to:

§  the absence of any childcare needs analysis of the types contemplated in Appendix 2;

§  the inability of the DLRCC Childcare Committee to provide any data which might constitute a proxy for such a childcare needs analysis;

§  the advice of the DLRCC Childcare Committee that Midsal do a Childcare Facilities Audit.

 

 

141.           Beyond considering them somewhat regrettable, it appears to me that to weigh at all in the proceedings, these pleas by Midsal would have had to be supported by expert evidence contradicting Midsal's Childcare Demand Assessment. Even then, it is likely they would, in the end, have amounted, as they do now, to no more than an attack on the merits of the decision. As to Coolkill's pleas, I agree with the Board's submission that "It is unclear what the legal error alleged here is." And as has been said: if on the pleading there is doubt, ambiguity or confusion, the pleader in judicial review cannot have the benefit of it - in the end, and other than as to reasons, Ground 3 fails as:

·         In substance an attack on the merits of the Impugned Decision as to childcare;

·         Based on misinterpretation of the Childcare Facilities Guidelines and on flawed analysis in consequence.

·         Unsupported by any evidence.

 

 

142.           As to reasons, Ground 3 fails also. Childcare is, in context, a main issue in the Impugned Decision. The Board's obligation is to state the main reasons for its decision on a main issue - FoIE. [201] The requirement of adequate reasons "arises as a matter of justice" and the underlying objective is fairness - Weston [202] and Grassridge. [203] The requirement is generally applicable to decision-makers - Mallak. [204] But the degree of reasoning required to be made evident in the decision is context-specific - reasons must be "adequate to the situation" - Marques [205] and Grassridge. The requirement of reasons includes "fundamental" obligations to make it "broadly clear" why submissions on the issue were rejected and others preferred - Balz [206] and Roache. [207] Kuwait v Kanj [208] states that "... a similar duty applies to all decision makers. Where there is conflicting evidence before a decision maker, it is essential that he/she engages with the evidence." The adequacy of reasons also falls to be considered in the context of the requirement that a planning application be processed with "scrupulous rigour" - Weston - and it should be remembered that this observation was made in Weston with specific reference to the inspector's querying data supplied by the developer. It has also been authoritatively said that "in the context of the evidence adduced ... there is a balance to be struck. It is of course ultimately a question of substance and not form, and there must be an element of common sense and practicality in approaching the question of adequacy of reasons" - FC. [209] At one end of the spectrum, reasons are not required for the obvious - and context may make reasons obvious - Connelly [210] Mallak, [211] Killegland [212] and Grassridge.  At the other end, rejection of weighty and/or expert submissions requires that the decision-maker "truly engage" with the submission rejected - NECI. [213] Though, for the avoidance of doubt, I would say that the obligation of "true" engagement is general and between the ends of the spectrum, its degree is to be titrated to the circumstances. The overarching requirement, by reference to which adequacy of reasons is tested, is of fairness - to fulfil the function of reasons, described above, to adequately inform the reader why the decision was made so that (s)he can consider whether the decision was lawful and whether appeal or judicial review should be pursued.

 

 

143.           In the present case, the Childcare Committee could supply no data and there was no analysis of the type envisaged in Appendix 2. So KPMG relied on that supplied by Tusla as the best available and on the most recent available census data for the locality - though that was perforce old data. This, they supplemented with their own inquiries. Whether or not one agrees with their conclusions, KPMG described their data sources, assumptions and methods clearly and in detail. While there were contrary views before the Board as to childcare availability, they were very generally expressed and it is not apparent that they were evidence-, data-, or analysis-based. As far as is apparent, they weren't even anecdotal. Though emanating from credible local sources and to be given weight on that account, they were essentially assertion. Nor has any such contrary evidence or data or analysis been adduced to me. In those circumstances, the Inspector was not bound but was entitled to prefer the KPMG report and it is difficult to see what reasons she could sensibly have given for doing so beyond those she gave.

 

 

144.           I also reject Coolkill's assertion that the Inspector uncritically accepted Midsal's Childcare Assessment. I am conscious of the Board's duties of independent curiosity and stringent scrutiny. But on the particular facts of this case, in the absence of any substantial evidence contradicting the assessment, this seems to me an example of the fallacy identified in Carrownagowan [214] - the

 

"fallacy ... that acceptance of a developer's material is a breach of the duty to independently decide. But such acceptance does not in itself constitute a failure to assess the application ... It cannot simply be asserted that the developer's material was accepted without consideration. That has to be proved - by evidence - which hasn't been done."

 

 

145.           For the avoidance of doubt and lest I am wrong in excluding Coolkill's submission that it has pleaded material contravention of the CDP as to childcare provision, I should say that it seems to me to follow from my foregoing analysis that such an allegation must be rejected. In short, the relevant CDP content is far less prescriptive and precise than Coolkill asserts. It affords considerable scope for tendering any form of relevant evidence to the Board and for the exercise by the Board of evaluative judgment and discretion. And so the Impugned Decision, as to material contravention, is judicially reviewable only for irrationality in accordance with the Jennings/Sherwin [215] principles. There was sufficient evidence before the Board - primarily the KPMG report - to justify its decision as to childcare. And that it in fact relied on that evidence in making that decision is very clear.

 

 

 

146.           For all the reasons set out above, Ground 3 is dismissed.

 

 

147.           However, it must be said that, while the evaluative judgement on the provision of childcare in large residential developments is for the Board and is reviewable only for irrationality, the limits of rationality are approached where the fact is that 2016 census figures and a 2022 snapshot of existing provision and spare capacity formed the basis of a decision as to the provision of childcare for a development for which permission was given in late 2023 and which would take some years thereafter to build and populate with children. One may wonder what practical relevance these 2016 and 2022 figures will have when the demand for childcare actually arises? The answer must surely lie in the generation of proper policy based on quantified projections of need for childcare provision. It is striking, by reference to Appendix 2 of the Childcare Guidelines, now in place for almost a quarter of a decade, that there are in DLR, as far as the evidence before me reveals, still no "results of any childcare needs analysis carried out as part of a county childcare strategy or local area or development plan" and that the DLRC Childcare Committee is entirely unable, it seems, to assist developers of the Board in this regard - at least as to the area in question in this case. However, it would be disproportionate to penalise intending developers and future residents for such policy lacunae by requiring that permission be refused on this account.

 

 

 

GROUND 4 - MATERIAL CONTRAVENTION - SEPARATION DISTANCES/AMENITY

 

Core Ground 4 [216]

 

"The impugned decision materially contravenes CDP §12.3.5.2 and/or Objective PHP 19 as to separation distances

such that the Board could have granted permission only once it had satisfied itself that s.37(2)(b) PDA 2000 had been complied with

and/or the Board failed to give adequate reasons for its conclusion that the development was not in material contravention of the CDP

and/or failed to take into account relevant considerations."

 

 

148.           The particulars of Core Ground 4 also invoke material contravention of zoning Objective A [217] - "To provide residential development and improve residential amenity while protecting existing residential amenities". I appreciate that judgement is required in achieving a concise statement of a core ground and that particulars of a core ground will inevitably expand on it. But particulars should not plead an additional ground of invalidity not found in the core ground. However, I will consider the plea.

 

 

149.           Core Ground 4 also implies, though clearly and factually correctly, that the Board found no material contravention of the CDP as to "separation distances". It could, helpfully, have briefly indicated that this issue has three distinct aspects: separation between

·         The apartment blocks;

·         Their opposing windows;

·         The Proposed Development and neighbouring properties.

 

 

 

G4 - CDP §12.3.5.2 & Objective PHP19 & Commentary

 

CDP §12.3.5.2

 

150.           CDP §12.3.5.2 reads as follows:

 

"Separation Between Blocks

All proposals for residential development, particularly apartment developments and those over three storeys high, shall provide for acceptable separation distances between blocks to avoid negative effects such as excessive overlooking, overbearing and overshadowing effects and provide sustainable residential amenity conditions and open spaces.

 

A minimum clearance distance of circa 22 metres, in general, is required, between opposing windows in the case of apartments up to three storeys in height. In taller blocks, a greater separation distance may be prescribed having regard to the layout, size, and design. In certain instances, depending on orientation and location in built-up areas, reduced separation distances may be acceptable. In all instances where the minimum separation distances are not met, the applicant shall submit a daylight availability analysis for the proposed development."

 

 

151.           Notably, "A minimum clearance distance of circa 22 metres, in general, is required, between opposing windows" but "acceptable separation distances between blocks" are required. What may be acceptable as between blocks, in the absence of opposing windows, is not quantified. The quantification supplied is specific and limited to opposing windows - so it is obvious that the particular mischief it addresses is overlooking - privacy.

 

 

 

CDP Objective PHP19 & "Infill"

 

152.           CDP Policy Objective PHP19 [218] ("PHP19") relates to "Existing Housing Stock - Adaptation". Coolkill insists on reliance on it as "dealing with impacts on existing neighbouring property". [219] The Board says it is irrelevant. [220] PHP19 states:

 

"It is a Policy Objective to:

§  Conserve and improve existing housing stock through supporting improvements and adaption of homes consistent with NPO 34 of the NPF.

§  Densify existing built-up areas in the County through small scale infill development having due regard to the amenities of existing established residential neighbourhoods."

 

 

153.           Much of the accompanying text is irrelevant for present purposes. It does identify existing housing stock as a resource valuable in meeting the needs of a growing population and its retention, adaptation and management as of considerable importance.  But it also encourages, inter alia:

·         Densification of existing residential areas via "infill" housing which should respect or complement the established dwelling type and character of the area [221] and should not detract from existing buildings and adjoining amenities;

·         Prevention of new development which would seriously reduce the amenity of nearby dwellings.

·         Infill in older residential areas, while protecting their character;

·         Regard to the character of the area and site context in permitting residential units; and

·         Design of all new development in established residential areas to the highest standards and its integration well into the existing streetscape.

 

 

154.           Under the heading "Infill", [222] the CDP states that, in accordance with PHP19, infill development shall respect the height and massing of existing residential units and shall retain the physical character of the area. [223] This seems consistent with the PHP19 concept of "infill" as "small scale". It also seems significant that as to "height and massing of existing residential units", the requirement is "respect" - not that the infill development conform to or be the same as that of the "existing residential units". This falls to be considered in the context that:

·         Development can take various forms while still:

o   being residential and so conforming to the residential character of a neighbourhood;

o   respecting the "height and massing of existing residential units";

·         National policy favours increased development of apartments as part of compact sustainable development. For example, the Apartment Guidelines 2022: [224]

o   identify the need for "a significant and sustained increase in housing output and apartment type development in particular";

o   state that "apartments need to become more and more the norm for urban housing solutions"; and

o   state that "housing supply must include a dramatic increase in the provision of apartment development".

 

 

 

155.           It also seems to me impossible to interpret PHP19 save in the context of the immediately preceding "Policy Objective PHP18: Residential Density" - to which the Inspector refers. It reads

 

"It is a Policy Objective to:

§  Increase housing (houses and apartments) supply and promote compact urban growth through the consolidation and re-intensification of infill/brownfield sites having regard to proximity and accessibility considerations, and development management criteria set out in Chapter 12.

§  Encourage higher residential densities provided that proposals provide for high quality design and ensure a balance between the protection of existing residential amenities and the established character of the surrounding area, with the need to provide for high quality sustainable residential development."

 

 

156.           The CDP text accompanying PHP18 is too long to set out here in full. But it notably states that "The Development Plan seeks to maximise the use of zoned and serviced residential land. Consolidation through sustainable higher densities allows for a more compact urban growth that, in turn, more readily supports an integrated public transport system." The concept of "balance" is important, as between, on the one hand the "protection of existing residential amenities and the established character of the surrounding area" and, on the other hand, "the need to provide for high quality sustainable residential development." And, clearly, the policy contemplates "apartments" - which are the most obvious means of achieving "higher residential densities" and "compact urban growth".

 

 

157.           I observe that, in contemplating a variety of forms of development, compact development, including infill development, in existing residential areas served by good public transport, rather than by way of urban sprawl, the context I have described above obviously envisages apartments in areas previously characterised by extensive (as opposed to intensive) residential development, such as traditional housing estates.

 

 

158.           Much of the foregoing at national policy level and CDP level relates to "Infill" development. "Infill" is, in planning law and perhaps regrettably, not a defined term of art nor even a term described or elaborated usefully in relevant guidance. Its meaning has been considered in Murphy [225] and in Jennings. [226]

 

·         In Jennings,

o   by reference to the Sustainable Urban Residential Guidelines [227] - the phrase "Inner suburban/infill" was contrasted with "Outer Suburban/'Greenfield". In the present case, it is difficult to see the Site, lying outside the M50, as "inner suburban". Nonetheless and despite the contrast, I do not think that it can be ruled out that an outer suburban site could be infill;

o   the NPF [228] was thought instructive for contrasting greenfield with "infill sites, which may not have been built on before".

 

·         "Infill" seems to me the type of word of which one tends to imagine one knows the meaning until one has to distinguish infill from non-infill sites in other than clear cases. Absent much assistance from the policy documents and without attempting to be definitive, it seems to me that in its ordinary meaning "infill" connotes a site - undeveloped or perhaps underdeveloped or developed but in obsolete use - more or less surrounded by developed land in an area characterised by existing development - allowing perhaps that some types of undevelopable land adjacent or nearby (for example a public park) would not necessarily undermine the connotation.

 

·         The ordinary meaning of infill, it seems to me, also connotes, typically, a small site in an inner suburban area. The CDP, at least in PHP19, seems to take a similar view. However it must be said that:

o   such a connotation, even in ordinary meaning, falls well short of a definition;

o   the Sustainable Urban Residential Guidelines [229] explicitly refer to "large infill" sites;

o   in Murphy, the court said of a 3ha site adjoining Clonkeen College, Blackrock, Co. Dublin that "The finding by the Inspector that the site in question could be considered to be infill, was open to her ...".

 

·         As the words "open to her" in Murphy suggest, the question whether a particular Site is an "infill" site is a matter of evaluative planning judgement - and hence, in my view, reviewable as to merit only for irrationality.

 

Though it does not affect the outcome of this case, I respectfully suggest that, while it may not be susceptible to precise definition, consideration be given by policy makers to at least some elaboration of the term "infill".

 

 

159.           In the present case, and as has been seen, the DLRCC CE Report welcomed redevelopment of the "existing underused infill site that is zoned for residential development." [230] The Inspector also considered the Site an "infill" site. [231] Coolkill do not challenge the Inspector's view that the Site is an "infill" site - rather they rely on it as activating some of the protections of PHP19. And it does not seem to me open to the Board to resile from that view now, not having done so in their decision. In those circumstances, the Board is wrong in asserting the irrelevance of PHP19. That said, it does not follow that PHP19 avails Coolkill. I return to this issue below.

 

 

 

G4 - Material Contravention & SHD

 

160.           It is useful to put the concept of material contravention in its practical context. In planning law generally, while permissions in material contravention are legally exceptional and even despite the "solemn representation" and "environmental contract" of which a development plan consists, findings of material contravention are in practice more common and not infrequently less consequential than might be expected at first blush. Permissions in material contravention of a development plan are possible. To grant such permissions, planning authorities must follow particular public participation procedures and act via at least ľ of the elected members. [232] But in ordinary planning applications and unless the planning authority has refused permission for material contravention, [233] the Board has wide power to "grant a permission even if the proposed development contravenes materially the development plan" - s.37(2)(a) PDA 2000. Even where the planning authority has refused permission for material contravention, the Board has extensive powers to grant permission under s.37(2)(b) PDA 2000. Not least, it has power to grant permission in material contravention "having regard to" the relevant RSES, [234] ministerial planning guidelines issued under s.28 PDA 2000 (of which there is a very large number on a wide variety of planning topics) or any relevant policy of the Government or a minister of the Government. [235]

 

 

161.           It is in this context - of the position as to material contravention as it relates to ordinary planning applications - that the 2016 Act, as to SHD permissions in material contravention, must be understood. The 2016 Act as to SHDs provided a fast-track procedure, depriving the planning authority of its decision-making role, [236] facilitating developers by formal pre-application procedures and advice from the Board and allowing them to make application for permission directly to the Board. The quid pro quo of these advantages included that developers would "front load" their applications "oven ready" - Crofton. [237] This they were to do appreciating, inter alia, such additional risk to their application as was represented by the fact that the Board's usual wide powers to seek further information and to grant permission in material contravention did not apply. No doubt in recognition of the disempowering of the planning authority, the Board's power to grant permission in material contravention was now limited to a power to do so as if the planning authority had refused permission for material contravention - s.9(6) of the 2016 Act and s.37(2)(b) PDA 2000. [238] However, I have just described, even that power is extensive. Nonetheless, in very broad and general terms it may be said that, having had the benefit of the Board's advice in the pre-application procedure, developers may have been wise to take in SHD applications a more conservative and careful attitude to avoiding material contravention than they might take in ordinary planning applications in anticipation of appeal to the Board.

 

 

 

G4 - Actual Separations - Opposing Windows - Staggering & Obscuring & Material Contravention Statement

 

162.           Figure 1 above will assist in understanding actual separations between blocks as identified by the Inspector as follows: [239]

·         21.2 - 21.6m between the rear elements of the blocks.

·         12.5 and 15.8m [240] between Blocks A and B.

·         7.7 and 13.2m between Blocks B and C.

·         8.9 and 16.4m between Blocks C and D.

As Figure 1 suggests, these last three entries relate to locations at or close to the Site's frontage to Sandyford Road. See also in this regard the description and illustration of these separations in the Architectural Design Statement. [241]

 

 

163.           Redmond[242] is authority that, by s.8(1)(a)(iv)(II) of the 2016 Act, a material contravention statement must, on pain of invalidating the planning application, identify all material contraventions so that the public is notified of them and can make submissions on them. As Simons J said: "The legislation does not allow the developer's error to be visited upon the public by undermining their rights of public participation". Midsal's Material Contravention Statement, [243] as often occurs, does not concede material contravention - in this instance as to as to separation distances - but does concede the possibility that the Board might find such a material contravention. It states: "The scheme as proposed may be determined to materially contravene the Development Plan with regard to ... separation distances with reference to Section 12.3.5.2 of the Development Plan". [244] It asserts that permission should be granted even so. That approach is not generally objectionable as it puts the public on notice of the potential issue - Jennings.[245]

 

 

164.           Midsal's Material Contravention Statement also suggests that if material contravention is found, permission can be based on s.37(2)(b)(ii) or (iii) PDA 2000. [246]  But, as the Board did not find a material contravention, I need not further consider those issues.

 

 

165.           Midsal's Material Contravention Statement [247] and Planning Report [248] assert, as to the actual separation distances and mitigatory design approach as between blocks and windows, that:

 

a.         CDP §12.3.5.2 "places significantly greater weight on the qualitative impacts associated with separation distances than on the potentially arbitrary application of a 22 metres quantitative separation distance. Simply enforcing a 22 metre separation distance fails to appreciate and understand the detail of a development, impacts (or lack thereof) on residential amenity and privacy and the overall benefits that can be achieved by more pragmatically assessing a proposal."

 

b.         The Apartment Guidelines and Sustainable Urban Residential Guidelines - the latter in particular - support a flexible and practical approach to the normally recommended 22m separation distance, favouring high quality design, including careful positioning and detailed design of opposing windows. The qualitative aspect associated with securing adequate separation distances has been to the fore in the design.

 

c.          Despite instances of the minimum recommended standards not being met, the design solutions to mitigate residential amenity and privacy impacts are acceptable, especially given the benefit of the windows in terms of light and ventilation in the units. Overall, the apartments will be high-quality and attractive living spaces;

 

d.         The general approach is to stagger/offset windows so they do not diminish residential amenity and privacy;

 

e.         In the 2 "instances" of separation distances of 16.5m between "opposing windows" [249] between Blocks C and D, all are 'secondary' windows - a 'primary' window also serves the relevant rooms. These windows are not obscured. From a perusal of the floor plans it is clear that this to refers to a separation of 16.4m between Blocks C and D on the Sandyford Road elevation.

 

Counsel for the Board very properly brought to my attention that the position as to the windows between Blocks C and D at 16.5m also pertains to the windows at a 15.8m separation between Blocks A and B;

 

f.           In the 2 "instances" of separation distances between opposing windows at 9m and 7.7m, all are 'secondary' windows, one of each pair of which has been obscured. And in each case a 'primary' window also serves the relevant rooms.

 

 

166.           The Material Contravention Statement is unfortunately unclear as to what is meant by "instances". However, from a perusal of the floor plans of the development as proposed by Midsal, it is clear that, as counsel for the Board helpfully observed, the unobscured opposing windows:

·         At 16.4m separation between Blocks C and D, comprised a pair of apartments on each of the 1st, 2nd, 3rd and 4th floors - i.e. a sub-total of eight apartments is affected - in which a secondary window is overlooked;

·         At 15.8m separation between Blocks A and B comprise a pair of apartments on each of the 1st, 2nd, and 3rd floors - a sub-total of six affected apartments;

·         Comprised in total 14 unobscured, overlooked, secondary windows.

 

However, as counsel for the Board observed, the Board's decision excised the 2nd floor of Blocks C and D - which reduces that sub-total of eight to six. Counsel for the Board considered the resultant total to be 10 unobscured secondary windows overlooked - by my count it is 12 as Blocks A and B were unaffected by the excision. [250] Nothing turns on the difference. Counsel says that in a development of 116 apartments any contravention represented by these 10, or 12, secondary windows is immaterial.

 

 

167.           Counsel for the Board tried unconvincingly, to persuade me that the relevant windows in these apartments were not "opposing" as they did not overlap completely. In my view it is clear that, functionally, they overlook each other and Midsal's Material Contravention Statement clearly and correctly regarded them as opposing. So did Midsal's Architectural Design Statement. [251] The Inspector and the Board did not demur and counsel cannot rewrite the Impugned Decision.

 

 

168.           Returning to the Material Contravention Statement, it also

 

a.         Summarises Daylight and Sunlight Assessment results indicating negligible impacts on existing and granted residences adjacent the Site. In the vast majority of cases the effect will be "imperceptible". And the "slight" and "moderate" effects fall to be balanced against both the "positive effects" and the fact that this is a sustainable residential development in accordance with national, regional and local policy driving densification and compact growth. Therefore, it will not degrade the daylight and sunlight amenity enjoyed by the existing and potential future residents.

 

b.         Identifies separation distances between the rear building lines of the proposed blocks at their easternmost extents and the existing Coolkill residences generally range from 21.9m to 40.7m and meet the recommended 22m. The proposed blocks are set further back at upper levels. Given the diverging building lines there are no directly opposing windows. But some windows in the proposed blocks will be obscured as a prudent measure.

 

 

169.           Coolkill accuses the Board of failing to consider separation distances of 14m and 9.5m to buildings off-Site to the "east and the west". It is convenient to address this issue here. As to fact, the allegation is clearly wrong. The distances to Coolkill to the east are at least 21.9m and Sandyford Road is to the west. Perhaps the reference should have been to north and south - which would accord with Coolkill's reference in submissions to "the proposed developments". But I have been unable to confirm the relevant distances on the drawings opened to me at trial. In particular, I have no information as to opposing windows of off-Site buildings - information which, presumably would have been available to Coolkill from the relevant planning files. Remembering that Coolkill bears the onus of proof, I have failed to discern any substance in this allegation of separation distances of 14m and 9.5m to buildings off-Site. The issue was not pursued or clarified by Coolkill in argument. So I reject it.

 

 

 

G4 - Coolkill Objection, CE Report & Inspector's Report

 

170.           Coolkill's submission to the Board [252] disputes, at some length, Midsal's position as to separation distances. Inter alia it states:

 

a.         The CDP considers "location" very important in determining acceptability of reduced setbacks. [253] The Site is peripheral and the need for higher density 25 minutes' walk from the LUAS is not proven.

 

b.         The Site adjoins and is surrounded by existing and emerging development of much lower density with greater setbacks between blocks.

 

c.          Nonetheless, the application fails to offer a 22m separation distance between all blocks and between existing and emerging adjoining blocks. It also fails to offer adequate setbacks from high levels relative to adjoining 2-storey dwellings.

 

d.         Midsal's emphasis on qualitative review is an effort to divert attention from the setback standards. Midsal asks that the scheme be assessed "pragmatically". That is, the good justifies the bad.

 

e.         The blocks are so close that obscured glazing is needed between opposing apartments. Overshadowing and overbearing between blocks and relative to existing and emerging adjoining blocks would be unacceptable. The cumulation of material contraventions suggest overdevelopment unsuited to this peripheral Site.

 

f.           Midsal's Daylight and Sunlight Assessment is "gamed" to justify the reduced separation distances. Despite DLRCC and the Board asking Midsal not to do so, it included the effect of existing trees in the baseline assessment - which is not normal and is usually done to cloak what would otherwise be negative impacts. [254]

 

g.         The application of setback standards would reduce the excessive density and overdevelopment such that scheme residents and adjoining residents would not have their residential and visual amenities damaged so badly.

 

 

171.           As briefly indicated above, the CE Report, in its planning assessment, states that the required separation distances between the blocks will generally be achieved but:

 

"there are locations between Blocks B-C and Blocks C-D where adequate separation distances are not achieved. This is due to the L shaped form of those blocks and while mitigation measures are implemented to address that deficiency, it is considered that the L shape of the 2 No. blocks (Blocks B and C) has potentially negative impacts on the development as a whole." [255]

 

 

172.           DLRCC suggests that reduction of the central 'L' shaped Blocks B and C to a broadly rectangular shape [256] would address separation distances and other concerns - inter alia, density, parking and open space. [257] As is apparent from their proposed reduction of Blocks B and C, DLRCC considered that no constraint prevented the achievement of adequate separation distances. Specifically, and despite its reservations as to overdevelopment and high density on the Site, DLRCC observed that its recommendations would reduce density to circa 131 units/ha which "would admittedly still be considered higher density". [258]

 

 

173.           The CE Report does not in terms assert a "material contravention" as to separation distances. Given the centrality of the concept in planning law and practice, that absence is significant. On the other hand, the CE Report does in terms assert that the separation distances are "not adequate" and that Midsal's suggested mitigation does not suffice. When those observations are taken with the radical suggestion of the reduction of the central 'L' shaped Blocks B and C to a broadly rectangular shape, it becomes apparent that the CE Report comes at least close to asserting material contravention. The Roughan [259] criterion for assessing materiality of contravention seems relevant here - it centres on the " the grounds upon which the proposed development is being, or might reasonably be expected to be, opposed by local interests." Including, as I think proper, DLRCC in, or at least as representing, " local interests", it notably opposes the Proposed Development, at least as to separation distances and to the extent of significant remedial surgery.

 

 

174.           To this observation one may add the concerns expressed by DLRCC that the suggested reduction to achieve separation distances would help address issues of density, parking and open space. While the beneficial effects as to density and parking may be incidental, and while the CE Report is not notably critical of the open space provision, it is notable that it argues that the suggested reduction to achieve separation distances would improve the quality of kick-about spaces and improve the daylight/ sunlight received by the open spaces at those locations.

 

 

175.           The Inspector

 

a.         Identified concerns raised, including in the CE Report, at inadequate separation between blocks.

 

b.         Considered the separation distances of 21.2m - 21.6m between the rear elements of the blocks "marginally below the recommended 22m" and "acceptable".

 

c.          Noted the other quantified instances of reduced separation distances and commented as follows:

 

"In all of the above instances, windows are staggered to prevent direct overlooking and/or obscure glazing is used. The CE Report recommends that the proposed layout should be redesigned to provide increased separation distances between the blocks. ... However, given the proposed design measures to obviate overlooking between blocks, and given that the interior of the units will generally achieve satisfactory daylight and sunlight standards, [260] I consider that the reduced separation distances will not significantly impair the quality of residential units and are therefore acceptable in this instance.

In addition, notwithstanding that the Material Contravention Statement addresses separation distances, I do not consider that the development materially contravenes the development plan in this respect, given that the plan allows for some flexibility on the 22m standard." [261]

 

 

176.           The Inspector's assessment of "Impacts on Visual and Residential Amenities": [262]

 

a.         Noted that adjacent residents predict adverse impacts on their amenities by way of overlooking, overshadowing and overbearing, in particular due to the proximity of the Proposed Development to Site boundaries. She noted also the concerns on these issues stated in the CE Report;

 

b.         Accepted some of their criticisms of Midsal's Landscape and Visual Impact Assessment and CGIs; [263]

 

c.          Was nonetheless satisfied overall that the available documents, [264] taken with her site inspections and knowledge of the area, sufficed for a comprehensive assessment of such impacts;

 

d.         Recorded the "Interaction with Adjacent Residential Properties" [265] - including estimation of separation distances;

 

e.         Considered that the Proposed Development would significantly change the outlook from Coolkill, Cul Cuill and The Pastures, due to its height, scale and proximity to Site boundaries and to the removal of trees. Notwithstanding proposed landscaping, Midsal's Landscape and Visual Impact Assessment and CGIs underestimated such effects;

 

f.           Considered the elevations well-designed to avoid a monolithic appearance and direct overlooking;

 

g.         Nonetheless considered that the proposed six-storey Blocks C and D would overbear properties to the east given, inter alia, their proximity to site boundaries and the site topography. So she recommended omission of the sixth floor of Blocks C and D to reduce visual and overbearing effects.

 

 

 

G4 - Coolkill's Position

 

177.           By way of particulars of Ground 4, Coolkill pleads the content of the Inspector's Report set out above and that "four points" arise as follows:

 

a.         First, factual error in concluding that "In all of the above instances, windows are staggered to prevent direct overlooking and/or obscure glazing is used" and hence failing to consider the two instances [266] of directly opposing unobscured windows at 16m separation. [267]

 

b.         The second and third points can be described together as follows:

 

§  The development proposed by Midsal materially contravened the CDP. So the Board had power to grant permission only pursuant to s.9(6)(c) of the 2016 Act [268] and s.37(2)(b) PDA 2000 but it did not invoke that power;

§  The Board reduced the height of Blocks C and D [269] to avoid overbearing and allow it to conclude that there was no material contravention of the CDP §12.3.5.2 and/or Zoning Objective A [270] as to the protection of existing residential amenities;

§  S.9(6)(c) prevents the Board, unless it invokes s.9(6)(c), altering a proposed development that materially contravenes the CDP in order to render it compliant with the CDP;

§  The Board was entitled by s.9(4) of the 2016 Act to "grant permission for the proposed development subject to such modifications to the proposed development as it specifies in its decision...". This wording identifies the "proposed development" as that proposed in the planning application. It is this "proposed development" which s.9 requires to be considered as to whether it materially contravenes the CDP - not a proposed development, modified under s.9(4), which the Board might be disposed the grant;

 

§  "the Inspector did not address this at all in considering separation distance and this amounted to a material contravention of §12.3.5.2 of the CDP and/or Objective PHP 19." (The "this" which the Inspector allegedly did not consider was the fact that the development as proposed was overbearing, and hence, it is said, a material contravention even while addressing (as far as the plea goes, successfully) the substance of the contravention);

 

§  The Board failed to consider the CDP standard as to separation distance between the Proposed Development and existing neighbouring property. The Inspector merely noted the distances, concluded as to visual impact "that the proposed six storey Blocks C and D will have an overbearing impact on properties to the east", [271] and recommended a height reduction.

 

c.          Fourth, the Board misinterpreted CDP §12.3.5.2 and/or failed to give adequate reasons in finding no material contravention.

 

 

178.           As to the fourth point, Coolkill pleads that:

 

a.         The Board failed to explain or justify how, specifically, the Proposed Development could avail of the limited flexibility as to separation distances allowed by CDP §12.3.5.2 - how this is one of the "certain instances" in which reduced distance "may" be acceptable.

 

b.         That flexibility is available only by reference to two cumulative factors - on neither of which the Inspector relied.

 

§  That flexibility applies only in "built up areas" - which description does not apply to what is a Residual Suburban Area of two-storey houses. That it is a Residual Suburban Area is demonstrated by the Inspector's citation of CDP Objective BHS 3 - Building Height in Residual Suburban Areas. [272]

§  The Inspector did not explain what aspect of the location and/or orientation of the development justified reduced separation distances.

 

c.          No constraint prevented the achievement of adequate separation distances - which, they say, were "clearly achievable".

 

d.         The Inspector failed to have regard to the relevant considerations that, by CDP §12.3.5.2:

§  the minimum separation distance is 22m; and

§  the Proposed Development is of blocks taller than three storeys - such that greater separation distances may be necessary.

 

 

179.           In written submissions, Coolkill also make an unpleaded assertion that "the inspector misconstrued the development plan in dismissing the relevance of the rear block generally between 21.2m - 21.6 m on the basis that it is marginally below the 22m. The 22m is a minimum and there has to be some cut off point."

 

 

 

G4 - Board's Position

 

 

180.           Broadly, the Board's argument is that separation distances are a means to privacy and daylighting as opposed to an end in themselves and where separation distances fall appreciably below the recommended 22m, design achieves those ends of privacy and daylighting by other means.

 

 

181.           Beyond traverses and pleas that it considered all relevant matters and complied with all relevant obligations, the Board pleads and submits, inter alia, as follows:

 

a.         No question of material contravention of CDP §12.3.5.2 arises as it is background text and not a CDP objective.

 

b.         CDP §12.3.5.2, in terms, relates only to "Separation Between Blocks". It is irrelevant to separation distances to off-Site building so, in that regard, no question of material contravention of §12.3.5.2 arises.

 

c.          Coolkill provides no particulars of its plea of material contravention of CDP Objective PHP19. In any event, it relates to adaptation of existing housing stock and so is irrelevant. (I have already rejected the latter plea.)

 

d.         As the relevant CDP provisions allow for flexibility, discretion, and/or planning judgement, their application is reviewable as to merit only for irrationality or, as material error of fact, where it is an uncontradictable and serious error of fact which played a material role in the decision-maker's reasoning.

 

e.         Even if the Board "got it wrong" as to fact and/or merit in concluding that in all instances of reduced separation distance "windows are staggered to prevent direct overlooking and/or obscure glazing is used" or in failing to consider the two instances of directly opposing unobscured windows at 16m separation, that is not irrationality or material error of fact.

 

f.           Further as to that alleged factual error, the Inspector's conclusion that there was no material contravention was based on:

§  The fact that CDP §12.3.5.2 allows some flexibility on the 22m standard;

§  Design measures to obviate overlooking between blocks;

§  The fact that units generally achieve satisfactory internal daylight and sunlight;

and

§  Her conclusion that the reduced separation distances will not significantly impair the quality of residential units.

In these circumstances, as the windows in question are secondary to a primary window in the same room and are offset (i.e. from the opposing window) "this issue did not play a material role in the Inspector's reasoning on this issue".

 

g.         Any contravention of the relevant CDP provisions was not material.

 

h.         The Inspector considered that the Proposed Development would be overbearing on adjoining properties and so recommended omission of a floor of each of Blocks C and D. [273] The Board agreed.

 

i.           If a development as permitted by the Board would not materially contravene the development plan no obligation arises under s.9(6)(c) of the 2016 Act.

 

j.           The Board's reasons suffice for a conclusion that CDP §12.3.5.2 was not materially contravened as to separation distances between blocks - it relies in particular on §10.6.3 of the Inspector's Report. [274]

 

k.          The Inspector did not misinterpret the phrase "built up area" in CDP §12.3.5.2. The Site, surrounded by existing development, is in such an area. Alternatively, whether the Site is in such an area is a matter of the evaluative expert judgement of the Board which is impugnable as to merit only for irrationality. Coolkill has not pleaded irrationality and the Board's judgement was not irrational.

 

 

182.           In addition, the Board submits that:

·         The alleged inadequacy of 21.2 - 21.6m separation distances between blocks is not pleaded;

·         CDP §12.3.5.2, in providing for 22m separation between blocks incorporates flexibility. The Proposed Development comes within this flexibility and/or any contravention it is not material.

G4 - Discussion & Decision

 

 

Coolkill's Pleading Point

 

183.           Coolkill, citing Elsharkaway, [275] invokes the undoubtedly correct principle that the strict rules of pleading in judicial review apply to the respondent Board just as much as to an applicant in judicial review and complains that the Board has merely traversed its allegation of material contravention of Zoning Objective A.

 

 

184.           In Elsharkaway [276] Butler J contrasted the specific pleading obligations on a respondent in judicial review under Order 84 Rule 22(5) RSC (including in virtue of its duty of candour) with a defendant's entitlement in non-judicial review civil litigation to plead a mere traverse/denial as to a matter on which the Plaintiff bears the onus of proof. Coolkill cites Butler J as she said: "It is not a proper approach for a statement of opposition to formulaically deny the pleas made by the applicant. A denial of something is not a ground of opposition. A denial does not deal specifically with the facts or matters pleaded by the applicant which the respondent does not admit." However, Butler J continued:

 

"Where something is denied because it is disputed, the respondent should make clear the basis upon which it asserts that the particular legal or factual proposition is incorrect. Although the applicant bears the onus of establishing the facts or matters relied on in a claim for judicial review, a denial which is intended to put the applicant on proof of something within the knowledge of the respondent cannot have that effect in practice unless the respondent has made full and fair disclosure of all relevant material." [277]

 

 

185.           The particular context was one in which Mr Elsharkaway sought sight of legal advice which the Minister had pleaded as the basis on which he had changed the application of the law as to disqualification from driving due to accumulation of penalty points. Butler J noted the Minister's plea denying that he acted unreasonably, unfairly, disproportionately or retrospectively and said:

 

"However, no positive plea is made as to how the Minister contends that it was reasonable to materially change the application of the law after it had been in operation for seven years. ... except for the reference to having received legal advice, it is not possible to discern from the opposition papers why the Minister changed the way the law was to be applied. In circumstances where this case is essentially about the legality of an apparently unexplained change in the application of the law, in my view it is very much open to question whether the Minister has met the obligation on him to explain fully what was done and why." [278]

 

 

186.           Pleading rules are closely related to the rules as to onus of proof - generally, one must plead what one asserts. They are also related to fairness - parties are entitled to know, within bounds, what the other side's case will be. Those entitlements are heightened in judicial review and it is in that light that the criterion has been stated that the pleadings must be "acceptably clear" - acceptable, that is, from the point of view of fairness. They also fall to be considered in the context that facts relevant to the decision-making process are often known only to the decision-maker and must be disclosed in the proceedings. Elsharkaway was, on its facts and as a matter of fairness, clearly a case where the Minister was obliged to positively explain himself in his pleadings. However, in some circumstances, if a respondent in judicial review considers that the facts on which the applicant relies disclose no error in law and, bearing in mind its duty of candour and that Butler J considered that a respondent must plead clearly the basis on which, not merely factual propositions but also legal propositions are incorrect, decides that no positive case is to be made on the issue, a mere traverse of an allegation on which the applicant bears the onus of proof may suffice. In judicial review and as concerns statements of opposition, such pleas will often merely gild the lily of the presumption of validity of impugned decisions.  But one can be valuable in clarifying the respondent's position as long as it is not a general traverse and is accompanied by full disclosure and proper admission of facts and legal propositions not disputed. In short a statement of opposition must be fair, precise and complete in disclosing the respondent's position as to all relevant matters.

 

 

187.           Coolkill's difficulty here is that it relies on Zoning Objective A for its protection of existing residential amenities but, as recorded above, the Board has pleaded that the Inspector, in particular at §10.7.3 of her Report, considered impact of the development, as proposed, on adjoining properties, concluded that it would be overbearing in certain respects and so recommended omission of a floor of Blocks C and D. The Board effected a modified version of that recommendation. And, of course, the onus of proof of material contravention remains on Coolkill. In my view, Coolkill had adequate warning of the Board's case and cannot credibly claim to have been taken by surprise by it. I therefore reject Coolkill's pleading point.

 

 

 

Is Material Contravention of CDP §12.3.5.2 Possible?

 

188.           I reject the Board's plea that no question of material contravention of CDP §12.3.5.2 can arise as it is background text and not a CDP objective. I do so for the same reasons as those I have set out above rejecting the Board's similar plea as to CDP §12.3.3.2.

 

 

 

Material Contravention & Planning Guidelines

 

189.           As has been noted, the Board, in resisting the assertion of material contravention of CDP §12.3.5.2, pleads that the Apartment Guidelines and Sustainable Urban Residential Guidelines support a flexible and practical approach to separation distances.

 

 

190.           As is well-understood, planning decision-makers are obliged, in making decisions on planning applications, to have regard to ministerial planning guidelines issued under s.28 PDA 2000. But "no kind of compliance" therewith is required. [279] Depending on circumstance, such guidelines may discernibly inform interpretation of a development plan provision - for example, if incorporated by reference in the development plan provision, as sometimes occurs. However, once a development plan provision has been properly interpreted, the question whether it has been materially contravened is not as a distinct matter affected by the terms of ministerial planning guidelines. As s.37(2)(b) PDA 2000 makes clear, the relevance of planning guidelines to material contraventions is to the question whether the Board can grant permission despite a material contravention. Such guidelines may well articulate considerations of proper planning and sustainable development which may render a development permissible despite a material contravention. But they do not nullify what would otherwise be a material contravention of a development plan.

 

 

191.           In short and ordinarily, whether a proposed development complies with planning guidelines is nihil ad rem to whether it is in material contravention of the development plan, but may be relevant to the possibility of permission despite such contravention.

 

 

192.           It is not apparent that in adopting CDP §12.3.5.2 DLRCC discernibly applied the pleaded guidelines Accordingly, the Board's plea of guidelines is irrelevant to the issue of interpretation of, and hence to material contravention of, CDP §12.3.5.2.

 

 

 

Objective PHP19 & Effect on Amenity of Adjoining Developments

 

193.           I have found that the Board is wrong in asserting the irrelevance of PHP19. [280] But, as I have said, it does not follow that PHP19 avails Coolkill. PHP19 provides that the policy of densification of existing built-up areas by small scale infill development is to be effected with "due regard to the amenities of existing established residential neighbourhoods." In statutory interpretation and the context of unlawfulness for breach of statutory duty, an obligation of "due regard" is somewhat weightier than an obligation merely of regard and perhaps requires more detailed reasons - Coolglass. [281] However, in what seems to me the appreciably different context of interpretation of, and material contravention of, a development plan (interpreted on XJS principles and to which, in the first place, only mere regard must generally be had), a development plan obligation of "due regard" still affords considerable discretion and evaluative planning judgement to the decision-maker. While its material contravention is possible in principle, such an obligation of due regard is one the exercise of which is reviewable as to merit only for irrationality.

 

 

194.           Midsal's Architectural Design Statement [282] sets out, in detail as to the development it proposed, the distances to adjoining developments and the design steps taken to mitigate any overlooking, overshadowing or overbearing of adjoining developments. It is perfectly possible to legitimately consider that design inadequate in these respects as, no doubt, local residents do. But it cannot be said, not least given her assessment of assessment of "Impacts on Visual and Residential Amenities" as recorded above, and her recommended omission of a floor of Blocks C and D, that the Inspector failed to have regard to this information in the Architectural Design Statement and to the objections to the design as it relates to adjacent developments, or, that the view she took in response was irrational.

 

 

195.           It can all the more be said that the Impugned Decision was not irrational as to effect on the amenity of adjoining developments given the steps the Board took by way of by way of enhanced response to the Inspector's views as to reduction of the height and bulk of the Proposed Development. The Board explicitly: [283]

·         Had regard to the Site's zoning for residential development "while protecting the existing residential amenities";

·         Had regard to the submissions of, inter alia, Coolkill and local residents;

·         Considered that, subject to compliance with the conditions imposed, the Proposed Development "would not seriously injure the residential or visual amenities of the area or of property in the vicinity ... and would be acceptable in terms in terms of urban design height and quantum of development ...";

·         Imposed Condition #2, reducing the development to 116 units by omitting elements of the proposal - notably the second floors of Blocks B and C, in "the interests of residential and visual amenities";

·         Imposed Condition #8, prohibiting development above roof parapet level "To protect the residential amenities of property in the vicinity and the visual amenities of the area".

 

 

196.           Coolkill's plea that the Board erred in failing to identify that, by reference to separation distances to the "properties to the east", the development as proposed was overbearing, and hence, it is pleaded, a material contravention, lacks any reality. The fact is that the least separation distance to Coolkill - the "properties to the east" - is 21.9m. Most exceed 22m. Even assuming CDP §12.3.5.2 applies a "circa 22m" separation from off-site buildings (which in terms it does not) or applying it by analogy, on any conceivable view of the "ballpark", 21.9m is circa 22m. In any event, CDP §12.3.5.2 does not require a "circa 22m" separation between buildings. It requires "adequate separation". The "circa 22m" separation applies to opposing windows and there is no allegation of breach in this regard as between windows in the Proposed Development and windows off-Site.

 

 

197.            The reality of Coolkill's plea recedes further from sight in the context of Condition #2 of the Impugned Decision which imposed height reductions which can only be understood as a response to the issue of overbearing.

 

 

198.           As I understand Coolkill's point, it is that, in this respect, the development proposed was in material contravention - they do not argue that the development permitted was in material contravention. Even accepting, for argument's sake, the premises of the plea, certiorari on material contravention grounds of a permission which the Applicant accepts is not in material contravention (in this respect) would represent certiorari for a harmless error and an entirely disproportionate triumph of form over substance. As to the law on harmless error see Doyle. [284]

 

 

199.           I therefore reject Ground 4 as it relates to separation distances from the Coolkill houses.

 

 

 

Separation - Merely a Means to an End?

 

200.           Much of the Board's argument as to CDP §12.3.5.2 turned on the assertion that its requirement of separation between apartment blocks was merely a means to the end of avoiding "excessive overlooking, overbearing and overshadowing effects". On its argument, material contravention will not occur if, despite not achieving required separation distances, such effects are avoided by other means. I cannot accept that as a general proposition.

 

a.         First, even if separation is merely a means to prescribed ends, it is nonetheless the means chosen and itself prescribed by the elected members in adopting the CDP. The choice of means of achieving a desired end is not necessarily, or even generally, a minor matter. Means vary in their efficacy and they may have effects other than the end in view - some perhaps desirable, others not or less so. [285] In preferring and choosing particular means to an end, the members must be presumed to have been aware of the other possible means available. Indeed, in §12.3.5.2 they provided a limited flexibility as to separation distances to allow of the adoption of such means. In short, the elected members adopted not merely the ends but what they considered, of the possible means available, the proper means of achieving them.

 

b.         Having taken that view, the elected members, by making the CPD, promised the community that it would be effected. It is important to recollect that the CDP is an environmental contract with 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 ..." - McGarry. [286] It 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" and do so "openly and transparently" - Byrne v Fingal . [287] It is required that "the Court can discern whether the promise has been kept and the solemn representation honoured openly, transparently and strictly in accordance with the plan ..." - Ballyboden TTG (Shannon Homes) [288] and Sherwin. [289] In the latter case the Supreme Court, in approving Ballyboden, observed that "material contravention goes to the jurisdiction of the planning decision-maker in the application of a development plan to which it should be strictly kept". [290]

 

c.          Importantly, the CDP and its effectuation are "answerable to public confidence"- Byrne v Fingal . [291] Such confidence requires that, put simply, a development plan is taken, on XJS principles, to mean what it says and requires also that it be effectuated in accordance with the reasonable expectations of the public. In CDP §12.3.5.2, the public was promised separation distances and, allowing for limited flexibility, it is entitled to expect them.

 

d.         My view is reinforced by the consideration that keeping the decisionmakers to the promises made in the CPD is of somewhat greater importance as they relate to the living conditions of future residents. Inevitably, they are not now here to be heard, but experience teaches us time and again that they pay the price of inadequate design and construction. A response that the market can decide and they may, if they wish, choose to live elsewhere is, not least in a housing crisis and a sellers' market, ideological rather than realistic. I hasten to say that these are general observations - not intended of themselves to impugn the Proposed Development. The point is the more general one that the elected members, in adopting a CDP, do so in important part for the protection of future residents who will not participate in the planning process. In that light, it is the more important that a development plan be taken to mean what it says and effectuated accordingly.

 

e.         Further, the premise that separation is merely an end of avoiding "excessive overlooking, overbearing and overshadowing effects" is in any event flawed. On the text of CDP §12.3.5.2, those words are preceded by the words "such as" - so these listed effects are examples and not an exhaustive list.

 

f.           Further again, the Board's premise ignores the phrase "and provide sustainable residential amenity conditions and open spaces." Here means and ends meld. Perhaps the primary feature - undoubtedly an inevitable and characteristic feature - of separation is that it creates space in the area of separation. The presence, absence and degree of open space provided by a development is incontrovertibly a planning matter. Space serves very many functions and enables very many desiderata. But to regard it as no more than a means to those ends fails to recognise its significance. One need merely be human to know that space and the experience of space are an amenity in themselves. Hence, large quanta of space have always commanded luxury prices. But smaller quanta are not a luxury to which ordinary people may not reasonably aspire. Development plans reflect that aspiration, seek to reconcile it with other desiderata and constraints and seek to set public expectations accordingly. True, they usually set fairly specific open space requirements but to regard such requirements as divorced from block separation requirements would be to take an atomised rather than a holistic view of the interpretation of development plans. CDP §12.3.5.2 sets public expectations accordingly.

 

 

 

Separation Distances - Blocks & Windows - CDP §12.3.5.2

 

201.           As the case was pursued in reality, and given the matters I have decided, there is left the issue of separation distances between blocks and between windows of the Proposed Development as they bear on the residential amenities of future occupants of the apartments. As I have said, in essence CDP §12.3.5.2 requires:

·         "circa 22m" distances between opposing windows;

·         "acceptable" distances between blocks. In this, the yardstick of "circa 22m" does not apply, though what is acceptable must take account of non-opposing windows as they look onto walls.

 

 

 

Between Blocks

 

202.           What is, as CDP §12.3.5.2 requires, "acceptable separation" between blocks and whether it constitutes a material contravention of CDP §12.3.5.2 is a matter for evaluative judgement by the Board, reviewable for merit only for irrationality. That DLRCC thought the distances inadequate is relevant to, but not necessarily determinative of the Board's judgement. I do not substitute my own for the Board's judgement. But it seems fair to observe from Figure 1 above that the shorter distances at issue - between Blocks B, C and D - occur over relatively short east/west axes. Considering the development overall, it does not seem to that a conclusion that there is no material contravention of CDP §12.3.5.2 as to separation distances between blocks has been shown to be irrational.

 

 

 

Between Opposing Windows - CDP §12.3.5.2 distance requirement

 

203.           As to opposing windows and even allowing that guidelines are not to be interpreted as if statutes, the phrase "A minimum clearance distance of circa 22 metres, in general, is required" is unnecessarily difficult to interpret. The word "minimum" has a clear ordinary meaning - either something is a minimum or it is not, even if less is permissible by way of exception. CDP §12.3.5.2 could comprehensibly have said either, "A minimum clearance distance of 22 metres is required" or "A clearance distance of circa 22 metres, in general, is required". I considered whether the word "minimum" could be used in the sense that "A clearance distance of circa 22 metres, in general, is required between opposing windows" at their closest point. But while that might make sense as to clearance between blocks - between which separation distances may vary [292] - it makes much less sense as between opposing windows each of which is, at least typically, uniplanar. Doing the best I can and noting the words "circa" and "in general" and that "In certain instances, depending on orientation and location in built-up areas, reduced separation distances may be acceptable", it seems to me that one cannot regard 22 metres as a minimum in the literal sense of that word. Coolkill's submission that "The 22m is a minimum and there has to be some cut off point", while attractively definite, is simply wrong on any tenable interpretation of CDP §12.3.5.2 having regard to the words "circa" and "in general". Nonetheless, the word "minimum" is used and must be given meaning and "22 metres", even if accompanied by "circa", is a quantified figure intended to convey meaning as such. It seems to me best to consider 22 metres a "ballpark" figure allowing some flexibility (in the sense in which that word was used in Ballyboden TTG (Shannon Homes) [293]) - albeit that the word "minimum" connotes a smallish ballpark. And, as has been said, the words "in general" do not confer unlimited licence - flexibility cannot be blandly invoked so as to undermine the norm set by the quantified figure: see O'Donnell, Murphy and Clane [294] as to the equivalent words "generally" and "normally".

 

 

204.           However, one must also note that while, by way of exception within the contemplation of CDP §12.3.5.2 and hence in conformity with CDP §12.3.5.2, "In certain instances, ... reduced separation distances may be acceptable" this is permissible only "depending" on

o   orientation and location in built-up areas; and

o   submission of a daylight availability analysis.

Yet again, we have here the tension between the "proper flexibility" of a development plan and "its being a plan by which the planning authority can be held strictly to account" given its status as an environmental contract with the public - Ballyboden TTG (Shannon Homes) [295] and Jennings. [296] On XJS principles, it does seem that separation distances less than the ballpark ordinarily applicable may be permissible but only as an exception ("certain instances") and they require positive justification as to orientation, location in built-up areas and daylight availability.

 

 

205.           Accordingly, it seems to me that contravention of CDP §12.3.5.2 does not arise as to opposing windows if the separation distance between them falls within

·         The smallish "ballpark" of "circa 22 metres in general";

or

·         The scope for flexibility by way of "reduced separation distances" outside that ballpark - a flexibility built into CDP §12.3.5.2. A development may avail of that flexibility without contravening CDP §12.3.5.2.

Only if neither of these possibilities applies does contravention of CDP §12.3.5.2 arise. And thereafter the question of materiality of any such contravention arises.

 

 

206.           While one could consider it unfortunate, the net result, it seems to me, is that the "22m" figure is so hedged about by the text of CDP §12.3.5.2 that it may be going only a little too far to describe it as somewhat illusory. In the end, and confessing to some reluctance as it relates to the solemn promise of the environmental contract constituted by the CDP, I have concluded that CDP §12.3.5.2 provides for the exercise of appreciable evaluative judgment in its application.

 

 

 

Between Opposing Windows - 21.2 - 21.6m separation

 

207.           I can reject as not pleaded Coolkill's reliance on the 21.2 - 21.6m separation distances as not meeting the "circa 22m" but prefer to do so on the basis that it was in any event incorrect in fact. However small the "ballpark", 21.2 - 21.6m separation distances are "circa 22m" as the CDP requires. There is no contravention here and if there is, it is immaterial.

 

 

 

Between Opposing Windows - "Opposing" and Obscured Windows

 

208.           What now remains of Ground 4 is the issue of opposing windows. It might have been clearer had the CDP referred to "overlooking" windows as reflecting the functional and practical significance of the issue. That significance relates to privacy - whether an occupant can significantly see into the opposing unit. Nonetheless, I am satisfied that the word "opposing" is intended to refer to directly overlooking windows - taking a functional rather than a precisely positional view of the word directly and, for that matter, of the word "opposing".

 

 

209.           On a functional basis, it seems to me that pairs of windows of which one is obscured are not opposing in the sense of overlooking. On that view, the "circa 22m" requirement simply does not apply to such pairs of windows. The unquantified CDP requirement of acceptability of distances between blocks applies to such pairs. I have already decided that the Impugned Decision survives challenge in that regard.

 

 

210.           In passing, one may wonder whether such an obscured window could justify deeming an apartment "dual aspect". Aspect is a word with multiple meanings but, as it bears on the amenity provided to the occupant of an apartment, it seems relevant to note that Oxford [297] gives one definition of it as "The action of looking at anything; beholding, contemplation; gaze, view." As to fenestration, this raises the distinction between the translucent and the transparent. However, the Apartment Guidelines [298] contemplate dual aspect in terms of sunlight reaching an apartment and potential for cross-ventilation of the apartment - as opposed to view from the apartment. One might also question the detail of fenestration which is to supply ventilation while maintaining the obscuring effect which could be nullified by an open window - that may not be an insuperable practical problem. In any event, on the pleadings and the arguments made, I need not resolve any such questions.

Between Opposing Unobscured Windows - 16.4m & 15.8m

 

211.           As has been recorded above, of the 116 apartments permitted a total of ten or twelve unobscured windows/apartments are opposing/overlooked at separation distances of 16.5 and 15.8m. Counsel for the Board says that any contravention thereby of CDP §12.3.5.2 is immaterial.

 

 

212.           As relates to the CDP §12.3.5.2 requirement of a "daylight availability analysis" to avail of the flexibility built into CDP §12.3.5.2, it is notable that the Inspector noted [299] Midsal's "Daylight and Sunlight Assessment" and that its Material Contravention Statement had submitted a rationale for the proposed separation distances as to potential overlooking, daylight and sunlight and other impacts on residential amenities. She considered that the "interior of the units will generally achieve satisfactory daylight and sunlight standards as per the discussion of daylight and sunlight below" [300] and "an acceptable level of residential amenity" [301] in this regard. For this reason and given the design features to obviate overlooking, she considered that "the reduced separation distances will not significantly impair the quality of residential units and are therefore acceptable". In this respect she clearly considered that a condition for application of the flexibility built into CDP §12.3.5.2 had been satisfied.

 

 

213.           Again as to the question of availing of the in-built flexibility of CDP §12.3.5.2, Coolkill makes what it calls a "critical" plea that, as the Site is in a "residual suburban area" within the meaning of CDP Objective BHS3, [302] it cannot be in a "built up area" to which the separation distance flexibility allowed by CDP §12.3.5.2 may apply. The plea is superficially attractive but does not survive cursory examination of Objective BHS3. It records [303] that "residual suburban area" means simply a suburban area not covered by an LAP [304] "or other guidance and not covered by any particular environmental sensitivity". The term is in no way exclusive of the possibility that such an area may be built up.

 

 

214.           Article 3 PDR 2001 provides that "built-up area" means a city or town (as defined by the Local Government Act, 2001) or an adjoining developed area but the deleted Schedule 6 of the 2001 Act, which had listed the towns, was repealed in 2014. [305] On the arguments made and for the purpose of these proceedings only, I hold that the phrase falls to be understood in its ordinary meaning on XJS principles in light of the CDP and of the nature of the locality as readily apparent on the materials to hand. The CDP Core Strategy Map, [306] when cross-referenced to the other maps to hand, clearly shows the Site as within the urban area of DLR - the Development Plan Area. And, as has been said, the surrounding area is characterised by Sandyford Village and housing. That it is largely housing rather than apartments does not mean that the area is not "built up" in the sense of being generally occupied by buildings. Specifically in her planning analysis of the quality of residential accommodation, the Inspector noted that "Reduced separation distances may be acceptable in certain instances, depending on orientation and location in built-up areas". [307] And in her AA screening she referred to "this built-up, urbanised location" and to "the receiving environment which comprises a built-up urban area ...". [308] For EIA Screening purposes she also considered the Site to be in a built up area. [309]In my view, there is nothing in Coolkill's point in this regard. Certainly, they have not discharged their onus of proof that this is not a built-up area such that flexibility as to separation distances cannot apply. It appears to me that the Inspector so considered it and was entitled to do so.

 

 

215.           Midsal and the Board describe all these windows as "secondary" - in the sense that they are smaller windows in rooms also served by a larger or better positioned window or windows. [310] It is true that the Inspector did not advert specifically to this issue when considering the acceptability of the separation distances. [311]  But I respectfully reject Coolkill's submission that as the Inspector did not identify the opposing windows in question as "secondary", the Board now cannot rely on that factor. The Inspector is presumed to have read the Material Contravention Statement and to have perused the floor plans. In light of the former as to secondary windows, the latter makes the position quite obvious. However, I am unconvinced by this secondary window rationale considered as a distinct matter. Insofar as the larger or better positioned window or windows reassure as to sunlight and daylight, the position is, as far as the Inspector was concerned, reassuringly addressed by the sunlight and daylight analysis. But insofar as the issue relates to overlooking, that the window is "secondary" seems, of itself, of little consolation to the overlooked.

 

 

216.           It could be said that the Inspector conflated the built-in flexibility of CDP §12.3.5.2 with the issue of its material contravention. She said, as to separation distances, that she did "not consider that the development materially contravenes the development plan in this respect, given that the plan allows for some flexibility on the 22m standard." [312] However, nothing turns on any such conflation. If the separation distances fall within the exception such that there is no contravention, then necessarily there is no material contravention. Ultimately, it seems to me that the 16.5 and 15.8m separations are outside the flexibility ballpark of "circa 22m". But whether, as they relate to 12 of 116 apartments, one regards them as within the flexibility permitted by CDP §12.3.5.2 or in contravention of CDP §12.3.5.2, it is clear that appreciable evaluative judgment was required of the Board as to which its decision is reviewable as to merit only for irrationality. Ultimately, and not without hesitation, I have concluded that Coolkill has not demonstrated material contravention in this regard.

 

 

 

Separation Distances - Reasons & Relevant Considerations

 

217.           Having explained my reasoning to the substance of the material contravention plea in appreciable part by reference to the content of the Inspector's Report I do not need to dwell on the reasons plea save to say that the Inspector's reasons for her view are adequately clear from her report. Nor do I see anything in the plea that the Board failed to take relevant considerations into account.

218.           It follows from the foregoing that Ground 4 is dismissed.

GROUND 5 - MATERIAL CONTRAVENTION - BEDROOM DIMENSIONS

 

Core Ground 5 [313]

 

"The impugned decision materially contravenes CDP §12.3.4.2 as to minimum apartment dimensions

such that the Board could have granted permission only once

§  that material contravention had been identified in the Statement of Material Contravention;

§  it had satisfied itself that s.37(2)(b) PDA 2000 had been complied with."

 

 

 

CDP §12.3.4.2 - Habitable Rooms & Apartment Guidelines as to Apartment Floor Areas

 

219.           The relevant text of the CDP reads:

 

"The minimum size of habitable rooms for ...apartments .... shall conform with appropriate National guidelines/ standards in operation at the date of application for planning permission, including the minimum dimensions as set out in [The Apartment Guidelines 2020 [314]] ...".

 

 

220.           SPPR3 of the Apartment Guidelines stipulates minimum floor areas for, respectively, studio, one-bed, two-bed (three person), two-bed (four person) and three-bed (five person) apartments. Appendix I elaborates, inter alia stipulating minimum room widths and allowing, in certain circumstances, "variation" (which must mean reduction) "of up to 5% ... subject to overall compliance with required minimum overall apartment floor areas." I consider this Appendix further below, as the crux of Ground 5 is whether the 5% reduction is applicable to bedrooms.

 

 

 

G5 - Particulars [315]

 

221.           Coolkill pleads that

 

a.         The Development Plan [316] states that the minimum size of habitable rooms "shall conform with" inter alia, the minimum dimensions set out the Apartment Guidelines. [317]

 

b.         Midsal's Statement of Consistency [318] (and Material Contravention Statement [319]):

§  Invoked the Apartment Guidelines' allowance of a variation of 5% subject to overall compliance with required minimum overall apartment floor areas;

§  Stated that 59 [320] of the 137 proposed apartments availed of this 5% variation such that these units "will not meet the minimum standards in relation to aggregate room areas and/or widths in some cases";

§  Submitted, (in reliance on the 5% variation) that "the proposed aggregate areas and room widths are accordance with the Apartment Guidelines, 2020 and is therefore acceptable in line with s.37(2)(b)(iii) PDA 2000".

 

c.          The Inspector concluded, without explanation, that she did "not consider that the development materially contravenes the development plan in this regard, given that the proposed room sizes meet the requirements of the Apartment Guidelines". [321]

 

d.         This conclusion is incorrect in law, first, as the CDP incorporates compliance with the minimum dimensions in the Apartment Guidelines. It does not import the asserted flexibility to vary by 5%. Had the CDP intended to import that flexibility, it would have said so. The Board was obliged, but failed, to identify that the Proposed Development is in material contravention of §12.3.4.2 of the CDP and then to consider whether permission should be granted pursuant to s.9(6) of the 2016 Act and s.37(2)(b)(iii) PDA 2000 [322] which allows for permission to be granted by reference to s.28 Guidelines [323] such as the Apartment Guidelines.

 

e.         Second, and fundamentally,

§  As is made clear by the location of the asterisk, [324] the 5% latitude to vary in the Apartment Guidelines applies only to studio apartments. It does not apply, as here, to one, two- or three- bedroom apartments.

§  Alternatively, the 5% latitude does not apply to bedrooms. [325]

§  The note with three asterisks [326] concerning the variation of 5% appears only after the table for minimum aggregate floor areas for living/dining/kitchen rooms and minimum widths for main living/dining rooms. It does not appear after the table for minimum bedroom floor areas/width.

§  Midsal applied the 5% variation to bedroom floor areas. Therefore, even if the 5% variation provision was incorporated into the CDP, the Board erred in law in concluding that the Proposed Development complied with the CDP by reference to the Apartment Guidelines,

 

f.           In addition, the Inspector failed to give adequate reasons for why she considered that the Proposed Development met the minimum standard, - in particular where Midsal accepted that there was a material contravention.

 

 

 

G5 - Applicants' Position & Text of Appendix 1 of the Apartment Guidelines 2020

 

222.           Coolkill ran the case on part only of the case pleaded. They observe that Midsal availed of the 5% flexibility as to Required Minimum Floor Areas and Standards allowed in Appendix 1 of the Apartment Guidelines 2020 - validly as to living/dining/kitchen rooms but invalidly, they say, as to 45 bedrooms. To explain this argument, it is best to precisely set out the relevant content of that Appendix.

 

Minimum aggregate floor areas for living/dining/kitchen rooms, and minimum widths for the main living/dining rooms

Apartment type ***

Width of living/dining room

Aggregate floor area of living / dining / kitchen area*

Studio

4m**

30 sq m**

One bedroom

3.3 m

23 sq m

Two bedrooms (3 person)

3.6m

28 sq m

Two bedrooms (4 person)

3.6 m

30 sq m

Three bedrooms

3.8 m

34 sq m

* Note: An enclosed (separate) kitchen should have a minimum floor area of 6.5 sq. metres

**Note: Combined living/dining/bedspace, also includes circulation

*** Note: Variation of up to 5% can be applied to room areas and widths subject to overall compliance with required minimum overall apartment floor areas.

 

 

Minimum bedroom floor areas/widths***

Type

Minimum width

Minimum floor area

Studio

4m**

30 sq m**

Single bedroom

2.1 m

7.1 sq m

Double bedroom

2.8 m

11.4 sq m

Twin bedroom

2.8 m

13 sq m

* Note: Minimum floor areas exclude built-in storage presses that are contributing to storage space requirements

**Note: Combined living/dining/bedspace

 

 

Minimum aggregate bedroom floor areas

One bedroom [327]

11.4 sq m

Two bedrooms (3 person [328])

13 + 7.1 sq m = 20.1 sq m

Two bedrooms (4 person [329])

11.4 + 13 sq m = 24.4 sq m

Three bedrooms [330]

11.4 + 13 + 7.1 sq m = 31.5 sq m

 

 

223.           If I understand correctly and elaborating slightly, Coolkill's argument that the 5% variation for which the Appendix provides proceeds as follows:

 

a.         The first table establishes:

§  The system adopted is that notes refer to the table above.

§  By the marking "***" that the 5% variation applies to living/dining/kitchen rooms in all "apartment types".

 

b.         The second table, as to bedrooms:

§  Has no note below it allowing a 5% variation.

§  Has a note marked "*" but no table entry is marked "*". Yet the note marked "*" - "Minimum floor areas exclude built-in storage presses that are contributing to storage space requirements" - must have been intended to apply to at least some bedrooms.

 

c.          Accordingly, a typo must be presumed in that certain content of the second table, as to bedrooms, ought to have been, but was not, marked "*".

 

d.         Further, the nature of the note marked "*" - "Minimum floor areas exclude built-in storage presses that are contributing to storage space requirements" is such that one would expect it to apply to all bedrooms. It would be strange and unlikely that storage would be excluded from the measurement in some bedrooms but not in others. That factor suggests that this note could readily apply to the heading "Minimum bedroom floor areas/widths".

 

e.         In the second table, as to bedrooms, the heading "Minimum bedroom floor areas/widths" is marked "***". But no note marked "***" appears under the Table. Accordingly, "***" is a typo.

 

f.           It follows as a probability that the corrected heading in the second table should read "Minimum bedroom floor areas/widths*".

 

g.         This interpretation:

§  Correlates the notes under the second table with the text of that table.

§  Avoids applying to that table a note which appears under a different table.

§  Is supported by a consideration of the third table, headed "Minimum aggregate bedroom floor areas". It has no notes or "***" markings and provides, simply, for quantified minima. They work only if there is no possibility of a 5% variation in the minima for bedrooms for which the second table provides.

 

 

 

G5 - Board's Position

 

224.           The Board responds that:

·         Correctly interpreted, the CDP, incorporates from the Guidelines both the minimum dimensions and the 5% flexibility, and the Guidelines apply the 5% flexibility to bedrooms. Accordingly no issue of material contravention arises.

·         In any event, any contravention is de minimis and not material;

·         The Inspector's conclusion [331] is that there is no material contravention. Her given reason is that, applying the 5% flexibility in Appendix I of the Apartment Guidelines, the proposed room sizes meet the requirements of the Apartment Guidelines. The reasons provided on this issue, though brief, sufficed to permit an intelligent person who participated in the process to know why the decision went the way it did on this issue, and accordingly are adequate.

 

 

225.           As to the error in Appendix 1, the Board says that

 

·         In the second table, the title "Minimum bedroom floor areas/widths***"

o   applies the "***Note" from the previous table, such that the 5% reduction applies to bedrooms;

or

o   implies that a "***Note" is missing from below the second table. (I observe that this would imply a second error: the omission of a "*" in the text of the second table to which the "*Note" could apply.)

 

and/or

 

·         There can be no error as the 2022 Guidelines are in precisely the same terms as Appendix 1 to the 2020 Guidelines (and hence, I infer the argument to be, represent a ratification of the earlier version);

and/or

 

·         The means of its correction of any error is not reliably apparent.

 

 

 

 

G5 - Decision

 

226.           For fear I misunderstood the Applicant as not pursuing their argument that, as the CDP incorporates compliance with the minimum dimensions in the Apartment Guidelines, it does not import the asserted flexibility to vary by 5%, I should say that I find it untenable. On XJS principles and on its face the CDP's incorporation of the minimum dimensions in the Apartment Guidelines does not consist in their partial or selective incorporation. Absent specific reservation in the CDP, it is to be understood as importing the entire Apartment Guidelines as to minimum dimensions. That includes the 5% flexibility.

 

 

227.           Turning to the interpretation of Appendix 1 of those Guidelines, Coolkill's argument, set out above, as to their correction by construction asks me to both discern a textual error in the Appendix and to correct it. In my view, it is clear that there at least some error in the Appendix. And the Council's argument that there can be no error as the 2022 Guidelines are in precisely the same terms (and hence, I infer the argument to be, represent a ratification of the earlier version) is unconvincing. Far more likely that in 2022 (at which time a very limited amendment of the 2020 Guidelines, relating to other matters, was effected) the error simply wasn't spotted. Whatever about the precise nature of the error and whether it can be corrected by construction, it is clear that the Appendix, for the reasons given by Coolkill, does not make sense.

 

 

228.           One could, of course, respond that it is a principle of interpretation, for example of contracts, that textual errors may be corrected by construction only when both the precise nature of the error and the means of its correction are clear - see for example Amcor, [332] citing Chartbrook. [333] However, to this response there are possible answers as follows:

 

a.         First, it is highly undesirable that an erroneous meaning be given to documents of general application such as Planning Guidelines.

 

While that is undoubtedly so, the same is all the more true of statutes and yet the correction by construction of erroneous statutes is a fraught topic: see Dodd [334] and the ALAB case. [335] Inter alia, in Inco Europe, [336] Lord Nicholls insisted that to construe an Act so as to correct a drafting error, the court must be "abundantly sure" of the following three matters - insisting on the third as "of crucial importance.":

"(1)        the intended purpose of the provision in question;

(2)          that the drafter and the legislature inadvertently failed to give effect to that purpose in that provision;

(3)          the substance of the provision the legislature would have made (though not necessarily the precise words it would have used) had the error in the Bill been noticed." [337]

 

b.         Second, "Required Minimum Floor Areas and Standards" are clearly of high importance in Apartment Guidelines and so must be given some meaning and a workable meaning.

 

c.          Third, though the expectation that planning guidelines "should be drafted with care" may not have been fully realised here, they are, importantly, to be interpreted not as if contracts or statutes but on XJS principles as if by an intelligent, informed, layperson - Spencer Place [338] and Ballyboden TTG. [339] Such a person would, very arguably, be more willing than might a lawyer to take a reasonable view - to stand back to see what the Appendix is saying as a matter of common sense - O'Donnell [340] and Camiveo. [341] Such a person would, arguably and more courageously than a judge, face up to the necessity to give the Appendix a clear meaning and would adopt the interpretation suggested by Coolkill.

 

 

229.           If I had to, conscious that the Guidelines must be given some clear and workable meaning, I would accept Coolkill's submissions on this issue and hold as a matter of interpretation of the Appendix to the Guidelines, that the 5% latitude is not available to bedrooms. I would take that view for the reasons they give, which I find more convincing than the Board's. I would also do so for the reason that the 5% latitude is clearly an exception to a norm or standard and should therefore, on general principle and in case of ambiguity, be construed narrowly rather than widely. However, I decline to make a finding on this issue - for two reasons:

 

·         First, I consider that if the error is to be corrected, as undoubtedly it should be, it is preferable in this circumstance that it be corrected by the Minister than by a court. I can only infer the Minister's intended meaning: the Minister can express it as a matter of certainty. Also, s.28 Guidelines can be relatively readily amended so undue delay should not be in prospect. While it is a matter for the Minister, as I infer that the size of apartment bedrooms is a topic of frequent relevance to decision-making by developers and planning decision-makers and to consideration of development proposals by others interested and is a topic of some importance to future residents, I respectfully urge expedition on the Minister in this regard.

 

·         Second, given the view I take on the particular facts of this case on the materiality of any contravention, it suffices that I assume, rather than find, Coolkill to be correct on this issue and proceed on the assumption that the 5% latitude is not available to bedrooms.

 

 

 

Materiality of Contravention

 

230.           On that view, the question becomes one of materiality of contravention - a matter of law for the Court. As proposed, the development had 279 bedrooms. Of these 44, or 16% are non-compliant as to minimum floor area. The precise effect of the reduction from 137 to 116 apartments is not known and in the Coolkill's favour I will ignore it. It should next be said that the fact that Midsal assumed it could avail of a 5% latitude does not imply that it in fact did so to the full extent of 5%. At my request at trial, and from the data available on the papers, [342] counsel for the Board calculated the variations in absolute and percentage terms. In absolute terms, they ranged from 0.1 m2 to 0.6m2. In percentage terms, they ranged from 0.77% to 4.62% and averaged 2.52%. [343] The net position therefore is that of the 279 bedrooms for which Midsal sought permission 44, or 16%, were below minimum floor area by an average of 2.5% and in a range of 0.1 m2 to 0.6m2. True, the precise adjustment for the reduced number of bedrooms permitted is not known to me. Nonetheless, I have no hesitation in finding that any contravention as to minimum bedroom size is not material.

 

 

231.           The reasons issue was not strongly pursued. It suffices to say that I prefer the Board's position in this regard. Even if the Inspector was brief and wrong in her reason - to the effect that the 5% latitude was properly applied to the bedrooms - the reason was clear and fulfilled its purpose of equipping Coolkill to know why the decision went the way it did on this issue and to consider whether they should pursue judicial review on this issue.

 

 

232.           On these bases, Ground 5 fails.

GROUND 6 - PRE-APPLICATION CONSULTATIONS AS TO DIFFERENT DEVELOPMENT TYPE

 

Core Ground 6 [344]

 

"The impugned decision is invalid because the mandatory pre-application consultations related to a type of residential development entirely different to that permitted, contrary to ss.4, 5, 6 and 8 of the 2016 Act".

 

 

 

G6 - Coolkill's Position

 

233.           Coolkill pleads and submits that:

 

a.         The pre-application consultation procedure is a mandatory requirement of the SHD planning permission process.

 

b.         The Proposed Development for which permission was sought and that for which permission was granted are entirely different, as to type of tenancy (Build to Sell - "BtS"), to that, (Build to Rent "BtR")), which was the subject of the Board's statutory opinion, conveyed to Midsal, that there was a reasonable basis for an SHD application for a BTR development. Coolkill cites the Apartment Guidelines and the CDP [345] as recognising BTR as a distinct and different housing type.

 

c.          Neither the Board nor DLRCC had opportunity in pre-application consultation to consider the planning implications of BtS development at this location.

 

d.         When questioned at trial as to any prejudicial consequences for Coolkill by reason of to the change from BtR to BtS, Coolkill pointed to its submissions to the Board to the effect that there was confusion as to the type of planning application made as between BtS and BtR.

 

 

 

G6 - Board's Position

 

234.           Beyond traverses and pleas that it considered all relevant matters and complied with all relevant obligations, the Board pleads and submits, inter alia, as follows:

 

a.         The Proposed Development for which permission was sought - 135-150 apartments in four blocks ranging in height up to six storeys - is recognisably and substantially the same as that the subject of the pre-application consultations.

 

b.         The changes are marginal in context and in any event are not so significant and fundamental as to permit the Court to intervene for irrationality - which, in any event, is not pleaded and is the only applicable standard of review. Per O'Neill, [346] no error occurred.

 

c.          Ss.6(7)&(9) of the 2016 Act preclude Coolkill's reliance on the pre-application consultations and/or the Board's Opinion on foot thereof.

 

d.         Even if the rights of the Board and/or DLRCC were infringed, certiorari does not ensue in a case brought by Coolkill. Alternatively, the Court should, in its discretion, refuse certiorari on this basis.

 

e.         The Apartment Guidelines 2022 applied such that BTR is no longer a distinct development type for planning purposes.

 

f.           Coolkill may not raise this issue as they failed to do so before the Board.

G6 - Factual Notes

235.           When the pre-application consultation took place the Apartment Guidelines 2020 applied. They identified BTR [347] as having "distinct characteristics" as to ownership, amenities and potential to accelerate residential delivery. They provided that, as to BTR, specific planning and design policies and standards would apply. They envisaged specific BTR planning permission applications to which SPPR7 of the Apartment Guidelines 2020 would apply to ensure a long-term rental housing scheme and require provision of particular types of resident support facilities, services and amenities. [348] SPPR8 would apply to, essentially, relax requirements otherwise applicable to apartment developments as to dwelling mix, minimum floor area, storage and private amenity space in individual units, car spaces and the number of apartments per floor per core. [349] The Board's statutory opinion was framed accordingly to address BTR development.

 

 

236.           Midsal made its SHD planning permission application on 28 April 2022. The Apartment Guidelines 2020 still applied. But the application was explicitly not for BTR apartments. [350] It listed the other primary changes from the development envisaged in the pre-application consultation as including increased unit floor areas "to meet the required standards" and increased car parking. Coolkill pleads "Figure 1" in Midsal's Response to the Board's Opinion as identifying the physical differences between the scheme envisaged in the pre-application consultation and that for which permission was granted. But I was not referred to it at trial and have found no such figure in that Response.

 

 

237.           However, by the time the Inspector reported and the Board decided the planning permission application, the Apartment Guidelines 2022 applied. They were cited in the Impugned Decision as those to which the Board had had regard (as was proper). The differences between the 2020 and 2022 Guidelines were identified in the Minister's Forward to the latter as follows:

 

"... there is no longer a planning rationale to retain BTR as a distinct development type, that may avail of more flexible design standards than other apartment types. The principal purpose of further amending these Guidelines is therefore to remove the planning requirement that BTR is identified as a separate development type, with specific design standards. ... this amendment will not preclude future BTR development ... Rather, it now requires the standards for BTR development to be the same as those for all other permitted apartment development. All other aspects of the Apartment Guidelines remain unchanged [351] ...".

 

 

238.           The 2022 Guidelines describe BTR in terms similar to the 2020 Guidelines, but:

 

a.         They state that, given the quanta of BTR development already delivered and permitted, "there is no longer a planning rationale to have BTR as a distinct development type for planning purposes, i.e. that is specifically identified as such as part of the planning process with its own flexible design standards."

 

b.         Accordingly, the provision that "Residential development may be proposed as a specific BTR development in the planning process at planning application stage" no longer appears. Also SPPRs 7 and 8, as described above, no longer appear.

 

c.          They envisage that BTR developments, subject to design standards applicable to all apartment development, can continue to play a role in delivering apartments in appropriate locations to ensure there is sufficient rental accommodation in urban areas.

 

d.         It is clear that in the 2022 Guidelines "BTR" is relegated to merely a colloquial descriptor of the purpose for which such apartments will be developed - not, as was the case in the 2020 Guidelines, as a specific type of development to which specific planning guidelines and SPPRS apply.

 

 

 

G6 - Pre-Application Consultations - Discussion and Decision

Confusion & Prejudice

 

239.           I accept that Coolkill's submission asserted to the Board uncertainty or confusion as between BtR and BtS. They plead only confusion of "third parties". But I do not accept that they may properly complain of such confusion. Though its Engineering Services Report erred in this regard, [352] Midsal made plain in its response in its planning application to the Board's statutory opinion of 14 January 2024 that the documents considered in the pre-application consultation were a reasonable basis for an SHD application. That response, to which all concerned had access, stated,

 

·         Under the heading "Key Changes Subsequent to the Section 5 Pre-Application Consultation Meeting ..." that it had made changes to the proposed development - primary amongst which was, inter alia, "Change in residential typology from 'build-to-rent' to 'standard' residential". [353]

 

·         "... permission is no longer being sought for a build-to-rent residential typology ...". [354]

 

 

240.           Otherwise, Coolkill struggled at trial to articulate any prejudice to them as deriving from the change from BtR to BtS. Such attempt as they made was unconvincing. The simple fact is that they and all other participants, including DLRCC and the Board:

·         Knew or ought to have known that the application was not for BtR apartments;

·         Had full opportunity to consider and (in the case of Coolkill) object to the planning application actually made on its substantive merits;

·         Availed of that opportunity.

Coolkill suffered no prejudice which could contribute to a finding in their favour on Ground 6. Nor can they rely on a jus tertii in the form of confusion by innominate "third parties".

 

 

241.           Coolkill's submission that neither the Board nor DLRCC had opportunity in pre-application consultation to consider the different planning implications of BtS development at this location is neither here nor there. First it asserts a jus tertii – indeed it does so in proceedings in which the person allegedly primarily disadvantaged (the Board) is itself the impugned decision-maker, a party to the proceeding and, both asserts no such prejudice and stands over its decision. The other supposedly prejudiced person, DLRCC, made a lengthy and detailed report to the Board on the planning application and did not complain of the prejudice which Coolkill attributes to them. DLRCC is clearly in no worse a position than is Coolkill - such that it follows that I find that DLRCC too suffered no prejudice - and none which could contribute to a finding in Coolkill's favour on Ground 6.

 

 

242.           Nor, it may as well be said, was the Board in fact confused. The Inspector records the objections that Midsal had not clarified whether the development is to be BTR [355] but she notes that Midsal "is not submitting the proposed development as a BTR scheme" [356] and that "the development has been designed to be consistent with the quantitative standards of the Apartment Guidelines for standard apartment developments (not BTR)". [357]

 

 

243.           Standing back from the matter a little, the fallacy of the jus tertii argument clarifies. Pre-application consultation was mandatory in the SHD process. Clane [358] is authority that failure to hold one is fatal to an SHD permission. However, Clane arose in a particular context: the planning permission which had succeeded a pre-application consultation was quashed. A new application was submitted and a new permission was granted in reliance on that same pre-application consultation. Humphreys J quashed the new permission essentially on the basis that certiorari of the previous permission had effectively quashed the pre-application consultation also - such that there had been no pre-application consultation to support the new planning application. Clane was, in this respect, a case about the scope and effect of certiorari (on the earlier permission and the process which informed it) rather than a case based on any comparison between the development envisaged in a pre-application consultation and that proposed in a planning application reliant on that extant pre-application consultation.

 

 

244.           In this case there was a pre-application consultation. No doubt, such a consultation would be expected to confer some advantage by way of a 'heads up' to the Board and DLRCC as to an impending SHD planning application and of assisting the achievement of the strategic aims of the SHD process in efficiently addressing the housing crisis. But the public are excluded from that process and it determines nothing - Balscadden. [359] The primary practical purpose of the pre-application consultation was for Midsal's benefit. It allowed them to consider the attitude, concerns and advice of the Board and DLRCC to inform their "front loading" of their "fast-track" planning application "oven ready". [360] As to the need to front load, Midsal primarily took the risk, given the lack of a further information stage in the SHD process. As was said of pre-application consultations in Westwood, [361] and repeated O'Flynn [362] and O'Neill, [363] "They serve mainly to advise an applicant ..." for permission.

 

 

245.           In short, assertions of confusion of and prejudice to anyone do not weigh in favour of certiorari on Ground 6.

 

 

 

O'Neill & Irrationality

 

246.           However, still to be answered is the question whether the development for which the SHD application was made was so different to that envisaged in the pre-planning consultation as to sever the statutory connection between them and, by analogy with Clane, require certiorari of the Impugned Permission.

 

 

247.           The Board cites O'Neill, [364] in which the applicant for judicial review made the case that the pre-planning consultation had related to a proposed development of 222 apartments (including some three-bedroom units) whereas that for which permission was sought was of 245 apartments (with no three-bedroom units). There were also changes as to density, car parking spaces and bicycle parking spaces.

 

 

248.           McDonald J considered the relevant provisions of the 2016 Act - to the conclusion that "the prospective applicant is not required, at the consultation stage, to have a fully formulated plan in place for the proposed development" or "anything like the same level of detail that is required" in a planning application. [365] In many respects, all that is required for consultation is a "brief description". Indeed, the expectation of reaction by a developer to the Board's statutory opinion on foot of the pre-application consultation is such "that s.6(7) expressly envisages that there may well be differences between the development as originally proposed at the time of the pre-planning consultation and the development which is subsequently pursued by way of an application under s.4" and there are "strong grounds to conclude that the development described in an application under s.4 of the 2016 Act does not have to coincide in every respect with the brief description of that development previously given at the pre-planning stage." Nor, McDonald J observed, does the 2016 Act state "that the description of the development in the documents submitted to the Board for consultation under ss. 5 and 6 must correspond in all respects with the description of the development in the documents ultimately submitted as part of the application under s.4 for permission."

 

 

249.           McDonald J did consider that "If, in any individual case, the Board was of opinion that the development proposed in the application under s.4 was significantly different to the proposed development, the subject of the opinion formed by the Board under s.6(7), it would appear to me that the Board must have the power, in an appropriate case, to refuse to accept the relevant application under s.4." [366]

 

 

250.           However, McDonald J considered these questions "academic" as "The Board entertained the application under s.4. It must therefore have considered that the application made under s.4 was not inconsistent with the pre-planning process and in particular the outcome of that process." McDonald J acknowledged that the differences between the development considered in pre-application consultation and that for which permission was sought were not necessitated by the Board's opinion. But he considered them "marginal in an overall context" and both proposals were "recognisably the same scheme".

 

 

251.           Bearing in mind the limited role of the court in judicial review and that the Board is the expert body entrusted by the Oireachtas with the task of considering SHD applications and has the relevant expertise to make the necessary decision, McDonald J did not consider that there was no basis upon which the Board could have proceeded with the application. He said, "The court is not in a position to substitute its own view for that of the Board" and that "The differences between the proposed development discussed during the pre-planning consultation phase and the development as described in the application made under s.4 are not so significant or fundamental to allow a court to interfere with the decision of the Board to accept the application under s.4."

 

 

252.           That McDonald J relied on O'Keeffe as expressing the standard of judicial review for irrationality does not seem to me to crucial. Unlike the position as to judicial review of decisions affected by EU Law (see below as to EIA Screening), I need not wrestle here with the issue of the present status of O'Keeffe as it relates to judicial review of decisions affected by domestic law - the main point is that the standard of judicial review was for irrationality.

 

 

253.           I confess to some surprise that the Inspector, given the objections in this regard, did not tease out the BtR issue and the advent, prior to her report, of the 2022 Apartment Guidelines. That said, given that by the time of its decision the applicable guidelines no longer provided for BTR-specific planning applications and the same design standards now applied to BTR and non-BTR developments, it is hardly surprising that the Board did not choose to exercise the power identified by McDonald J to refuse to accept the application on that account. Certainly, it cannot be said that its non-exercise of that power was irrational. Leaving aside that irrationality was not pleaded, it does not seem to me that, in Keegan [367] terms, the Board's course of action in processing the planning application has been shown by Coolkill, by reference to differences between the development envisaged in the pre-planning consultation process and that for which permission was sought, to have been "fundamentally at variance with reason and common sense".

 

 

254.           Even ignoring the advent of the 2022 Apartment Guidelines and considering whether the Board acted irrationally in not rejecting the application when made (an argument not made specifically), I would not consider the Board's non-exercise of that power irrational. In my view, while Clane establishes that pre-application consultation must precede an application, given that such consultation is primarily to assist the developer and that, in any event and vitally, all concerned will have opportunity in the planning application to respond to and consider the application as made, the Board must have a particularly wide margin of appreciation as to the exercise of its power to refuse to accept an application on the grounds that the proposed development is so fundamentally different to that the subject of pre-application consultation as to justify such a refusal. Though, on its facts, the difference in O'Neill was "marginal", I do not see the logic of O'Neill as confined to such cases of marginal difference.

 

 

255.           I accept, of course, that a permission application could be for a development so different to that envisaged in a statutory opinion of the Board as to not be validly based upon it: to pick an absurd example, it would be difficult to see that the Board could, after a favourable Board opinion, rationally, entertain in the SHD process a planning application for an office block - though such an application would also be invalid for other and more fundamental reasons. However, accepting that different planning considerations may apply to a BtS than to a BtR application and remembering that an SHD application may just as well be for a BtS as a BtR, it seems to me that Coolkill has failed to show that the application for a BtS development was, by virtue of its being for a BtS development, so different from that envisaged in the pre-application consultation as to preclude in law its reliance on the Board's opinion that the development envisaged in the pre-application consultation represented a reasonable basis for an SHD application.

 

 

 

Discretionary Remedy

 

256.           Finally, if needs be I would exercise my discretion against granting certiorari on this ground. I bear in mind that certiorari is a discretionary remedy which seeks to "undo the consequences of any wrongful or invalid act" - Tristor [368] and Kelly. [369] In my view, this phrase must refer to consequences deriving from the factors which rendered the decision invalid - not merely to the general consequences of a decision which is invalid. Put simply, there were here no consequences which matter [370] for Coolkill.

 

a.         Coolkill complains of infringement of the supposed rights of third parties deriving from a pre-application process in which they were not entitled to participate in any event and as to breach of which they could have suffered no prejudice. Coolkill suffered no prejudice by the matters of which they complain. Nor, on the evidence before me, did any such third parties.

 

b.         Coolkill, and indeed all those whose prejudice they invoke - DLRCC, third parties and the Board - had full opportunity to consider on its planning and legal merits the development proposal for which permission was sought and to be heard on those merits in the planning application process. And they took that opportunity and were heard.

 

c.          As to Coolkill's reliance on specific differences between BtR and BtS, the distinct planning considerations applicable to BtS had been deleted from the Apartment Guidelines by the date of the Impugned Decision such that those guidelines applied in the same way to BtR and BtS proposals.

 

 

257.            Certiorari would be disproportionate given that:

 

a.         By reason of the error assumed for the purpose of this analysis, there was no unfairness of procedure to any party - all were heard;

 

b.         There is no reason to believe that the error assumed legally or substantively affected the consideration of and disposal of the planning application. For example, there is no suggestion that this error resulted in the consideration of irrelevance or the failure to consider relevant matters or that the judgement of the Board as to planning matters was degraded in any way;

 

c.          There is no reason to believe that the purpose of the process - the generation of a decision on its actual merits of the planning application actually made following adequate opportunity for public participation - was not achieved.

 

 

258.           I consider that, in context, I may give some contributory weight to the factor that the 2016 Act which provided for SHD permissions, was a response to a housing crisis (as recognised, for example in Comerford [371] and in Jennings [372]) which still persists and to the relief of which the Proposed Development will make a contribution - if a very modest one. But I emphasise that this consideration would not by itself, indeed would not in the absence of other weighty factors, have justified discretionary refusal of certiorari.

 

 

 

Standing and Disposal

 

259.           Given the view I have expressed, I do not think it necessary to decide whether, by reference to s.6 of the 2016 Act, Coolkill were precluded from raising this issue at all.

 

 

260.           Accordingly, I respectfully dismiss Ground 6.

 

 

 

GROUND 7 - EIA SCREENING (EXCAVATIONS)

 

Core Ground 7 & Particulars [373]

 

"The Board failed to comply with Articles 299B(2)(b)(ii)(I) [374] and 299C(1) PDR 2001 [375]

and/or Article 4(4) and §3(b) of Annex IIA of the EIA Directive [376]

and/or the EIA Screening Report failed to comply with Schedule 7A PDR 2001 and Annex III of the EIA Directive,

such that, absent any information as to Site geology and/or the potential need for rock excavation and blasting, it was not open to the Board to exclude at screening stage the possibility of significant effects on the environment."

 

 

261.           Essentially, the particulars pleaded are that:

·         Site investigations were not but could easily have been done;

·         Granite bedrock close to the surface was likely to require extensive rock-breaking which had not been considered by Midsal as to its type, intensity, duration or effects;

·         Objectors had raised the issue, DLRCC had been very concerned about it and the Inspector had noted these objections and concerns;

·         Absent "any information on the rockhead level and/or the type, manner and volume of excavation required", the Inspector had "no information" on which to base her statement that noise and vibration would be localised, short term and suitably mitigated or her conclusion of no significant effect on geology, composition and depth of rock, water and human receptors.

 

 

 


G7 - Opposition

 

262.           Beyond traverses and pleas that it considered all relevant matters and complied with all relevant obligations, the Board pleads, inter alia, as follows:

a.         That its EIA Screening decision and its decision as to the adequacy of the information before it to that end are reviewable as to merit only for irrationality and were not irrational.

 

b.         That Coolkill's particulars are inadequately vague - especially as to the nature of the alleged risk to the environment and how it relates to the site investigation and soil testing not done.

 

c.          That Coolkill has not advanced any expert or other admissible evidence that the Board's EIA screening conclusion and/or its conclusion that it had information adequate for screening were irrational. Accordingly, Coolkill has not discharged the onus of proof on this issue.

 

d.         Site investigations and environmental testing after demolitions and before excavations, such that any potentially contaminated material would be segregated and removed appropriately, are consistent with the EIA screening conclusion of no likelihood of significant effects, having regard inter alia to the mitigation measures proposed.

 

e.         DLRCC concerns related only to excavation noise and the need for a noise management plan - which the Inspector addressed and for which Condition #19(n) of the Impugned Decision provided.

 

f.           Various factual pleas the content of which is addressed below.

 

 

 

G7 - Information before the Board

 

Information from Midsal

 

263.           As the Proposed Development includes a basement/undercroft car park and foundations for multi-story apartment blocks, that significant excavation will be required is a ready inference. The inference is confirmed in that Midsal's RWMP envisages Site excavation of about 18,000m2 – referring, it must be said, to "soil and stones". [377] (Coolkill's assertion of absence of information before the Board as to the volume of excavation required is wrong). The RWMP also says that:

 

"While it is not envisaged that bedrock will be encountered, if bedrock is encountered, it is anticipated that it will not be crushed on site. Any excavated rock is expected to be removed off- site for appropriate reuse, recovery and / or disposal. If bedrock is to be crushed on-site, the appropriate mobile waste facility permit will be obtained from DLRCC."

 

No basis for not envisaging bedrock is stated.

 

 

264.           Midsal's Flood Risk Assessment, as to groundwater flooding:

·         Appended a GSI bedrock geology map showing that the Site is underlain by granite; [378]

·         Said the area is not listed as overlaying any local aquifers, wells, or springs but appended GSI groundwater vulnerability maps showing groundwater vulnerability in the area as extreme; [379]

·         Advised measures during construction to prevent hazardous materials contaminating groundwater.

 

 

265.           Midsal's CEMP [380] said:

 

"4.2        Ground Conditions          Site investigations and environmental soil testing are yet to be undertaken due to the existing dwellings occupying the site. After the demolition phase and prior to the removal of any excavated material site investigations and environmental testing will be undertaken." [381]

 

"The earthworks will generate typical construction activity related noise and vibration sources from ... plant and machinery such as rock breakers (unlikely to be required based on underlying boulder clay), excavators, lifting equipment, dumper trucks, compressors and generators". [382]

 

The CEMP also set out intended noise and vibration mitigation and monitoring regimes [383] and best practice surface water management regimes with a view to pollution prevention. [384]

 

 

266.           Returning to Midsal's RWMP, it records that site investigations and environmental soil testing are yet to be done but acknowledges [385] that contaminated soil, if found, it would have to be segregated, tested, classified (as either non-hazardous or hazardous - for example, material containing asbestos) and managed and disposed of in accordance with relevant guidance and legislation [386] via, as to hazardous soil or historically deposited waste, a Hazardous / Contaminated Soil Management Plan notified to DLRCC.

 

 

267.           Midsal's Planning Application Form enclosed an expert "Noise Impact Assessment". [387] It is not exhibited but is described in Midsal's Planning Report, [388] Contravention Statement, [389] and Statement of Consistency [390] as concluding, inter alia, that:

 

"At the majority of locations, and for the majority of phases, calculated noise levels are within construction noise significance thresholds. At locations closest to the site boundary, potential significant construction noise effects are predicted, this is primarily due to the short distance between the works area and these neighbouring dwellings. The adoption and implementation of the noise control measures outlined in the relevant sections of this document is expected to reduce impacts to an acceptable level."

 

 

268.           Specifically, Midsal's EIA Screening Report ("EIASR") stated, as to potential impacts on "Soils and Geology": [391]

 

"Based on the GSI database (2022) the bedrock beneath the site is mapped as Type 3 muscovite porphyritic ... [392] The formation is described as granite with muscovite phenocrysts. [393]

 

The Site is situated mainly on the Wicklow groundwater body, which is Not at Risk of not meeting its WFD objectives, however the northwest area of the Site is located on the Kilcullen groundwater body, which is At Risk of not meeting its WFD objectives. The quality status of this GWB has been classified by the EPA (2022) as having an overall 'good' water quality status (for the period 2013-2018).

 

The aquifer type within the Site boundary is a Poor Aquifer (Pl) aquifer on bedrock which is Generally Unproductive except for Local Zones. The groundwater rock units underlying the aquifer are classified as Granites & other Igneous Intrusive rocks (GSI, 2022). The level of vulnerability of the Site to groundwater contamination via human activities is Extreme. The soil is classified as Urban, and the subsoil is man-made (Made) (EPA, 2022).

 

There will be no direct discharges to ground or surface water during the Construction Phase of the Proposed Development.

 

There are no protected Geological Heritage Sites in the vicinity of the Proposed Development that will be impacted by the Proposed Development" [394]

 

(The listed references include a weblink to the Geological Survey Ireland Spatial Resources online mapping).

 

 

269.           As to Hydrology & Hydrogeology, Midsal's EIASR: [395]

·         Identified the relevant river catchments, confirmed that there are no river waterbodies on-Site and identified the closest watercourse to the Site as the Carrickmines Stream about 13m southeast of the Site;

·         Identified the intended incorporation, as is required, of a comprehensive SuDS and surface water treatment methods; and

·         Stated that

 

"All works will be undertaken in accordance with the requirements of the CEMP which includes measures to ensure there will be no significant impact on the receiving hydrogeological environment associated with the construction of the Proposed Development ...".

 

"As part of the overall project methodology, sediment and water pollution control risks arising from construction/demolition-related surface water discharges will be considered. All works carried out as part of these works will comply with all Statutory Legislation including the Local Government (Water Pollution) acts, 1977 and 1990". [396]

 

 

270.           As to construction noise, dust and vibration, Midsal's EIASR stated:

 

"The immediate area of the Proposed Development may experience a minor impact during the Construction Phase in terms of pollution and nuisance, however the works are not of such a scale or extent that would be considered likely to cause significant effect on the environment." [397]

 

"The Proposed Development involves construction and demolition works which may temporarily impact on air quality due to dust emissions. ... Any potential dust impacts will be localised in nature and last only for the duration of these works. Nevertheless, best practice measures will be implemented for the duration of this phase for all potential ambient air quality impacts and all site activities will be undertaken with due consideration of the surrounding environment and the close proximity of sensitive receptors such as residents and pedestrians. The CEMP outlines the following measures to be implemented to ensure impacts are minimised ... " [398] There follows a detailed repetition of the CEMP's dust mitigation and monitoring measures.

 

"There will be an increase in noise and vibration levels during the Construction Phase. However, these impacts will be localised, intermittent, and last only for the duration of this phase. It is not considered that noise levels from the Proposed Development will be significant during these works due to the existing urban nature of the surrounding environment. Nevertheless, the Proposed Development will comply with BS 5228 "Noise Control on Construction and open sites Part 1: Code of practice for basic information and procedures for noise control". The noise limits to be applied for the duration of the infrastructure works are those specified in the B Category of BS 5228." [399] There follows confirmation that BS 5228 addresses vibration also and account of the requirements of BS 5228 as to noise and vibration mitigation and monitoring.

 

 

271.           As to probability duration, frequency, and reversibility of impacts, Midsal's EIASR stated:

 

"No significant environmental impacts are predicted for the Proposed Development. The CEMP will ensure that all applicable environmental health and safety regulation is complied with throughout the Construction Phase thereby ensuring that this phase will not result in significant effects on human health or the environment.

 

Increased noise levels may intermittently occur during the duration of the construction works. Any increase in noise levels is not considered as being significant in nature or sufficient to cause environmental impacts of any significance.

 

Guidelines and defined operational measures detailed within the CEMP and adhered to during all stages of the works in order to further reduce the possibility of such nuisances occurring." [400]

 

"Any potential impacts associated with the Construction Phase of the Proposed Development will be temporary and characteristic of a typical urban development project. ... Impacts such as noise, dust and/or water pollution during the Construction Phase will be temporary and reversible through the correct implementation of the appropriate control measures." [401]

 

"During construction, temporary and intermittent impacts are predicted due to potential noise and dust, however these impacts will be localised, insignificant, and last only for the duration of this phase. Construction operational control measures identified within the CEMP and will ensure that there will be no nuisance or impacts from the Proposed Development beyond the Site boundary." [402]

 

"All construction and demolition waste will be consigned to a suitably permitted or licensed waste disposal or materials recovery facilities." [403]

 

 

 

Information from the Applicants, Kalidone Developments & DLRCC

 

272.           Coolkill's submission to the Board included a section headed "The Issue of rock Is not addressed by the CEMP - noise & vibration assessments are Incomplete". [404] In the context of the CEMP's [405] statement that Site investigations had not been done due to the existing dwellings, it stated that

 

·         The bedrock is granite as evidenced by nearby outcrops and quarries near the Site. An attached historic OS [406] map shows bedrock outcrops just north and south of the Site.

·         Publicly available GSI [407] GeoUrban bedrock depth mapping [408] shows the Site's depth to bedrock at 1m to 3m.

·         There is ample space on Site to do suitable planning design stage ground investigation. e.g. low-cost slit trenching and/or probing. Such investigation would have located the rock head. Irrespective, a cursory desktop study and site walkabout would also have identified the shallow rock.

·         Not having done such investigation in this case means:

o   The excavation noise and vibration effects close to existing residences have not been adequately assessed and mitigated. (The car park excavation is within 5m of the extension to #30 Coolkill);

o   Potential effects on groundwater flows and the local aquifer have not been adequately assessed and mitigated; and

o   The EIA Screening [409] may be invalid.

·         For various reasons, Midsal's Noise Impact Assessment is inadequate as to the assessment of likely construction noise and measures to minimise it - in particular adjacent the Coolkill houses.

 

 

273.           Kalidone Developments, the developer of the adjoining Cul Cuille site to the north of the Site, submitted to the Board that: "the Proposed Development will entail the extraction of substantial volumes of rock. This will require competent supervision and a comprehensive management plan to ensure that there will be limited public hazard and distress and to prevent structural damage to adjoining or nearby properties." [410]

 

 

274.           The CE Report:

 

·         Under the heading "Construction", noted submissions, inter alia, as follows: the Site is located on hard granite bedrock; significant excavations may damage existing local properties; concerns regarding vibration and dust; no ground breaking assessment has been done; if permission is granted only non-impact driven rock breaking should be considered and a dust minimisation and mitigation strategy and a robust noise mitigation plan are required.

 

·         Recorded DLRCC's own concerns as to potential rock excavation. Notably, DLRCC considered that he appropriate response was a planning condition requiring pre-commencement submission of a detailed noise management plan to DLRCC for approval. [411] More specifically, DLRCC's Environmental Enforcement function, [412] while "generally happy with the submitted documents and ... that compliance with these documents should be conditioned in any grant of planning permission" and recommending planning conditions as to noise management and noise, vibration and dust monitoring, stated:

 

"Environmental Enforcement is however very concerned by the absence of any site investigation and any planning for potential rock excavation at the proposed development. The proposed construction noise limits in the submitted Noise Impact Assessment are averaged over an 11 hour period. This would allow the creation of significant noise nuisance of such intensity and duration as to create significant noise disturbance at neighbouring residences. It is therefore recommended that the submission of a noise management plan prior to commencement of site works be conditioned."

 

I infer that DLRCC's point here is that noise measured in averages over 11 hours will, as a little thought will reveal, by the averaging process obscure instantaneous impulse or peak noise nuisances such as from rock breaking. As the Noise Impact Assessment is not exhibited, I will not comment.

 

 

 

G7 - Inspector's Report & Impugned Decision

 

275.           The Inspector, in recording Third Party Submissions, [413] recorded objectors' "Concerns about construction impacts on residential amenities, in particular noise associated with rock breaking and excavation of granite bedrock during construction of the basement/undercroft car park, also impacts associated with noise, dust". [414] She set out further detail in that regard and objectors' calls for planning conditions as to construction noise and vibration thresholds and monitoring and limiting constructions hours. She noted that Kalidone Developments had predicted "the extraction of substantial volumes of rock" [415] and Objectors had asserted that

 

"The applicant has not carried out adequate assessment/investigation of ground conditions at the development site. There is a strong likelihood of granite bedrock close to the ground surface at the site, as has occurred at other development sites in the vicinity. The applicant has incorrectly assumed that site excavations to construct the basement/undercroft car park will be in boulder clay. Due to inadequate site investigations, the noise and vibration effects of development works have not been adequately assessed and mitigated. In addition, the potential effects on groundwater flows and the local aquifer have not been adequately assessed and mitigated and the EIA scoping may be invalid. Permission should not be granted in the absence of adequate investigation of required rock excavation." [416]

 

 

276.           In her assessment, the Inspector: [417]

 

a.         Refers to objectors' concerns as to noise and dust as I have set out above - mentioning "particular concerns about rock breaking that is likely to be necessary to construct the basement/undercroft, given the presence of granite close to the surface";

 

b.         Cites the concerns of DLRCC Environmental Enforcement as to the absence of any Site investigation and planning for rock excavation;

 

c.          Cites the CEMP and the Noise Impact Assessment as addressing the issues of ground conditions and excavations, noise and vibration during Site preparation works and stating that best practice is to be used to prevent adverse noise and vibration impacts during construction and to keep emissions within guidance parameters;

 

d.         Notes that while there is potential for significant noise impacts during construction at nearby sensitive locations, these impacts are short term and will be reduced by the implementation of proposed mitigation measures;

 

e.         Notably observes that such short term and reduced noise impacts "would be the case for any development of these zoned and serviced lands";

 

f.           Observes that DLRCC Environmental Enforcement's recommended Noise Management Plan could be required by condition if permission is granted;

 

g.         Recommends a condition limiting construction hours;

 

h.         Discounts concerns as to increased risk of flooding due to potential changes to groundwater flows as a result of Site excavation works; [418]

 

i.           Is satisfied with the proposed surface water management measures adequate to mitigate potential adverse impacts on water quality during construction. [419]

 

 

277.           The Inspector concludes that she is

 

"satisfied overall that impacts predicted to arise in relation to noise and vibration would be avoided managed and mitigated by the measures ... proposed ... and through suitable conditions";

 

"therefore satisfied that the development would not have any unacceptable direct, indirect, or cumulative impacts in terms of noise and vibration";

 

"satisfied that, ... the excavation and construction phases of the development would not have any significant adverse impacts on residential amenities."

 

 

278.           As to EIA Screening, the Inspector [420]

 

a.         Considered that the information to hand sufficed for EIA screening;

 

b.         Cites the EIASR and, inter alia by reference to Article 299B(1)(b)(ii)(II) PDR 2001, considers the information supplied by Midsal adequate to determine whether the development would be likely to have a significant effect on the environment and that the ESIAR "identifies and describes adequately the direct, indirect, secondary and cumulative effects of the proposed development on the environment";

 

c.          States that "having regard to the relatively limited size and the location of the development, ... a mandatory [421] EIA is not required. I would note that the development would not give rise to significant use of natural recourses, production of waste, pollution, nuisance, or a risk of accidents. The site is not subject to a nature conservation designation";

 

d.         Refers to Midsal's AA [422] Screening report which screened out AA (I note that it discounted any hydrological connection to European Sites);

 

e.         Concludes that the location of the Proposed Development and the environmental sensitivity of the geographical area would not justify a conclusion that it would be likely to have effects on the environment significant by their extent, magnitude, complexity, probability, duration, frequency, or reversibility - such that the Proposed Development would not be likely to have significant effects on the environment and an EIA is not required before a grant of permission is considered;

 

f.           In her suggested EIA Screening matrix answers "Yes" to the question "Will the project cause noise and vibration or release ... energy ...?" But says they will be "localised, short term in nature and their impacts may be suitably mitigated by the [CEMP]".

 

 

279.           The Inspector recommended, and the Board imposed by "Boland" [423] Conditions #19 and 20 of the Impugned Decision, requirements that a final Construction Environmental Management Plan be agreed in writing with DLRCC before development starts - to provide details of intended construction practice including a noise management plan, details of appropriate mitigation measures for noise, dust and vibration, monitoring of such levels and surface water run-off controls to prevent entry of silt or other pollutants into local surface water sewers or drains, and, that working hours be restricted.

 

 

 

G7 - Law on EIA Screening - Waltham Abbey, Standard of Review & Significance of Effect

 

The Scope and Standard of EIA Screening

 

280.           I note in particular, Coolkill's citation of EIA Directive Recital 22** to the effect that EIA screening "... should take account of the impact of the whole project in question, including, where relevant, its subsurface and underground ...".

 

 

281.           On 6 March 2025, the CJEU gave judgment as to EIA screening law in Waltham Abbey . [424] Its ruling related to the evidence on which EIA might properly be screened out, the circumstances in which a decisionmaker/competent authority must seek additional information before screening out EIA and the certainty required in screening out EIA. [425] Notably, the CJEU said, inter alia, the following:

 

a.         Article 2(1) of the EIA Directive requires that EIA be done when there a risk that the project will have significant environmental effects;

 

b.         Interpreting the EIA Directive in light of the precautionary principle - a foundation of the EU policy of a high standard of environmental protection - such a risk exists if it cannot be excluded on the basis of objective evidence that the project is likely to have significant effects on the environment; [426]

 

c.          So, to screen out EIA, the competent authority must "with certainty" "rule out all reasonable scientific doubt as to the possibility that the project ... would have significant effects on the environment ...". That is a general statement of the obligation. The CJEU considered that it applies "in particular" as to possibility of effect on species protected under the Habitats Directive, [427] However, as the obligation is general nothing turns on the absence of such a particular possibility in this case;

 

d.         Given the need to "rule out all reasonable scientific doubt", to screen out EIA the competent "authority must have at its disposal the most comprehensive information possible." [428]

 

 

282.           This identification of the need to "rule out all reasonable scientific doubt", approximated both Article 2(1) of the EIA Directive to Article 6(3) of the Habitats Directive and the standard of proof required to screen out EIA to that required in AA and AA screening to allow a project to proceed. [429]

 

 

283.           Coolkill argue that Waltham Abbey has raised the bar in EIA screening as, now, certainty beyond reasonable scientific doubt on the basis of the most comprehensive objective information possible is required if EIA is to be screened out. But there are good reasons to consider that the CJEU's judgment in Waltham Abbey is somewhat more nuanced than might appear at first blush.

 

a.         From a purposive point of view, the concept of the "most comprehensive information possible", if taken literally and absolutely, would be a recipe for almost endless inquiry rendering EIA screening difficult to distinguish, at least as to its information-gathering phase, from the very EIA the avoidance of which screening is positively designed to enable where appropriate.

 

b.         There is reason to consider that the requirement of the "most comprehensive information possible" was not intended to change the pre-existing law. As long ago as Bozen [430] it was held that EIA could be screened out only "on the basis of a comprehensive assessment". Similarly, as to certainty beyond reasonable doubt, as long ago as Champion [431] Lord Carnworth said that "the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA". In my view, in this regard, "material" is difficult to distinguish from "reasonable" - both linguistically and, perhaps more importantly, in terms likely to make any difference in practice. And even longer ago, in Bateman, [432] Waddenzee [433] and Mellor [434] were cited for the proposition that "a likelihood in this context was "something more than a bare possibility ... though any serious possibility would suffice" to require EIA.

 

c.          While the caselaw has understandably and correctly emphasised the precautionary principle and the aim of a high level of environmental protection in tending to require EIA, the whole purpose of EIA Screening is to both ensure EIA where required and to avoid, where environmentally unnecessary and so wasteful, the full and resource-consuming exercise of EIA. EIA Directive Recital 27** [435] explicitly states that EIA screening "should ensure" that EIA "is only required for projects likely to have significant effects on the environment". And, as noted in Mellor, [436] in Wells, [437] Klohn, [438] Huddleston, [439] Callaghan, [440] and Shadowmill, [441] the purpose of the EIA Directive, as stated in its Recital 6*, [442] is to ensure EIA of "projects likely to have a major effect on the environment". And Thakeham [443] and Bateman [444] characterise screening as "a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment ...".

 

d.         Insisting in EIA Screening, on an absolute, literal and unrestrained sense, on the "most comprehensive information possible" would tend to undermine the exclusionary value of EIA Screening and wastefully deploy scarce resources in EIA Screening more properly applied to EIA.

 

e.         Given that a purpose of EIA Screening is to avoid, where environmentally unnecessary, the full and resource-consuming exercise of EIA, which inevitably involves more searching inquiry than does EIA screening, it logically follows that where EIA has been screened out the mere assertion that a particular survey has not been done or inquiry made will almost always be possible and is not, per se, proof of an inadequate EIA screening.

 

f.           EIA Directive Recital 41** incorporates the principle of proportionality, as set out in Article 5 TEU, such that the Directive does not go beyond what is necessary to achieve its objective of a high level of environmental protection. It should not readily be interpreted as requiring the use of sledgehammers to swat flies. EIA Directive Recital 26** states that, in EIA Screening, "the information which the developer is required to supply should be specified, focussing on the key aspects that allow the competent authority to make its determination." So focus is important and clearly the notion that more comprehensive information is required in EIA Screening than is required in EIA would be absurd.

 

g.         The judgment in Waltham Abbey itself implies a functional limitation on the information required, by reference to the task at hand in EIA screening. It states that where, despite third parties' suggestions of doubt, the competent authority can nonetheless rule out, on objective evidence, the possibility that the project is likely to have significant environmental effects, it may screen out EIA without asking the developer for more information.

 

h.         The importance of the developer in supplying information is emphasised in Waltham Abbey - and developers are often limited as to the information they can reasonably be expected to supply at particular points in the development process.

 

 

284.           Elaborating on the role of the developer in supplying information, even in EIA and though the information the developer is required to submit must be "complete and high quality" (EIA Directive, Recital 27**), nonetheless what is required of the developer is "the information that may reasonably be required for reaching a reasoned conclusion" (EIA Directive, Article 5(1).) The CJEU in IL v Land Nordrhein-Westfalen [445] cited Article 5(1) in requiring a developer to provide information in EIA "inasmuch as that information is relevant in order to assess the effects of a given project, and within the limits of what may reasonably be required of a private operator." And in Abraham, [446] Kokott AG said that, though Member States' discretion is not unlimited, "the information under Article 5(1) and Annex III is necessary only where the Member States consider that the information is relevant and that a developer may reasonably be required to compile that information." The UKSC in the Heathrow Airport case [447] has said that the requirement in EIA of "full information" is not to be understood as an unrealistic counsel of perfection in an imperfect world. And in Abbotskerswell [448] the EWHC, having noted that the Secretary of State had reached a judgment in EIA that the information to hand was sufficient, and that no further information, including on climate change, was reasonably required, cited Heathrow Airport to the effect that

 

"... the Secretary of State was only required to consider the adequacy of such information on climate change in the ES [449] as "may reasonably be required". In deciding what information is "reasonably required" in an ES, the Secretary of State had a "wide range of autonomous judgment on the adequacy of the information provided" and "must be free to form a reasonable view of its own on the nature and amount of information required", subject only to review on Wednesbury [450] grounds ...".

 

And, of course, in similar vein but closer to home, McGovern J, in O'Grianna [451] and in a passage later much cited approvingly, disavowed any necessity to construe the E.I.A. Directive in the most onerous manner possible.

 

As I have said, it cannot be the case that a greater comprehensiveness of information is required in EIA screening than in EIA - such a position would be absurd.

 

 

285.           The concept of significance of effect was reviewed in MRRA [452] and Shadowmill. [453] That review need not be repeated here. But, and importantly, it records that significance is not a hard-edged or rigid concept. Everything depends on the circumstances of the individual case and, as was said in Shadowmill, it is "possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken".

 

 

286.           It seems therefore that the word "comprehensive", in describing the information required for EIA screening, is not used by the CJEU in Waltham Abbey in a sense different to the word "full" or as altering the law as long-understood. It must be understood as a requirement that the information be comprehensive not in any exaggerated sense but in terms of its objective sufficiency for the screening task in hand - in both its precautionary sense and its purpose of avoiding unnecessary EIA - and bearing in mind the very screening nature of that task and what may reasonably be required of a private operator.

 

 

 

Standard of Judicial Review of EIA Screening

 

Starting Point

 

287.           The standard of judicial review, as to merit, of EIA and EIA screening has been crucially informed by the consideration that significance is not a hard-edged concept and its assessment therefore requires evaluative judgement. So Tromans [454] in 2012 asserted that this "key principle so far as the courts are concerned" has the result that "they will, therefore, not lightly interfere with the decision reached by the planning authority". That EIA screening decisions are judicially reviewable as to merit only for conventional irrationality [455] is the law, on the same EU legislative basis as applies here, in England and Wales - not least because the word "significant" does not lay down a precise legal test but requires the exercise of evaluative judgement on environmental issues, for the exercise of which judgement the courts are ill-equipped - Jones, [456] Thakeham, [457] Hockley [458] and, in 2024, BW Farms. [459] In Ireland, Shadowmill [460] in 2023 cited the English cases and stated that a screening out of EIA on preliminary examination [461] is reviewable as to its merits only for irrationality. Graymount, [462] in which EIA was also screened out on preliminary examination, cited Shadowmill to that effect. In MRRA [463] it was held, citing Rushe, [464] that AA Screening is reviewable as to its merits only for irrationality. Given the environmental stakes in AA screening are at least equal to those in EIA screening, it seems to me that if AA Screening is reviewable as to its merits only for irrationality the same is true, by analogy, for EIA Screening. In short, screening out of EIA on EIA Screening is reviewable as to its merits only for irrationality.

 

 

 

Waltham Abbey

 

288.           The CJEU in Waltham Abbey [465] recently states that it is for the referring court (i.e. the High Court) to determine whether, in light of the information available to the Board when making its impugned decision, the Board in EIA Screening could have, with certainty and despite the information suggesting the contrary, ruled out all reasonable scientific doubt as to the possibility that the project at issue would have significant effects on the environment. This formulation echoes the CJEU's description of the obligations of national courts in providing effective remedy by way of judicial review of decisions as to AA.

 

 

289.           As has been said above, it is well-established that the standard of judicial review required of decisions as to AA is that ordinarily deployed in judicial review. That is to say, and as to the merits of the decision, the applicable standard is that of irrationality.

 

 

290.           Remembering the approximation in Waltham Abbey of the standard of proof required in EIA screening to the reasonable scientific doubt standard applied in AA it is noteworthy that Humphreys J observed, in 100m Tall [466] of AA, that:

·         "Boland" conditions in development consents, allowing details to be determined subsequently, are permissible as long as they do not undermine the Board's [467] certainty at AA law that the development consent will not permit adverse effect on the integrity of a European Site; [468]

·         While it must apply the precautionary principle and the certainty required of the Board is stringent, it is reasonable not absolute. It does not require disproof of "any effect whatsoever" having "no appreciable effect" [469] or any merely "theoretical", "conceivable" or "hypothetical" risk or risk "founded on mere conjecture" or "mere suppositions which are not scientifically verified"; [470]

·         Evaluation is in the first instance for the Board; [471]

·         National courts in judicial review must "carry out a thorough and in-depth examination of the scientific soundness" of the AA ("Coöperatie Mobilisation"). [472] One may add that the CJEU ruled that whether the objective circumstances made it possible to rule out with certainty any possibility that those projects may significantly affect those sites is for the referring court to ascertain. [473]

 

 

291.           And, as to merely theoretical risk, as cited by McDonald J in Sliabh Luachra, [474] Kokott AG said in Waddenzee, [475] of both AA and AA Screening:

 

"... to establish whether a significant adverse effect on the site concerned is possible, account must also be taken here of the likelihood of harm occurring and the extent and nature of the anticipated harm".

 

 

292.           Member States are obliged by Article 11 of the EIA Directive to provide access to judicial review of decisions subject to the public participation provisions of the Directive. EIA Screening is not subject to those public participation provisions. But it has not been suggested that lesser standards of judicial review apply to EIA Screening than to EIA. I will proceed on the basis that judicial review of EIA Screening must conform to the general requirement of effective judicial remedy laid down by Article 19 TEU and Article 47 CFREU - of which the EIA Directive Article 11 obligation is a species. Though not explicitly, Waltham Abbey, in considering the role of national courts in review of EIA Screening decisions and in approximating that role to the courts' role in review of AA Screening decisions, appears to have proceeded in the same assumption.

 

 

293.           There is ample authority that the heightened curial deference represented by the "no relevant material" standard of irrationality, identified with the decision in O'Keeffe, [476] is now regarded, as to effective remedy in EU law, as having been "eroded to sand" but that a more flexible approach to judicial review for irrationality does suffice - taken in the context of other bases on which judicial review may be granted. See in this regard Four Districts, [477] which Humphreys J was able to decide without having to decide the challenge in that case to the EIA Screening but in which he considered the issue of standard of judicial review at some length and in terms of EU law rights to effective judicial remedy, including cases such as AB v Clinical Director of St Loman's Hospital, [478] NM (DRC), [479] and AAA. [480] Humphreys J considered that EU law requirements of effective remedy - of thorough review - were satisfied by extensive and effective judicial review jurisdiction: it can quash for irrationality (including lack of proportionality), material error of fact or where the decision simply strikes at the substance of constitutional or EU rights. In AAA [481] Charleton J, observing as to irrationality that "every case remains fact specific", cited NM and Meadows [482] as to the concept of proportionality - which is an element of the test for irrationality - to the effect that judicial review was sufficiently flexible to accommodate EU "thorough review" requirements even if the O'Keeffe "no relevant material" standard would not.

 

 

294.           Baker J in Pervaiz [483] considered the decision of the CJEU in Banger, [484] which required national courts, in providing effective remedy, to ascertain whether a decision based on EU law was based on a "sufficiently solid factual basis". Bobek AG in Banger, as to this required scope of judicial review, cited notable environmental law cases: Waddenzee (an AA case), Stichting Natuur en Milieu (an IPPC [485] case) and Kraaijeveld (an EIA case) . [486] Baker J held that the "flexible and powerful remedy" of judicial review is up to the task set in Banger. She cited O'Donnell J in VJ. [487] He, considering Banger, had said that it required judicial review capable of ascertaining whether the impugned decision 'based on a sufficiently solid factual basis'. He considered that while this required " a searching review, the judgment plainly stops short of requiring an appeal which would involve a rehearing and a substitution of the views of the appellate body for that of the decision-maker." And, in Four Districts, Humphreys J said that "even this form of review is some way off a review on the merits of the decision". Still less can the court positively substitute a decision based on its own view of the merits. He emphasised that "even "thorough review" is itself very deferential and does not attempt to review the merits de novo". And, Humphreys J considered, "Purely factual assessments by a decision-maker attract a high degree of deference" – though as to EU law decisions "where the court concludes that there can only be one lawful outcome, it must in an EU law context have a power and indeed a duty to bring that result about" by substituting its own decision. [488] Humphreys J commented: "Applied to the Irish context, that is a lot less dramatic than it sounds, because the High Court already has the required jurisdiction although it is rarely called for in practice." What is required is "some level of engagement by the court with the evidence that was before the decision maker and particularly any evidence which is asserted to be contrary to the conclusion ultimately reached".

 

 

295.           Recently, in Hayes [489] Butler J confirmed that the court, in judicial review of an AA as to its merit, must "do more" than merely apply the O'Keeffe, "no relevant materials" test. Consistently with Charleton J's observation in AAA that "every case remains fact specific", Butler J said,

 

"The limits of the court's examination of evidence in order to be satisfied as to the legal correctness of the decision maker's conclusion on an appropriate assessment are not clear and may not be capable of precise definition untethered from the facts of any particular case.

 

On the one hand it does require more than the court merely being satisfied of the existence of some evidence on which the decision maker could reasonably have based its conclusion. On the other hand, a review is not a full appeal on the merits and the court does not step into the shoes of the decision maker to re-evaluate all of the evidence and, in effect, to conduct a further appropriate assessment.

 

Thus, a court is entitled to and, depending on the case made, must examine the evidence before the decision maker to ensure that where contrary technical or scientific evidence has been adduced to the decision maker, any conclusion reached is justified in terms of the level of scientific certainty required. In conducting this examination it has to be borne in mind that the decision maker possesses a level of expertise regarding the subject matter of the assessment which the court does not have. The extent to which the decision maker has provided reasons for its conclusion on any disputed aspect of an appropriate assessment will inform, if not delineate, the scope of the court's examination." [490]

 

"In conducting this exercise, the court may reach a practical limit to which I have already adverted in this judgment. The EPA is an expert decision-making body which has been conferred by statute with jurisdiction in this highly specialised and technical field. It is probably fair to observe that in recent times courts have been somewhat less inclined to show the extreme deference to expert decision makers that was historically the case. In many instances this is because the expertise of the decision maker is very general in nature, ...". [491]

 

 

296.           The cases from the neighbouring jurisdiction are to similar effect, having considered the Coöperatie Mobilisation decision that effective judicial remedy requires "a thorough and in-depth examination of the scientific soundness" of AA. In Abbotskerswell, [492] Lang J noted earlier English authority [493] "to the effect that the relevant standard of review by the Court is Wednesbury rationality, and not a more intensive standard of review" [494] and concluded, albeit without elaboration, that Coöperatie Mobilisation, as to national courts' examination of the scientific soundness of an AA "does not indicate that the court should deviate from a review of the Secretary of State's conclusions in the appropriate assessment only on Wednesbury grounds ...". She dismissed the habitats law challenge on the basis that the Secretary of State had "made a series of legitimate planning judgments, which are not capable of challenge on Wednesbury grounds." [495] The Court of Appeal of England and Wales considered Coöperatie Mobilisation in Wyatt. [496] It held that:

·         The duty to perform AA "rests with competent authorities, not with the courts".

·         While the domestic court must satisfy itself of the lawfulness of the competent authority's consideration of the scientific soundness of the AA, nothing in Coöperatie Mobilisation transforms the respective roles of the competent authorities and the domestic courts by requiring the court to do an AA of its own. The court's function is supervisory only. [497]

·         In judicial review of AA, the court will apply ordinary public law principles, conscious of the nature of the subject-matter and the expertise of the competent authority. The court will give appropriate deference to, and allow a substantial margin of appreciation to, the views of expert regulatory bodies. [498] As to the merits of the AA, the court will intervene only for Wednesbury error. For "Wednesbury error" we may read "irrationality" and note that the O'Keeffe "no materials" test had never been the law in England and Wales.

·         The court's examination of the authority's performance of its duty will be suitably exacting within the bounds of its jurisdiction. But the autonomous approach of domestic courts in judging the lawfulness of such action has been explicitly approved by the CJEU. [499]

 

 

297.           In Wyatt, Sir Keith Lindblom had observed that though overturned on other grounds by the UK Supreme Court, [500] the EWCA in Plan B Earth [501] had not been doubted in its views that:

·         The CJEU in Craeynest [502] had "effectively confirmed that it is for the member states to determine the applicable standard of review, and that this is so in cases involving complex scientific or technical assessments in Directives concerned with environmental protection." [503]

·         As to the standard of judicial review of an AA, Wednesbury irrationality equated to the EU Law standard of "manifest error". [504]

·         Although a strict precautionary approach is required in AA, the appropriate standard of review is Wednesbury irrationality and Craeynest does not require more intensive review: the court should not adopt a more intensive standard or effectively remake the decision itself. [505]

 

 

298.           The EWCA in Plan B Earth had approved the view of the High Court that had considered that:

·         The court should accord an enhanced margin of appreciation to decisions involving or based upon 'scientific, technical and predictive assessments' by those with appropriate expertise.

·         Where a decision is highly dependent on the expert assessment of a wide variety of complex technical matters by those assigned to the task of assessment (ultimately by Parliament), the margin of appreciation will be substantial. [506]

 

 

299.           On the basis of this review of the cases, including the approximation in Waltham Abbey of the standard of proof required in EIA screening to the reasonable scientific doubt standard applied in AA and so having regard to the caselaw on judicial review of AA, I consider, as to standard of judicial review of EIA screening, that:

 

a.         The O'Keeffe test of irrationality does not apply.

 

b.         The flexibility of Irish judicial review enables the provision of the effective remedies required by EU Law by way of "thorough" or "searching" review.

 

c.          This flexibility encompasses judicial review for material error of fact and whether an impugned decision has "a sufficiently solid factual basis'.

 

d.         Thus, Irish judicial review, in which merits are interrogated only for rationality - but rationality considered flexibly and incorporating the requirement of proportionality- suffices as an effective remedy for purposes of EU law.

 

e.         The flexibility required will tend to be fact-specific but it does not encompass appeal on the merits or substitution of the court's decision on the merits for the decision-maker's.

 

f.           Curial deference to expert decisions survives - but is no longer "extreme" [507] and is now titrated to the degree of expertise of the decision-maker. In that regard I suggest, obiter, that a particular decisionmaker called upon to make complex and multifactorial decisions may be highly expert as to elements of it and less so as to other elements. It has been suggested in other cases that there is such an expertise as a general expertise in assessing materials prepared by experts whose particular expertises the assessor does not possess. Whether that is so does not arise here. But if such an expertise exists, its limits may require careful exploration in a given case having regard to the extent to which the particular expertise the output of which the assessor is assessing is particularly arcane, technical, difficult, obscure, niche or otherwise challenging to the assessor charged with rigorous scrutiny and critical interrogation.

 

g.         But even "thorough" or "searching" review remains "very deferential". [508]

 

 

300.           It seems therefore that the recent decision of the CJEU in Waltham Abbey does not require a change in Irish law, as understood to date, that decisions as to the adequacy of the information to hand in EIA screening and as to the merits of the EIA screening decision made on that information are judicially reviewable as to merit only for irrationality - bearing in mind the more nuanced and flexible understanding of the concept of irrationality, including proportionality, which has in Irish law succeeded the O'Keeffe concept - at least as to judicial review of decisions to which EU Law requirements of effective judicial remedy apply. Sufficiently beset by complexity as it already is and given the enmeshing of Irish and EU environmental law and though I need not decide the point, I confess that I would not favour differing standards of irrationality applicable depending on whether the issue is one of Irish or EU law.

 

 

 

Small Projects

 

301.           Graymount [509] cites the following from Shadowmill:

 

"The ultimate point of ... EIA Screening is to discern if subthreshold development requires EIA. The issue is not, per se, the size of the project but is the likelihood of significant effect on the environment - as to which many factors are potentially influential ... small projects can have significant effects. Nonetheless, and assuming the thresholds are set with a view to generally ensuring that developments requiring EIA are subjected to it, and noting that Annex III of the EIA Directive and Schedule 7 PDR 2001 identify the size of the project as one of its characteristics requiring "particular regard", it is at a very general level unsurprising to find that a Proposed Development of 32 dwelling units will be considered not to require EIA where the relevant threshold is 500 units. It is all the less surprising to find that a Permitted Development of 18 dwellings will be considered not to require EIA."

 

 

 

G7 - Proof & Evidence

 

302.           Insofar as the CJEU in Waltham Abbey approximates the proof required in EIA screening with that required in AA, and as to the necessity that, to require EIA or AA, risk of significant effect must be more than merely theoretical, Eco Advocacy (Statkraft)[510] is notable authority that:

 

·         The applicant for judicial review bears the onus of proving that AA or EIA was defective[511] - whether by failure to consider something the decision-maker was autonomously required to consider, patent flaw on the face of the materials, or other legal error, any other form of inadequate consideration or failure to dispel scientific doubt.

·         That onus cannot be discharged by mere assertion. Mere assertion does not create scientific doubt.[512]

·         That onus is "normally discharged by evidence, or demonstrating a flaw on the face of material" before the Board.[513] The evidence required is normally scientific expert evidence.[514]

 

 

 

G7 - EIA Screening - Discussion and Decision

 

303.           As has been seen from the account of the law set out above, EIA Screening is "a procedure intended to identify the relatively small number of cases in which the development is likely to have significant - major - effects on the environment". Much depends on the facts and circumstances of the individual case and it is "possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken".

 

 

304.           In that light I think it was fair of counsel for the Board to point out that the Proposed Development is of apartments - and, at that, a relatively modest 137 apartments - of a scale common in urban areas and it is to be built in an existing residential, urban area. Apartment blocks with basement car parks requiring site excavations are commonplace - as are, at least in general, the environmental risks they pose. That is to say, the Proposed Development is of a kind well-understood by builders, environmental experts, planners, Board Inspectors and the Board, such that the Board's evaluative judgements in respect thereof are entitled to particular deference from a court inexpert in such matters - not least in the absence of contrary expert views. (Here I speak of expert views as to the risk posed - as opposed to the expert view that basic site investigations would have been easy).  That is not to say that the environmental risks of such developments need not be identified and it must aways be borne in mind that even small projects can have significant environmental effects - not least having regard to the particular characteristics of their intended location considered in its proper context. The Proposed Development undoubtedly required EIA screening as an urban development project within the meaning of Schedule 5, Part 2 PDR 2001. [515] But it is at least notable that it is a relatively modest development on a site of less than 1/10th of the 10-hectare threshold for automatic EIA. In the sense in which it was said in Shadowmill, it is "a very general level unsurprising to find" EIA screened out.

 

 

305.           It is difficult to disagree with Coolkill's' expert critique in their objection to the Board that Midsal's excuse for doing no site investigations was, at least on its face and failing elaboration, threadbare. [516] Midsal's references to excavation of "soil and stones" and "boulder clay" are distinctly unimpressive. The same is all the more true of the assertion that "it is not envisaged that bedrock will be encountered". My point is not to suggest that bedrock will be found. It is to observe that, absent site investigation or other proffered justification for the assertion/assumption and when taken with the GSI confirmation of granite and while, of course, it could prove to be broken granite not bedrock or bedrock at some depth, these references smack of a best case scenario assumption by those who prepared the reports in support of Midsal's planning application. In hindsight at least, given the eventuation of objections which seem likely to have been predictable with foresight, they were also naďve.

 

 

306.           In that light, it is clearly disappointing that the Inspector and the Board did not comment on or interrogate the absence of even basic site investigations in pursuit of the Board's autonomous obligation - well-established in cases going back at least to Weston [517] 14 years ago and repeatedly since identified by the courts - of rigorous scrutiny and critical interrogation of planning applications. Perhaps, the absence of comment or interrogation was informed by the Board's inability in the SHD process to seek further information - but, if so, such reasoning puts the cart before the horse. And it should be remembered that such inability was part of the price paid by developers for an expedited planning permission system in which they were expected to submit their SHD planning applications "front loaded" and "oven ready". It is also fair to say that the Board did not explicitly consider any possibility of risk posed by excavations to groundwater or aquifers.

 

 

307.           All that said, Coolkill's pleaded premise of Ground 7, which reads "absent any information as to Site geology and/or the potential need for rock excavation and blasting" is clearly incorrect. Coolkill's' submission that as to Site conditions, there is an "information vacuum" - that Midsal has "absolutely no idea" "of the sub-surface conditions into which it proposes to excavate and so has no way of identifying the potential impacts in terms of noise, dust, vibration, emissions, pollutant management, impacts on aquifers or groundwater flows etc" - is clearly hyperbolae if applied to the Board. The Board did not have Site investigation data and I consider that both regrettable and unsatisfactorily explained by Midsal. Nonetheless, the Board did have before it "information as to Site geology" in the form of the content of Coolkill's submissions but also, and as emanating from multiple quarters, information from the GSI mapping system and information that depth to granite bedrock was shallow. Also, that this development, including a basement car park, would require excavation is, on the material before the Board, very obvious even to a non-expert - even leaving aside Midsal's explicit acknowledgment of 18,200m2 of excavation. Further, in her assessment, the Inspector clearly acknowledged the prospect of rock-breaking - which must be understood in the context of the information she records - inter alia as to the shallow granite bedrock and the knowledge of the developer of the adjoining site and the GSI mapping. Remembering that, having that information, she inspected the Site, it is notable that Coolkill had made a submission to the Board undermining its case as to the necessity of Site investigation - asserting that a cursory desktop study and site walkabout would also have identified the shallow rock. Though she should have been more explicit as to what she assumed and assessed as to sub-surface conditions (which is a different thing from recording the views of others, at least where those views are disputed), it is nonetheless apparent overall from the Inspector's Report that she, as it were, "priced in" the prospect of rock-breaking in her consideration of the adequacy of the assurances available from the Planning Application documents, including the CEMP. It would be disproportionate to infer that the expert Board was misled from the ample information as to granite underlying the Site by Midsal's unevidenced references to soil, stones and boulder clay. Inter alia, the Board had been explicitly referred to the GSI mapping by both objectors and Midsal itself - and its implication of at least appreciable rock-breaking in granite.

 

 

308.           It is not necessary, in order to require the Board to consider an issue, that a public participant in the planning process have adduced expert evidence on that issue - Balz - or even have made a submission on an issue which the Board had an autonomous duty to consider. However, when later it comes to impugning a presumptively valid expert decision in judicial review, the onus of proof is on the challenger. As I have noted above in considering the law in this area, in judicial review and depending on circumstance, expert or other evidence may be required to demonstrate that the risk posited as not having been adequately assessed by the decisionmaker is more than theoretical or hypothetical or such as to create a reasonable doubt whether a proposed development will have significant effects. Such evidence may, again depending on circumstance, be particularly required where the proposed development is relatively small and is of a common kind in respect of which the Board and its inspectors can be considered both expert and experienced. While I do not think that particular developments should be too readily so categorised, I do think that, absent evidence to the contrary, this development of 116 apartments over a basement car park in an existing urban area falls into that category. Put colloquially, this is a kind of application that the Board deals with all the time. There is no doubt that rock excavation can cause significant environmental effects in particular locations if not correctly and carefully managed - inter alia by way of noise and of groundwater management. Also, there may be locations in which environmentally safe rock excavation is technically impossible or prohibitively expensive. But that is far from the norm and rock excavation is commonly done in urban areas, is generally well-understood and, at risk of being glib, is not rocket science.

 

 

309.           In my view and having regard to Eco Advocacy (Statkraft) [518] the Board is justified in its submission that Coolkill failed to advance any evidence that the EIA screening was defective, and have relied on mere assertion - both as to effects of any rock-breaking in the context of the conditioned noise management programme and risk to the aquifer. Counsel for Coolkill accepted that I cannot draw any legal inference merely from factual presence of an aquifer. [519] While it is not for Coolkill to supply a want of site investigations, nonetheless absent at least some positive evidence in the judicial review that this Site, the development proposal and the Impugned Decision represent a real risk, I cannot conclude that it was irrational of the Board to have, of its expertise and as to the prospect of site excavations:

·         Concluded that it had objective evidence sufficient to enable EIA screening;

·         Excluded on the basis of that evidence that the project is likely to have significant effects on the environment.

 

 

310.           In the end, it does seem to me that Ground 7 as to EIA screening is an example of a, perhaps understandable, tendency of applicants in judicial review to avoid pleading irrationality if at all they can manage it while still attempting, by reference to some other species of alleged illegality, to impugn the merits of a decision. Leaving aside that irrationality was not pleaded, it does not seem to me that, in Keegan [520] terms, the Board's conclusion in EIA screening, as it bears on the issue of Site excavation, was, on the objective evidence before it, irrational as "fundamentally at variance with reason and common sense". It seems to me that this was a case in which it was "possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken". [521] I do not see that the Board's decision can be successfully impugned on any other basis in law.

 

 

311.           So, Ground 7 must be dismissed.

 

 

 

Boland Condition - Noise Management Plan

 

312.           Finally, though they were not challenged in Ground 7, it bears repeating that the Board imposed, by "Boland" Conditions #19 and 20 of the Impugned Decision, requirements that a final Construction Environmental Management Plan be agreed in writing with DLRCC before development starts - to provide details of intended construction practice including a noise management plan, details of appropriate mitigation measures for noise, dust and vibration, monitoring of such levels and surface water run-off controls to prevent entry of silt or other pollutants into local surface water sewers or drains, and, that working hours be restricted. Such Boland conditions have passed muster as to legality - recently in Minoa [522] in which Heslin J cited Dunnes Stores [523] and Alen-Buckley. [524] No doubt, in agreeing the terms of any noise management plan DLRCC will keep in mind any likelihood of rock-breaking having regard to best available knowledge as to Site conditions and its own concerns in that regard as expressed in the CE Report.

 

 

 

CONCLUSION

 

313.           For all these reasons, the proceedings are dismissed. I provisionally consider that there should be no order as to costs. The matter will be listed for mention and final orders on 26 May 2025.

 

David Holland

19/05/2025



[1] ABP Ref 313443-22.

[2] Board Direction of 1 August 2023. However, the Inspector had recommended permission for 129 units.

[3] Strategic housing development within the meaning of the Planning and Development (Housing) and Residential Tenancies Act 2016 ("the 2016 Act").

[4] 165/137x116 = 140.

[5] Blocks A, B, C, and D - See Midsal's planning report Figure 4.1.

[6] Under Blocks B - D - See Midsal's planning report Figure 4.1 & 4.4.

[7] The permission encompasses demolition of two detached dwellings - 'Glenina' and 'Karuna'.

[8] Developable site area of about 0.829 ha.

[9] Zoning Map 5.

[10] Inspector's Report §2.

[11] In particular the images in the Architectural Design Statement.

[12] A general understanding of the vicinity is to be had from the context map at §2.1 of Midsal's Architectural Design Statement. See also Midsal's planning report Figure 2.4.

[13] About 1.25km as the crow flies.

[14] Midsal Flood Risk Assessment §2. AOD means "Above Ordnance Datum" - which can be thought of as above sea level.

[15] FitzSimon's Woods. See also Midsal's planning report p54.

[16] See generally, figure 1 below and Aerial Photograph, Architectural Design Statement §3.3 Neighbouring Residential Developments. Midsal's planning report §2.3 fairly states: "The surrounding context of the subject site is generally characterised by established low density residential dwellings."

[17] Midsal Architectural Design Statement §4.3.

[18] Pursuant to s.5 of the 2016 Act.

[19] Notice of Pre-Application Consultation Opinion dated 14 January 2022 (ABP311609-21). Issued under s.6(7) of the 2016 Act.

[20] Pursuant to s.4 of the 2016 Act.

[21] 32 x 1-bed units, 78 x 2-bed units and 27 x 3-bed units - Total bedrooms 279.

[22] S.8(1)(a)(iv)(I) of the 2016 Act requires that an SHD planning permission application include a statement setting out how the proposal will be consistent with the objectives of the relevant development plan or local area plan.

[23] S.8(1)(a)(iv)(II) of the 2016 Act requires that, where the development proposed in an SHD planning permission application materially contravenes the relevant development plan or local area plan other than in relation to the zoning of the land, the application include a statement indicating why permission should, nonetheless, be granted, having regard to a consideration specified in s.37(2)(b) PDA 2000.

[24] The Statement of Response responds to the Board's Opinion of 14 January 2022 as to the specific information required therein. It also responds to Issues raised by DLRCC in the pre-application consultation.

[25] Dated 31 May 2022.

[26] By letter dated 1 June 2022. In very brief terms it said the proposal represented over-development of the site and a car-dependent proposal due to inadequate public transport.

[27] Pursuant to section 8(5)(a) of the 2016 Act.

[28] On 27 March and 26 April 2023.

[29] Its Direction records that the Board agreed with DLRCC that a minimum of 20% three bed units was warranted in accordance with CDP Table 12.1 and Policy Objective PHP27.

[30] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[31] Sustainable Urban Housing: Design Standards for New Apartments - Guidelines for Planning Authorities (2020).

[32] See Transcript Day 2 11:05.

[33] Emphases in what follows are added.

[34] Sic.

[35] The Apartment Guidelines 2020.

[36] Includes only those areas which will be developed for housing and directly associated uses as per Appendix A of the 'Sustainable Residential Development in Urban Areas' (2009).

[37] CDP Figure 2.9.

[38] Sustainable Urban Housing: Design Standards for New Apartments, Guidelines for Planning Authorities (2020).

[39] Inspector's Report §8.3.3.2.

[40] Including those at The Pastures (85 units/ha), Whinsfield (61 units/ha), Sandyford Green (35 units/ha), Cul Cuille (34 units/ha), Ironborn SHD (131 units/ha) and Mount Eagle (73 units/ha).

[41] See above.

[42] See above.

[43] Citing Midsal's Transportation Assessment.

[44] She describes it as a "definition" - which I do not think it is.

[45] ABP-309965-20.

[46] Part of Midsal's Transportation Assessment.

[47] To a total of 129 units.

[48] To a total of 116 units.

[49] §4.2.1.2.

[50] 'Urban Design Manual - A Best Practice Guide' and any amendment thereof.

[51] Statement of Consistency pp43/44 & 53.

[52] Statement of Consistency p44.

[53] §2.19.

[54] Easy walking distance (400-500 m) from a reasonably frequent (minimum 15 minute peak hour frequency) urban bus service.

[55] In the Bus/LUAS Capacity Assessment Report §2.

[56] Inspector's Report (§8.2.1 p36).

[57] p30.

[58] See above: (i) its proximity to a major employment centre at Sandyford and (ii) its location adjacent to a bus stop served by several bus routes.

[59] O'Donnell v An Bord Pleanála [2023] IEHC 381 §85; Murphy v An Bord Pleanála & Clonkeen Investments [2024] IEHC 186 §135; and Clane Community Council v An Bord Pleanála [2023] IEHC 467 §90.

[60] pp28, 44 & 52.

[61] Transcript Day 1 11:16 et seq.

[62] See above.

[63] Inspector's Report §10.9.1. The bullet point reads "Sites within easy walking distance (i.e. up to 5 minutes or 400-500m) of reasonably frequent (min 15 minute peak hour frequency) urban bus services."

[64] Inspector's Report §10.9.1.

[65] Midsal Statement of Consistency p44; Midsal Bus/Luas Capacity Assessment Report §§2.1-2.5 and Figures 2.1-2.3

[66] Based on inter alia Midsal's Bus/Luas Capacity Assessment Report.

[67] The Board relies generally in this regard on inter alia §§10.3.1-10.3.7 and 10.9.1-10.9.6 of the Inspector's Report.

[68] Rules of the Superior Courts.

[69] See above.

[70] In Re XJS Investments Ltd [1986] IR 750 - i.e. interpretation as if by an informed intelligent layperson.

[71] Highlands Residents Association v An Bord Pleanála [2020] IEHC 622 §25, citing Redmond v An Bord Pleanála [2020] IEHC 151 §64.

[72] Ss 34(6), 37(2) and 178 PDA 2000.

[73] Murphy v An Bord Pleanála [2024] IEHC 186, [2024] 8 JIC 3002 - emphases added in what follows.

[74] §148 et seq. This part of the judgment does not relate to a density issue but the question of identification of an Intermediate Urban Location which arose was the same as in the present case.

[75] Emphasis added.

[76] Emphasis added.

[77] §178 et seq.

[78] Graymount House Action Group v An Bord Pleanála & Ors [2024] IEHC 327 §77 et seq.

[79] The omitted text reads: "The Inspector went on to look at the fact that the development was within walking distance of Howth DART Station. At the hearing of this application, the applicants submitted that the Inspector had been wrong to conclude that the development was within walking distance of Howth DART Station, because in the planning statement submitted by the developer, it had been stated that the development was 1.6km from Howth DART Station; whereas the guidelines provided that it should only be 1.5km from a DART station. The court does not regard this as a sustainable basis on which to strike down the decision."

[80] Spencer Place v Dublin City Council 2019 IEHC 384 . §30.

[81] Sherwin v An Bord Pleanála [2024] IESC 13 citing Jennings v An Bord Pleanála [2023] IEHC 14.

[82] O'Donnell v An Bord Pleanála [2023] IEHC 381 §85; Murphy v An Bord Pleanála & Clonkeen Investments [2024] IEHC 186 §135.

[83] Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7.

[84] Clane Community Council v An Bord Pleanála [2023] IEHC 467 §90.

[85] In context the phrase used, "the number of dwellings", means density.

[86] In a document submitted to me and entitled 'An Bord Pleanála – Analysis for CG1: Density'.

[87] §10.3.3

[88] This issue was considered immediately before and immediately after lunch on Day 1. As to Midsal's margin for error and Coolkill's ultimately not overly pressing the capacity point see 14:20 et seq.

[89] Holohan v An Bord Pleanála [2017] IEHC 268. Cited, inter alia, in Jennings & O'Connor v An Bord Pleanála & Colbeam 2023 IEHC 14; Coyne v An Bord Pleanála [2023] IEHC 412; Fernleigh v ABP & Ironborn [2023] IEHC 525; Duffy v ABP & McDonagh [2024] IEHC 558; Grassridge v Dún Laoghaire Rathdown County Council [2024] IEHC 669; Ryan v ABP & Analog [2025] IEHC 111.

[90] Oates v Browne [2016] IESC 7, [2016] 1 IR 481 §56; Murphy v SIPO [2024] IEHC 374 §59.

[91] Reasons must "provide sufficient information to enable somebody in the position of the applicant in this case to consider whether he has a reasonable chance of succeeding in judicially reviewing the decision; can arm himself for such a review; can know if the respondent has directed its mind adequately to the issues it has to consider; and finally give sufficient information to enable the court to review the decision" - see Connelly v An Bord Pleanála [2021] 2 IR 752; Murphy v SIPO [2024] IEHC 374; Mulholland v An Bord Pleanála (No. 2) [2005] IEHC 306, [2006] 1 IR 453; Grealish v An Bord Pleanála [2007] 2 IR 536; Deerland Construction Limited v The Aquaculture Licences Appeals Board & Anor [2009] IR 673; Boland v Valuation Tribunal [2017] IEHC 660. The accompanying statement in Grealish that the obligation to explain decisions "is a very light one, one could even say almost minimal" must, at this remove of 17 years of caselaw, be considered, at least generally, no longer to be the law - Grafton Group PLC v An Bord Pleanála [2023] IEHC 725.

[92] Connelly v An Bord Pleanála & Clare County Council [2018] IESC 31, [2018] 2 ILRM 453, [2021] 2 IR 752 §95. Cited in Jennings & O'Connor v An Bord Pleanála & Colbeam 2023 IEHC 14 §145.

[93] Hickwell Ltd v Meath County Council [2022] IEHC 418.

[94] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[95] Planning and Development (Housing) and Residential Tenancies Act 2016.

[96] Here, as they are cumulative, I have amalgamated the requirements developments of 10+, 20+ and 50+ residential units and omitted some irrelevant requirements.

[97] See also Transcript Day 2 11:24.

[98] Construction and Environmental Management Plan.

[99] §10.10.1 of the Inspector's Report (p82)

[100] Very generally, Sustainable Drainage Systems balance the impact of urban drainage by limiting surface water run-off quantity to greenfield rates and controlling its quality.

[101] In other words, the capacity of urban drainage is determined by the quantum of expected precipitation over relevant time periods - i.e. the rate of precipitation. Allowing a 20% climate change factor increases the expected rate by 20%.

[102] At §11.5.2 of the Inspector's Report (p102).

[103] At §10.7.7 of the Inspector's Report (p75).

[104] At §10.6.3 of the Inspector's Report (pp60-61).

[105] Coolglass v An Bord Pleanála [2025] IEHC 1.

[106] See infra Atlantic Diamond and Ballyboden (both cited ibid) where the error was in the application documents.

[107] In the Matter of Worldport Ireland Limited (In Liquidation) [2005] IEHC 189. Clarke J - "It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong ... Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. In the absence of a definitive ruling from the Supreme Court on this matter I do not, therefore, consider that it is appropriate for me to consider again the issue so recently decided by Kearns J. and I intend, therefore, that I should follow the ratio in Industrial Services and decline to take the view, as urged by counsel for the Bank, that that case was wrongly decided."

[108] My word, not Coolkill's. But it accurately conveys its meaning.

[109] Murtagh v Kilrane [2017] IEHC 384. R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409. See also Re Huddleston [1986] 2 AER 941 and Coolglass v An Bord Pleanála [2025] IEHC 1.

[110] Statement of Opposition §48 - 50.

[111] See infra Heather Hill Management Company v An Bord Pleanála 2022 IEHC 146 at §203.

[112] At §11.5.2 of the Inspector's Report (p102). "... the Inspector noted that the Ecological Impact Assessment Report, the Engineering Services Report, and the Outline Construction Management Plan detailed standard construction management measures to control the possibility of potential pollutants exiting the site during construction and operation (in respect of SuDs), including surface water management, material storage, waste management and other environmental management measures, which would be a standard approach for construction works in an urban area."

[113] The Board cites Roughan v Clare County Council (unreported, High Court, Barron J, 18 December 1996); Redmond v An Bord Pleanála [2020] IEHC 151; Byrnes v Dublin City Council [2017] IEHC 19 §23; and Heather Hill v An Bord Pleanála [2019] IEHC 450; and the summary of the case-law on this issue in Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7 §§140 et seq.

[114] Roughan v Clare County Council (unreported, High Court, Barron J, 18 December 1996).

[115] Emphases added by the Board.

[116] Atlantic Diamond Ltd v An Bord Pleanála [2021] IEHC 322.

[117] Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7.

[118] Specific Planning Policy Requirement within the meaning of S.28(1C) PDA 2000 - "with which planning authorities, regional assemblies and the Board shall, in the performance of their functions, comply."

[119] Ballyboden TTG v An Bord Pleanála & Ardstone Homes [2023] IEHC 722 §146 et seq.

[120] Jennings v ABP [2023] IEHC 14 §108.

[121] Byrnes v Dublin City Council [2017] IEHC 19 § 23.

[122] Maye v Sligo Borough Council [2007] IEHC 146.

[123] Four Districts Woodland Group v An Bord Pleanála [2023] IEHC 335.

[124] Ballyboden TTG v An Bord Pleanála & Shannon Homes [2022] IEHC 7 §141.

[125] Stapleton v An Bord Pleanála & Savona [2025] IEHC 178 §77.

[126] Quoted phrases taken from Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General [2020] 2 ILRM 233 (Supreme Court, Clarke CJ); The Netherlands v Urgenda, Supreme Court of the Netherlands - Number 19/00135 20 December 2019 - ECLI:NL:HR:2019:2007; Coyne v An Bord Pleanála, Ireland & EngineNode [2023] IEHC 412 §48 et seq; Toole v Minister For Housing [2024] IEHC 610; Coolglass Wind Farm Limited v An Bord Pleanála [2025] IEHC 1; Friends of the Irish Environment v Minister for the Environment [2025] IEHC 61; Climate Action Plan 2019 First Progress Report Executive Summary.

[127] It is not suggested that this wording could not be improved. Its purpose is merely illustrative of the point.

[128] Friends of the Irish Environment v Minister for the Environment [2025] IEHC 61.

[129] Transcript, Day 3 p45.

[130] Waltham Abbey Residents & Pembroke Road Association v An Bord Pleanála [2022] IESC 30, [2022] 2 ILRM 417.

[131] Preliminary examination, within the meaning of Art 299B(1) PDR 2001 and/or Article 4(5) of the EIA Directive, of the question whether EIA is required.

[132] I should acknowledge that Hogan J considered together what I have called the second and third parts as issues of statutory context. But I do not think that my approach involves any difference in meaning.

[133] Citing Monaghan UDC v Alf-A-Promotions Ltd [1980] ILRM 64.

[134] i.e. the discrete statement required by Humphreys J.

[135] §§38 & 39.

[136] §§40 - 42.

[137] Form 14 of Schedule 12 PDR 2001 (as inserted by the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018).

[138] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998.

[139] Ballyboden TTG v An Bord Pleanála & Ardstone Homes [2023] IEHC 722 and cases cited therein - Atlantic Diamond Limited v An Bord Pleanála & EWR Innovation Park Limited [2021] IEHC 322; Jennings v An Bord Pleanála [2022] IEHC 249; Case C-260/11 Edwards v Environmental Agency, Kokott AG. Also, Environmental Trust Ireland v An Bord Pleanála & Cloncaragh [2022] IEHC 540; North Westmeath Turbine Action Group CLG v Westland Horticulture Ltd [2023] IEHC 3 and SWI, IFI, Sweetman & Ors v ALAB & Ors [2024] IEHC 700; Sweetman v EPA & Anglo Beef [2025] IEHC 144 §44.

[140]An Taisce v An Bord Pleanála & McQuaid Quarries [2021] 1 IR 119, per MacMenamin J: "... the underlying purpose of public participation in environmental matters is to facilitate good, fully informed decision-making, it being acknowledged that the public as a whole is one of the greatest repositories of environmental information."

[141] R(Finch) v Surrey County Council [2024] UKSC 20, [2024] PTSR 988.

[142] Southwood Park Residents Association v An Bord Pleanála [2019] IEHC 504; Environmental Trust Ireland v An Bord Pleanála & Cloncaragh [2022] IEHC 540.

[143] Connelly v An Bord Pleanála, Clare County Council & McMahon Finn Wind [2021] 2 IR 752 §74.

[144] Transcript Day 2 11:28.

[145] The Glossary to the Sectoral Planning Guidelines for Climate Change Adaptation 2024 defines Adaptation as "a change in natural or human systems in response to the impacts of climate change. These changes moderate harm or exploit beneficial opportunities and can be in response to actual or expected impacts."

[146] GreenHouse Gas.

[147] The Climate Action Plan 2021 Box 21.1 lists Potential Impacts of Climate Change in Ireland. It is fair to summarise that the list is of potential effects of changes in patterns of temperature, precipitation, storms, drought and sea level rise.

[148] Ireland's second statutory National Adaptation Framework issued in June 2024.

[149] Toole v Minister for Housing [2024] IEHC 610.

[150] Coolglass v An Bord Pleanála [2025] IEHC 1.

[151] As observed in Heather Hill Management v An Bord Pleanála [2022] IEHC 146 §203.

[152] See also §12.8.6 and various other content of Ch 12 Development Management.

[153] §10.10.1.

[154] §10.4.3.

[155] Planning System and Flood Risk Management, Guidelines for Planning Authorities 2009.

[156] CDP Appendix 7 §7.1.1. Urban Creep is the gradual and incremental laying of hard surfaces in urban areas in place of natural surfaces.

[157] Office of Public Works Eastern Catchment Flood Risk Assessment; Geological Survey of Ireland (GSI), Office of Public Works (OPW) flood maps database, www.floodmaps.ie and DLRCC websites.

[158] i.e. river flooding as opposed to flooding by rain - pluvial flooding. Pluvial flooding is by rainfall generated overland flows which arise before run-off can enter any watercourse or sewer.

[159] The Justification Test is described by the Flood Risk Management Guidelines.

[160] Exceedance flows are those rainfall flows which result from storm events that are over and above 100-year storm events.

[161] §4.0 surface water drainage.

[162] i.e. assumption of increased precipitation over historical rates.

[163] See also Engineering Services Report Appendix E Storm water network analysis. It records that to define the runoffs, the Return Period Point Rainfall Depths for the Site was determined including a 20% Climate change increase and transformed into IDF Curves. I understand IDF curves to be a graphical depiction of the relationship of the intensity of a weather event to its duration and frequency.

[164] Exceedance flows are those rainfall flows which result from storm events that are over and above 100-year storm events.

[165] See also Flood Risk Report §5.1.

[166] 4.12. Response to Dún Laoghaire Rathdown Internal Departmental Report on pre-planning submission.

[167] Transcript Day 2 p21.

[168] CO2 being a major GreenHouse Gas.

[169] Seeking to comply with Technical Guidance Document Part L - Conservation of Fuel and Energy Buildings Dwellings 2021, and Dún Laoghaire Rathdown City Council Policy Objectives.

[170] Directive 2010/31/EU on the energy performance of buildings as amended - since replaced by Directive 24/1275.

[171] Department of Communications, Climate Action and Environment (DCCAE), Waste Action Plan for the Circular Economy - Ireland's National Waste Policy 2020-2025 (Sept 2020).

[172] This addresses the lifespan and the maintenance costs of building components. While relevant to sustainability issues, it does not mention climate change or climate change effects on the development.

[173] It mentions but does not add to certain content of the Sustainability Report.

[174] I am satisfied that my suggestion at trial to the contrary was in error - Day 2 11:15.

[175] Flood Risk Assessment pp10 - 14.

[176] Duffy v An Bord Pleanála [2024] IEHC 558 §29.

[177] Transcript Day 1 15:29.

[178] Sherwin v An Bord Pleanála [2024] IESC 13. See argument at Transcript Day 1 15:18 et seq.

[179] Transcript Day 1 15:24.

[180] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[181] The Apartment Guidelines in 2020 recorded that "a review is to be progressed".

[182] pp74–75.

[183] §5.0 Childcare Facilities Audit.

[184] The State agency charged with, inter alia, reform of child protection, early intervention and family support services.

[185] Childcare Committees coordinate the implementation of national early learning and childcare policy and programmes at a local level on behalf of the Department of Children, Equality, Disability, Integration & Youth.

[186] No party argued for adjustment down to reflect the 116 units granted and it must be said that the Board also increased the proportion of 3-bed units.

[187] §5.3 Facilities Summary states: "The response rate of this survey was 56.8% and consultation with these facilities indicated that there is capacity for 46 no. children, and if the average occupancy rate is applied to those provider that did not provide enrolment figures, it is estimated that the available capacity may be 85 no. spaces within and bordering the Study Area." §6.0 Conclusion, refers only to the 46 spaces identified by the survey.

[188] Coolkill Submission to the Board §6.1.6 & §9.2.5.

[189] Inspector's Report §7.1.2, 8.1.2.

[190] Inspector's Report §8.3.6.

[191] Inspector's Report §9.1.

[192] §10.8.2. Childcare Provision.

[193] 31 May 2022 §9.2.5.

[194] Transcript Day 2 14:04.

[195] S.9(6)(a) of the 2016 Act.

[196] At inter alia §§9.1 & 10.8.2 of the Inspector's Report and §§4 & 5 of Midsal's Childcare Demand Assessment.

[197] Inspector's Report §9.1.

[198] 100 Meter Tall Group v An Bord Pleanála [2025] IEHC 42 §38(vii); Ballyboden Tidy Towns Group v An Bord Pleanála [2022] IEHC 7, [2022] 1 JIC 1001 §308.

[199] Specific Local Objective.

[200] (40-25) / 25 x 100.

[201] Friends of the Irish Environment v Minister for the Environment [2025] IEHC 61 §§87(1) & 138(3).

[202] Weston v An Bord Pleanála [2010] IEHC 255.

[203] Grassridge v DLRCC [2024] IEHC 669 §59 and cases cited therein.

[204] Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, [2021] 3 IR 297. Cited in Grassridge.

[205] Marques v Minister for Justice and Equality [2019] IESC 16. Cited in Grassridge.

[206] Balz v An Bord Pleanála [2019] IESC 90, §57. Cited in Grassridge.

[207] Roache v An Bord Pleanála and others [2024] IEHC 311.

[208] [2021] IEHC 395.

[209] FC v Mental Health Tribunal [2022] IECA 290.

[210] Connelly v An Bord Pleanála [2018] IESC 31, [2018] 2 ILRM 453, [2021] 2 IR 752, [2018] 7 JIC 1701 §7.5. Cited in Grassridge.

[211] Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, [2021] 3 IR 297. Cited in Grassridge.

[212] Killegland Estates v. Meath County Council [2022] IEHC 393; [2023] IESC 39.

[213] Náisiúnta Leictreach Contraitheoir Éireann (NECI) v Labour Court [2021] IESC 36, [2021] 2 ILRM 1. Cited in Grassridge.

[214] Carrownagowan Concern Group v An Bord Pleanála [2024] IEHC 300 §156 & 157, citing e.g., Balscadden Road SAA Residents Association v An Bord Pleanála [2020] IEHC 586, [2020] 11 JIC 2501 §25; Aherne v An Bord Pleanála & Ors [2015] IEHC 606, [2015] 10 JIC 0605, Ratheniska Timahoe v An Bord Pleanála [2015] IEHC 18, [2015] 1 JIC 1402; Dunnes Stores v An Bord Pleanála [2016] IEHC 226, [2016] 5 JIC 0405; Sweetman v An Bord Pleanála [2016] IEHC 277, [2016] 5 JIC 0407; McEntee v An Bord Pleanála, Clifford v An Bord Pleanála (No. 2) [2021] IEHC 642, [2021] 10 JIC 1502.

[215] Sherwin v An Bord Pleanála [2024] IESC 13.

[216] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[217] Zoning Map 5.

[218] §4.3.1.2.

[219] Transcript Day 2 p63.

[220] Transcript Day 2 p63.

[221] §12.3.7.7.

[222] §12.3.7.7.

[223] Including features such as boundary walls, pillars, gates/gateways, trees, landscaping, and fencing or railings.

[224] §1.5 - 1.12 & 2.1.

[225] Murphy v An Bord Pleanála & Clonkeen Investment [2024] IEHC 186 §181 et seq.

[226] Jennings & O'Connor v An Bord Pleanála & Colbeam 2023 IEHC 14 §368.

[227] Sustainable Residential Development in Urban Areas (Cities, Towns & Villages) 2009.

[228] Project Ireland 2040 National Planning Framework 2018 §2.6.               

[229] §4.20.

[230] Inspector's Report §10.14.1.

[231] §10.3.2, 10.6.2, 10.14.1

[232] s.34(6) PDA 2000 applies.

[233] In which case s.37(2)(b) PDA 2000 applies.

[234] Regional Spatial and Economic Strategy - see Part II, Chapter III, PDA 2000.

[235] s.37(2)(b) PDA 2000 also cites policy directives under s.29 PDA 2000 (Less common I practice) and the statutory obligations of any local authority in the area.

[236] Though not of its participatory/consultative role.

[237] Crofton Buildings Management CLG v An Bord Pleanála [2022] IEHC 704, Also, Crekav Trading GP Limited v An Bord Pleanála [2020] IEHC 400.

[238] The Board was also prohibited from granting permissions in material contravention of zoning provisions of development plans. But that is not relevant here.

[239] Inspector's Report pp58 & 59. I have rounded to the nearest centimetre.

[240] Inspector's Report says 12.8m but I am satisfied that this is a typo having regard to Drawing 533-HRA-00-3F-DR-A-P-0204 Proposed Third Floor (2nd floor as granted).

[241] p53 - Internal Separation Distances. See also the exhibited floor plans.

[242] Redmond v An Bord Pleanála [2020] IEHC 322 §§28 & 40.

[243] Save where indicated, what follows is taken from §3.6 Subject No. 5 - Separation Distances.

[244] p3.

[245] Jennings & O'Connor v An Bord Pleanála & Colbeam [2023] IEHC 14 §592 et seq.

[246] Permission permissible given conflicting or unclear development plan objectives or by reason of s.28 planning guidelines.

[247] §3.6 Subject No. 5 - Separation Distances, p61. See also in this regard the description and illustration of these separations in the Architectural Design Statement p53 - Internal Separation Distances and the exhibited floor plans.

[248] §5.8.6.

[249] Emphasis added.

[250] Excisions from Block A were at its northern side - irrelevant to present concerns.

[251] p49 First Floor Plan Diagram.

[252] BPS Planning Consultants, 31/05/22 - §9.3.2.1.

[253] The word "setback" appears to be used as a synonym for separation distances.

[254] §9.3.2.2.

[255] p27.

[256] pp27 & 28. Thereby, according to DLRCC, omitting 24 units of the 137 proposed. Figure 1 above will facilitate an understanding of that suggestion.

[257] Addressed later in the CE Report.

[258] p30.

[259] Roughan v Clare County Council (unreported, High Court, Barron J, 18 December 1996). See Jennings v An Bord Pleanála & Colbeam [2023] IEHC 14.

[260] "as per the discussion of daylight and sunlight below".

[261] §10.6.3.

[262] §10.7.

[263] Computer Generated Images.

[264] Including elevations, contiguous elevations, cross sections, Architectural Design Statement, landscaping proposals and third party submissions.

aerial photography that is in the public realm.

[265] §10.7.3.

[266] Disclosed in the Material Contravention Statement.

[267] I have restated this plea to clarify it but consider that a careful reading of the pleadings justifies doing so. Also asserted here was failure to consider separation distances of 14m and 9.5m to buildings off-Site to the "east and the west". I have explained above why I ignore this allegation.

[268] Which states: "Where the proposed strategic housing development would materially contravene the development plan or local area plan, as the case may be, other than in relation to the zoning of the land, then the Board may only grant permission in accordance with  paragraph (a)  where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development."

[269] While it should have been more clearly pleaded, I am satisfied that this is in fact a reference to the imposition by Condition #2 of its Decision of height reduction by omitting the part three- and part four-storey northern element of Block A and the second floor of Blocks C and D.

[270] As noted above, material contravention of CDP Zoning Objective A was introduced only in the particulars of Ground 4.

[271] §10.7.3.

[272] Inspector's Report §6.3.8.

[273] Citing in particular §10.7.3 of her Report.

[274] Set out above. Essentially she says that in all instances, windows are staggered to prevent direct overlooking and/or obscure glazing is used. Given the design measures to obviate overlooking between blocks, and given that unit interiors will generally achieve satisfactory daylight and sunlight the reduced separation distances will not significantly impair the quality of residential units and are therefore acceptable. Also the CDP allows some flexibility on the 22m standard.

[275] Elsharkaway v The Minister for Transport [2024] IECA 258 .

[276] §43 et seq.

[277] Emphasis added.

[278] §45.

[279] Cork County Council v Minister for Housing [2021] IEHC 683.

[280] "It is a Policy Objective to:

Conserve and improve existing housing stock through supporting improvements and adaption of homes consistent with NPO 34 of the NPF.

Densify existing built-up areas in the County through small scale infill development having due regard to the amenities of existing established residential neighbourhoods."

[281] Coolglass v. An Bord Pleanála [2025] IEHC 1 §64(ii).

[282] p50 et seq.

[283] Direction 8/10/23. Conclusions on Proper Planning and Sustainable Development.

[284] Doyle v An Bord Pleanála & Ors [2025] IEHC 158 (High Court, Humphreys J, 21 March 2025) §45.

[285] To pick a simple example, a frosted window may prevent overlooking but at the cost of depriving the occupant of a view and of creating at least some sense of enclosure. I do not suggest this example would necessarily be a major issue in a given case. The point is, rather, to illustrate that as to choice of means to an end and as Humphreys J is wont to say, citing the economist Thomas Sowell, "There are no solutions, only trade-offs" - see North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2016] IEHC 301 and many cases since.

[286] AG (McGarry) v Sligo County Council [1991] 1 IR 99 at p113.

[287] Byrne v Fingal County Council [2001] 4 IR 565.

[288] Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7 §139 paraphrasing Byrne.

[289] Sherwin v An Bord Pleanála [2024] IESC 13 §92 - 105 citing Byrne and Ballyboden.

[290] Sherwin v An Bord Pleanála [2024] IESC 13 §101.

[291] Byrne v Fingal County Council [2001] 4 IR 565.

[292] For example because they are irregular in shape or because their building lines are not parallel.

[293] Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7; also Jennings & O'Connor v An Bord Pleanála & Colbeam [2023] IEHC 14.

[294] O'Donnell v An Bord Pleanála [2023] IEHC 381 §85; Murphy v An Bord Pleanála & Clonkeen Investments [2024] IEHC 186 §135; and Clane Community Council v An Bord Pleanála [2023] IEHC 467 §90.

[295] Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7; also Jennings & O'Connor v An Bord Pleanála & Colbeam [2023] IEHC 14.

[296] §105.

[297] Oxford English Dictionary.

[298] 2022 §3.16.

[299] See Inspector's Report §§6.5.5, 10.6.3 & 10.6.4.

[300] §10.6.3.

[301] §10.6.4.

[302] CDP, Appendix 5, Building Height Strategy - Building Height in Residual Suburban Areas.

[303] §4.4.

[304] By an existing or forthcoming Local Area Plan.

[305] Local Government Act, 2014.

[306] CDP Figure 2.9.

[307] §10.6.3.

[308] §11.5.2 & 11.7.1. See also p113.

[309] §12.2.

[310] In the affected bedrooms in Block D there are three windows - one to a balcony.

[311] §10.6.3.

[312] §10.6.3.

[313] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[314] 'Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities' (2020).

[315] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[316] §12.3.4.2

[317] Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities [2020].

[318] pp46, 47, 84 - 86.

[319] §3.8 of its Material Contravention Statement is not expressly pleaded but is cited in the pleaded elements of the Statement of Consistency. It is headed "3.8 Subject No. 7 - 5% Variation to Apartment Room Sizes / Widths". It essentially duplicates the pleaded content of the Statement of Consistency.

[320] Listed at Statement of Consistency p 85 & 86. By my count, the variation was applied to 44 bedrooms but not in each case to the full extent of the 5% taken by Midsal to be allowable.

[321] Inspector's Report p58.

[322] "(iii) permission for the proposed development should be granted having regard to ... guidelines under section 28 ...".

[323] Ministerial guidelines issued pursuant to s.28 PDA 2000.

[324] See below.

[325] save for studios consisting of a combined living room/bedroom space.

[326] See below.

[327] Correlating the measurements with the table above, this clearly means a double room.

[328] Correlating the measurements with the table above, this clearly means one single and one twin room.

[329] Correlating the measurements with the table above, this clearly means one double and one twin room.

[330] Correlating the measurements with the table above, this clearly means one single, one double and one twin room.

[331] pp57-58.

[332] Amcor Pension Trust [Ireland] CLG v Amcor Holding No. 1 Limited [2025] IEHC 176 §44.

[333] Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101.

[334] Statutory Interpretation, §12.45 et seq.

[335] Salmon Watch Ireland & Ors v ALAB & Ors [2024] IEHC 421 §1432 et seq.

[336] Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586.

[337] For a fuller discussion, see the ALAB case.

[338] Spencer Place Development Company Ltd v Dublin City Council [2020] IECA 268.

[339] Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7 §110 et seq.

[340] O'Donnell v An Bord Pleanála [2023] IEHC 381.

[341] Camiveo Ltd v Dunnes Stores [2019] IECA 138.

[342] Material Contravention Statement §3.8 & Statement of Consistency pp85 & 86.

[343] This is an average weighted to reflect the number of bedrooms exhibiting a particular percentage deviation.

[344] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[345] §4.3.2, pp88 & 91, §12.3.6.

[346] O'Neill v ABP [2020] IEHC 386 §§110-111.

[347] §5.

[348] Such as laundry, waste management, concierge and management facilities, maintenance/repair services, communal recreational and other activities including sports facilities, shared TV/lounge areas, work/study spaces, function rooms for use as private dining and kitchen facilities.

[349] As I understand, a core provides access to apartments and contains essentially, stairs, lifts and corridors.

[350] See below.

[351] Save for updating references irrelevant here.

[352] §1.0.

[353] §2.1.

[354] §2.13.1.

[355] p23.

[356] §10.5.4. Housing Tenure and Part V.

[357] §10.6.3. Quality of Residential Accommodation.

[358] Clane Community Council v An Bord Pleanála & Debussy Properties [2023] IEHC 467.

[359] Balscadden Road SAA Residents Association Ltd v An Bord Pleanála [2020] IEHC 586.

[360] Crekav v An Bord Pleanála [360] [2020] IEHC 400, Crofton v An Bord Pleanála [2022] IEHC 704 §§148 & 169.

[361] Westwood Club Ltd v An Bord Pleanála [2010] IEHC 16 §70.

[362] O'Flynn Capital Partners v Dún Laoghaire Rathdown County Council [2016] IEHC 480.

[363] O'Neill v An Bord Pleanála [2020] IEHC 356.

[364] O'Neill v An Bord Pleanála [2020] IEHC 356.

[365] §§100 et seq.

[366] Emphasis added.

[367] The State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642.

[368] Tristor Ltd v Minister for the Environment [2010] IEHC 454 .

[369] Kelly v The Minister for Agriculture [2021] IESC 62; [2021] 9 ICLMD 53 (O'Donnell J).

[370] Please forgive the tautology.

[371] Comerford v An Bord Pleanála, & Cairn Homes - Record No. 2020/499JR Ex Tempore McDonald J 4 September 2020 (available on transcript) - cited in Jennings v An Bord Pleanála [2022] IEHC 11.

[372] Jennings v An Bord Pleanála [2022] IEHC 11.

[373] Edited to simplify without changing meaning. The Core Ground is supplemented by particulars in the Statement of Grounds.

[374] Article 299B(2)(b) (ii) provides that "The Board shall make a screening determination and —

(I) if such determination is that there is no real likelihood of significant effects on the environment arising from the proposed development, it shall determine that an EIA is not required, or

(II) if such determination is that there is a real likelihood of significant effects on the environment arising from the proposed development, it shall— (A) determine that the development would be likely to have such effects, and (B) refuse to deal with the application pursuant to section 8(3)(a) of the Act of 2016."

There was a desultory dispute at trial whether the Applicants should have pleaded or, indeed meant to plead, Article 299B(2)(b)(ii)(I) or Article 299B(2)(b)(ii)(II). I need not resolve it - the thrust of the plea is acceptably clear.

[375] Planning and Development Regulations 2001. Article 299C(1) stipulates the information to which the competent authority must have regard in EIA screening.

[376] Article 4(4) reads: "Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment." Annex IIA specifies "Information Referred To In Article 4(4) (Information To Be Provided By The Developer On The Projects Listed In Annex II)" §3(b) of Annex IIA reads: "3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from: ... (b) the use of natural resources, in particular soil, land, water and biodiversity."

[377] Resource Waste Management Plan §2.2, & 7.1, citing the project engineers.

[378] Appendix D GSI - Geology & Ground Water Vulnerability Maps.

[379] Appendix D GSI - Geology & Ground Water Vulnerability Maps.

[380] Construction & Environmental Management Plan §4.2 & 7.4. It is on occasion referred to as a "draft" CEMP as, as is usual, it states at p4: "The construction Contractor will provide a further detailed CEMP that will include any subsequent planning conditions relevant to the proposed development and set out further detail of the overarching vision of how the construction Contractor of the proposed development will manage the site in a safe and organised manner."

[381] Also Resource Waste Management Plan §4.3.1.

[382] §7.4 Noise and Vibration.

[383] §7.4 Noise and Vibration;

[384] §7.6 Surface Water Management; Citing Inland Fisheries Ireland best practice guidance on the prevention of pollution during development projects: Control of Water Pollution from construction Sites, Guidance for consultants and contractors (C532); Guidelines on Protection of Fisheries During Construction Works in and Adjacent to Waters (2016). Environmental Good Practice on Site (3rd edition) (C692).

[385] §4.3.1.

[386] Much of which is listed in §14.0.

[387] By RSK Ireland - it is listed in Midsal's SHD Permission Application form as an enclosure.

[388] p42.

[389] pp19 & 40.

[390] pp39, 144.

[391] §3.8.3.3.

[392] Stratigraphic Code: Nt3; New Code: IDNLGR3.

[393] As I understand, muscovite phenocrysts are crystals of a particular form of mica. I do not understand this reference to bear appreciably on the characterisation of the bedrock as granite.

[394] §3.8.3.3. See also, §3.7.3 The Absorption Capacity of the Natural Environment; §3.7.3.1 Overview.

[395] §3.8.3.4. See also, §3.7.3.2 Watercourses.

[396] §3.7.3.6.

[397] §3.8.1 Extent of the Impact.

[398] §3.8.3 Magnitude and Complexity of the Impact; §3.8.3.1 Air Quality and Climate.

[399] §3.8.3.2 Noise and Vibration.

[400] §3.8.4 Probability of the Impact.

[401] §3.8.5 Duration, Frequency, and Reversibility of the Impact. See also §3.6.4 Pollution and Nuisances.

[402] §4, Table 4 Summary of Assessment Findings, Magnitude and Complexity of the Impact - see also Table 4 Pollution and Nuisances, Extent of the Impact, Probability of the Impact, Duration, Frequency and Reversibility of the Impact.

[403] §3.8.3.7 Material Assets and Land. See also §3.6.3. and §3.8.3.10.1 Construction Waste, as to the RWMP.

[404] §9.14.6.

[405] Construction & Environmental Management Plan §4.2 & 7.4.

[406] Ordnance Survey of Ireland.

[407] Geological Survey Ireland.

[408] Fig. 156 of Coolkill's submission.

[409] The text says "Scoping" - but the error and its correction are clear.

[410] Text taken from Inspector's Report §7.2.1.

[411] CE Report p51.

[412] Sub nom "Waste report" - CE Report p88.

[413] §7.

[414] §7.1.4.

[415] §7.2.1.

[416] §7.1.5.

[417] §10.7.7. Construction Impacts on Residential Amenities.

[418] §10.10.2.

[419] §10.11.2.

[420] §12 & Appendix 1 - EIA Screening Determination.

[421] For reasons stated in Ryan v ABP & Analog [2025] IEHC 111, I consider the use of the word "mandatory" in this context, though long established by usage to be a misnomer and I prefer the word "automatic".

[422] Appropriate Assessment within the meaning of the Habitats Directive.

[423] Boland v An Bord Pleanála [1996] 3 IR 435.

[424] Case C-41/25 Waltham Abbey Residents Association v An Bord Pleanála & O'Flynn Construction.

[425] The CJEU ruled that Article 4(4) to (6) of the EIA Directive requires in EIA screening that, where a third party has provided the competent authority with objective evidence as to potential significant environmental effects of the project, in particular on a species protected under the Habitats Directive, the authority must ask the developer for additional information and consider it before deciding whether EIA is necessary. But where, despite such third party observations, the competent authority can rule out, on objective evidence, the possibility that the project is likely to have significant effects on the environment, it may decide that EIA is unnecessary, without asking the developer for additional information. Notably, the court proceeded to judgment without requiring an opinion from Kokott AG - which generally suggests that it considered the answer to the questions posed on preliminary evidence to be reasonably obvious.

[426] §41 - citing Judgment of 31 May 2018, C‑526/16 Commission v Poland EU:C:2018:356 §§66 and 67 and the case-law cited.

[427] §§47 - 50. - citing judgment of 7 September 2004, C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging EU:C:2004:482 §42; and Judgment of 26 May 2011, C‑538/09 Commission v Belgium EU:C:2011:349 §41 and the case-law cited; and Judgment of 15 June 2023, C‑721/21 Eco Advocacy EU:C:2023:477 §43.

[428] §43.

[429] Though the consequences are different as AA can prevent a project whereas EIA merely informs a development consent decision - to put it another way, in EIA a significant effect may prove acceptable the decisionmaker.

[430] C-435/97 World Wildlife Fund v Autonome Provinz Bozen, Judgment delivered 16 September 1999.

[431] R (Champion) v North Norfolk DC [2015] UKSC 52, [2015] 1 WLR 3710, [2016] Env LR 5.

[432] R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157 §17.

[433] Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405

[434] R (Mellor) v Secretary of State for Communities and Local Government [2010] Env LR 18 (AG opinion).

[435] "**" denotes content introduced by the amending Directive 2014/52/EU.

[436] Case C-75/08 Mellor v Secretary of State for Communities and Local Government.

[437] Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions.

[438] Case C-167/17 Klohn v An Bord Pleanála & Sligo County Council - [2019] PTSR 1574.

[439] R (Huddleston) v Durham County Council [2000] Env LR 488.

[440] Callaghan v An Bord Pleanála [2015] IEHC 357.

[441] Shadowmill Limited v An Bord Pleanála [2023] IEHC 157 §56.

[442] "*" denotes derivation from the 2011 EIA Directive in its original form.

[443] R (Thakeham Village Action Ltd) v Horsham District Council [2014] EWHC 67 (Admin).

[444] R (Bateman) V South Cambridgeshire District Council [2011] EWCA Civ 157.

[445] Case C-535/18 IL v Land Nordrhein-Westfalen, Judgment delivered 28 May 2020 §82.

[446] Case C‑2/07 Abraham v Region of Wallonia, Opinion delivered on 29 November 2007.

[447] Friends of the Earth v Heathrow Airport Ltd [2020] UKSC 52, §143 citing R (Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin) , [2004] Env LR 29, in turn citing Lord Hoffmann in R v North Yorkshire County Council Ex parte Brown [2000] 1 AC 397 p404.

[448] Abbotskerswell Parish Council v Secretary of State for Housing, Communities and Local Government [2021] EWHC 555 (Admin) §103.

[449] "Environmental Statement" - the UK equivalent of an EIAR.

[450] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[451] Ó Gríanna v An Bord Pleanála [2017] IEHC 7.

[452] Monkstown Road Residents' Association v An Bord Pleanála [2022] IEHC 318.

[453] Shadowmill Limited v An Bord Pleanála [2023] IEHC 157 §55 et seq.

[454] EIA, 2nd Edition §3.141.

[455] The judgments refer to "conventional 'Wednesbury' grounds.".

[456] R (Jones) v Mansfield District Council [2003] EWCA Civ 1408, [2004] 2 P & CR 233; [2003] All ER (D) 277 (Oct).

[457] R (Thakeham Village Action Ltd) v Horsham District Council [2014] EWHC 67 (Admin).

[458] Hockley v Essex County Council [2014] EWHC 4051 (Admin) [2014] Env LR 24 reviewed the caselaw.

[459] R (BW Farms) v Secretary of State for Levelling Up [2024] EWHC 217 (Admin), [2024] Env LR 27 §40 - citing Hockley.

[460] Shadowmill Limited v An Bord Pleanála [2023] IEHC 157 §§55 & 99.

[461] Whether one regards Preliminary Examination under Article 109(2) PDR 2001 as a less demanding form of "screening" or as "pre-screening" seems to me a matter of semantics in this particular context as the ultimate point of both Preliminary Examination and EIA Screening is to discern if sub-threshold development requires EIA (Shadowmill §§57 & 99).

[462] Graymount House Action Group v An Bord Pleanála [2024] IEHC 327 §119.

[463] Monkstown Road Residents' Association v An Bord Pleanála [2022] IEHC 318 §342.

[464] Rushe & Anor v An Bord Pleanála [2020] IEHC 122 §220.

[465] §50.

[466] 100 Meter Tall Group v An Bord Pleanála [2025] IEHC 42 §246.

[467] I refer here to the Board but the principle applies to all administrative decisionmakers competent in AA.

[468] Citing C-461/17 Holohan v An Bord Pleanála ECLI:EU:C:2018:883.

[469] Kelly (Eoin) v An Bord Pleanála & Aldi [2019] IEHC 84 §68(6).

[470] I have supplemented Humphreys J's text here. He cited Kokott AG in case C-127/02 "Waddenzee" §§102-108; the CJEU in Waddenzee §44 & 58 - 61; Case C-461/17 Holohan v An Bord Pleanála ECLI:EU:C:2018:883 §§33 - 37; Heather Hill Management Company CLG v An Bord Pleanála [2022] IEHC 146, [2022] 3 JIC 1603 citing R Mynydd Y Gwynt Ltd v The Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581 (Admin), [2016] 10 WLUK 396, [2017] Env LR 14 (§259); and R (Champion) v North Norfolk District Council [2015] UKSC 52, [2015] 1 WLR 3170, §41. One may add Sliabh Luachra Against Ballydesmond Windfarm Committee v An Bord Pleanála [2019] IEHC 888; Case C-236/01 Monsanto [2003] ECR I-8166; and Joined Cases T-429/13 and T-451/13 Bayer CropScience & Ors v Commission, Judgment of 17 May 2018, as cited in Heather Hill.

[471] R (Wyatt) v Fareham Borough Council [2022] EWCA Civ 983, [2023] PTSR 1952, [2022] 7 WLUK 197, [2023] Env LR 14; Holohan §44; Champion §41; and Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [2015] PTSR 1417 §83.

[472] Citing Coöperatie Mobilisation for the Environment UA and Vereniging Leefmilieu v College van gedeputeerde staten van Limburg and College van gedeputeerde staten van Gelderland, joined cases C-293/17 and C-294/17, ECLI:EU:C:2018:882, Judgment of 7 November 2018, §101.

[473] Ruling §5.

[474] Sliabh Luachra Against Ballydesmond Windfarm Committee v An Bord Pleanála [2019] IEHC 888.

[475] Case C-127/02, §§108 & 73.

[476] O'Keeffe v An Bord Pleanála [1993] 1 IR 39, [1992] ILRM 237, [1991] WJSC-SC 1137, [1991] 2 JIC 1504.

[477] Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335, §62.

[478] AB v Clinical Director of St. Loman's Hospital [2018] IECA 123, [2018] 3 IR 710, [2018] 2 ILRM 242, [2018] 5 JIC 0303.

[479] NM (DRC) v Minister for Justice, Equality and Law Reform [2016] IECA 217, [2018] 2 IR 591, [2016] 2 ILRM 369.

[480] AAA v Minister for Justice [2017] IESC 80, [2017] 12 JIC 2106.

[481] AAA & anor v Minister for Justice & ors [2017] IESC 80.

[482] Meadows v The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General [2010] 2 IR 701 §448.

[483] Pervaiz v Minister for Justice [2020] IESC 27.

[484] Banger v Home Secretary [2019] 1 WLR 845 (Case C-89/17) EU:C:2018:225EU:C:2018:570 - a case as to Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely in the member states.

[485] The Integrated Pollution Prevention and Control Directive 2008/1/EC as to the permitting of industrial emissions. Since replaced by Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control).

[486] Bobek AG, §110 citing Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405, [2005] All ER (EC) 353, §66; and Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403. Bobek AG also cites Stichting Natuur en Milieu v College voor de toelating van gewasbeschermingsmiddelen en biociden (Joined Cases C-165/09 to C-167/09) [2011] ECR I-4599, §§100–103; it is clear that the name of the defendant is miscited and should read "College van Gedeputeerde Staten van Groningen". The case of Stichting Natuur en Milieu v College voor de toelating van gewasbeschermingsmiddelen en biociden is Case C-266/09.

[487] VJ v Minister for Justice and Equality [2019] IESC 75. Cited in FM v Minister for Justice [2020] IECA 184.

[488] Humphreys J cited Case C-556/17 Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal ECLI:EU:C:2019:626.

[489] Hayes & Foley v EPA [2024] IECA 162 §140 et seq.

[490] §§145 & 146.

[491] §148 - as to degrees of expertise see also Orange Communications Ltd v Director of Telecommunications Regulation [2000] 4 IR 136; M & J Gleeson & Co v Competition Authority [1999] 1 ILRM 401; Fitzgibbon v Law Society [2014] IESC 48; and EPUKI v EPA & CRU [2023] IEHC 59.

[492] Abbotskerswell Parish Council v Secretary of State for Housing [2021] EWHC 555 (Admin) §§97, 98.

[493] Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [2015] PTSR 1417; and Mynydd y Gwynt Ltd v Secretary of State for Business Energy and Industrial Strategy [2018] EWCA Civ 231, [2018] 2 CMLR 34.

[494] §98.

[495] §164.

[496] R (Wyatt) v Fareham Borough Council [2023] PTSR 1952.

[497] For example, Compton Parish Council v Guildford Borough Council [2020] JPL 661 §207.

[498] Plan B Earth v Secretary of State for Transport [2020] PTSR 1446, §68; Spurrier v Secretary of State for Transport [2020] PTSR 240, §§176 to 180. See for example R (Mott) v Environment Agency [2016] 1 WLR 4338, §§69 to 77.

[499] Citing Plan B Earth, §§74, 75 & 137 discussing Case C-723/17 Craeynest v Brussels Hoofdstedelijk Gewest EU:C:2019:168 (Opinion), EU:C:2019:533 (Judgment) [2020] Env LR 4.

[500] Sub nom R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190.

[501] Plan B Earth v Secretary of State for Transport [2020] PTSR 1446. EWCA. This was a challenge to an Airports National Policy Statement adopting policy favouring development of a third runway at Heathrow Airport.

[502] Case C-723/17 Craeynest v Brussels Hoofdstedelijk Gewest; EU:C:2019:533, [2020] Env LR 4.

[503] EWCA in Plan B Earth §74 & 75.

[504] EWCA in Plan B Earth §74 & 75. An equivalence also asserted in R (Evans) v Secretary of State [2012] EWHC 1830 (Admin) §35 citing Case C/508/03 Commission v United Kingdom (2007) Env LR 1.

[505] EWCA in Plan B Earth §§69, 75 & 79 - citing Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [2015] PTSR 1417; and Mynydd y Gwynt Ltd v Secretary of State for Business Energy and Industrial Strategy [2018] EWCA Civ 231, [2018] 2 CMLR 34.

[506] EWCA in Plan B Earth §§67 & 68.

[507] Hayes & Foley v EPA [2024] IECA 162 §148.

[508] Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335.

[509] Graymount House Action Group v An Bord Pleanála [2024] IEHC 327 §119.

[510] Eco Advocacy CLG v An Bord Pleanála & Statkraft [2025] IEHC 15 §95.

[511] §95(iv). Citing An Taisce v an Bord Pleanála & Ors [2022] IESC 8, [2022] 2 IR 173, [2022] 1 ILRM 281 §124; Carrownagowan Concern Group v An Bord Pleanála [2024] IEHC 300 §191(v); Nagle View Turbine Aware Group v An Bord Pleanála [2024] IEHC 603 §115.

[512] §95(v). Citing Joyce Kemper v An Bord Pleanála [2020] IEHC 601, [2020] 11 JIC 2402 §9; Murphy v An Bord Pleanála [2024] IEHC 59 §14; Harrington v An Bord Pleanála [2014] IEHC 232, [2014] 5 JIC 0909; Murphy v An Bord Pleanála [2024] IEHC 59 §14; Power v An Bord Pleanála [2024] IEHC 108, [2024] 2 JIC 2802 §129; Duffy v An Bord Pleanála [2024] IEHC 558 §40-§41.

[513] §95(iv). Citing An Taisce v an Bord Pleanála & Ors [2022] IESC 8, [2022] 2 IR 173, [2022] 1 ILRM 281, Hogan J §124; Carrownagowan Concern Group v An Bord Pleanála [2024] IEHC 300 §191(v); Nagle View Turbine Aware Group v An Bord Pleanála [2024] IEHC 603 §115.

[514] See Carrownagowan [2024] IEHC 300 §160; Murphy v ABP [2024] IEHC 59 §14; Power v An Bord Pleanála [2024] IEHC 108 §129; Duffy v ABP [2024] IEHC 558 §§40-41.

[515] Planning and Development Regulations 2001 as amended.

[516] The Applicants' particulars were not disputed in their assertion that: (1) There are only two existing dwellings on site, which are to be demolished and they occupy only 0.035 ha of the 0.829 ha site that and the absence of site investigations and environmental soil testing cannot be explained by reference to such existing dwellings; (2) Submissions to the Board had pointed to ample space to for ground investigation suitable for the planning design stage, e.g. low cost slit trenching and/or probing to identify the geological substratum.

[517] Fernleigh v ABP & Ironborn [2023] IEHC 525 §§63, 69 & 70 and cases cited therein: Weston v An Bord Pleanála [2010] IEHC 255, [2010] 7 JIC 0102; Balz v An Bord Pleanála & Cleanrath Windfarms [2019] IESC 90, [2020] 1 ILRM 367; Atlantic Diamond v An Bord Pleanála [2021] IEHC 322; Jennings v ABP [2023] IEHC 14. Also Stapleton v An Bord Pleanála & Savona [2025] IEHC 178.

[518] Eco Advocacy CLG v An Bord Pleanála & Statkraft [2025] IEHC 15 §95 - see above.

[519] Transcript Day 2 12:05.

[520] The State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642.

[521] Shadowmill Limited v An Bord Pleanála [2023] IEHC 157 §55.

[522] Minoa v An Bord Pleanála [2024] IEHC 704.

[523] Dunnes Stores v An Bord Pleanála [2016] IEHC 226.

[524] Alen-Buckley v An Bord Pleanála & Ors [2017] IEHC 541.

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