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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Protect East Meath Ltd v An Bord Pleanala (Approved) [2025] IEHC 276 (19 May 2025)
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Cite as: [2025] IEHC 276

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THE HIGH COURT

PLANNING AND ENVIRONMENT

[2025] IEHC 276

Record No.: 2022/52 JR

 

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

Between/

PROTECT EAST MEATH LIMITED

            Applicant

and

An Bord Pleanála

Respondent

and

ROCKMILL LIMITED

Notice Party

 

JUDGMENT of Ms. Justice Emily Farrell delivered the 19th May 2025:

Introduction

1. The hazards of making an application at the cusp of a change of development plan have been highlighted by the issues arising in this case.  The SHD process, as prescribed by the Planning and Development (Housing) and Residential Tenancies Act 2016, does not provide for what is to occur if a development plan changes between the date on which an application is made, and the date on which it is determined by An Bord Pleanála.  A feature of an SHD application (which can no longer be made) is that the Board has no power to request further information and require facilitation of further public participation in respect of information received after the application has been made. Timing is everything, or so the Applicant contends. Many of the issues and arguments in these proceedings would have been avoided had the Notice Party made its application more quickly after the Board had issued its Opinion on the pre-application consultation, or waited until Meath County Development Plan 2021 - 2027 had come into effect.

 

2. The Notice Party engaged with the Board in a pre-application consultation process in respect of an intended application for planning permission under the 2016 Act for a strategic housing development of a site comprising c.1.74 hectares adjacent to the Southgate Centre in Drogheda, Co Meath.  The Board issued its pre-application consultation Opinion on 16th January 2020, which concluded that the pre-application request constituted a reasonable basis for an application under section 4 of the 2016 Act.

 

3. The Notice Party made an application for permission for 201 apartments and associated works on that site on 5th August 2021. The public notice referred to a material contravention of the Development Plan or Local Area Plan, without providing any details thereof. The Notice Party made the application on the basis that the development as proposed may represent a material contravention in Section 11.9 of the Meath County Development Plan 2013 - 2019, which was then in effect. A Material Contravention Statement was submitted which proposed a justification for the grant of permission in the event that the Board considered the proposed development to materially contravene the 2013 Development Plan. A Statement of Consistency which was described in the planning application as demonstrating consistency "with the Meath County Development Plan (2013-2019 and the draft 2020-2026 document..." was also included with the application.

 

4. On 22nd September 2021, Meath County Council adopted a new County Development Plan, Meath County Development Plan 2021 - 2027, which came into effect on 3rd November 2021. Until the Plan was adopted, it was not possible to know whether the Plan would be adopted with or without the Material Amendments, or whether any minor amendments would be made. Once the Plan was adopted, it was predictable that the Plan would come into effect on 3rd November 2021 in accordance with section 12(17) of the 2000 Act, subject only to any amendments required by the Minister for Housing, Local Government and Heritage in the exercise of his powers under Section 31 of the 2000 Act.

 

5. On 11th November 2021 the Board's Inspector completed her report and recommended that planning permission be granted subject to 23 conditions. The Board considered the application and documents including the Chief Executive's Report and Inspector's Report at its meeting on 19th November 2021, when it decided to grant permission generally in accordance with the Inspector's recommendation. By Order dated 23rd November 2021, the Board granted permission under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 as amended for 201 residential apartments and associated works subject to 28 conditions (ABP-311028-21). The development, as authorised, comprised 201 apartments within five five-storey blocks and included 181 car parking spaces (of which six are accessible spaces) and a minimum of 10% of which must be provided with functioning electric vehicle charging stations or points. Ducting is required for the remaining carparking spaces to facilitate the installation of electric vehicle charging stations points at a later date. Condition 10 requires the number of bicycle spaces provided on the site to be increased to comply with the standards set out in the Meath County Development Plan 2021-2027.

 

6. Leave to seek an order of certiorari of the Board's decision and other orders was granted on 7th February 2022 on the grounds set out at paragraph E of the second amended Statement of Grounds, as amended on 3rd February 2022. Core Ground 6 and 8 were not pursued at the hearing.

 

7. Core Ground 1, as particularised, relates to the timing of the application, and in particular the question whether the Board had jurisdiction to determine the application, or grant the permission sought, after the 2021 Plan came into force. The Applicant contends that the permission granted materially contravenes the 2021 Plan having regard to the provision of car parking spaces, accessible car parking spaces, ducting and wiring for electric vehicles and bicycle parking spaces at Core Grounds 2 - 5 inclusive.

 

8. By reason of the findings made in respect of material contravention in particular at Core Grounds 2 and 3, it is not necessary to determine the remaining issues. In accordance with the principle of judicial restraint, whilst I have dealt with Core Grounds 5 and 1, my comments in relation to those core grounds are necessarily obiter.

 

Core Grounds 2 - 5 Material Contravention

9. Section 9(6) of the 2016 Act provides that the Board may grant permission for a proposed SHD development which materially contravenes the development plan except where the material contravention relates to zoning. However, this may only be done "where [the Board] considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development."

 

10. Section 37(2)(b) of the 2000 Act provides:

"(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to regional spatial and economic strategy for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan."

 

11. It is common case that the Board was required to determine the application by reference to the Meath County Development Plan 2021 - 2027, which came into effect on 3rd November 2021. As appears from the judgment of Donnelly J. in Crofton v. An Bord Pleanála [2024] IESC 12, there was no real contest before the Supreme Court as to which development plan should be considered by the Board if the SHD application were remitted. As noted by Donnelly J., a general principle of administrative law is that administrative decisions must give effect to the law at the date they are made (para.30).  At para. 49 Donnelly J. stated that the Board was required to apply the development plan in force at the time of its decision in determining any SHD application.

 

12. The Applicant relies on Ebonwood Ltd v. Meath County Council [2004] 3 IR 34, in which case Peart J. held that it is beyond doubt that any reference in the Local Government (Planning and Development) Act, 1963 to a development plan is a reference only to the plan which each planning authority made following the coming into force of that Act. Peart J. held that in deciding whether or not to grant permission, a planning authority cannot have regard to anything except the development plan itself; it may not consider a draft plan. He stated:

"It is of the utmost importance that the public at large and in particular those persons seeking to develop their lands of property should have certainty and precision as to the relevant criteria by which any application for permission will be judged, and the circumstances in which compensation may or may not be payable by the planning authority. The first reference point in their consideration will be the provisions of the development plan. If planning authorities were to be entitled to have regard not only to the development plan but also to anything which they might at some stage in the future consider they might include in some future development plan, uncertainty and confusion would abound... The public's right in that regard is effectively set at nought if a planning authority could have regard to considerations not forming part of the adopted development plan. That view is consistent with the concept of an environmental contract referred to by McCarthy J. in Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99 at p. 113 when he said, in relation to planning documents: –

"the plan is a statement of objectives; it informs the community, in its draft form, of the intended objectives and affords the community the opportunity of inspection, criticism and, if thought proper, objection. When adopted it forms an environmental contract between the planning authority, the council and the community, embodying a promise by the council that it will regulate private development in a manner consistent with the objectives stated in the plan."

 

13. In Element Power Limited v. An Bord Pleanála [2017] IEHC 550 (para. 46) Haughton J. stated:

"The status of a county development plan is that 'When adopted it forms an environmental contract between the planning authority, the Council and the community, embodying a promise...' - see McCarthy J. in Attorney General (McGarry) v Sligo County Council [1991] 1 I.R. 99, at p.113, and cited with approval by Clarke J. in Christian v Dublin City Council [2012] 2 IR 506, at 518. It is not policy until it is adopted. When adopted it represents the planning authorities 'overall strategy for the proper planning and sustainable development of the area of the development plan' (section 10(1) of the 2000 Act) for the next 6 year period."

 

14. Haughton J. referred to "the 2000 Act, existing government policy and objectives, existing Ministerial Guidelines, and existing County development plans" as the "four corners" within which a planning decision must be made. The 2000 Act and 2016 Act must be construed as one in respect of an SHD application.

 

15. In Byrne v. Fingal County Council [2001] IEHC 141, McKechnie J. considered that a development plan is "a representation in solemn form" that the planning authority will discharge its statutory functions strictly in accordance with the published plan. He said that it is "founded upon and justified by the common good and answerable to public confidence, is a representation in solemn form, binding on all affected or touched by it, that the planning authority will discharge its statutory functions strictly in accordance with the published plan. This implementation will be carried out openly and transparently, without preference or favour, discrimination or prejudice. By so doing and by working the plan as the law dictates, the underlying justification for its existence is satisfied and those affected, many aversely, must abide the result. They must suffer the pain, undergo the loss and concede to the public good."

 

16. As Holland J. stated in Crofton v. An Bord Pleanála [2022] IEHC 704, "the development plan is the contemporary statutory expression of the democratic political will as to where the public interest lies as concerns planning policy for the area to which it relates. This is why it must be replaced every six years and that via a complex and lengthy process (at least two years) involving considerable public consultation. As a result, it is necessarily presumed that each development plan is significantly better suited, politically, democratically and for purposes of proper planning and sustainable development, to the circumstances of its time than was the plan it replaces." (para. 75).

 

17. As provided in section 9(6)(c) of the 2016 Act, the Board may only grant permission in material contravention of a development plan 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. In Ballyboden v. An Bord Pleanála [2022] IEHC 7 Holland J stated:

"That statute specifies a mandatory process whereby the Board must justify a decision in material contravention of a development plan is no surprise. While such decisions are by no means unusual in practice, departure from the development plan democratically adopted by a local government organ having a constitutional status recognised by Article 28A of the Constitution (see generally, Christian v. Dublin City Council (No. 1) [[2012] IEHC 163; [2012] 2 IR 506] and in pursuance of a statutory obligation to adopt a development plan is no small matter."

 

18. The Board may only grant permission for a development which materially contravenes a development plan by complying with section 9(6) of the 2016 Act and section 37(3)(b) of the 2000 Act: Ballyboden (para. 108); Sherwin v. An Bord Pleanála [2024] IESC  13.  In Sherwin, Woulfe J. stated, in considering the standard of review applicable in relation to material contravention, having endorsed the findings of Holland J. in Jennings v. An Bord Pleanála [2022] IEHC 14:

"where an application for judicial review is made on grounds asserting that the grant of permission constitutes a material contravention, the first issue which arises is the correct interpretation of the relevant development plan, which is a matter of law for the courts. Thereafter, a second issue arises as to whether the development plan, once correctly interpreted, has been correctly applied to the facts of the planning application."

19. A development plan must be interpreted by the XJS method of interpretation: In re XJS Investments Ltd [1986] IR 750; Sherwin v. An Bord Pleanála [2024] IESC 13.  In Sherwin Woulfe J. explained that "the development plan is not to be treated as if it were a piece of primary or secondary legislation emanating from skilled draughtsmen, and inviting the exceptive canons of construction applicable to such material. Instead, a development plan falls to be construed in its ordinary meaning as it would be understood by members of the public without legal training, as well as by developers and their agents, unless the document, read as a whole, necessarily indicates some other meaning." (para. 96).

 

20. The interpretation of a development plan must be carried out in a holistic way and an excessively technical or overly legalistic manner must be avoided : Navan Co-ownership v. An Bord Pleanála [2016] IEHC 181, Eoin Kelly v. An Bord Pleanála [2019] IEHC 84, Ballyboden v. An Bord Pleanála [2023] IEHC 722 and Grafton Group plc v. An Bord Pleanála [2023] IEHC 725.

 

21. The test for determining whether a contravention is material is that outlined by the High Court in Roughan v. Clare County Council 1997 WJSC-HC 2213; Byrnes v. Dublin City Council [2017] IEHC 19; Redmond v. An Bord Pleanála [2020] IEHC 151. Barron J. held that the question whether a contravention of a development plan is material must 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; 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."

22. In Byrnes, Baker J. observed:

"Materiality can be tested in the light of objections made to a planning application. Sixty three third party objections were made to the subject application, albeit thirty nine were in identical form. That these raised matters of a planning nature would suggest that the grounds of objections were material from a planning point of view, but the extent of opposition, while it might identify the materiality of the contravention, does not of itself establish that the permission has been granted in material contravention. This is apparent from the decision of Hedigan J. in Ryan v. Clare County Council [2009] IEHC 115 where he said the following:

"... objections are only relevant when considering the materiality of a contravention as opposed to assessing whether one exists." (para. 42)

Hedigan J. held in that case that there was no contravention, albeit there was a large volume of objections." (para. 23)

23. In Redmond, Simons J. reiterated that "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." The importance and purpose of a Material Contravention Statement is evident from the judgments in Redmond; it brings a material contravention (or potential material contravention) to the attention of the public, so that meaningful engagement may be facilitated in relation to the question whether a proposed SHD materially contravenes the Plan, and if so, whether there is a sufficient justification for granting permission. This is accepted by the Board and Notice Party.

 

24. Whether or not a development would contravene the development plan, and if so, whether such contravention is material, is a matter for the Board in the first instance. In deciding that issue, the Board must interpret the Plan correctly. The nature of the review of the Board's decision will depend on the degree of flexibility, discretion or planning judgement left by the Plan to the decision makers: Sherwin (paras. 90 - 105); Jennings (paras. 112 - 113). If the Plan leaves no appreciable flexibility to the Board, the question of contravention is one of law for the court: Four Districts Woodland Habitat Group v. An Bord Pleanála [2023] IEHC 335 (para. 92). The O'Keeffe test applies to the review of the exercise of planning judgement.

 

Findings of the Board

25. The Board considered the application at its meeting on 19th November 2022.  The Direction states that "The Board decided to grant permission generally in accordance with the Inspector's recommendation, for the following reasons and considerations, and subject to the following [28] conditions".

 

26. The Board Direction and Order, made the 23rd November 2021, recited that:

"The Board considered that the proposed development is compliant with the provisions of the Meath County Development Plan 2021 - 2027, and the Southern Environs of Drogheda Local Area Plan 2009 - 2015 (as extended) and would therefore be in accordance with the proper planning and development of the area.

 

Furthermore, the Board considered that, subject to compliance with the conditions set out below that the proposed development would not seriously injure the residential or visual amenities of the area or of property in the vicinity, would be acceptable in terms of urban design, height and quantum of development and would be acceptable in terms of traffic and pedestrian safety and convenience. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area."

 

27. In determining the application, the Board had regard to the matters specified in the Board Direction and Board Order. It considered the documents submitted as part of the application, the submissions and observations received, the Chief Executive's Report, and the Inspector's Report. As appears from the Board Direction and Order, the Board did not find that the proposed development materially contravened the Development Plan or Local Area Plan. It did not engage with sections 9(6) of the 2016 Act nor section 37(2) of the 2000 Act. No complaint is made by the Applicant in respect of compliance with the Southern Environs of Drogheda Local Area Plan, nor does the Board or Notice Party rely on the Local Area Plan in relation to the question of material contravention.

 

28. While the Inspector referred to the fact that the planning authority had not stated that the proposed development materially contravened any aspect of the Development Plan, it must be noted that the Chief Executive had considered the question of consistency with the Development Plan by reference to the 2013 Plan, which was then in effect and remained in effect for a further five weeks. The Chief Executive's Report noted that the 2021 Plan had been adopted and would come into effect on 3rd November 2021. An extract from the core strategy in relation to Drogheda was quoted in Section 6.3, Local Planning Policy, but the 2021 Plan was not considered further, and was not referred to in Section 7, Key Planning Considerations. No findings were made in the Chief Executive's Report as to the consistency or inconsistency of the proposed development with the 2021 Plan. The Chief Executive's Report concluded by requesting the Board to consider the Chief Executive's Report in respect of the SHD application submitted by the Notice Party.

 

29. The elected Members of the Laytown-Bettystown Municipal District Meeting had considered the application on 9th September 2021, noting that the application, including the submissions, had not yet been assessed by the Chief Executive. The application was generally opposed to by the elected Members.

 

Parking Standards in the 2021 Plan

30. Section 9 of Chapter 11 of the 2021 Plan provides for Parking Standards:

"11.9.1 Parking Standards

One of the cross-cutting themes of the Development Plan is to encourage a shift to more sustainable forms of transport. The provision of sufficient car parking is important particularly in areas of the County which are currently poorly served by public transport networks. Therefore, the rationale for the application of car parking standards is to ensure that consideration is given to the accommodation of vehicles in assessing development proposals while being mindful of the need to promote a shift towards more sustainable forms of transport.

 

DM OBJ 89:       Car parking shall be provided in accordance with Table 11.2 and associated guidance notes.

 

Table 11.2 Car Parking

 

Land Use - Residential

Car Spaces

Flats/ Apartments (Refer to the Design Standards for New Apartments in relation to reduced car parking requirements for development adjacent to existing and future rail stations and minimum requirements in peripheral/or less accessible urban locations)

2 per unit

In all cases, 1 visitor space per 4 apartments

 

Guidance Notes

·                Where parking is permitted in the view of the general public, adequate soft landscaping shall be provided to soften the appearance of hard surfaced areas;

·                Parking areas shall be reserved solely for the parking of vehicles and should not be used for the storage of materials or goods associated with the development, nor for the parking of goods or other heavy vehicles;

·                The standards set out in Table 11.2 shall apply to all new developments, be it new construction or a new extension or a material change of use of existing buildings;

·                The Council will encourage and facilitate innovative design solutions for medium to high density residential schemes where substantial compliance with normal development management considerations can be demonstrated (Refer to DM OBJ 12);

·                Accessible car parking spaces shall be provided at a minimum rate of 5% of the total number of spaces, for developments requiring more than 10 car parking spaces, with the minimum provision being one space (unless the nature of the development requires otherwise). Such spaces shall be proximate to the entry points of buildings and comply with the requirements of the Building Regulations;

·                Age Friendly car parking spaces should generally be provided, where possible, in all developments;

·                In the case of any specific uses not listed in the above table, the Council will specify its requirements in relation to parking;

·                The above car parking standards shall be applied at the discretion of the Council in the County's rural towns and villages having regard to the availability and adequacy of on street parking, existing or proposed off street parking to serve the development and the status of the town/village within the settlement hierarchy of the County;

·                Residential car parking can be reduced at the discretion of the Council, where development is proposed in areas with good access to services and strong public transport links;

·                Adequate car parking bays should be provided within the confines of the public areas of residential areas to address public needs

·                All parking areas shall be clearly demarcated and numbered with indelible paint which shall be permanently maintained to the satisfaction of the Planning Authority.

 

Table 11.3 Car Parking Bays[ ... ]

 

DM OBJ 91:      Car parking provision shall normally be provided within the curtilage of the development site. Where, in the opinion of the Council, it would be impracticable for individual developers to provide for on-site parking, a contribution may be required.

 

...

DM OBJ 93:       New residential development should take account of the following regarding car parking:

·                ..

·                Vehicular parking for apartments, where appropriate, should generally be at basement level. Where this is not possible, parking for apartments and terraced housing should be in small scale informal groups overlooked by residential units;

·                ...

·                Consideration needs to be given to parking for visitors and people with disabilities; and

·                Provision of EV Charging points.

 

11.9.2 EV Charging Points

The Climate Action Plan, 2019 acknowledges that the pricing structure for EV vehicles is a major factor in consumers decision making. However, the Plan also acknowledges the importance of 'ensuring the EV Charging network underpins public confidence.' The  Council  will encourage the provision of EV charging points in all developments for future proofing.

DM OBJ 94:       All car parks shall include the provision of necessary wiring and ducting to be capable of accommodating future Electric Vehicle charging points, at a rate of 20% of total space numbers.

DM OBJ 95:       In any car park in excess of 20 spaces where public access is available, four fully functional charging points for Electric Vehicles shall be provided in accordance with IEC 61851 Standard for Electric Vehicle Conductive Charging Systems.

 

11.9.3 Cycling Parking

The Council will require an appropriate amount of cycle parking facilities to be provided with new development.

 

DM OBJ 96:       To require the provision of cycle parking facilities in accordance with the Design Standards for New Apartments (March 2018) and Table 11.4 Cycle Parking Standards.

 

DM OBJ 97:      Cycle parking facilities shall be conveniently located, secure, easy to use, adequately lit and well sign posted. All long-term (more than three hours) cycle racks shall be protected from the weather.

 

DM OBJ 98:       To establish and implement Cycle Parking Standards for new developments in the County.

 

DM OBJ 99:       In residential developments without private gardens or wholly dependent on balconies for private open space, covered secure bicycle stands should be provided in private communal areas;

 

DM OBJ 100:     All cycle facilities in multi-storey car parks shall be at ground floor level and segregated from vehicle traffic. Cyclists shall also have designated entry and exit routes at car parks.

 

Table 11.4 Cycle Parking Standards

 

Type of Development

Cycle Parking Standard

Apartments

1 private secure bicycle space per bed space (note - design should not require bicycle access via living area), minimum 2 spaces

1 visitor bicycle space per two housing units

...

 

Core Ground 2 - Material Contravention in relation to DM OBJ 89 and Table 11.2 - Car Parking Spaces

31. The Notice Party raised the number of car parking spaces as a possible Material Contravention in the Material Contravention Statement submitted with the application on 5th August 2021. The Statement of Consistency noted that the 2013 Plan required c. 313 parking spaces, but that based on the location of the proposed development, it was appropriate to accommodate reduced parking requirements. The Material Contravention Statement submitted that a material contravention did not arise under the 2013 Plan, because of discretion provided in the Plan, but proposed a justification for the grant of permission if the Board were to find that the proposed development did materially contravene Sections 11.2.2.7 and 11.9 of the 2013 Plan.

 

32. The 2013 Plan had stated, at Section 11.2.2.7, that car parking should be provided in accordance with the standards set out in Section 11.9. Section 11.9 stated that the following number of car spaces were required for Flats/Apartments:

"1.25 per 1 & 2 bedroom unit

2 per 3-4 bedroom unit

In all other cases, 1 visitor space per 4 apartments."

 

33. The Notes included "The above car parking standards shall be applied at the discretion of Meath County Council in the county's rural towns and villages having regard to the availability of the adequacy of the Parking, existing or proposed off street parking to serve the development and the status of the town/village within the settlement structure of Meath." 

 

34. The Material Contravention Statement did not address the draft 2021 Plan published in May 2021 with Material Amendments. However, the Statement of Consistency, which was also submitted, stated that the 181 car parking spaces proposed was consistent with the Draft Plan. It noted that the level of car parking had been reduced by 20 spaces following the pre-application consultation with the Board. The Statement of Consistency stated:

"7.131 Section 11.9.1 of the Plan sets out a general parking standard of 2 spaces per dwelling and one visitor space per 4 dwellings. However it is noted that this is qualified by the statement that "Residential car parking can be reduced at the discretion of the Council, where development is proposed in areas with good access to services and strong public transport links."

7.132 As set out within this report, within the accompanying TTA and Parking Strategy prepared by DBFL, a lower level of parking provision is appropriate in this case, and given the opportunity to exercise discretion in terms of parking standards as set out within the draft plan, it is considered that the proposed development does not represent a material contravention of these standards given the express ability of the Planning Authority to exercise discretion in their application."

 

35. It was not open to the Notice Party to submit a further Material Contravention Statement, or any further material, after the 2021 Plan was adopted, nor could any other party provide further information to the Board after 8th September 2021. The Chief Executive's Report was due by 29th September 2021.

 

36. The 2021 Plan provides that 2 car spaces shall be provided per apartment, and "In all cases 1 visitor parking space per 4 apartments".  The Plan allows a degree of flexibility for Flats/ Apartments by the inclusion of the following "(Refer to the Design Standards for New Apartments in relation to reduced car parking requirements for development adjacent to existing and future rail stations and minimum requirements in peripheral/or less accessible urban locations)" and the Guidance Notes, particularly "Residential car parking can be reduced at the discretion of the Council, where development is proposed in areas with good access to services and strong public transport links".

 

37. Other provisions of the Plan which are relevant to the interpretation of Objective DM OBJ 89 and Table 11.2 include DM Pol 14 and DM OBJ 39 at Section 11.5.17 Apartments. That Design Management Policy and Objective states:

"DM POL 14:      All planning applications for apartments are required to demonstrate compliance with 'Sustainable Urban Housing; Design Standards for New Apartments', Guidelines for Planning Authorities (2018) and any updates thereof. While these Guidelines set out minimum design standards, the Council strongly encourage the provision of apartments above these standards, in the interest of creating attractive living environments and sustainable communities.

 

DM OBJ 39:      An appropriate mix of units shall be provided to cater for a variety of household types and tenures. Apartment development proposals will be assessed having regard to the following requirements:

...

·         Car and bicycle parking;

·         EV Charging points;

...

All planning applications for apartment development shall be accompanied by a statement which sets out how the scheme complies with this objective."

 

38. That the Board must correctly interpret the Development Plan before applying it was reiterated by the Supreme Court in Sherwin v. An Bord Pleanála [2024] IESC 13. Woulfe J. stated:

"96. It is well established that the interpretation of a development plan is ultimately a matter for the courts. Any misinterpretation of the development plan by the relevant planning authority is an error of law which goes to jurisdiction. It is also well established that the development plan is not to be treated as if it were a piece of primary or secondary legislation emanating from skilled draughtsmen, and inviting the exceptive canons of construction applicable to such material. Instead, a development plan falls to be construed in its ordinary meaning as it would be understood by members of the public without legal training, as well as by developers and their agents, unless the document, read as a whole, necessarily indicates some other meaning."

 

39. The Inspector considered the issue of Car Parking from Section 10.7.19 of her Report.  She commenced by stating:

"10.7.19. Objective DM OBJ 161 of the development plan requires that car parking be provided in accordance with Table 11.4 and associated guidance notes. Table 11.4 requires 2 no. car parking spaces be provided per apartment. Therefore, there is a requirement for 402 no. car parking spaces to serve the proposed development. It is proposed to provide 181 no. car parking spaces or 0.93 no. spaces per unit, which is below the standard set out in the plan. The planning authority state that the proposed development is located in a peripheral and / or less accessible urban area and consider that there is a car parking requirement of 252 no. spaces to serve the proposed development, comprising 201 long stay and 51 no. visitor spaces. This figure does not relate to the current or previous development plan standards. However, it would appear that the planning authority are requesting 1 no. space per unit and 1 no. visitor space per 4 no. units."

 

40. The reference to Objective DM OBJ 161 and Table 11.4 is an error - they are references to the draft of the Plan published in December 2019. The Draft Plan with Material Amendments published in May 2021 is not before the Court, but the parties referred to it and it is publicly available. I note that section 11.9.1 of that draft referred to Parking Standards and DM OBJ 89 (not DM OBJ 161) which stated that car parking should be provided in accordance with Table 11.2 and the Guidance Notes. Simply referring to an objective or provision of the Development Plan by an incorrect number does not amount to a material error. The caveat referred to at Section 10.7.21 of the Inspector's Report is consistent with the terms of the 2021 Plan (and Draft with Material Amendments), but not the Draft Plan published in December 2019.

 

41. The Inspector continued, by stating:

"10.12.3 The proposed scheme includes 181 no. car parking spaces, which is below the standard set out in the current development plan. While it is noted that the quantum of car parking is below the standard set out in the plan it is my opinion that this is not material, as it does not relate to a specific policy of the development plan and there is flexibility in the wording of the plan with regard to car parking standards. It is also noted that the planning authority did not raise the issue of material contravention of car parking standards. In this regard the planning authority recommended that 252 no. car spaces be provided to serve the development, comprising 201 no. long stay spaces and 51 no. visitor spaces, which does not accord with the standards set out in the current or previous development plan."

 

42. The Chief Executive had found that the site was located in a peripheral and/or less accessible urban location. On that basis, the Chief Executive stated that the Apartment Guidelines required c. 252 spaces, which includes 201 long stay and 51 short stay (visitor) spaces. These figures are consistent with the benchmark guideline provided in para. 4.23 of the Apartment Guidelines. 

 

43. The Apartment Guidelines, 2018 (as amended in 2020) provide:

"Car Parking 

4.18 The quantum of car parking or the requirement for any such provision for apartment developments will vary, having regard to the types of location in cities and towns that may be suitable for apartment development, broadly based on proximity and accessibility criteria. 

1) Central and/or Accessible Urban Locations

4.19 In larger scale and higher density developments, comprising wholly of apartments in more central locations that are well served by public transport, the default policy is for car parking provision to be minimised, substantially reduced or wholly eliminated in certain circumstances.  The policies above would be particularly applicable in highly accessible areas such as in or adjoining city cores or at a confluence of public transport systems such rail and bus stations located in close proximity.

 

4.20 These locations are most likely to be in cities, especially in or adjacent to (i.e. within 15 minutes walking distance of) city centres or centrally located employment locations.  This includes 10 minutes walking distance of DART, commuter rail or Luas stops or within 5 minutes walking distance of high frequency (min 10 minute peak hour frequency) bus services.  

 

2) Intermediate Urban Locations

4.21 In suburban/urban locations served by public transport or close to town centres or employment areas and particularly for housing schemes with more than 45 dwellings per hectare net (18 per acre), planning authorities must consider a reduced overall car parking standard and apply an appropriate maximum car parking standard.

 

3) Peripheral and/or Less Accessible Urban Locations

4.22 As a benchmark guideline for apartments in relatively peripheral or less accessible urban locations, one car parking space per unit, together with an element of visitor parking, such as one space for every 3-4 apartments, should generally be required. 

 

4.23 For all types of location, where it is sought to eliminate or reduce car parking provision, it is necessary to ensure, where possible, the provision of an appropriate number of drop off, 24 service, visitor parking spaces and parking for the mobility impaired. Provision is also to be made for alternative mobility solutions including facilities for car sharing club vehicles and cycle parking and secure storage.  It is also a requirement to demonstrate specific measures that enable car parking provision to be reduced or avoided.

..."    

 

44. The Inspector found that the caveat which references the Apartment Guidelines applied and that accordingly, the minimum car parking standards did not apply to the proposed development. The statement in the Plan, which is described as the caveat, states "(Refer to the Design Standards for New Apartments in relation to reduced car parking requirements for development adjacent to existing and future rail stations and minimum requirements in peripheral/or less accessible urban locations.)"

 

45. The Inspector stated:

"10.7.21 In addition, it is noted that the development plan includes a caveat relating to car parking standard. This caveat references the Design Standards for New Apartments in relation to reduce car parking requirement for developments adjacent to existing and future rail stations and also notes that minimum requirements in peripheral/or less accessible urban locations are required. The subject site is located immediately adjacent to the Southgate shopping centre, c. 2km from the rail station, 3km from Drogheda town centre and is in close proximity to a number of bus stops along the Dublin Road and Colpe Road. In my opinion that the site is located within an urban area that is well served by public transport and in close proximity to a variety of services and amenities and is not located in a peripheral or less accessible urban location and, therefore, in accordance with the plan as the minimum car parking standards are not required in this instance."

 

46. Section 10.12.4 of the Inspector's Report is expressed in very similar terms. She states that "The current development plan also allow for flexibility with regard to standards.  In this regard, it includes a caveat relating to car parking standards, which refers to the Apartment Guidelines, to reduce car parking requirements for schemes adjacent to existing and future rail station and also note that minimum requirements in peripheral/or less accessible urban locations are required." The Inspector repeats the conclusion that the site is located within an urban area which is well served by public transport and is not located in a peripheral or less accessible urban location, as a result of which she concluded that the proposed scheme is in accordance with the provisions of the Development Plan, which did not require the minimum car parking standards. She disagreed with the submission in the Chief Executive's Report that the site was in a peripheral or less accessible urban area. For this reason, she concluded that the minimum car parking standards specified in Table 11.2 were not required.

 

47. Having considered that one of the cross-cutting themes in the Plan is to encourage a shift towards more sustainable forms of transport and, finding that the site was in an urban area proximate to services and amenities, the Inspector considered that 181 spaces accorded with Section 11.11.1 of the Plan. Section 11.11.1 appears to be a reference to the section in the December Draft Plan, as Section 11.11.1 of the 2021 Plan does not refer to Parking Standards. However, the contents of the provision relied upon by the Inspector is to be found at Section 11.9.1 of the Plan. The reference to the Section number in the December draft is not a material error, although it reinforces the Applicant's submission that the Inspector had erroneously relied on the Draft Plan in calculating the baseline number of spaces required by the Plan, in error.

 

48. The Inspector considered that the provision of 181 spaces did not amount to a material contravention, at Sections 10.7.24 and 10.12. The issue of material contravention with the 2013 Plan had been raised in the Material Contravention Statement and the submissions of third parties. The Inspector stated, at Section 10.7.24:

"Having regard to the caveat included in the car parking standards in the new development plan which provide a reference to the standards in the Apartment Guidelines it is my view that the proposed level of car parking is not a material contravention. It is also noted that the planning authority did not raise any concerns regarding a material contravention of car parking standards. The issue of material contravention in Section 10.12 below."

 

49. The Chief Executive did not consider the question of the consistency or material contravention of the 2021 Plan, although that Report was prepared after the 2021 Plan had been adopted and before it came into force. The Chief Executive's Report considered 181 spaces to amount to a "significant shortfall when compared to current standards" (i.e. the 2013 Plan and the Apartment Guidelines, applying the standard applicable to Peripheral and/or Less Accessible Urban Locations). It raised issues regarding the traffic assessment and stated "The Applicant has not demonstrated that adequate car parking for residents and visitors has been provided for within the development and the applicant should submit for agreement an amended proposal that includes adequate parking appropriate for the size and scale of the proposed development."

 

50. Whilst it was open to the Chief Executive's Report to have referred to the 2021 Plan, and no doubt the Council's views on the consistency of the proposed development with the 2021 Plan would have been helpful to the Board, it is not appropriate to rely on the absence of a finding of material contravention by the Chief Executive in applying the Roughan test for materiality of a contravention of the 2021 Plan. The presumption that the absence of a finding of material contravention of a development plan was a deliberate choice cannot arise in respect of a report which had not considered whether or not there was a contravention of the 2021 Plan. That Plan was not in force when the Report was made. Furthermore, there was a significant difference in the number of spaces generally required by the 2013 and 2021 Plans, subject to the discretion or flexibility provided for in those Plans. The baseline number of spaces was 313 under the 2013 Plan for a development of the nature proposed, whereas the formula in the 2021 Plan would ordinarily require 452. It is not the case that the provision of 181 spaces would materially contravene both plans or neither. 

 

51. Similarly, the absence of a submission by the Applicant or other members of the public that a proposed development would materially contravene the Draft Plan does not have the same weight as the absence of such a submission in respect of a plan which was in force, or even one which had been adopted. This argument highlights the issues which can arise from the timing of an SHD application when the decision is made by the Board by reference to a development plan which had neither been made nor taken effect when the Material Contravention Statement was prepared and was adopted after the prescribed period for public consultation had ended.

 

52. The Applicant had submitted that 181 spaces was inadequate for the proposed development and failed to comply with the 2013 Plan and the Apartment Guidelines. It also challenged the justification proposed by the Notice Party for granting permission in material contravention of the 2013 Plan. Those submissions were made prior to the adoption of the 2021 Plan.

 

53. The Board was required to interpret the Development Plan properly and it may only grant permission in material contravention thereof in the circumstances prescribed by section 9(6). The Inspector clearly had regard to the terms of DM OBJ 161 and Table 11.4 of the December Draft Plan in calculating the number of spaces which were generally required, but also to DM OBJ 89 and Table 11.2 in the 2021 Plan in respect of the caveat which was not included in the December Draft Plan.

 

54. In considering whether the provision of 181 parking spaces was a material contravention of the 2021 Plan the Inspector also referred to the number of spaces required by the Draft Plan, rather than the 2021 Plan at Section 10.12 of the Report. She stated:

"10.12.2 With regard to the current plan, Objective DM OBJ 161 of the Meath County Development Plan 2021 – 2027 requires that car parking be provided in accordance with Table 11.4 and associated guidance notes. Table 11.4 requires 2 no. car parking spaces per apartment. Therefore, there is a requirement for 402 no. car parking spaces to serve the development ..."

 

55. However, the number of spaces which the Inspector stated were required by the 2021 Plan was calculated by reference to the draft Plan, published in December 2019, which had not included visitor spaces, not the 2021 Plan. The Notice Party had identified 2 spaces per unit and one visitor space per 4 units as the general parking standard, which is qualified by the statement "Residential car parking can be reduced at the discretion of the Council, where development is proposed in areas with good access to services and strong public transport links." These figures, which accord with the requirements of the 2021 Plan, were reached by the Notice Party by reference to the Draft Plan with Material Amendments, in the Statement of Consistency.  Therefore, I accept the Applicant's contention that the Inspector incorrectly calculated the number of spaces required by the Plan.

 

56. Whilst the Board referred only to the 2021 Plan, it did not correct or refer to the Inspector's error in that regard, but it stated that it decided to grant permission generally in accordance with that Report. In the normal course, a statement in the Board Direction and Order that the Board considered the 2021 Plan would put an onus on an applicant to displace the presumption that the (correct) Plan had been considered.  However, the findings made by the Inspector as to the number of car parking spaces which would normally be required by the Plan, which are not corrected by the Board, were clearly calculated by reference to Table 11.4 of the December Draft Plan and are inconsistent with the requirements of Table 11.2 of the 2021 Plan.

 

57. The Grounds on which leave was granted do not include a challenge based on the consideration of the Draft Plan, an irrelevant consideration, by the Board although it is pleaded that the Board had erroneously calculated the number of spaces required by the Plan. The Amended Statement of Grounds adverts to the fact that Objective DM OBJ 161 and Table 11.4, which are referred to by the Inspector, relate to the terms of the Draft Development Plan and not the Plan which was adopted on 22nd September 2021 and came into effect on 3rd November 2021

 

58. The Notice Party submits, relying on Four Districts Woodland Habitat Group v. An Bord Pleanála [2023] IEHC 335, that, as the Board had made an evaluative judgement in finding the proposed development to be in an area with good access to services and strong public transport links, the discretion provided in the Guidance Notes "Residential car parking can be reduced at the discretion of the Council, where development is proposed in areas with good access to services and strong public transport links" applied. The Board had made an evaluative judgement in categorising the area in which the development is proposed. However, this does not avail the Board in relation to how the discretion was exercised.

 

59. The Board was entitled to exercise planning judgement in deciding whether the site of the proposed development was in an area with good access to service and strong public transport links, and if so, to reduce the parking spaces required in exercise of its discretion. The discretion to reduce the number of spaces applies after the Board has correctly established the 'baseline' or number of spaces required by Table 11.2. An error in calculating the number of spaces required by the Table, which may be reduced at the Board's discretion, taints the reduction of parking provision. The Board cannot be said to have exercised its discretion in a permissible manner if it did not correctly appreciate the nature of the discretion. In making the Plan, the Council had indicated that 452 spaces should be provided for a development of 201 apartments, subject to the discretion provided for. The Inspector had erroneously identified 402 spaces as the number of spaces which it had the power to reduce. In finding that 181 spaces would be sufficient to service the development, the Inspector failed to appreciate that the discretion left open by the Plan was a discretion to reduce the number of spaces below 452. The Board did not correct the Inspector's error. The Inspector and the Board failed to appreciate the size of the reduction made. 

 

60. The Inspector referred to the caveat in Table 11.2 at paras. 10.7.21 and 10.12.4. Insofar as the 'caveat' has the effect of altering the requirement to comply with the number of spaces specified in Table 11.2, the reference to the Apartment Guidelines is limited to two situations - developments adjacent to existing and future rail stations and those in peripheral and/or less accessible urban locations. I cannot accept the submission made by the Board that it was entitled to disapply the formula provided in the Table and apply the standards provided in the Apartment Guidelines as they were referred to in the Table, having regard to the wording of the Plan. In effect, it was argued that the Board may apply the Guidelines rather than the ratio of "2 spaces per unit" and "In all cases, 1 visitor space per 4 apartments" specified in Table 11.2. An ordinary reading of the Development Plan does not lead the reader to conclude that the Board was entitled to choose to apply the Apartment Guidelines instead of the formula in Table 11.2. The Board was required to have regard to the Apartment Guidelines, but not to comply with them. The Guidelines were only relevant to the question of compliance with, or material contravention of, the Plan to the extent that they are incorporated into the Plan, by the words used therein. To that extent, the findings of Humphreys J. at paras. 90 - 91 of Clane Community Council v. An Bord Pleanála [2023] IEHC 467 are relevant, although the terms of the two development plans were quite different.

 

61. The Inspector found that the site was not in a peripheral and/or less accessible urban location. No finding was made to the effect that the site is adjacent to an existing or future rail station, but it was submitted that the site can be regarded as adjacent to a train station. In my view, a train station which is 2 km from the proposed development cannot be regarded as adjacent to it for the purposes of the interpretation of parking requirements. I am reinforced in this view by the way in which the Apartment Guidelines use the term adjacent. 

 

62. The Inspector did not rely on the site of the proposed development being in a peripheral or less accessible urban location; she expressly found that it was not in such a location. She noted that the site is "located immediately adjacent to the Southgate shopping centre, c. 2 km from the rail station, 3km from Drogheda town centre and is in close proximity to a number of bus stops along the Dublin Road and Colpe Road." ...." No finding was made to the effect that the proposed development was adjacent to an existing or future train station.

 

63. I note that the term adjacent is described as within 15 minutes walking distance at para. 4.20 of the Apartment Guidelines. I do not consider that the term 'adjacent' in Table 11.2 as commonly understood by a well-informed member of the public would extend to a distance of 2 km. Adjacent is not a term of art, and the 'caveat' referred to by the Inspector must be interpreted applying the XJS principles.

 

64. I have come to this view based on the ordinary meaning of the word and did not consider it necessary to rely on the judgment of the Court of Appeal (Civil Division) English Clays Lovering Pochin & Co Ltd v. Plymouth Corporation [1974] 2 All ER 239 in interpreting the word 'adjacent', as used in the Plan. However, I note that the judgment appears to be consistent with the view I have formed. In that case, sites which were separated by not less than 2 miles of agricultural country woodland were not considered to be adjacent. Russell L.J. stated "'Adjacent' means close to or nearby or lying by: its significance or application in point of distance depends on the circumstances in which the word is used."

 

65. Furthermore, the Apartment Guidelines provide that "planning authorities must consider a reduced overall car parking standard and apply an appropriate maximum car parking standard." for intermediate urban locations. The 2021 Plan was adopted after those Guidelines had been made by the Minister, and was informed thereby.

 

66. If the Board sought to exercise flexibility in the Plan by reference to the Apartment Guidelines, or the Guidance Note which permitted the Board to reduce the number of spaces, where development is proposed in an area with good access to services and strong public transport links, it was critical that the correct presumptive or baseline number of spaces was considered in considering such a reduction or "a reduced overall car parking standard". Contrary to the Notice Party's submission, I have found that the error in the Inspector's Report was not limited to the numbering of the sections of the Plan by reference to a draft Plan, but that the Inspector calculated the number of spaces which she considered were required by the Plan, before flexibility or discretion is applied, by reference to the numbers provided in the December draft of the Plan. This was a material error which was relied upon by the Inspector in considering whether or not there was a material contravention. The Board cannot exercise discretion lawfully without interpreting the Plan correctly. The December draft Plan (but not the Plan with Material Amendments, published in May 2021) contained a different means of calculating the appropriate number of spaces for flats/apartment, as it did not require any visitor spaces. Both DM OBJ 89 and DM OBJ 93 of the 2021 Plan refer to visitor spaces. The Inspector found that 181 spaces were sufficient to serve the proposed development and did not rely on the Notice Party's proposal that visitors might park at the Southgate Shopping Centre. I am not satisfied that the Board excluded visitor spaces from its consideration in finding that the 181 spaces was sufficient to service the site without creating overspill.

 

67. The Plan forms an 'environmental contract' and sets out 'in solemn form' the policy and considerations of the Council. The Board is required to consider and apply the Plan which is in force on the date it makes its decision, including where appropriate by exercising such planning judgement or flexibility as is conferred on it by the Plan.  I am satisfied that the Board erred in the manner in which it considered the question of material contravention of the Plan in relation to the provision of car parking spaces. The Board calculated the number of spaces which should ordinarily be required incorrectly. Therefore, in exercising its discretion to reduce the number of spaces, the Board failed to have regard to the number of spaces which the Plan permitted it to reduce. The Apartment Guidelines were not incorporated by the caveat, but the Plan referred to the Guidelines in two circumstances, neither of which were found by the Board to apply. I reject the submission that the Board's decision can be interpreted as having found that the site was adjacent to the train station, or that the term adjacent in the Plan can be interpreted as including a site 2km from the train station. The Board submitted that it was entitled to reduce the overall parking standard as the site was in an intermediate urban location. It is necessary to correctly identify the number of spaces required by the Plan before applying a reduced overall car parking standard by reference to para. 4.21 of the Apartment Guidelines. It must also be recalled that the Guidelines were taken into account when the Plan was made.   

 

68. The complaint that the Board erred in law in concluding that the proposed development did not materially contravene the Plan in relation to the provision of car parking spaces is made out. Having regard to the fact that 181 car parking spaces were included in the proposed development instead of the 452 which were required by the Plan, a 60% reduction, subject to the exercise of the Board's discretion, and as the Board did not validly exercise that discretion, I consider that there has been a material contravention of the Plan.

Core Ground 3 - Accessible Parking

69.  The proposed development provides for 181 car spaces, of which 6 are accessible car spaces. This is stated at para. 5.30 of the Planning Report and Statement of Consistency. Permission was granted subject to Condition 7, which is a points of detail condition and is considered further below. The Applicant contends that the decision to grant permission for the development as proposed materially contravenes the requirements of Section 11.9.1 in Table 11.2 of the 2021 Development Plan.

 

70. DM OBJ 89 of the Development Plan, states that car parking shall be provided in accordance with the Table 11.2 and associated Guidance Notes. The Guidance Notes include the following:

"Accessible car parking spaces shall be provided at a minimum rate of 5% of the total number of spaces, for developments requiring more than 10 car parking spaces, with the minimum provision being one space (unless the nature of the development requires otherwise). Such spaces shall be proximate to the entry points of buildings and comply with the requirements of the Building Regulations."

 

71. Section 11.4.2 and DM OBJ 8 and 93 are relevant to the interpretation of the obligation to provide for accessible car parking spaces.

 

72. DM OBJ 93 which is also at Section 11.9.1 of the Plan, provides that

"New residential development should take account of the following regarding car parking:

·         ..

·         Consideration needs to be given to parking for visitors and people with disabilities; .. "

 

73. Section 11.4.2 of the Plan is entitled "Access for All" and provides:

"Universal equality of access to all aspects of the built and external environment is an essential part of an inclusive society. Part M of the Building Regulations (Public Buildings & Residential Dwellings) sets out standards to ensure that buildings are accessible to and usable by everyone, including older people, people with disabilities and people with children.

DM OBJ 8:           The Council will seek to encourage the implementation of best practice standards with regard to access in both indoor and outdoor environments."

 

74. The fact that the requirement is contained in a Guidance Note is not material, as DM OBJ 89 provides that car parking shall be provided in accordance with Table 11.2 and the Guidance Notes.

 

75. As the development includes 181 car parking spaces, 5% is 9.05 car spaces. The provision of a minimum of 5% would be 10 spaces, but I consider that applying the de minimis principle, the provision of 9 spaces is consistent with the Plan.

 

76. The Notice Party submits that the phrase "(unless the nature of the development requires otherwise)" creates a flexibility in the Plan and authorises the grant of permission for a development which does not meet the minimum requirements. I do not consider that such an interpretation of the Plan is reasonably open.

 

77. The Guidance Note quite clearly requires a minimum of 5% of the total number of spaces to be accessible. It provides that one space is required in every case, unless the nature of the development requires otherwise. There are developments which by their very nature would not be adequately served by only 5% of the car spaces, or one space if there are fewer than 20 spaces. For example, a medical practice which had 10 car spaces may require two accessible spaces although the provision of one space would exceed 5%.

 

78. Having regard to the desirability of facilitating 'Access for All', and DM OBJ 8 and DM OBJ 93, I do not consider that the Guidance Note creates the flexibility or discretion contended for by the Notice Party. Applying the XJS principles, I am satisfied that the Plan did not leave a degree of flexibility to the Board to reduce the number of accessible spaces, and that the Plan required "a minimum of 5%" of the spaces to be accessible. A reduction of 1/3 from 9 spaces to 6 spaces cannot be regarded as de minimis. It is not for the Court to make its own assessment as to the appropriateness of 6 or 9 accessible spaces for a development comprising 201 apartments. The Council set the planning policy in the Development Plan.  There may be reasons why the Board might grant permission in material contravention of the Plan, but it may only do so in compliance with section 9(6) of the 2016 Act. In this case, the Board did not advert to the fact that the Plan required more than six spaces, nor did it purport to exercise planning judgement in relation to the number of accessible spaces.

 

79. The Notice Party had proposed 6 accessible spaces as part of the 181 spaces provided in the proposed development. No issues were raised in the Material Contravention Statement as to whether or not this may give rise to a material contravention. As noted above, and by the Inspector at para. 10.12.1 of her Report, the Material Contravention Statement did not address any question of contravention with the 2021 Plan, which Plan had not been adopted when that Statement was prepared.

 

80. In its written submissions the Notice Party states that the Chief Executive's Report did not identify this as a material contravention of any version of the County Development Plan, and that the Applicant had not raised it as an issue in its submissions to the Board. This is correct. The provision of 6 accessible spaces for a development which included 181 car spaces was consistent with the Guidance Notes at Section 11.9 of the Meath County Development Plan 2013. The Guidance Notes provided that "Parking facilities for mobility impaired drivers and their vehicles shall be provided at the general rate of 2 per 100 spaces, such spaces shall be proximate to the entry points of the proposed buildings."

 

81. The Chief Executive's Report did not address the question of material contravention of the proposed development with the provisions of the 2021 Plan, nor was a material contravention in relation to accessible spaces raised by the Applicant in its submissions.

 

82. The purpose of the Material Contravention Statement in an SHD application is to bring any material contravention, or potential material contravention, to the attention of the public in order that the existence or otherwise of a material contravention, and any justification offered by a developer for the grant of permission despite such material contravention, can be considered and where appropriate, included in the submissions.

 

83. The absence of a submission by the Applicant that there was a material contravention of a plan which had not been made when those submissions were required to be made to the Board, cannot prevent the Applicant from raising this question of material contravention in the proceedings. While it may well have been predictable that the Plan would be adopted and brought into force with the particular Guidance Note, the Notice Party itself saw fit to address only the 2013 Plan in its Material Contravention Statement. It cannot rely on the absence of reference to the 2021 Plan in the Applicant's submission to the Board as preventing it from raising this as an issue in the proceedings. This is not a jus tertii situation, as the question of accessibility and access for all is one which potentially applies to everyone. As the 2013 Plan recognised and section 11.1.3 thereof stated, "an important element in achieving sustainability in the design of residential units is the ability of the design to accommodate decreased mobility as residents may acquire some level of mobility impairment through accident, or inevitably through old age." (emphasis added)

 

84. The fact that members of the public had not raised this as an issue of material contravention in an SHD application which had not highlighted this as a potential issue is not determinative or significant in the assessment of whether or not there is a material contravention, applying the Roughan test. This is particularly so in circumstances where there was no contravention of the 2013 Plan which remained in force until approximately eight weeks after the public consultation period ended.

 

85. I am satisfied that the provision of 6 accessible spaces when the Plan requires a minimum of 9 and does not allow flexibility or a discretion to reduce the minimum as contended for by the Notice Party, does amount to a material contravention of the Plan.

 

86. Condition 7 requires a Parking Management Plan to be prepared for the site, which must be submitted to and agreed in writing with the planning authority before the development is occupied. That plan should indicate how the carparking spaces are to be assigned and how the car park shall be managed. The Notice Party submit that Condition 7 does not preclude additional spaces being designated as accessible car spaces and that it is capable of being applied in a manner which would require it to provide 3 additional accessible car parking spaces. Both the Board and the Applicant submitted that Condition 7 does not relate to accessible car parking spaces.

 

87. Condition 7 states:

"The car parking spaces hereby permitted shall be reserved solely to serve the proposed development and shall not be utilised for any other purpose, unless subject of a separate grant of planning permission. Prior to the occupation of the development, a Parking Management Plan shall be prepared for the site and shall be submitted to and agreed in writing with the planning authority. This plan shall indicate how the car parking spaces will be assigned and how the car park shall be continually managed.

 

Reason: To ensure that adequate parking facilities are permanently available to serve the proposed residential units."

 

88. Condition 7 is a points of detail condition relating to the assignment and management of parking spaces. Condition 1 requires the development to be carried out in accordance with the plans and particulars lodged with the application except as otherwise required by the conditions attached to the permission. The plans and particulars specified that 6 spaces are required to be accessible spaces. While Condition 7 may not preclude agreement to add to the number of accessible parking spaces, it cannot be interpreted as requiring that.

 

89. It is averred on behalf of the Notice Party that it "could make a compliance submission" under Condition 7, which "offers Rockmill a degree of flexibility in terms of the allocation of parking spaces, subject to agreement with the planning authority." Furthermore, in the affidavit sworn by Managing Director of the Notice Party, it is averred "I am advised that [Condition 7 is] sufficiently flexible so as to enable compliance with the relevant policies and objectives in the development plan."

 

90. The written submissions go slightly further, albeit based on para. 10 of the affidavit of Mr. Wymer. It is submitted "Condition 7 is sufficiently flexible to allow Rockmill to allocate additional spaces as accessible spaces by way of post-consent compliance submission and, assuming that same is agreed with the council, the relevant provision in the development plan will in fact be complied with." Whether or not this amounts to an undertaking, as stated by counsel for the Notice Party, the fact that a developer might voluntarily agree to provide something which is not required by the terms of the planning permission cannot be relevant to the interpretation of the planning permission. As acknowledged in this averment, the agreement of the council would be required.

 

91. The interpretation of the planning permissions, including its conditions, is a matter for the court, applying the XJS principles. A points of detail condition is simply that. A planning permission may not be interpreted by reference to an undertaking by a party given to the High Court in proceedings in which the validity of that permission is challenged (even if an undertaking is given). The agreement of points of detail may go no further than what has been decided by the Board - it must do not more than put flesh on the bones of the permission as granted. In Boland v. An Bord Pleanála [1996] 3 IR 435, the Supreme Court held that in imposing points of detail, "the Board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement, to state clearly the reasons therefor and to lay down criteria by which the developer and the planning authority can reach agreement." Condition 7 does not refer to accessibility, nor does the condition or the reason therefor refer to bringing the proposed development into conformity with the Development Plan (in contrast with Condition 10).

 

92. Condition 7 was imposed to ensure that adequate parking facilities are permanently available to serve the proposed residential units, and it required the Plan to be agreed between the developer and the planning authority simply to "indicate how the car parking spaces will be assigned and how the car park shall be continually managed". This condition does not require a minimum of 9 accessible car parking spaces to be provided, which I have found is required by the Development Plan. Condition 7 does not have the effect of ensuring that the proposed development does not materially contravene the Development Plan.

 

93. For the reasons set out above, I am satisfied that providing two-thirds of the minimum number of accessible spaces required by the Development Plan is a material contravention. As the Board did not invoke section 9(6) of the 2016 Act and did not consider the appropriateness of granting permission in material contravention of the Plan for the reasons set out in section 37(2)(c) of the 2000 Act, it failed to fulfil its statutory obligations.

 

94. It is not necessary to decide for the purposes of Core Ground 3, whether the absence of reference to accessible parking spaces in the Material Contravention Statement required the Board to refuse permission. However, had the 2021 Plan been in force when the application and Material Contravention Statement were made and the Material Contravention Statement failed to advert to the reduction of accessible spaces as a material contravention, or potential material contravention, it follows from Redmond that such an application would be invalid. That is not what occurred in this case as the 2021 Plan was not adopted until 22nd September 2021.

 

95. As the Board did not consider the provision of accessible parking to be a material contravention and granted permission without applying section 9(6) of the 2016 Act or considering whether permission would be granted under Section 37(2)(c) of the 2000 Act, the decision to grant permission was not made in accordance with the 2000 - 2016 Acts.

 

Core Ground 4 - EV charging points

96. The Applicant contends that the proposed development materially contravenes the requirements of Section 11.9.2 and DM OBJ 94 of the Development Plan and that the Board erred in law in concluding there was no such material contravention and failed to apply section 37(2)(b) of the 2000 Act.

 

97. As with accessible spaces, the Applicant did not contend in its submissions that the lack of wiring and ducting for electric vehicles amounted to a material contravention.

 

98. The application did not include any EV charging points, or ducting or wiring to facilitate the installation of EV points stations at a future date. The 2013 Plan was silent in relation to the provision of wiring and/ or ducting and this was not raised as an issue by the Notice Party in the application, whether in the Material Contravention Statement or otherwise.

 

99. The purpose of the Material Contravention Statement is accepted by the Notice Party as being to "allow the public to engage with an argument by an applicant for planning permission as to why planning permission should be granted, notwithstanding that the proposed development materially contravene the development plan." In all the circumstances, I reject the submission made by the Notice Party that the Applicant may not raise this issue in the proceedings as it had not raised it before the Board.  

 

100. The 2021 Plan, which came into effect after the consultation period had ended, provided the following:

"11.9.2 EV Charging Points

The Climate Action Plan, 2019 acknowledges that the pricing structure for EV vehicles is a major factor in consumers decision making. However, the Plan also acknowledges the importance of 'ensuring the EV Charging network underpins public confidence. The Council will encourage the provision of EV charging points in all developments for future proofing.

 

DM OBJ 94:       All car parks shall include the provision of necessary wiring and ducting to be capable of accommodating future Electric Vehicle charging points, at a rate of 20% of total space numbers."

 

 

101. The Development Plan also includes Objective DM OBJ 93 and DM OBJ 95 which provide as follows:

"DM OBJ 93:       New residential development should take account of the following regarding car parking:

·         ...

·         Provision of EV Charging points."

and

"DM OBJ 95:       In any car park in excess of 20 spaces where public access is available, four fully functional charging points for Electric Vehicles shall be provided in accordance with IEC 61851 Standard for Electric Vehicle Conductive Charging Systems."

 

102. As the Inspector noted (albeit by reference to the section number used in the draft Plan, published in December 2019), the Plan provides that "One of the cross-cutting themes of the Development Plan is to encourage a shift to more sustainable forms of transport. The provision of sufficient car parking is important particularly in areas of the County which are currently poorly served by public transport networks. Therefore, the rationale for the application of car parking standards is to ensure that consideration is given to the accommodation of vehicles in assessing development proposals while being mindful of the need to promote a shift towards more sustainable forms of transport." (Section 11.9.1 Parking Standards). The requirement of the Development Plan at Section 11.9.2 for EV Charging Points is consistent with the theme of encouraging a shift to more sustainable modes of transport.

 

103. At Section 10.7.26 of her Report, the Inspector stated "concerns were also raised by third parties regarding the lack of e-charging points provided that within the scheme.  I would agree with the concerns raised and considered that this issue could be addressed by condition."

104. The Inspector recommended a condition, which was ultimately included in the Board's Order as Condition 9. It requires a minimum of 10% of all car parking spaces to be provided with functional electric vehicle charging stations or points, and ducting for all remaining car spaces, facilitating the installation of electric vehicle charging points or stations at a later date. Proposals for the installation of electric vehicle ducting and charging stations or points must be submitted and agreed in writing with the planning authority prior to the occupation of the development, as they had not already been provided with the application.

 

105. Condition 9 provides:

"A minimum of 10% of all car parking spaces shall be provided with functioning electric vehicle charging stations or points, and ducting shall be provided for all remaining car parking spaces, facilitating the installation of electric vehicle charging points or stations at a later date. Where proposals relating to the installation of electric vehicle ducting and charging stations or points have not been submitted with the application, in accordance with the above noted requirements, such proposals shall be submitted and agreed in writing with the planning authority prior to the occupation of the development.

 

Reason: To provide for and or future proof the development such as would facilitate the use of electric vehicles."

 

106. Condition 9 inserted by the Board is consistent with the requirements of the Draft Plan published in December 2019, but only half what is required by the 2021 Plan which came into effect on 3rd November 2021, before the Board's Decision and Order.

 

107. As the Notice Party submits, Objective DM OBJ 94 does not require the installation of EV charging points or stations, but rather requires wiring and ducting for at least 20% of the parking spaces to facilitate their installation in the future. Objective OBJ DM 95 does require four functioning EV status or points to be installed in car parks with more than 20 spaces where public access is available. As the development is a residential development, and Condition 7 requires the car parking spaces to be reserved solely to serve the proposed development, Objective OBJ DM 95 does not apply

 

108. The effect of Condition 9 is that 10% of the spaces, 36 (or 37) spaces, require functioning EV stations or points to be provided and ducting for the remaining 90%. However, the Plan requires wiring and ducting to be installed for 20% of the total number of car spaces. The condition requires more than is required by the Plan for 90% of the spaces, but the remaining 10% will only have ducting, although the Plan requires wiring. I accept the submission of the Board and the Notice Party that installing wiring where ducting has been installed is likely to be a significantly simpler task in relative terms. However, the Plan provide no flexibility or discretion nor is planning or evaluative judgement required, whether in relation to the percentage of the car parking spaces which require ducting and wiring for future EV points or stations, or as to whether the provision of some functioning charging stations or points may be required in lieu of providing wiring for a proportion of the spaces. Therefore, the condition which was imposed was not sufficient to bring the development as authorised into compliance with the Plan.

 

109. I note that, unlike Condition 10 which is considered below, it has neither been stated, nor suggested, that Condition 9 was imposed to ensure that the development as authorised would comply with the requirements of the Development Plan in relation to EV charging.

 

110. The question then remains whether this contravention of the Plan is material. The effect of the permission is to require 18 (or 19) spaces to have functioning EV chargers, a further 18 spaces are required to be ducted, but not wired.  The condition requires the remaining 80% of the spaces to have ducting, although that is not required by the Plan.  The net effect of the condition is that while 10% of the spaces will lack wiring, 10% of the spaces will have functioning EV charging stations or points although only ducting and wiring is required by the Plan. I am not satisfied that this contravention amounts to a material contravention of the Plan. Despite the fact that public consultation was not invited on this issue, by the raising of this as an issue in the Material Contravention Statement, I do not consider that the effect of the contravention is such that " the proposed development is being, or might reasonably be expected to be, opposed by local interests."

 

111. Having regard to the findings made in respect of the provision of car parking spaces and accessible car spaces, it not necessary to decide whether the Board may lawfully grant permission for a development which, when proposed, materially contravenes the development plan by imposing a condition, the effect of which is to make the development as authorised consistent with the Plan.

 

Core Ground 5 - Cycle spaces

112. The Applicant contends that the decision of the Board is invalid as it materially contravenes the requirements of the 2021 Plan in relation to the provision of cycle spaces. It is submitted that it was not open to the Board to achieve compliance by attaching a condition which required the number of spaces provided on the site to be increased to comply with the standards in the County Development Plan.

 

113. The number of spaces proposed by the Notice Party exceeded the number of spaces required by the 2013 Plan, which was in place when the application was made and during the public consultation period. I am satisfied that the Material Contravention Statement was not invalid by reason of the provision of cycle parking spaces not being raised as a potential material contravention. The Applicant cannot be criticised for not raising the issue of material contravention of the 2021 Plan in circumstances where the Plan had not come into effect when its submissions were made, and the Notice Party had not raised this as an issue in its Material Contravention Statement.

 

114. Cycle parking is provided for at Section 11.9.3 of the 2021 Plan which includes Objective DM OBJ 96 "To require the provision of cycle parking facilities in accordance with the Design Standards for New Apartments (March 2018) and Table 11.4 Cycle Parking Standards." and Objective DM OBJ 99: "In residential developments without private gardens or wholly dependent on balconies for private open space, covered secure bicycle stands should be provided in private communal areas".

 

115. For apartments, Table 11.4 requires:

"1 private secure bicycle space per bed space (note - design should not require bicycle access via living area), minimum 2 spaces

1 visitor bicycle space per two housing units."

 

116. It is common case that the minimum number of spaces required by the Development Plan, and the Apartment Guidelines is 465 spaces. The development as proposed included 300 spaces. The development as authorised requires compliance with Condition 10 which provides:

"The number of bicycle spaces provided on the site shall be increased to comply with the standards set out in the Meath County Development Plan 2021-2027. Details of the layout, marking demarcation and security provisions for these spaces shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development.

 

Reason: To ensure that adequate bicycle parking provision is available to serve the proposed development, in the interest of sustainable transportation."

 

117. The Chief Executive's Report also stated "The proposed cycle parking in terms of number of spaces, location and design specification does not comply with the design standards.  The applicant should be requested to submit for agreement an amended layout that includes cycle parking that complies with the relevant standards." The Chief Executive did not consider whether there was a material contravention in relation to cycle spaces, but had not considered the 2021 Plan.

 

118. The Board was required to have regard to the Apartment Guidelines. Para. 4.17 of the Guidelines provides for "a general minimum standard of one cycle storage space per bedroom.... Visitor cycle parking shall also be provided at a standard of one space per to residential units." The Guidelines also provide that "deviation from these standards shall be at the discretion of the planning authority and shall be justified with respect to factors such as location, quality of facilities proposed, flexibility for future enhancement/enlargement, etc."

 

119. The decision of the Board is not invalid by reference to these Guidelines simpliciter for a number of reasons: the Board was not required to comply with the Guidelines, but rather to have regard to them. It did so. In granting permission subject to Condition 10, the Board did not deviate from the number of spaces referred to at para. 4.17. It was not argued that there was a difference between a bedspace and a bedroom, and the Applicant has not challenged the finding by the Inspector that the Plan reflected the Guidelines. 

 

120. Although the Inspector concluded that the 300 spaces proposed by the Notice Party were adequate to serve the proposed development, the Board added Condition 10, which had not been proposed by the Inspector. The Applicant pleads that the Board was obliged to provide reasons for departing from the Inspector's conclusions in respect of bicycle storage under section 34(10)(b). Section 34(10)(b) only requires the Board to provide the main reasons for not accepting the recommendation by the Inspector to grant or refuse permission. Reasons were not required for deciding to impose a condition which had not been proposed by the Inspector. That said, it is not clear from the Board Order why it chose to do so and the reason given by the Board for opposing the condition contradicts that the finding of the Inspector that 300 spaces were adequate.

 

121. The effect of Condition 10 was to require the number of bicycle spaces to be increased to comply with the standards in the 2021 Plan.  

 

122. The number of spaces proposed by the Notice Party would contravene the Development Plan. The number provided is 35% fewer than the number specified in table 11.4 of the Plan. As objective DM OBJ 97 requires all long-term (more than three hours) cycle racks to be protected from the weather, c. 365 spaces need to be protected from the weather. As the Plan did not allow flexibility in relation to the number of cycle parking places required for a development of the nature of the proposed development, and the extent to which the proposed development failed to comply with the Plan could not be regarded as de minimis, the provision of 300 cycle spaces for a development of this size would materially contravene the Plan.

 

123. Condition 10 requires the number of cycle spaces to be increased to comply with the requirements of the Plan.

 

124. Having regard to the findings made under Core Grounds 2 and 3, any finding I make as to the effect of Condition 10 is obiter. Had the 2021 Plan been in force when the Material Contravention Statement was submitted, and it did not raise the issue of cycle parking, the Board would have been bound to refuse the application: Redmond.

 

125. In accordance with the principle of judicial restraint, I consider it neither necessary nor appropriate to decide the question whether the Board may grant permission subject to a condition which brings the development as authorised into compliance with the development plan, when the contravention which it addresses had not been raised in a statement of material contravention. If not, a question would arise as to whether the court should refrain from exercising its discretion to quash such a permission when the development authorised thereby would not in fact materially contravene the Plan.

Conclusion on Material Contravention

126. The importance and solemnity of the development plan, as an environmental contract, has been acknowledged repeatedly by the Superior Courts. The Board is restricted in its ability to grant permission in material contravention of the applicable plan by section 9(6) of the 2016 Act, which requires the Board to be satisfied that if section 37(2)(c) applied, permission should be granted. It is necessary that an application for permission for an SHD includes a Material Contravention Statement, the purpose of which is to highlight any material contravention of the Plan and set out the basis on which the applicant for permission considers that the grant of permission is justified despite the material contravention.

 

127. The only material contravention identified by the Notice Party was a potential material contravention in relation to the provision of car parking spaces. That Statement referred only to the 2013 Plan, which was then in force. The 2021 Plan was adopted after the public consultation period had ended and before the Chief Executive reported on the application. The Board decided the application on 23rd November 2021 and was required to determine the application by reference to the 2021 Plan, which came into effect on 3rd November 2021. The Board's Inspector had completed her Report on 11th November 2021.

 

128. For the reasons set out above, I have concluded that the development authorised by the permission granted materially contravened the Development Plan in relation to the provision of car parking spaces and accessible car parking spaces. The development as proposed, but not as authorised, materially contravenes the Plan in relation to the provision of wiring and ducting for the future installation of charging points for electric vehicles. The development as proposed materially contravened the Development Plan in relation to the provision of cycle parking spaces, but the Board imposed Condition 10 which requires "the number of bicycle spaces provided on the site shall be increased to comply with the standards set out in the Meath County Development Plan 2021 - 2027" with details of the layout, marking demarcation and security provisions for these spaces to be agreed with the planning authority prior to commencement of the development, in order to ensure that adequate bicycle parking in the interest of sustainable transportation.

 

129. The Board considered whether a material contravention arose in respect of car parking, but did not consider whether there was a material contravention by reason of the number of accessible spaces provided. The Board did not invoke section 9(6) and did not consider whether the grant of permission was justified despite the material contravention of the Plan. I am satisfied therefore that the Board's decision is invalid by reason of the errors already identified in considering whether the proposed development materially contravened the Plan in relation to car parking spaces. As Woulfe J. held in Sherwin, if a material contravention arises in respect of a matter which was not addressed by the Board, the Board's decision would constitute a breach of section 9(6) and would be invalid. Therefore, I am also satisfied that the Board's decision is invalid as it failed to consider whether the provision of only six accessible spaces amounted to a material contravention of the Plan.

 

130. Having regard to the findings made in respect of the provision of car parking spaces and accessible car spaces, it not necessary to decide whether the Board may lawfully grant permission for a development which materially contravenes the development plan as proposed subject to a condition, the effect of which is to make the development as authorised consistent with the Plan.

 

131. It was submitted by the Notice Party that if the Applicant succeeded only in relation to accessible parking spaces, the court should exercise its discretion not to quash the decision as the Applicant was not prejudiced by the number of accessible parking spaces and the number of spaces complied with the 2013 Plan which was in effect when the application was made. As the Applicant has also succeeded on Core Ground 2, the question of exercising discretion as contended for by the Notice Party does not arise.

 

132. As the Board granted permission in material contravention of the Development Plan in two respects, and did not make any finding of material can contravention or justify the grant of permission in material contravention of the Plan as required by section 9(6) of the 2016 Act, it is appropriate to quash the permission.

 

Core Ground 1 - change of CPD between application and decision by the Board

133. There are a number of elements within the Applicant's argument that the coming into force of the Meath County Development Plan 2021 - 2027 between the date of the SHD application and the Board's determination thereof, rendered its decision to grant permission under section 4 invalid.  Leave to seek judicial review was granted on Core Ground 1, as particularised, in the following terms:

"CORE GROUND 1: 1.         The decision to grant planning permission dated 23rd November 2021 (ABP Ref 311028-21 ("the impugned decision") is invalid in that the application for permission did not include a valid Statement of Consistency or Statement of Material Contravention contrary to the requirements of section 8 of the Planning and Development (Housing) and Residential Tenancies Act 2016.

1.      The Pre-Application meeting took place on 18th December 2019, the same day that the Draft Meath County Development Plan 2020-2027 ("CDP") went on public display. The Pre-Application Consultation referred to that Plan in relation to the Core Strategy only. 

 

2.      The Board directed that the application would constitute a reasonable basis for an application for the purposes of section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (the "2016 Act"). It directed the Developer to include 17 items in its application, none of which related to the (then) draft Development Plan.

 

3.      The application was submitted on 5 August 2021 whereas the CDP was adopted on 22 September and came into effect on 3 November 2021. Therefore the Developer could not and indeed did not provide a statement of consistency or material contravention that detailed how the application was consistent and/or materially contravened the relevant development plan (as referred to in section 8(1)(a)(iv)(I) and (II) of the 2016 Act) on the date of the decision (23 November 2021) because the relevant development plan had not been adopted or published when the statements were drafted and submitted to the Board.

 

4.      The application documents submitted by the Developer included a Statement of Material Contravention that identified a Material Contravention in relation to the Meath County Development Plan 2013-2019 in respect of parking provision only. The Statement of Consistency dated August 2021 did address the Draft County Development Plan (§§7.85-7.133). It noted (§7.133) that a higher level of bicycle parking was provided for pursuant to the Draft Plan than that provided for in the Meath County Development Plan 2013-2019 and that the Board could apply a Condition to that effect in order to bring the application into compliance with that Plan.

 

5.      The Board's Inspector concluded, notwithstanding the identification of a material contravention by the Developer of §11.2.2.7 and §11.9 of the Meath County Development Plan 2013-2019, that there was no material contravention of DM OBJ 161 of the CDP (although this is actually reference to the draft CDP).

 

6.      The adopted CDP was amended by the insertion of extra visitor parking at a rate of 1 for every 4 units in an apartment development. DM OBJ 161 and Table 11.4 were also renumbered to DM OBJ 89 and Table 11.2 respectively. Therefore, the Inspector at §10.7.19 and §10.12.2 underestimated the quantity of car parking required by the adopted development plan by 50.

 

7.      Without prejudice to the objection below in respect of the efficacy of that conclusion, it is the Applicant's case that the Board was not entitled to proceed to determine the application in the absence of a Statement of Consistency that included the CDP in force on the date of the decision (as opposed to a draft CDP) and a Statement of Material Contravention that addressed the CDP for the purposes of 8(1)(a)(iv) of the 2016 Act and where no such exercise was undertaken or advertised to the public. It is the Applicant's case that in the absence of valid Statements the application was valid and the Board's decision to grant permission was ultra vires the Board's power pursuant to section 9 of the 2016 Act. It is further the Applicant's case that it is no answer to that objection that the Board ultimately concluded that the proposed development did not constitute a material contravention of the CDP or that a grant of permission was warranted."

 

134. The Notice Party was required, by section 5 of the 2016 Act, to enter into pre-application consultations with Meath County Council and to request the Board to enter into consultations with it prior to making the application under section 4 of the 2016 Act.  Section 5(5) and (6) of the 2016 Act required the Notice Party to include a Statement of Consistency with "the relevant objectives of the development plan or local area plan concerned" and "where the proposed strategic housing development would materially contravene the development plan... other than in relation to the zoning of the land, ... indicate why, in the prospective applicant's opinion, permission should nonetheless be granted, having regard to a consideration specified in section 37(2)(b) of the Act of 2000."

 

135. Neither the 2000 Act nor the 2016 Act include a provision requiring a prospective applicant to recommence the pre-application consultation phase if there is a change of development plan. Both Acts are silent as to the effect of a change of plan on a live application.

 

136. While the Applicant refers to the pre-application consultation process in its submissions, and the Board objects to any attempt by the Applicant to expand the grounds beyond those for which leave was granted, the Applicant does not contend that the pre-planning consultation process was invalid, nor that it rendered the Board's subsequent decision on the application invalid.  

 

137. The Applicant accepts the following, with which the Board and Notice Party agree:

-          The application was valid when it was made.

-          There is no statutory timeframe within which the Notice Party was required to submit the application after the pre-application process.

-          The Board was required to decide the application by reference to the Development Plan in force when the decision was made i.e. the 2021 Plan.

 

138. The Board and Notice Party submit that the Applicant has recast its case as contending that once the Plan changed, it was no longer open to the Board to grant the application rather than that the application became invalid. Para. 7 of Core Ground 1 states:

"Without prejudice to the objection below in respect of the efficacy of that conclusion, it is the Applicant's case that the Board was not entitled to proceed to determine the application in the absence of a Statement of Consistency that included the CDP in force on the date of the decision (as opposed to a draft CDP) and a Statement of Material Contravention that addressed the CDP for the purposes of 8(1)(a)(iv) of the 2016 Act and where no such exercise was undertaken or advertised to the public. It is the Applicant's case that in the absence of valid Statements the application was valid and the Board's decision to grant permission was ultra vires the Board's power pursuant to section 9 of the 2016 Act. It is further the Applicant's case that it is no answer to that objection that the Board ultimately concluded that the proposed development did not constitute a material contravention of the CDP or that a grant of permission was warranted."

 

139. In its written submissions, the Board correctly states that "The pleading requirements on an applicant in judicial review proceedings are well-established as provided for in Order 84, rule 20(3) of the Rules of the Superior Courts, which mandate that an applicant "state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground."  Section 50A(5) of the 2000 Act provides that only provides that only grounds which have been found to be substantial grounds, and are the subject of the grant of leave to seek judicial review, may be relied upon. 

 

140. "[T]he pleadings in a case set the parameters and fix the issues in dispute between the parties and those to be determined by the court." per Baker J. in Casey v. An Bord Pleanála [2021] IESC 42. Subsequently in Concerned Residents of Treascon & Clondoolusk v. An Bord Pleanála [2024] IESC 28 Murray J. stated, at para. 43: "... The parties are expected to identify the alleged legal frailties in a challenged decision before they seek leave for judicial review ... The grant of leave is the extension of a permission to pursue that ground of challenge, not the opening of an investigation into whether the decision or process is unlawful on any grounds that might subsequently present themselves in the course of the ultimate hearing of the matter."  The requirement is that a case must be pleaded in terms which make it "acceptably clear" what is asserted: per Humphreys J. in in Eco Advocacy v. An Bord Pleanála (No. 4) [2023] IEHC 713 (para. 39).

 

141. The Applicant relies on paragraph 7 under Core Ground 1. The second Amended Statement of Grounds maintained that the Statement of Consistency and particularly the Statement of Material Contravention were invalid as they did not address the 2021 Plan.

 

142. Having regard to the findings made above in respect of Core Grounds 2 and 3, any findings in respect of Core Ground 1 would necessarily be obiter.

 

143. As the issue raised in argument, if not also in the pleadings, is a significant one and was fully argued, I do consider it appropriate to express my provisional views.  

 

144. A pre-planning meeting with Meath County Council was held on 28th May 2019.  The Notice Party requested the Board to enter into pre-application consultations on 11th November 2019, which request was accepted on 25th November 2019. A pre-planning meeting was held with the Board and Meath County Council on 18th December 2019. Notice of the Board's pre-application consultation Opinion was given on 16th January 2020, and the Board's Opinion issued on 17th January 2020. As appears from the record of the meeting on 18th of December 2019, the Draft Development Plan was considered by the representatives of the Notice Party, the planning authority and the Board in addition to the 2013 - 2019 Plan which was the Plan in effect at the time. As noted above, the pre-application consultation procedure has not been challenged by the Applicant.

 

145. A notice was published in the Irish Daily Star on 5th of August 2021 stating that the Notice Party intended to apply to an Bord Pleanála for permission for a strategic housing development, the subject of these proceedings. The public notice stated:

"the application contains a statement setting out how the proposal will be consistent with the objectives of the Meath County Development Plan 2013 - 2019 and the Local Area Plan for the Southern Environs of Drogheda 2009 - 2015 (as incorporated in the Meath County Development Plan). The application contains a statement indicating why permission should be granted for the proposed development having regard to consideration specified in section 37(2)(b) of the Planning Development Act 2000, as amended, notwithstanding that the proposed development materially contravenes a development plan or local area plan other than in relation to the zoning of land."

 

146. The application was lodged with the Board on 5th August 2021 together with the Statement of Consistency and a Material Contravention Statement. The letter dated 5th August 2021, which enclosed the planning application, concluded as follows:

"In preparing this final SHD application we have had regard to the issues raised during preapplication consultation meetings with Meath County Council and An Bord Pleanála, and the contents of the Board's Opinion on the pre-application consultation stage. The proposed development is also in compliance with the relevant guidance under section 28, the Southern Environs of Drogheda Local Area Plan and the Meath County Development Plan 2013-2019 (in addition to the draft 2020-2026 County Development Plan).

 

The Planning Report and statement of consistency includes an analysis of the proposed development's compliance with the Draft Meath County Development Plan 2021-2027 (as amended by the material alterations which were recently published), in the event that the new Development Plan is adopted prior to the making of a decision on the current application."

 

147. As appears therefrom, and para. 21 of the Notice Party's Statement of Opposition, the Draft Development Plan with Material Alterations had been published in May 2021. The period of public consultation in respect of the Material Alterations concluded on 29th June 2021, as noted in the Statement of Consistency.

 

148. The public consultation period for the SHD application ran to 8th September 2021 and the Chief Executive of Meath County Council was required to consider any submissions received and submit his report by 29th September 2021.

 

149. Submissions were made by the Applicant and other third party and statutory consultees including Irish Water and Transport Infrastructure Ireland within the prescribed period.

 

150. On 22nd September 2021 Meath County Council adopted the Meath County Development Plan 2021 - 2027, which came into effect on 3rd November 2021 in accordance with section 12(17) of the 2000 Act. On 22nd September 2021, it was entirely predictable that the Plan would come into effect in the terms adopted, subject only to such amendments as Minister for Housing, Local Government and Heritage may require in exercise of his powers under Section 31 of the 2000 Act. However, the Notice Party and the public had no opportunity to make any further submissions to the Board in respect of the Plan at that stage.

 

151. In the Chief Executive's Report to the Board the application was considered with the submissions and observations made on the application. The Report noted that the 2021 Plan had been adopted and would come into effect on 3rd November 2021. However, the question of material contravention was only addressed by reference to the 2013 Plan which was in effect when the Chief Executive's Report was prepared.

 

152. It was noted by the Chief Executive that the proposal for car parking complied with neither the Meath County Development Plan 2013-2019 nor the Design Standards for New Apartments Guidelines 2020 (on the basis that the site was found to be in a peripheral and/or less accessible urban location). The Chief Executive's Report considered 181 spaces to be a "significant shortfall when compared to current standards". It raised issues regarding the traffic assessment and stated, "The Applicant has not demonstrated that adequate car parking for residents and visitors has been provided for within the development and the applicant should submit for agreement an amended proposal that includes adequate parking appropriate for the size and scale of the proposed development."

 

153. The Chief Executive's Report also stated "The proposed cycle parking in terms of number of spaces, location and design specification does not comply with the design standards.  The applicant should be requested to submit for agreement an amended layout that includes cycle parking that complies with the relevant standards."

 

154. The Chief Executive's Report concluded by requesting the Board to consider the Chief Executive's Report in respect of the SHD application submitted by the Notice Party.

 

155. As an oral hearing was not held, the Board was required to determine the application by 24th November 2021 by virtue of section 9(9)(a) of the 2016 Act. The Board was required to consider the application, all submissions and observations received, the report of the Chief Executive and the Report prepared by one of its inspectors within eight weeks.

 

156. The unusual feature in this case is that the relevant Development Plan changed to the Meath County Development Plan 2021 - 2027 on 3rd November 2021. As an oral hearing was not held, nor was it requested, the Board had no means of seeking further submissions as to the impact of the new Development Plan on the application.

 

157. The Board's Inspector concluded her Report on 11th November 2021 and recommended that permission be granted for the proposed development subject to 23 conditions. She considered that the proposed development did not materially contravene the 2021 - 2027 Development Plan. The Board decided to grant permission generally in accordance with the Inspector's recommendation and did so subject to 28 conditions, having found that the proposed development was compliant with the 2021 Plan.

 

Validity of the Material Contravention Statement and Statement of Consistency

158. The Board submits, relying on the judgment of the High Court in Crofton v. An Bord Pleanála [2022] IEHC 704 that when the term "relevant development plan" is used in the 2016 Act, it refers to the development plan in operation at the time at which the step or action being referred to in the provision concerned is taken. As Donnelly J. noted, the consequences of a change in the development plan during the SHD application process is not addressed in the statutory scheme; nothing in sections 2, 9 and or 34 of the 2000 Act or section 9(2) of the 2016 Act, requires the Board to have regard to anything other than the development plan in effect on the date of its decision in respect of an SHD under the 2016 Act. At para. 49 Donnelly J. stated that the Board was required to apply the development plan in force at the time of its decision in determining any SHD application.

 

159. The obligations under section 8 of the 2016 Act and Article 297 of the 2001 Regulations on an applicant for permission for a strategic housing development include publication of notice of the application, which notice must indicate that the application includes a statement setting out how the proposed development will be consistent with the objectives of the relevant development plan or local area plan and a statement indicating why permission should be granted having regard to consideration specified in section 37(2)(b) of the 2000 Act for any material contravention of the plan. The Statement of Consistency and Material Contravention Statement, submitted with an application under section 4, must relate to the development plan which is in force on the date the application is made. This is what occurred in the instant case. The Statement of Consistency and Material Contravention Statement were not retrospectively invalidated by the subsequent change of the applicable development plan, nor was the application invalid ab initio, because the 2013 Development Plan was due to be replaced shortly after the application was made. The Board and Notice Party are correct in submitting that the obligations under section 8 arise when the application is made to the Board. Therefore, I reject the Applicant's contention that the Board's decision is invalid as the application had not included a valid Statement of Consistency or Statement of Material Contravention as required by section 8 of the 2016 Act.

 

160. It is correct to say that the developer did not provide a Statement of Consistency or a Material Contravention Statement in respect of the 2021 Plan. As the Applicant states at para.3 of the particulars to Core Ground 1, it was not possible for the Notice Party to do so as the Plan which was in effect when the application was determined on 23rd November 2021 had neither been adopted nor come into effect when the application was made on 5th August 2021.

 

161. The Applicant also submits that the application was invalid as the Draft Development Plan was referred to in the Statement of Consistency. As noted by the Applicant, the Material Contravention Statement did not address the material contravention of the Draft Plan. That Statement only addressed the 2013 Plan, and it was submitted by the Notice Party that there was no material contravention of that Plan. Notwithstanding that, a justification was offered for granting permission in the event that the Board disagreed with the Notice Party's contention and found that the proposed development would materially contravene that plan in relation to the number of car parking spaces to be provided.

 

162. The application was not rendered invalid by reason of the inclusion in the Statement of Consistency to references to the draft Development Plan. However, as is clear from Ebonwood, had the application been determined before that Plan came into force, the Board would not have been permitted to consider the Draft Plan in deciding whether there was a material contravention, or whether the grant of permission was justified despite the existence of any such material contravention. The fact that a submission to the Board contains an irrelevant consideration, whether as part of the application documents or other submissions, does not deprive the Board of jurisdiction to determine the application.  The Board may disregard such irrelevant considerations and determine the application lawfully, having regard to its obligations to consider all relevant matters and provide adequate reasons for its decision.

Effect of change of Development Plan

163. The Applicant contends that once the 2021 Plan came into effect, the Board was no longer capable of granting permission to the Notice Party as it could not determine the application in the absence of a Statement of Consistency and Material Contravention Statement which addressed the Plan in force on the date the Board made its decision.  As is clear from the judgment of the Supreme Court in Crofton the ability of the Board to lawfully decide an application necessarily includes the power to grant or refuse that application. The circumstances in which it would not be lawful for Board to grant the permission sought are not coextensive with the circumstances in which it would not be open to the Board to determine the application.

 

164. The Board was required to consider the proper planning and sustainable development of the area in which it is proposed to situate the SHD. In doing so the Board must have regard to the provisions of the development plan for the area, including any local area plan where applicable. It is not in dispute that the Board was required to consider the 2021 Plan as that was in force at the time it made the decision, having come into effect on 3rd November 2021.

 

165. The Board and Notice Party submit that nothing in the 2016 Act requires the Board to refuse permission by reason of the change of development plan. The Notice Party submits that in the absence of a specific provision in the 2016 Act depriving the Board of jurisdiction to determine the application or requiring it to refuse the permission sought, the Board may grant the permission sought. The Notice Party relies on Millbourne Residents Association v An Bord Pleanála [2024] IEHC 31 and the presumption against radical amendment considered at para. 14 thereof.

 

166. Bolger J. stated, in Millbourne Residents Association:

"14. If the Oireachtas had intended to make such a significant change to the planning system, depriving the Board of jurisdiction to determine an application to it where the development plan had changed between the decision of the planning authority and when the application came before the Board, I believe this would have been expressly stated by the Oireachtas. This is supported by the Presumption Against Radical Amendment, a principle that was expressly endorsed by the Supreme Court in DPP v. Davitt & Attorney General [2013] IESC 17 where Dunne J., at para. 100, referred with approval to Dodd, Statutory Interpretation in Ireland (Bloomsbury Professional, 2008) at para. 4–110 which states:

"It is presumed that the legislature does not intend to make any radical amendment to the law beyond what it declares, either in express terms or by clear implication. Where provisions give rise to plausible alternative constructions, one of which is a narrow interpretation and one of which is a wider interpretation that radically changes the law, the narrow interpretation may be preferred. It is considered improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law without expressing its intentions with irresistible clarity. It is presumed that the legislature does not intend to change the law beyond the immediate scope and object of an enactment. The more radical a change, the more weight may be assigned to the presumption. There are many examples of this presumption being applied in Ireland."

 

167. Millbourne Residents Association related to the remittal of an appeal to the Board after a change of development plan. As Bolger J. noted, at para. 12, the powers of the Board in that case included the power to request submissions from the public and to request further information from a person, under sections 131 and 132 of the 2000 Act and require relevant material or information to be made available for inspection (section 146). These options were not open to the Board under the 2016 Act. The procedure for applying for a strategic housing development under the 2016 Act has been much criticised and has been repealed. As noted above, one significant limitation of that procedure was the inability of the Board to make a request for further information and to facilitate further public participation if that considered that appropriate in order to determine the application.  The instant case is a stark illustration of the impact of these restrictions.

 

168.  The effect of the interpretation urged by the Board and Notice Party is to bring about a situation where the Board is required to decide an application without any submissions on the plan which the Board is required to apply in deciding whether the grant of permission is consistent with the provisions of the applicable development plan.  A material contravention statement which only addresses a plan which has ceased to have effect by the time the Board determines the application does not fulfil the objectives of such a statement. The Notice Party did not engage with the question whether or not a material contravention existed in respect of car parking, or the provision of accessible spaces (or any other matters which may have been considered to give rise to a material contravention of the 2021 Plan) nor could it do so; as it has submitted, it is not clairvoyant. Similarly, the public was deprived of the benefit of an effective material contravention statement.

 

169. In DPP v. Davitt & Attorney General [2023] IESC 17 Dunne J. held that the Oireachtas had not intended to repeal the system of prosecution of offences in the District Court by court presenters when enacting legislation to regularise the manner in which prosecutions were carried out by members of An Garda Síochána, by providing that prosecutions should only be carried out by members of the Gardaí in the name of the DPP.  Dunne J. held that the legislation contemplated the possibility that more than one garda may be involved in the instituting and conducing of proceedings.  She was fortified in that view by the presumption referred to by Dodd as the presumption that "the legislature does not intend to make any radical amendment to the law beyond what it declares, either in express terms or by clear implication".

 

170. The application of that presumption to the instant case does not necessarily lead to the interpretation of the statutory scheme advanced by the Board and Notice Party. As the Board acknowledges in its opposition papers, the purpose of the obligation in section 8(1)(a)(iv)(I) and (II) of the 2016 Act is "is to require that the notice published contains certain "statement[s]" with a view to informing members of the public of the proposed application and a number of specified particulars of same." These include setting out how the proposed development is consistent with local planning policy and, if it materially contravenes the applicable development plan, why the grant of permission is justified notwithstanding that material contravention. The sole objective of informing the public of these matters is to enable members of the public to participate in the process by making meaningful submissions to the Board. This was impossible in this case due to the timing of the application and coming into effect of the 2021 Plan.

 

171. In Redmond (No. 2) Simons J. held that under the 2016 Act, the fact that a proposed development represents a material contravention of a development plan has implications for the processing of the application. He referred to the obligations in section 8(1)(a)(iv)(II), which allows members of the public to make meaningful submissions to the Board, thereby ensuring effective public participation.  He stated:

"21. This ensures effective public participation. Moreover, it reflects the especial importance attached to the development plan under the PD(H)A 2016. There are statutory restrictions on the board's jurisdiction to grant planning permission for proposed development in material contravention of the development plan. These statutory restrictions are stricter in the case of a "strategic housing development" application under the PD(H)A 2016 than they are in the case of a conventional planning application. The board cannot grant planning permission under the PD(H)A2016 where the proposed development, or a part of it, contravenes materially the development plan in relation to the zoning of the land. This difference in treatment between a "strategic housing development" application and a conventional application is, presumably, intended to reflect the fact that an application of the former type is made directly to An Bord Pleanála without there being any first-instance application to the local planning authority. The enhanced status afforded to the zoning objectives ensures that the planning authority's role, as author of the development plan, in setting planning policy, is respected."

 

172. Unlike in Redmond, the Notice Party had referred to a potential material contravention of the 2013 Plan in relation to car parking provision in its application and a justification was offered in case the Board found that the proposed development did contravene the development plan materially. The Statement of Consistency also referred to the then Draft Development Plan, which had been published with Material Alterations. The Planning Authority had not yet considered the submissions made in respect of the Draft Plan with Material Alterations and had not adopted the Plan at that stage.

 

173. As the Board had not determined the application before 3rd November 2021, it was required to consider the application under the 2021 Plan, which had been adopted after the application had been made. As appears from the extracts of the Draft Development Plan and the Plan as adopted on 22nd September 2021, the Plan was not adopted in the same terms of the December Draft. In particular, there are differences in relation to the car parking requirements, and EV charging points, which the Applicant contends the proposed development materially contravenes.

 

174. As McKechnie J. noted, in Byrne v. Fingal County Council those adversely affected by planning decisions must abide the result and "must suffer the pain, undergo the loss and concede to the public good" Similarly, in Balz v. An Bord Pleanála [2019] IESC 90, O'Donnell J. (as he then) stated that members of the public are expected to live with decisions with which they may profoundly disagree. As O'Donnell J. stated in Balz:

"It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decision making institutions if the individuals concerned, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live."

 

175. This applies to applicants for permission as well as members of the public.

 

176. The Board and the Notice Party state, in their respective Statements of Opposition, that a developer "cannot know the form in which the elected members of the PA will, at some point in the future, make a development plan." and that "The 2016 Act does not oblige an applicant for permission to engage in clairvoyance and predict the form and wording of a Development Plan which is not yet in force when the application is made. This is entirely contrary to the principle of legal certainty and the plain ordinary wording of the 2016 Act and places an unjustified obstacle to applications being determined where the Development Plan changes during the pendency of the application."

 

177. The same is true for the public who, unlike an applicant for permission, can have no control over the timing of an application for permission. I agree with the submission of the Notice Party that it is not required to explain why it did not make its application until 5th August 2021, having obtained the pre-application Opinion of the Board on 16th January 2020. However, allowing such a lengthy period to elapse, during which time the statutory process for making a new development plan was underway, was not without risk.

 

178. At para. 30 of Redmond (No. 2), Simons J. stated that the argument that Mr. Redmond had identified the material contravention and made submissions thereon, "overlooks the fact that the purpose of giving public notice of a proposed material contravention is to allow all members of the public concerned an opportunity to make submissions or observations on the planning application." He found that the principal issue which would arise upon remittal would be different to that addressed in the application; whether any of the criteria in section 37(2)(b) which allow An Bord Pleanála to grant planning permission in material contravention of the development plan have been fulfilled. As the developer had not sought to justify any material contravention of the plan, neither Mr Redmond, nor the public, had a proper opportunity to address those matters in the context of the original planning application.

 

179. In refusing to direct remittal, Simons J. held that the failure to identify and address the material contravention in the application amounted to noncompliance with the prescribed procedure, which could not be remedied by the form of remittal sought by the developer.  He held:

 

"In particular, the absence of any allowance for further public participation would mean that the making of an order for remittal would result in a risk that planning permission would be granted in material contravention in circumstances where the public were not properly notified nor given an opportunity to make submissions or observations on the developer's case as to why planning permission should be granted notwithstanding the material contravention." (para.42).

 

180. As the Board states in its Statement of Opposition, the legislative intention underpinning the 2016 Act is to provide for the streamlined and expedited determination of applications for planning permission for large-scale residential development, in the context of a national housing shortage crisis. Simons J. noted, at para. 43, that "The benefit to the developer in terms of a saving of time is greatly outweighed by the prejudice to the public participation rights." In Crofton, Donnelly J. held that it would not have been unlawful for the Board to reconsider the decision in Redmond, although the application, if remitted, would inevitably fail (para. 54). Section 50A(9A) had not come into effect when Redmond was decided. As Donnelly J. stated, it is the developer who would bear the risk of unnecessary delay, or even a (possible) risk of an unlawful decision being granted by the Board and subsequent judicial review proceedings.

 

181. Section 9(1) of the 2016 Act requires the Board to consider inter alia, the report of the planning authority and any submissions or observations duly received by the Board consequent on the public notice before determining the application.  Section 9(2) provides that:

"In considering the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the strategic housing development, the Board shall have regard to—

(a) the provisions of the development plan, including any local area plan if relevant, for the area ..."

 

182. The Board may grant permission in material contravention of the Development Plan, other than in respect of zoning, in the circumstances set out in section 9(6) i.e. where the Board considers that if section 37(2)(b) of the 2000 Act were to apply, it would grant permission.

 

183. Public participation is at the heart of the planning process and has been a fundamental aspect of the process since the coming into force of the Local Government (Planning and Development) Act, 1963. The public has the right to participate in the making of a development plan: Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99; Crofton (Holland J.); sections 11 and 12 of the 2000 Act. Thereafter, the right to make submissions in the planning process has been provided for since the coming into force of the 1963 Act. Consideration by the decision maker of submissions made in the planning process supports public trust in the process and makes it easier for those who are disappointed to live with adverse decisions. If the public is deprived of the opportunity of making meaningful submissions in relation to material contravention or any potential justification for granting permission in material contravention of a development plan, this would tend to undermine rather than support the role of the public in the planning process and the confidence which the public has in the system.

 

184. In Kelly Dunne & Ors v. Guessford Limited [2022] IECA 223 Costello J. (as she then was) considered the role of public participation in planning and environmental matters.  She stated:

"69. It is always important to bear in mind the importance of public participation in environmental matters, including applications for planning permission, and to ensure that the right of the public to participate in environmental decision making is secured and facilitated by requiring both the applicant for planning permission and the planning authority comply with the provisions of the planning code which facilitate this. Of particular relevance to this case are the obligations to fairly put the public on notice of the application in respect of which permission is sought and in particular the scope and nature of the activity."

 

185. The Board decided the application based on the application, submissions and Inspector's Report. Although the draft Plan was addressed in the Statement of Consistency, neither the Material Contravention Statement, submissions on the application nor the Inspector's Report had addressed the question of material contravention of the Plan which the Board was required to consider, and did consider, in determining the application. At the date of the application, it was clear that there was a real risk, if not likelihood, that the application would have to be determined under the 2021 Plan when adopted.

 

186. In Crofton, Donnelly J. noted the concession by the appellants that "if the Board decided to refuse permission on the basis that the changes to the 2016 plan could not be accommodated in the procedure before it, then the Board's decision would be valid." As Donnelly J. held that the question whether remittal was lawful did not entail a consideration whether the Board could lawfully grant a permission. For that reason, the Supreme Court did not consider whether it was open to the Board to grant the permission sought if the application was remitted. 

 

187. A point made in the submissions of the Applicant to the Board, having adopted the submissions made by their solicitor on behalf of residents of Park Crescent in Drogheda, was that "as identified in Redmond it is for the applicant to address the question of material contravention in advance of making a planning application. It is not for the Board to make this determination since the Board has no way of giving the public notice of identified material contraventions."

 

188. This highlights a peculiarity of the SHD process which precluded the Board from giving the public an opportunity to address any matter which was not contained in the application as originally made.

 

189. In Redmond (No. 2) Simons J. held:

"40. It behoves an applicant for strategic housing development to address their mind properly to the question of material contravention in advance of the making of a planning application. If, as will happen occasionally, the developer and its advisors misinterpret the plan and fail to recognise that a material contravention is involved, then the legal consequence is that the planning application is invalid. The legislation does not allow the developer's error to be visited upon the public by undermining their rights of public participation."

 

190. This was followed by Holland J. in the High Court in Crofton Buildings Management CLG v. An Bord Pleanála [2022] IEHC 704 and Jennings v. An Bord Pleanála [2023] IEHC 14.

 

191. In my view, it was not open to the Board to grant the application as it was required to apply section 9(6) in respect of the 2021 Plan without the benefit of submissions by the Notice Party, and without the public having had the opportunity to make meaningful submissions on the question whether permission should be granted in material contravention of that Plan.  The Development Plan has an enhanced importance in SHD applications, and the Board was precluded from making a request for further information, as it could have done for an application made under the 2000 Act. It is not necessary for me to consider whether the holding of an oral hearing would potentially have altered the position as that is not in issue in the proceedings.  The Notice Party rather than the public must bear the risk arising from the timing of the application. It could have made the application at an earlier stage in the process leading to the adoption of the 2021 Plan or waited until it had been adopted and/or come into force. The ability of public to make meaningful submissions on material contravention was frustrated by the timing of the application and determination of the application, relative to the date on which the 2021 Plan came into force. The period during which there is a risk of an application being decided on the basis of a different development plan than that considered in the Material Contravention Statement and applicable for the period of public participation is necessarily short, and only occurs once in each development plan cycle.

 

Conclusion

192. The SHD application was made after the public consultation period for the Draft Plan with Material Amendments had closed but before Meath County Council had considered the submission made and adopted the 2021 Plan. The opportunity for the public to make submissions on the application ended before the 2021 Plan was adopted.

 

193. The only issue raised by the Notice Party as a potential material contravention was the provision of 181 car parking spaces. The Material Contravention Statement submitted that it was not a material contravention of the 2013 Plan, which required 313 spaces, subject to the Board having discretion to allow a development with a reduced number of spaces. As a result, the public did not have an opportunity to address the question of material contravention of the 2021 Plan, which came into effect on 3rd November 2021 and no justification was proposed for granting permission in material contravention of that Plan. The number of spaces required by that Plan was 452, subject to the flexibility and planning judgement afforded to the Board. In considering the application, the Inspector considered a baseline number of 402 spaces. I find that the Board had not interpreted the Plan correctly for the reasons set out above. Therefore, I am satisfied that the Board did not exercise the discretion left to it by the Plan in a lawful manner for the reasons set out herein.

 

194. Furthermore, the 2021 Plan required a minimum of 9 accessible spaces and 20% of the spaces provided were required to be ducted and wired to enable the installation of EV charging stations or points in the future.  The development as proposed exceeded the number of accessible spaces required by the 2013 Plan, which Plan did not contain any requirements for EV vehicles. The 2021 Plan did not provide for flexibility or permit the Board to exercise planning judgment in relation to the number of accessible spaces or spaces which should be wired and ducted for EV vehicles. I have found that the development as proposed and authorised materially contravenes the Plan in relation to accessible spaces, but that the contravention of the development as authorised in relation to EV vehicles is not a material contravention. Instead of 36 (or 37) spaces being wired and ducted for future EV charging stations or points, the development as authorised requires 18 spaces to have functioning EV points and all remaining spaces to be ducted, but not wired.

 

195. Having regard to the findings made in respect of the provision of car parking spaces and accessible car spaces, it not necessary to decide whether the Board may lawfully grant permission for a development where the development as proposed by the developer materially contravenes the development plan but a condition is imposed, the effect of which would be to render the development as authorised consistent with the Plan.

 

196. The Board did not apply section 9(6) of the 2016 Act and granted permission in material contravention of the Plan in two respects. As the Board found that the proposed development did not materially contravene the Plan, it did not consider whether the grant of permission was justified despite those material contraventions of the 2021 Plan. As Woulfe J. held in Sherwin, if a material contravention arises in respect of a matter which was not addressed by the Board, the Board's decision breaches section 9(6) and is invalid.

 

197. Having regard to the importance of a development plan under the 2000 and 2016 Acts, the Board's decision to grant the permission sought is invalid and it is appropriate to quash the permission.

 

Order

198. I shall grant an order of certiorari of the Board's Order dated 23rd November 2022 (ABP-311028-21 ) to grant permission to the Notice Party subject to conditions for the development proposed.

 

199. As this judgment is being delivered electronically, I express the provisional view that the Applicants should be entitled to an order for their costs as against the Respondent, such costs to be adjudicated in default of agreement. I will list the matter before me at a date to be notified to address any arguments that may be required about the form of final orders. However, I invite the parties to seek to come to an agreement in advance of that date on those matters.

 

 

Emily Farrell

 

 

 

 

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