Supreme Court of Ireland Decisions

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Pembroke Road Association v. An Bord Pleanála & Ors

Waltham Abbey Residents Association v. An Bord Pleanála & Ors

[2022] IESC XXX

On appeal from: [2021] IEHC 403 and [2021] IEHC 312

The Supreme Court has today dismissed the appellant’s appeal in Pembroke Road Association and allowed the appeal of An Bord Pleanála in Waltham Abbey.

Composition of the Court

MacMenamin, Charleton, O’Malley, Baker, Hogan JJ.

Background to the Appeal

These appeals arise out of two separate decisions of the High Court: the first is the decision of Owens J. in Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 and the second is the decision of Humphreys J. in Waltham Abbey Residents Association v. An Bord Pleanála [2021] IEHC 312. The Supreme Court considered that it would be appropriate to deal with both appeals together because both decisions raise an identical question of law, namely, whether the word “statement” in Article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 (“the 2001 Regulations”) requires a distinct, identifiable document supplying the relevant results of the various environmental assessments (other than an Environmental Impact Assessment) required by a variety of EU Directives to be included in a planning application for a strategic housing development.

Two further issues arise out of Pembroke Road Association only. The first issue concerns the use of s. 146A of the Planning and Development Act 2000 in order to allow the Board to amend Condition 26 in its grant of planning permission along with the related question of whether the High Court was correct to consider this amendment to be non-material. The second issue concerns the interpretation of the Building Height Guidelines and, in particular, whether the Board is required to expressly consider whether the relevant Development Plan is consistent with the National Planning Framework or whether the Board can consider this to be ‘self-evident’.

The Pembroke Road Association proceedings concerned a planning application in which the developer sought permission for a development which included an apartment building comprising of 112 units, an ‘aparthotel’ with 10 suites, and associated development at Herbert Park in Ballsbridge in Dublin. The Waltham Abbey proceedings concerned a decision of the Board to grant planning permission pursuant to an application made under the Planning and Development (Housing) and Residential Tenancies Act 2016 for a strategic housing development at Old Fort Road, Ballincollig, Cork. This application comprised of 123 residential units and associated works.

Judgment

The Supreme Court held that, having regard to the construction of the 2016 Act and the Regulations as a whole, Article 299B(1)(b)(ii)(II)(C) does not require a distinct and identifiable statement of this kind to be supplied by the developer. It suffices that the Board has the information to hand and adequately considers same when making its decision. The Supreme Court therefore dismissed the appeal of Pembroke Road and allowed the appeal of An Bord Pleanála in Waltham Abbey on this issue.

The Supreme Court dismissed, moreover, the additional arguments advanced in Pembroke Road in relation to the use of s. 149A of the Planning and Development Act 2000 (“the 2000 Act”) and the Urban Development Building Height Guidelines (“the Building Height Guidelines”).

Reasons for the Judgment

Hogan J considered that the word “statement” in Article 299B read alone suggests the existence of a separate, identifiable document “indicating how the available results of other relevant assessments of the effects on the environment… have been taken into account” [27]. This, he reasoned, was obvious from the distinction drawn by the drafters of the 2001 Regulations between the use of the word “statement” in contradiction to “information” [27]. But he also considered that interpreting the word “statement” and the effect of a failure to deliver one in this way would lead to a result which was contradictory and incoherent. For this reason, he held that the Court must look at the Regulations as a whole in order to ascertain the proper interpretation of Article 299B [32]. Applying the principle of noscitur a sociis, Hogan J noted first that the statement is one addressed to the Board and is not for the benefit of the general public. The requirement of a statement seeks, therefore, to facilitate good administration and to ensure the Board has all the relevant information readily at its disposal [38]. It follows, accordingly, that the failure to supply such a statement would not in any real sense lead to any impediment to the Board: the Board was clearly capable in these appeals of interpreting the data and the analysis furnished by the developers without a distinct and identifiable statement of the relevant information [39].

The second critical aspect of these appeals that Hogan J considered relevant to the statutory context was the fact that if the Supreme Court were to hold that the requirements of Article 299B imposed a mandatory obligation on developers to supply a distinct and identifiable statement - the breach of which led to the invalidation of the permission - a strange and contradictory state of affairs would result [40]. Hogan J observed that no other relevant statutory provision imposes an obligation to supply such a statement. He noted, in particular, that Form 14 - the statutory application form pre-scribed by the 2001 Regulations - does not require a developer to complete a separate statement for the purposes of Article 299B (despite requiring several other kinds of statement) [41]. Thus, he reasoned, it would be a “curious practice” if permission were to be invalidated for the failure on the part of the developer to supply a “statement” for the purposes of Article 299B when there was no such obligation in any other statutory form or provision [40]. For these reasons, Hogan J concluded that the principle of noscitur a sociis ought to apply, overriding the ordinary and natural meaning of the word “statement” that would be adopted if one were to view Article 299B in isolation [47].

In respect of the issue arising in Pembroke Road Association relating to the use of s. 146A of the 2000 Act, Hogan J in the first instance considered the nature of the remedy of certiorari, noting that, following the decision of the Supreme Court in Balz v. An Bord Pleanála [2020] IESC 22, it is clear that in some instances it may be appropriate for a court to place a stay on the order of certiorari [51-52]. Hogan J held that the circumstances in Pembroke Road Association gives rise to one such instance. He agreed with the conclusions of Owen J in this respect to the effect that the Board clearly intended that a financial contribution should be levied, but had simply identified the wrong statutory provision for this purpose [61]. Hogan J considered that the correction of this legal basis did not “in any sense materially affect the original permission” and that therefore allowing the Board to use s. 146A to make such a correction would not affect the integrity of the planning decision [61-62]. He accordingly held that Owens J was correct in holding that the Board was entitled to invoke s. 146A in order to correct its previous error [63].

In the same vein, Hogan J considered the argument that Owens J wrongly exercised his discretion by allowing the proceedings to be adjourned in circumstances where there is an allegation that the developer had not complied with pre-commencement conditions in demolishing three properties on the site of the proposed development [65]. In dismissing this argument, Hogan J held that even if the developer was guilty of the misconduct alleged, equity does not permit discretion to be exercised against those who have (allegedly) misbehaved in order simply to punish them or to exact some form of vengeance [69]. In these circumstances, and in circumstances where the Board had in fact granted permission for the demolition at issue, Hogan J concluded that Owens J was right to adjourn the proceedings and to allow the Board to avail of the s. 149A jurisdiction [72].

The final issue considered by Hogan J relates to the Building Height Guidelines. In the first instance Hogan J agreed with Owens J that it is evident that the current Dublin City Development plan does contain blanket height restrictions, subject only to exceptions at a range of discrete locations such as the Docklands, Heuston, Connolly and George’s Quay areas [82], and that the proposed strategic housing development in Pembroke Road Association would materially contravene these height limits. He considered, however, that permission could be granted having regard to the guidelines under s. 28 of the 2000 Act, specifically SPPR 3 (“specific planning policy requirement”), and that an express identification of the want of alignment between the height requirements and objectives of the Dublin Development Plan on the one hand and the ministerial Guidelines (and, by extension, the National Planning Framework) on the other was not required since this was obvious and it is necessarily implicit in the Board’s determination that alignment was considered [83-84]. On this basis, Hogan J dismissed the appellant’s argument on this issue.

Note

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.

Case history

31st May 2022                                     Oral submissions made before the Court 

[2021] IESCDET 100                            Supreme Court Determination (Waltham Abbey)

[2022] IESCDET 100                            Supreme Court Determination (Pembroke Road)

[2021] IEHC 403                                     Judgment of the High Court (Pembroke Road)

[2021] IEHC 312                                     Judgment of the High Court (Waltham Abbey)