Permission for Docklands “Factory-Cum-Apartment-Complex” Quashed
11 June 2021 | 4 min read ⧖
EWR Innovation Park Ltd (EWR) proposed to replace most of the existing commercial units at a docklands site with six residential blocks, leaving three of the existing operating industrial units in place. The development was to comprise 366 dwellings, childcare facilities and “associated site works”. An Bord Pleanála (the Board) found that the grant of permission would materially contravene the development plan due to building heights. However, the Board determined that this was permissible under certain provisions of the Planning and Development Act 2000 (PDA). Permission was granted with 26 conditions. Atlantic Diamond Limited, a commercial tenant in the Docklands Innovation Park, East Wall, challenged this decision to grant permission.
The High Court determined that there were three grounds of challenge, those being:
Lack of reasons for rejecting the submissions made
An erroneous approach in relation to the issue of daylight and sunlight, and
An incomplete application contrary to the prescribed form
Lack of reasons
Atlantic submitted to the Board that “building 336 apartments in an industrial estate is without precedent and would be a grave planning error.” The High Court held that, although there was debate around whether the scheme was truly unprecedented. The alleged unprecedented nature was a main issue and there was no clear reason provided as to why that was not a basis to refuse the permission. Atlantic raised concerns that children playing in the area would not be safe and that parents would consider they required constant supervision. The compatibility of industrial operations, and the noise and use of equipment this entails, with residential development was also raised as an issue. The High Court held that the Board is entitled to prefer one set of expert opinion over another. However, it found that the Board did not provide clear reasons to address Atlantic’s main points, particularly regarding the movements of heavy vehicles and outdoor equipment.
Daylight and sunlight analysis
The Board raised a standing issue against Atlantic as Atlantic did not raise objections on this point before the Board and would not be personally affected. The High Court held that “there is no rule that you can only make points in a planning context that you are personally affected by”. It continued that “if matters were otherwise, this point could not be raised by anybody because the people most affected, the potential purchasers, are a class that is yet to crystallise.”
The inspector’s report stated that an average daylight factor analysis indicated that of 135 rooms tested, 125 exceeded the Building Research Establishment (BRE) guidelines. The judgment notes that this is based on the developer’s interpretation of the guidelines and is a question of interpretation of a document with some legal relevance. In addition, the developer’s daylight study identified the average daylight factor guidelines for kitchens at 2% and living rooms at 1%. However, the study did not articulate that the dwellings proposed contained combined kitchens and living rooms. It was held that this methodological gap would “be fatal in itself”. When considered in light of the fact that the British Standard requires that the highest standard of a combined room be applied, which has a direct read across to the BRE standards with which the developer claimed compliance, “a certain laxity in scrutiny” was displayed. The Court did not accept the Board’s defence that the government policy documents, namely the Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities (2018) and the Urban Development and Building Heights: Guidelines for Planning Authorities (December 2018), are permissive. The Court stated further that the ministerial documents are binding mandatory statutory guidelines which require as a matter of legal obligation that the decision-maker have appropriate and reasonable regard to identified standards.
Lack of disclosure of details of enforcement notices as part of the application
EWR failed to give details on any statutory enforcement notices as required in the application form for a strategic housing development. The High Court rejected the notice party’s characterisation of this head of challenge as formalism. The High Court referenced that “formalism is not always to be condemned where it might contribute to making a better decision or could make a difference. I don’t think one could say that no reasonable board could have taken account of the enforcement information had it been provided. So one can’t say that it couldn’t have made any difference.”
The High Court made an order quashing the decision of the Board to grant permission to EWR for the proposed development, along with an order that remittal would not be appropriate. EWR, should it so choose, will be required to submit a new application.
This judgment shows that the courts will not be afraid to intervene in situations where the Board does not sufficiently address queries raised by objectors. The judgment also highlights the need for the Board to conduct its own enquiries in relation to developments, and not merely rely on information provided by the developers. It seems that in developments of this particular type, whether unprecedented or not, developers should pay particular attention to safety concerns and integration of the different aspects of the development.
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