Trailford Limited had applied for permission to An Bord Pleanála to develop 661 residential units and neighbourhood facilities through the new fast track strategic housing development (SHD) procedure. The High Court found that An Bord Pleanála did not adequately consider the effects that the proposed development could have on bird species, such as the Lapwing and Golden Plover, in the Boyne Estuary Special Protection Area. An Bord Pleanála’s screening out of potential significant effects on four nearby Natura 2000 sites was also found to be in error.

New SHD fast track procedure

Trailford Limited applied for permission under legislation providing for a fast-track planning procedure where developers can bypass the local planning authority and apply directly to An Bord Pleanála for permission. This is under the Planning and Development (Housing) and Residential Tenancies Act, 2016 for substantial housing developments which fall within the ambit of the definition of “strategic housing development” in s. 3 of the 2016 Act.

Under section 3 of the 2016 Act, a “strategic housing development” includes a development of 100 or more houses on land zoned for residential use or a mixture of residential and other uses. The definition also includes development of student accommodation units containing 200 or more bed spaces, on land zoned to facilitate the provision of student accommodation or with a mixture of uses. This is subject to the restrictions contained in s.3 of the 2016 Act, including zoning requirements.

Requirement for adequate surveys

The High Court found that the decision of An Bord Pleanála on whether they have sufficient information is a matter for An Bord Pleanála. However, the Court could intervene if it is clear on the basis of the evidence before the Court or based on objective material that there was a gap in the information provided to An Bord Pleanála.

The Court found that An Bord Pleanála had inadequate information on the effects on avi-fauna arising from the proposed development to exclude the potential for significant effects at the screening stage for an appropriate assessment.

The Court found that An Bord Pleanála did not have adequate information before it to rule out whether certain birds would use areas affected by the development for alternative high tide roosts, as a foraging resource, or for overflight purposes. The birds concerned are a protected species within the Boyne Estuary Special Area of Conservation and other Natura 2000 sites. The Court found there was nothing in the documentation submitted to An Bord Pleanála to suggest that a survey was carried out specifically with a view to identifying whether any part of the subject lands were used by the concerned bird species. The Boyne Estuary SPA has been designated an SPA for the conservation of the bird species, in particular the Lapwing and Golden Plover, Knot, Black-tailed Godwit and Turnstone. These are species listed as threatened bird species in Annex I of the Birds Directive. The wetland habitats contained within Boyne Estuary SPA are identified as being of conservation importance for non-breeding (wintering) migratory waterbirds. Therefore the wetland habitats are considered to be an additional Special Conservation Interest.

Judgment

As a result, the Court found that “there is an obvious lacuna in the information before the Board in relation to bird surveys”. An Bord Pleanála could not have made an accurate decision on whether an appropriate assessment was required. The screening exercise did not comply with the requirements of s. 177U (1) and s. 177U (5) of the Planning and Development Act 2000 (as amended).

The High Court found that An Bord Pleanála did not adequately consider the effects that the proposed development may have on protected bird species in the Boyne Estuary Special Protection Area. An Bord Pleanála’s screening out of potential significant effects on four nearby Natura 2000 sites was also found to be in error.

The Court also found that the land was not zoned for residential purposes at the time of the grant, and therefore the Permission should not have been granted. In addition, mitigation measures were taken into account at the screening stage. It is established law that these measures cannot be taken into account in the stage one screening exercise.

Conclusion

An Bord Pleanála’s decision to grant permission for the SHD at Drogheda was quashed due to the inadequacy of the surveys before An Bord Pleanála. The Court also found that the land was not zoned for residential purposes at the time of the grant, and therefore the Permission should not have been granted. In addition, mitigation measures were taken into account at the screening stage. It is established law that these measures cannot be taken into account in the stage one screening exercise. This case reflects how important the Environmental Impact Assessment Report, Appropriate Assessment Screening Report and NIS submitted to An Bord Pleanála is for developers. Such a report should include all pertinent information required for An Bord Pleanála to carry out an appropriate assessment screening and, if necessary, appropriate assessment. Without this, a decision is vulnerable to being overturned by the Courts.

For more information and expert advice on seeking planning permission for similar developments, contact a member of our Planning & Environment team.