Background

These appeals arise out of two separate decisions of the High Court: the first was the decision of Mr Justice Owens in Pembroke Road Association v An Bord Pleanála [2021] IEHC 403 (dated 16 June 2021) and the second was the decision of Mr Justice Humphreys in Waltham Abbey Residents Association v An Bord Pleanála [2021] IEHC 587 (dated 10 May 2021). 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 requires a distinct identifiable document to be included in a planning application for a strategic housing development. This was the central issue to be determined.

The decision

EIA screening / Article 299B

The High Court decisions of Waltham Abbey Residents [2021] IEHC 587 and Pembroke Road [2021] IEHC 403 both concerned questions surrounding the making of a “statement” to An Bord Pleanala (the Board) explaining environmental assessments the applicant had undertaken. Such a “statement” is legally required under Article 299B.

Each High Court judge, one month apart, ruled that a different method was required when submitting the “statement” in question. Mr Justice Humphreys, in Waltham, had held that the statement needed to be submitted within a distinct and identifiable document, separate to the rest of the application and that otherwise, the granting of planning permission should be revoked. Mr Justice Owens, in contrast, decided that as long as the “statement”, or explanation, is included somewhere in the application, such that the Board can assess whether Article 299B was complied with, then any granting of planning permission should be upheld. For example, Mr Justice Owens held in Pembroke Road that locating the statement within the Environmental Impact Screening Report was sufficient.

Siding with Mr Justice Owens, Mr Justice Hogan of the Supreme Court explained that the word “statement” derives its meaning from the context in which it appears. The context surrounding this issue was, firstly, that the statement at hand was addressed to the Board, to ensure they had all the information required to make a good administrative decision. Mr Justice Hogan explained that we should not be dismissing the ability of the Board to conduct evaluations required by EU law because of a mere technicality in the way that information was submitted to them. He described the submission of a statement as part of the general file as “[no] real impediment” to the Board, who are well used to navigating complex environmental and planning documents.

Secondly, Mr Justice Hogan determined that 299B cannot be read as imposing an obligation that the “statement” be submitted in a particular way, because the surrounding context is that similarly
relevant legislation imposes no obligations of the sort.

Thirdly, any requirement to submit the “statement”in a distinct and identifiable document was not directed by the legislation in question, even though there was a particular part of this legislation
(Schedule 12 of Article 299B) which exists solely to mandate that certain forms are submitted separately. This is significant because that very Schedule prescribes that specific forms are used for other submissions, and if a distinct form was required for the “statement” at hand, Schedule 12 surely would have provided for it, but it did not.

The Court cannot infer that the Oireachtas intended that developers could be penalized for failing to supply a statement supposedly required by Article 299B, when that Article was itself unclear that such a distinct statement was required. Any such interpretation would be unworkable and incoherent, which goes against well-established law. The Supreme Court concluded that the failure to supply a separate “statement” did not interfere with the Board’s ability to discharge its statutory functions in any real way.

Financial contribution in lieu of dedicated public space

The development in Pembroke was being built next to Herbert Park in Ballsbridge, Dublin. On this basis,the Board permitted that a financial contribution could be paid instead of requiring the developer to convert 10% of the land into a public open space, which is ordinarily a mandatory requirement. Mr Justice Hogan held that the Board had not been entitled to do this because they had relied on an incorrect legal provision of the Planning and Development Act 2000, as amended (PDA) to justify their doing so. He further held, however, that the Board could substitute in the correct legislative reference without the permission having to be quashed, by using Section 146A of the PDA.

This could be done because the error of the Board was purely clerical, and therefore, the substitution was not going to materially affect the planning permission that had been granted.

Building of a tall structure

The Board granted planning permission for a 12-storey building. While this is a material contravention of the height limits of the Dublin City Council development plan, it is permitted by s. 9(6) (c) of the the Planning and Development (Housing) and Residential Tenancies Act 2016 (2016 Act), because it does not relate to land zoning, and also had regard to the strategic or national importance of the proposed development and SPPR 3 (specific planning policy requirement) contained in the ministerial guidelines relating to building heights. Contravening a development plan like this is only permitted however when the contravention isdemonstrated or identified by the Board in the written decision, which seemed to be missing here. The Supreme Court agreed with Mr Justice Owens in the High Court that it was, at least, necessarily implicit in the Board’s determination that it paid appropriate attention to the general objectives of the ministerial guidelines and the need to comply with the combined requirements of the 2016 Act and the PDA.

Conclusion

Mr Justice Hogan described Ireland’s planning laws and regulation as “impossibly complex” and suggested that modern architects and builders are daunted by them. The Oireachtas, he stated, intended to deal with “a growing housing crisis” when they introduced legislation in 2016 to speed up planning permission applications for strategic housing developments. The Supreme Court dismissed the seeking of an invalidation of planning permission here and clarified three issues in the process and therefore minimized disruptive consequences caused by trivial technicality errors.