High Court dismisses judicial review where planning condition fails to specify works for special contribution payment.

THE HIGH COURT JUDICIAL REVIEW [2021] IEHC 403 [2020 No. 761 JR] BETWEEN:

PEMBROKE ROAD ASSOCIATION APPLICANT -AND- AN BORD PLEANÁLA, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE RESPONDENTS -AND- DERRYROE LIMITED AND DUBLIN CITY COUNCIL NOTICE PARTIES JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 16 day of June, 2021.

1. When considering judicial review applications, courts must evaluate whether any non - conformity with a rule relating to procedural m atters is s ufficiently serious to justify intervention. I am cautious of accepting invitations to engage in analysis which suggests that resolution of an issue requires categorisation of any rule contained in legislation as m andatory, directory or jurisdictional. The se are terms used by lawyers and judges. The Oireachtas does not use these formulations and m ay not specify consequences of failure to com ply with statutory or other provisions.

2. Som e legal rules are m ore im portant than others. Som e breaches of a legal rule are of greater significance than others. The purpose for which a rule exists is relevant. Som e rules m ay have no discernible purpose or m ay be inessential. Com pliance with other rules is necessary in the interest of values which are identifiable and im portant. The significance of any breach of a rule m ay som etimes be m easured against the interest of the person complaining of that breach. Has that person a real interest in upholding a value which the law attaches to compliance or does the rule only exis t to protect an interest of others?

3. Where there is a request to set aside an adm inistrative process on the basis of an asserted lack of conformity, it is necessary to analyse what interests or values need to be protected by insisting on conformity.

4. Many of the legal rules in the planning code are designed to achieve im portant purposes in the public interest such as certainty and transparency, proper adm inistration and the right of the public to engage in effective participation. Courts have been relu ctant to disregard these rules and have in m any cases considered adherence to formal procedural requirem ents sufficiently im portant to either justify intervention by judicial review or to refuse judicial review in claim s seeking to enforce “default permissions”.

5. Other rules within this code m ay not come within the category of im portant rules in the public dom ain or m ay have no relationship to any legitim ate procedural, planning or environm ental concern of the person challenging the validity of a process or decision.

While, in general, a m ember of the public has sufficient interest to rely on any breach of statutory procedures, challenges based on breaches of rules designed to protect property rights of others in the context of m ateriality of identity of an applicant for perm ission have som etimes been looked on with disfavour.

6. Schwestermann v. An Bord Pleanála and Others [1994] 3 I.R. 437 is an exam ple of a case where this type of challenge failed. Another example is McDonagh and Sons Limited v.

Galway Corporation [1995] 1 I.R. 191 where the Supreme Court excused an unintentional m isstatement attributing ownership to an associate company of the real owner since it did not have the effect of m isleading anyone and could not possibly have been to the disadvantage of the planning authority or the public.

7. Pem broke Road Association has challenged the validity of a decision of An Bord Pleanála (the Board) to grant planning perm ission for a development which includes an apartm ent building of up to 12 storeys over basement at Herbert Park in Ballsbridge, Dublin 4 on a num ber of grounds.

8. The first ground of challenge asserts the application for perm ission should have been rejected because the “applicant” is not the sam e person as the “prospective applicant”

which participated in the statutory pre -application consultation process under Part 2 Chapter 1 of the Planning and Developm ent (Housing) and Residential Tenancies Act 2016 (the 2016 Act).

9. The second ground of challenge asserts that the application failed to include a statement prescribed by sub-article 299B(1)(b)(ii)(II)(C) of the Planning and Developm ent Regulations 2001 (S.I. No. 600 of 2001) (the Regulations of 2001), as inserted by article

94 of the European Union (Planning and Development) (Environm ental Im pact Assessment) Regulations 2018 (S.I. No. 296 of 2018) (the Regulations of 2018) and that the Board should have rejected the planning application on that ground.

10. The third ground of challenge asserts that the Board failed to engage with a provision in a m inisterial guideline issued under s.28 of the Planning and Development Act 2000 (the 2000 Act) before deciding to grant permission for buildings in excess of height lim its allowed by the Dublin City development plan.

11. The fourth ground of challenge asserts that the Board failed to have regard to the architectural status and historic significance of a house at 40 Herbert Park in determ ining that the proposed development is unlikely to have significant effects on the environment.

This is phrased as an objection that there is no evidence that the Board considered the significance of these m atters in m aking a screening determination not to require an environm ental im pact assessment under sub-article 299B(2)(b)(ii)(I) of the Regulations of 2001.

12. The final ground of challenge is that the Board incorrectly concluded that the proposed development did not involve m aterial contravention of provisions of the Dublin City development plan relating to public open space and that the Board relied on an inapplicable statutory provision in im posing condition 26 of the permission.

13. Pem broke Road Association is correct in its submission that condition 26 is invalid. I do not agree that the proposed development involves material contravention of the Dublin City development plan relating to public open space. I am also rejecting the other grounds of challenge. I will dism iss the applications for judicial review based on each of the rejected grounds of challenge.

14. It is clear that the Board would not have granted this permission without requiring financial contribution in lieu of public open space. It follows that it is not possible to regard the invalid condition as severable.

15. It rem ains to be seen whether the appropriate consequential order is to invalidate the order of the Board granting perm ission and remit the m atter for reconsideration. The only points which require reconsideration relate to the decision to im pose a financial contribution in lieu of public open space.

16. An alternative to invalidating the perm ission m ay be to adjourn granting judicial review to enable the Board to revisit the invalid elem ent by am ending the permission to include a valid condition in exercise of powe rs given by s.146A(1)(b) of the 2000 Act. An issue m ay also arise as to whether it is necessary, having regard to the provisions of s.50A(9) of the 2000 Act, to quash the entire decision of the Board.

17. I will now turn to the reasons for m y conclusions on each of the m atters raised.

18. The first m atter is the com plaint that the Board ought not to have entertained the application for perm ission because the applicant is not the same person as the “prospective applicant” which engaged in the statutory pre -application process.

19. Derryroe Lim ited (Derryroe) applied to the Board for perm ission for a strategic housing development using the special fast-track procedure contained in Part 2 Chapter 1 of the 2016 Act. The norm al planning process would have involved an initial application to Dublin City Council under Part III of the 2000 Act.

20. The special procedure requires a “prospective applicant” for permission to engage in the consultation process set out in s.5 of the 2016 Act. This process m ay conclude with an opinion of the Board under s.6(7)(a)(i) that documents provided under s.5(5) “constitute a reasonable basis for an application under section 4” for perm ission for a strategic housing development. The Board then issues a notice under s.6(7)(b) “to t he prospective applicant” who is perm itted by s.6(8) to apply to the Board for perm ission for the strategic housing development under s.4(1) by com plying with the requirements of section 8(1). Section 8 refers to m atters which “an applicant” for perm ission m ust comply with before applying under s.4(1) and during the course of that application. The 2016 Act envisages that any “prospective applicant” who gets through the pre -application process will be the applicant for perm ission.

21. Sim ilar provisions contained in ss.37A-37J of the 2000 Act were considered in the judgm ent of Barniville J. in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála and Others [2021] IEHC 203.

22. The definition of “prospective applicant” in s.3 of the 2016 Act has no equivalent in the provisions contained in ss.37A-37J of the 2000 Act. This definition requires that a “prospective applicant” have sufficient interest in the site. It is necessary to have due regard to this when assessing whether consequences flow from lack of correspondence between a “prospective applicant” and the applicant for permission.

23. In his judgm ent in Cork Harbour Alliance for a Safe Environm ent v. An Bord Pleanála and Others [2021] IEHC 203, Barniville J. exam ined the rationale for insisting on compliance with this aspect of the statutory scheme in circumstances where it was clear that the prospective applicant and the applicant were connected and had an identical interest in both the pre-application process and the planning application. I agree with what is stated in para. 245 of that judgm ent and with the approach adopted by Barniville J. No objective of the legislation would be undermined by giving the benefit of the statutory pre - application process to the applicant for permission in this case.

24. I should add that I would consider it to be within the discretion of the Board to treat an application for perm ission as valid where it is clear that there is sufficient continuity of interest in pursuing the application between a “prospective applicant” and the applicant. If the statutory intention that a “prospective applicant” m ust also be the applicant is not allim portant for a court, it should not be regarded as all-im portant for the Board either.

25. Whatever be the position, it is clear from the approach taken by Barniville J. in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála and Others [2021] IEHC 203, that he did not regard a requirem ent of identity of a “prospective applicant” and the applicant for perm ission as so set in the stone of “jurisdiction” that a court considering judicial review is precluded from taking any step other than that of treating the planning application as invalid where the identity of the applicant differs from that of the “prospective applicant”.

26. If this requirement were treated as “jurisdictional” in the sense that an absolute m andatory rule is enshrined in the 2016 Act, then there could never be room for exercise of discretion by the Board in deciding on admissibility of a planning application in circum stances such as the present one. It would also follow from such a rigid interpretation of the statutory fram ework that a court would not have any discretion to refuse judicial review. In m y view, there is no such absolute mandatory rule.

27. The purpose of the legislative provisions is to ensure continuity and identity of interest of the person seeking permission during the statutory process. It is not necessary that the person to whom permission is eventually granted m ust always be the sam e as an identified “prospective applicant” in order to uphold any legal value which underpins this rule.

28. In this case the statutory pre -application process was initiated by Lordglen Lim ited (Lordglen) in late 2019. Lordglen was one of the owners of th e site. Shortly before this, the issued shareholdings and directorships of Derryroe were changed to m irror those of Lordglen. Both entities are controlled by the same directing m inds.

29. The opinion of the Board under s.6(7)(a)(i) of the 2016 Act issued to Lordglen in December 2019.

30. The planning application was lodged by Derryroe in May 2020. The documents lodged with the application included letters of consent from the owners of the site. These included a letter from Lordglen which owns m ost of the site and were obtained after the Board issued its opinion. The other landowners gave consents in writing to Lordglen for the planning application which enabled it to initiate the pre -application process.

31. The Oireachtas has not considered it necessary to provide a definition of “applicant” in the provisions dealing with applications for permission under Part III of the 2000 Act or in those dealing with applications for perm ission under the 2016 Act. It has not been thought necessary to lay down rules re quiring personal qualifications of an applicant. Any person identified as an applicant or “prospective applicant” in these processes need not produce references or show capacity to carry through the proposed development.

32. The person who intends to develop or who carries out development is often different to the applicant for perm ission. Once a perm ission for development has been obtained, it m ay be availed of by any person who has sufficient control over the site. Permission does not, of itself, operate to allow any person to develop another person’s property without agreem ent or other legal right.

33. The statutory scheme for all applications for permission proceeds on the basis that an application will be m ade and processed to completion on behalf o f a nam ed applicant and that any perm ission or decision to refuse permission will issue to that person. There are no express rules on whether applications or appeals may be progressed by persons other than an applicant as identified at the outset of the process or covering issues such as the status of a perm ission which has issued after an applicant has died, or whether a change in the identity of a person who acts as an applicant has any effect on the application or appeal process. The sam e point arises where an objector to an application for perm ission ceases involvement in the process in circumstances where the role of that objector is taken over by another person having identical interest in pursuing the objection.

34. There is no reason in principle why things m ust grind to a halt or that an application m ust recommence from the beginning where this type of event occurs during the process.

I can see no reason why a perm ission cannot be am ended, if necessary, to reflect the reality arising from any such change. Courts should be reluctant to construe or give effect to legislation which m ay not expressly cover or provide for a particular happening or eventuality in a m anner which would produce bizarre results.

35. In this case the association of the “pros pective applicant” with the applicant for perm ission in the sense that both were under identical ownership, direction and control is relevant. The fact that at all tim es one or other was an owner of the site or had consent of other owners to engage in the process set out in Part 2 Chapter 1 of the 2016 Act is also relevant.

36. The position is sim ilar to that which would obtain if a “prospective applicant” died and pursuit of the application was taken over by another person with an identical interest, such as an executor. Other instances where this might happen are where an applicant for perm ission goes bankrupt, or where m ortgaged property is taken over by a secured creditor, or where land is sold on. In each of these cases the person who takes the land has a sufficient interest in both the site and the outcome of the planning application to advance that process.

37. Identity of an applicant for perm ission m ay become relevant in som e circumstances.

These circumstances are also relevant to the pre -application process under the 2016 Act.

The significance of any change in identity of a “prospective applicant” or an applicant for perm ission, even if not expressly permitted by the legislation, can be assessed by reference to whether underlying requirements whic h determine “standing” are satisfied.

38. Furtherm ore, a requirem ent of “standing” m ay serve only to protect a specific class of interests. Should those who are not within the class of interests protected by such a requirem ent be heard to complain about m atters which do not concern them?

39. The first circum stance in which identity of an applicant for perm ission m ay be im portant was recognised by the Supreme Court in Frescati Estates Limited v. Walker [1975] I.R.

177. This relates to the necessity for a connection between the applicant and the own ers of any site which the permission sought relates to. The following passage from the judgm ent of Henchy J. at p. 190 is relevant:

“To sum up, while the intention of the Act is that persons with no legal interest (such as would-be purchasers) m ay apply for development permission, the operation of the Act within the scope of its objects and the lim its of constitutional requirem ents would be exceeded if the word “applicant” in the relevant sections is not given a restricted connotation. The extent of that restriction m ust be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interests of the common good, for proper planning and development.

Applying that criterion, I consider that an application for development permission, to be valid, m ust be m ade either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so m uch of the proposed development as relates to the property in question. There will thus be sufficient privity between the applicant (if he is not a person entitled) an d the person entitled to enable the applicant to be treated, for practical purposes, as a person entitled.”

40. The Suprem e Court reasoned that the Local Government (Planning and Development) Act 1963 (the 1963 Act) m ust be interpreted in a m anner which p rotects property rights of owners of land from potential adverse effects as a result of planning applications by interlopers lacking sufficient estate or other interest in that land. Planning authorities should not be vexed with the burden of dealing with these m eddlesome applications.

41. The 1963 Act has been replaced by the 2000 Act. The 2000 Act is supplemented by the 2016 Act. The provisions of the 2000 Act which refer to an “applicant” for perm ission are identical to those in the 1963 Act. The reas oning in the decision of the Supreme Court in Frescati Estates Limited v. Walker [1975] I.R. 177, is equally applicable to the 2000 Act and the 2016 Act. It also applies in any situation which arises as a result of an event such as a change of ownership during the currency of a planning application. Any person taking over an application m ust have sufficient interest to pursue that application.

42. An interest in land sufficient to give an applicant standing m ay be ownership, or consent of another person who is an owner, or in som e cases a right to resort to compulsory purchase procedures to acquire a right over land. The provisions of the 2016 Act are less flexible on this as they only allow for ownership or consent of owners.

43. A num ber of regulations have been m ade to give effect to the rule that an applicant for perm ission must have sufficient interest in the site. These have included article 18(1)(d)

of the Local Governm ent (Planning and Development) Regulations 1994 (S.I. No. 86 of 1994), article 22(1)(d) of the Regulations of 2001 in its original form , article 22(1) and 22(2)(g) and Form No. 2 of the Regulations of 2001, as inserted by article 8 of the Planning and Development Regulations 2006 (S.I. No. 685 of 2006).

44. Section 3 of the 2016 Act de fines “prospective applicant” as follows:

“ ‘prospective applicant’ m eans a person who -

(a) is the owner of the land concerned, or

(b) has the written consent of the owner to m ake an application under section 4 in respect of that land,

and who intends to apply for perm ission under that section in respect of that land; …”

45. This m akes direct statutory provision for part of what is otherwise im plied into the 2016 Act as a result of the decision of the Supreme Court in Frescati Estates Limited v. Walker [1975] I.R. 177. The term “owner” is not defined in section 3. The Board is em powered to evaluate whether any person’s interest is sufficient to constitute ownership.

46. Section 3 of the 2016 Act is supplemented by article 285 of the Regulations of 2001, as inserted by article 5 of the Planning and Developm ent (Strategic Housing Development)

Regulations 2017 (S.I. No. 271 of 2017) (the Regulations of 2017), which provides that the request by a prospective applicant under s.5 of the 2016 Act to enter into consultations with the Board m ust use Form No.11 of Schedule 3. This form in turn deals with ownership or written consent from the “site owner” at para. 7 under the heading “Prospective applicant’s interest in the site, etc.” Article 285(2) states as follow s:

“A request referred to in sub-article (1) shall be accom panied by the following, including m aps and drawings, where appropriate:

(a) where the prospective applicant is not the owner of the land concerned, the written consent of the owner to m ake an application under section 4 of the Act of 2016 in respect of that land; …”

47. Article 297(1) of the Regulations of 2001, as inserted by article 5 of the Regulations of 2017, deals with applications to the Board for perm ission for strategic housing developments. This includes similar provisions by requiring the applicant for permission to use Form No. 14 of Schedule 3. This deals with ownership or written consent from the “site owner” at para. 7 under the heading “Applicant’s interest in the site, etc.” This form also requires details of any ownership or control of the applicant over adjacent lands.

Article 297(2) states as follows:

“An application in sub-article (1) shall be accompanied by-

(a) where the applicant is not the owner of the land concerned, the written consent of the owner to m ake an application under section 4 of the Act of 2016 in respect of that land; …”

48. Article 297(2)(c)(iii) specifies that wayleaves relating to the site are to be shown separately from the land or structure to which the app lication relates and m ust be clearly m arked and coloured yellow. This m irrors article 22(2)(b)(iii) of the Regulations of 2001 which apply to perm issions under Part III of the 2000 Act.

49. Proof of standing is necessary to protect property rights of an o wner of a site from adverse consequences arising from conditions in perm issions or refusals of permission on planning applications brought by vexatious interlopers relating to that site.

50. The requirem ent in the 2016 Act that any “prospective applicant” have sufficient interest in the site in accordance with s.3 m ust be satisfied when the pre -application process is initiated. Proof of consent of owners of a site rem oves at the outset any issue that an intended application m ight lead to a planning result which could adversely affect property rights in the site of those who have not consented to the application for perm ission. Both the definition of “prospective applicant” in s.3 and the regulations m ake clear that any written consent of an owner m ust relate to the application for perm ission and not just to the pre-application process.

51. In this case no issue concerning adverse impact on property rights of other owners of the site arose because the person then identified as the “prospective applicant” had sufficient “interest” when the pre-application process was set in m otion. Lordglen established this in accordance with the regulations. When the application for permission was lodged, Derryroe also established sufficient “interest” in the site in accordance with the regulations by producing letters from the owners consenting to the application.

52. Pem broke Road Association is entitled to seek judicial review on planning grounds.

However, its interest in upholding a rule requiring that an applicant be the sam e person as the “prospective applicant” is not based on any claim that it owns the site or should intervene in the interest of owners to protect their property rights. There was no need for the Board to weed out either the pre -application process or the planning application on this ground. Judicial intervention is not necessary to enforce property rights of owners of the site.

53. I was referred to the judgment of Hyland J. in Sweetman v. An Bord Pleanála and Others [2021] IEHC 16. I agree with Hyland J. that exam ination in a planning application of the interest of an applicant in the site is “jurisdictional”. This is, of course, not the full story because the person protected by law is the owner of the site and the purpose of planning regulations relating to ownership or other interest in the site is to give effect to this protection.

54. In Sweetman v. An Bord Pleanála and Others [2021] IEHC 16, the applicant for judicial review was not able to dem onstrate that the applicant for perm ission did not have written consent from all landowners affected. The approach taken by the Court m eant that it was unnecessary to consider whether it would be appropriate in exercise of discretion to grant or refuse judicial review. The issue of whether the application for judicial review would have succeeded if, perchance, he could have shown some small portion of the site to be outside ownership or consent did not arise. While he had general standing to challenge the decision of the Board, it did not necessarily follow that a court should nullify the perm ission if he could demonstrate some minor defect of this sort.

55. I have considered the two authorities cited by Hyland J. In McCallig v. An Bord Pleanála and Others [2013] IEHC 60, the applicant for judicial review showed ownership of part of a site which was the subject of a planning application m ade without her consent. She therefore had an interest in how the outcome of that application affected her land. She dem onstrated that inform ation provided in the planning application was m isleading on this aspect.

56. In Hynes v. An Bord Pleanála and Others [1998] IEHC 127 (Unreported, High Court, 30 July 1998) McGuinness J. decided that the applicant for permission had sufficient “interest” in the site for the purposes of the test laid down by Henchy J. in Frescati Estates Limited v. Walker [1975] I.R. 177. An infringem ent of article 18(1)(d) of the Regulations of 1994 which m isdescribed the nature of the interest of the developer in part of the site was considered to be m inor. It was clear that the developer did not set out to m islead the public or the planning authority. The planning authority itself own ed this part of the site and consented to the planning application.

57. For these reasons I consider that the decision in Sweetman v. An Bord Pleanála and Others [2021] IEHC 16 does not assist on the issue of whether Pembroke Road Association ought to be given judicial review. Ownership of the site is the only value which I can identify as underpinning any requirement in the 2016 Act that a “prospective applicant” m ust be the same person as the applicant. The statutory pre -application process did not involve the public. Nothing in what happened worked to the disadvantage of either the planning authority, the Board, the public, or the owners of the land or involved any underhand or m isleading activity by either Lordglen or Derryroe.

58. The initial decision of the Board on standing in this case related to the qualification of Lordglen as “prospective applicant” when the pre -application documents were accepted.

Lordglen complied with the obligation to show that it had the consent of any other owner of the site. Derryroe also complied with the underlying requirement, albeit that it did not hold consents in writing from owners prior to the pre -application process and was not the “prospective applicant”. However, the statutory objective of ensuring that the pers on for the tim e being pursuing the planning process has sufficient interest in the site was m et.

59. The only other circumstance which I can identify in the legislation when identity of an applicant for perm ission m ight be decisive is set out in s.35 of th e 2000 Act. This allows a planning authority to refuse permission where a person to whom the section applies has been guilty of planning breaches. I doubt that this provision applies to permissions granted by the Board under Part 2 Chapter 1 of the 2016 Act as these are not “perm ission” for the purposes of Part III of the 2000 Act. The provisions of s.35 had no relevance to either Lordglen or Derryroe during the currency of this planning application.

60. It follows it is not appropriate to nullify this planning application on grounds that Derryroe is not the sam e as Lordglen. These two entities have common sufficient interest in both the site and pursuit of the application. No statutory factor or policy consideration is engaged which made it appropriate for the Board to decline the planning application. In contrast, Pem broke Road Association has no legitimate interest in securing compliance with this particular aspect of the planning process.

61. The judgm ent of O’Hanlon J. in Schwestermann v. An Bord Pleanála and Others [1994] 3 I.R. 437 is relevant. Where a challenge to validity of a perm ission relates to identity of the applicant disclosed in a planning application, the concern of the law is with the applicant’s connection with the site which is the subject of the development and that the application for perm ission has been m ade with the knowledge and approval of the owners or by som ebody who can show other sufficient interest. This is clear from the following passage at p. 445 which com es after the citation of what is described in the judgment as a “form idable body” of supporting authority:

“In m y opinion the application should be regarded as one m ade on behalf of, and with the knowledge and approval of, the freehold owner of the lands, and in any event I would also consider that on the facts of the present case any one of three parties concerned – Glenmoy Ltd., Glenm oy Developments Ltd. and Jam es Hoare – had a sufficient interest in and connection with the lands concerned and the proposed development thereof, to sustain an application for planning perm ission m ade in the nam e of any one of the said parties. The question of knowledge and approval can hardly present any difficulty when Mr. and Mrs. Hoare were the only shareholders in, and directors of, both companies, at all relevant tim es.”

62. The second matter raised by Pem broke Road Association is the contention that Derryroe failed to provide “a statem ent indicating how…” as prescribed by sub -article 299B(1)(b)(ii)(II)(C) of the Regulations of 2001 and that the Board ought to have refused to entertain the application for permission because this was not included in the planning documents. This point was argued in full before m e. On the last day of a four-day hearing I was told that m y colleague, Hum phries J., would be delivering judgm ent on the same issue on the following Monday. It is suggested that this should determine the m atter for m e.

63. This is not a case where I am bound to follow reasoning in a precedent which was available and cited when the m atter was argued before m e. It som etimes happens that two judges who are asked to decide the sam e issue in separate actions which are heard at around the sam e tim e and come to differing conclusions. When this happens, the issue of whether one judgment becomes a binding precedent on the other does not resolve itself into “a question of dates” which depends on which judgment gets into print first.

64. As it happens, by the tim e of m y colleague’s judgment in Waltham Abbey Residents Association v. An Bord Pleanála and Others [2021] IEHC 312, I had already concluded that I should reject this ground of complaint. As I had m ade up m y m ind, I do not consider that I am obliged to unmake it on issues where I reached conclusions which differ from those of m y colleague.

65. The parties have been given an opportunity to m ake further submissions in the light of the judgm ent in the Waltham Abbey case. With the greatest respect to the views of m y colleague, m y view has not changed as a result of this.

66. It struck m e when I was hearing submissions on this issue that the sense in which the phrase “a statem ent indicating how…” is used in sub -article 299B(1)(b)(ii)(II)(C) of the regulations, conveys that an applicant is being asked to provide an assessment, appraisal or evaluation.

67. It also struck m e that the issue of whether m aterial provided by an applicant is sufficient for the purposes of sub-article 299B(1)(b)(ii)(II)(C) is the sort of m atter which the Board is em powered to decide conclusively in exercise of its right to determine questions when exam ining whether to assume jurisdiction. I cannot interfere unless exceptional circum stances are established which demonstrate clearly that the substance of what is required by the regulation was not provided by an applicant or that the decision of the Board to accept the adequacy of m aterial as fulfilling the requirement was irrational or unreasonable.

68. The issue raised by Pem broke Road Association arises in the context of the election by the State to require exam ination on a case-by-case basis of projects listed in Annex II of Directive 2011/92/EU of the European Parliam ent and of the Council of 13 Decem ber 2011 on the assessment of the effects of certain public and private projects on the environm ent, as am ended by Directive 2014/52/EU of the European Parliam ent of the Council of 16 April 2014 (codification) (the Directive) in evaluating whether an environm ental im pact assessment is necessary for any such project.

69. Article 4(4) of the Directive provides as follows:

“Where Mem ber States decide to require a determination for projects listed in Annex II, the developer shall provide inform ation on the characteristics of the project and its likely significant effects on the environment. The detailed list of inform ation to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer m ay also provide a description of any features of the project and/or m easures envisaged to avoid or prevent what m ight otherwise have been significant adverse effects on the environment.”

70. Annex IIA is headed “Information referred to in Article 4(4) (inform ation to be provided by the developer on the projects listed in Annex II)” and sets out the following categories of inform ation:

“ 1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of dem olition works;

(b) a description of the location of the project, with particular regard to the environm ental sensitivity of geographical areas likely to be affected.

2. A description of the aspects of the environment likely to be significantly affected by the project.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when com piling the information in accordance with po ints 1 to 3.”

71. It is clear from the wording of Article 4(4) that the core obligation is to provide an adequate description of the characteristics of the project and its likely significant effects on the environm ent with reference to the items listed in Annex IIA at point s 1 to 3 and that in providing this inform ation “The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive”. The idea is that the specified information is provided to enable an assessment of the project and that as part of this exercise available results of other relevant assessments having a bearing on the environm ent which have been carried out pursuant to other European Union legislation are evaluated.

72. These provisions in the Directive have been im plemented in Irish law in the context of the 2016 Act by sub-articles 299B(1)(b)(ii) and 299B(1)(c) of the Regulations of 2001, as inserted by article 94 of the Regulations of 2018, the form er of which provides as follows:

“Where the Board concludes, based on such preliminary exam ination, that -

(II) there is significant and realistic doubt in regard to the likelihood of significant effects on the environment arising from the proposed development, it shall satisfy itself that the applicant has provided to the Board

(A) the inform ation specified in Schedule 7A, (which repeats paras. 1 to 4 of Annex IIA of the Directive virtually word for word)

(B) any further relevant inform ation on the characteristics of the proposed development and its likely significant effects on the environment, and (C) a statem ent indicating how the available results of other relevant assessments of the effects on the environment carried o ut pursuant to European Union legislation other than the Environmental Im pact Assessment Directive have been taken into account.”

73. It is also relevant to consider sub-article 299B(1)(c) which provides as follows:

“The inform ation referred to in paragraph (b)(ii)(II) m ay be accom panied by a description of the features, if any, of the proposed development and the m easures, if any, envisaged to avoid or prevent what m ight otherwise have been significant adverse effects on the environment of the development.” This m irrors the final sentence in article 4(4) of the Directive.

74. Sub-article 299B(1)(b)(ii)(II) of the regulations gives effect to the underlying provision of the Directive, which is Article 4(4). The overall obligation is to provide inform atio n on the characteristics of the development and its likely significant effects on the environm ent. Within this, there is an obligation to look at the detail in Annex IIA and to take into account available results from other relevant assessments under European Union legislation. It is necessary to construe obligations im posed by this sub -article in a m anner which gives functional effect to the objectives of the corresponding provision in the Directive.

75. Article 299B(2)(a) states as follows:

“Where the inform ation referred to in sub-article (1)(b)(ii)(II) was not provided by the applicant, the Board shall refuse to deal with the application pursuant to section 8(3)(a) of the Act of 2016.”

76. This includes a discretionary element because it is clear fro m s.8(3)(a) of the 2016 Act, as am ended, that the Board is given jurisdiction to assess and consider whether the m aterial provided in an application passes m uster. It is not for m e to second guess any evaluation by the Board on this type of issue except in circumstances where it is clear that on any view of m atters something vital is m issing and that the discretion was im properly exercised. Section 8(3)(a) of the 2016 Act reads as follows:

“The Board m ay decide to refuse to deal with any application m ade to it under section 4(1) where it considers that the application for permission, or the environm ental im pact assessment report or Natura im pact statement if such is required, is inadequate or incomplete, having regard in particular to the perm ission regulations and any regulations m ade under section 12, or section 177 of the Act of 2000, or to any consultations held under section 6.”

77. Although the Regulations of 2018 are not m ade under any of the provisions referred to in s.8(3)(a) of the 2016 Act, it is clear that the Board m ust have regard to them in exercising its jurisdiction on whether to adm it or refuse to deal with an application. The Regulations of 2018 am ended s.8(3)(a) to include the “environmental im pact assessment report”. Section 8(3)(b)(ii) specifies that where the Board rejects an application it m ust give reasons for its decision not to consider the application. The Board is not obliged to give reasons where it decides that the application is in order and that it should assume jurisdiction.

78. I refer to an analysis by the learned editor of Wade & Forsyth, Administrative Law, 10th Ed., (Oxford University Press, 2009) at p. 219 com menting on a quoted extract from the speech of Lord Mustill in the House of Lords in R v. Monopolies and Mergers Commission ex p. South Yorkshire Transport Limited [1993] 1 W.L.R. 23 at p. 32 which I agree with and consider applicable to the role of the Board in m aking this type of assessment. Sub - article 299B(1)(b)(ii)(II) of the regulations deals with evaluative m aterial and there is a range of reasonable interpretation of how the requirements of that sub -article m ay be com plied with.

79. It is necessary to perm it the Board a proper m argin of appreciation in the discharge of this function. The issue of whether m aterial provided by an applicant is adequate to com ply with sub-article 299B(1)(b)(ii)(II) falls to be decided in accordance with the principles laid down by the Suprem e Court in O’Keefe v. An Bord Pleanála and Others [1993] 1 I.R. 39 at pp. 70-71. It has not been demonstrated that the Board acted irrationally or unreasonably when it decided to accept m aterial presented in the “Environm ental Im pact Screening Report” as sufficient compliance with the requirement in sub-article 299B(1)(b)(ii)(II)(C).

80. The “statem ent” which sub-article 299B(1)(b)(ii)(II)(C) refers to m eans analysis which identifies any relevant assessments of the effects on the environment carried out pursuant to other European Union legislation and sets out the consideration which has been given to each of these assessments in the context of the proposed development. “ A statem ent indicating how…” referred to in this sub -article is a requirement that an appraisal be provided “indicating”, in the sense of identifying, and analysing, “how” these m atters have been “taken into account.” It is sufficient to identify the assessments and provide analysis of how the results of each assessment have been taken into account. The appraisal m ay show that a particular assessment relating to an environm ental m atter is in fact irrelevant or that the project will not im pact on the results of that assessment or that the project m ay im pact on the results of that assessment in a particular way. There are a num ber of potential outcomes to this type of appraisal.

81. The issue of interpretation of this sub-article should not be fram ed as one of whether the words “inform ation” and “statement” should each be given a separate stand -alone m eaning divorced from surrounding context.

82. Furtherm ore, the issue should not be fram ed as one of whether “information” and “statement” have the sam e m eaning and m ust be treated as interchangeable because they are used to describe the same things in sub-article 299B(1)(b)(ii)(II)(C) and in subarticle 299C(1)(a) which I quote in a later section of this judgment. The subject m atter of what is described as “inform ation” in one regulation m ay have an extended m eaning where referred to as something else in another regulation which has a different purpose.

83. The purpose of sub-article 299B(1)(b)(ii)(II)(C) is to ensure that the developer “take into account, where relevant, the available results of other relevant assessments of the effects on the environm ent carried out pursuant to Union legislation…”. This requirement does not use the word “information” or the word “statement” because neither of these words in isolation can convey the full sense of what the developer m ust provide. It is clear from the quoted extract from Article 4(4) that the developer m ust provide contextualised evaluations which refer to the results of relevant assessments.

84. The context in which this appraisal is required to be submitted by the applicant is to enable the Board to give full consideration to relevant m atters set out in Article 4(4) of the Directive.

85. It is clear on any reading of the planning file that the m aterial required by sub -article 299B(1)(b)(ii)(II)(C) is to be found in the “Environm ental Im pact Screening Report”. The cover of this document states that it is “prepared in response to Item 12 o f An Bord Pleanála Opinion”. The introduction at para. 1 p. 1 of this document specifies as follows:

“This EIA screening report has been prepared in response to item 12 of the An Bord Pleanála Opinion, dated 10 December 2019, having regard to article 299B(1)(b)(ii)(II) and article 299B(1)(c) of the Planning and Development Regulations 2001 – 2018.”

86. The “Notice of Pre-Application Consultation Opinion” dated 10 December 2019 is specific about what the applicant was required to provide to enable screening on whether an environm ental im pact assessment would be required. It lists the following am ongst the “specific information” to be “submitted with any application for perm ission:…

12. Inform ation referred to in article 299B(1)(b)(ii)(II) and article 299B(1)(c) of the Planning and Development Regulations 2001-2018, submitted as a standalone document.”

87. I agree with the Board and Derryroe that any necessary statements indicting how other relevant assessments carried out pursuant to European legislation have been “taken into account” are contained in the “Environmental Im pact Screening Report”. I consider that the requirement of the Board that all relevant m aterial for the purposes of sub -article 299B(1)(b)(ii)(II) and sub-article 299B(1)(c) should be submitted as a stand-alone document was a direction properly given in interest of good adm inistration. This required that everything which the applicant was obliged to provide and put before the Board for due consideration on these issues, which are all related to each other, be presented in a single document. All of this inform ation is assessed together when the Board is considering whether to require an environmental im pact assessment.

88. With due respect to m y colleague’s view, I did not conclude that there is any absolute requirem ent that the analytical m aterial referred to as “a statem ent indicating how…” in sub-article 299B(1)(b)(ii)(II)(C) m ust always be presented in the form of one distinct identifiable document. For exam ple, the purpose of requiring th at this analysis be carried out and presented might be achieved by including a chapter in the “Environmental Im pact Screening Report”. In m y view, the required “statement indicating how…” or analysis m ay also be provided by referring to different assessments of the effects on the environment carried out pursuant to European Union legislation in different parts of an environm ental im pact screening report where relevant underlying issues arise and are exam ined.

89. There is no basis for any assertion that the Board did not duly consider whether the requirem ents of article 299B(1)(b)(ii)(II) were com plied with. It was not necessary to record in a form alised way the m anner in which the Board vetted the application for com pliance with the provisions of the 2016 Act and the regulations or what led the Board to conclude that the application was in order.

90. Nothing arises because of the fact that the Water Fram ework Directive was not referred to in the “Environm ental Im pact Screening Report”. This subm ission does not pay sufficient regard to the fact that the “Environmental Im pact Screening Report” is accompanied by and refers to further specialist reports dealing with m atters such as hydrology and ecology which feed into the conclusions. I agree with the submission of the Board that Pem broke Road Association has not identified any assessment carried out pursuant to European Union legislation which was available, and which was not taken into account in the m aterial subm itted to the Board.

91. The third issue raised by Pem broke Road Association relates to the height of buildings in the proposed development. The complaint is that the height of the buildings involves a m aterial contravention of the Dublin City development plan and that the Board failed to consider whether it could be demonstrated that im plementation of policies and objectives of the Dublin City development plan which pre -dated the “Urban Development and Building Heights Guidelines for Planning Authorities” of December 2018 (the m inisterial guidelines) does not align with and support the objectives and policies of the National Planning Fram ework.

92. The provisions of Dublin City development plan relating to building height in the Ballsbridge area, which the Board can be taken to be fully fam iliar with, do not align with and support the objectives and policies of the National Planning Fram ework. No other view is tenable.

93. The order of the Board refers to objective 13 of the National Planning Fram ework which is quoted at Chapter 1 para. 1.18 of the m inisterial guidelines. This specifies for the application of perform ance criteria in planning appraisal of the height of proposed buildings. This is clearly at odds with blanket height-based restrictions in the Dublin City development plan which would have precluded the grant of this permission. These perform ance criteria are set out in the “Development Management Criteria” in Chapter 3 para. 2 of the m inisterial guidelines.

94. The argum ent by Pem broke Road Association is premised on the assumption that a determination by the Board that height policies and objectives of the Dublin City development plan do not align with objectives and policies of the National Planning Fram ework is a precondition to application of the “Development Management Criteria”

and SPPR 3 to override height provisions in the Dublin City development plan.

95. The Board did not go down that route in arriving at its decision as it did not apply SPPR 3 in the m inisterial guidelines as overriding and replacing contradictory provisions of the Dublin City development plan under s.9(3) of the 2016 Act.

96. The Board chose instead to exercise power under s.9(6) of the 2016 Act. The Board accepted that the development would m aterially contravene h eight provisions in the Dublin City development plan. It decided that permission for the development should nevertheless be granted because of its strategic or national im portance and also having regard to SPPR 3 in the m inisterial guidelines, proved compliance with the criteria in para. 2 of Chapter 3 of those guidelines and having regard to national policy in Project Ireland 2040 National Planning Fram ework, and in particular objectives 13 and 35 of sam e.

97. I will now refer to relevant statutory provisions, extracts from m inisterial guidelines, special planning policy requirements, provisions of the development plan and the relevant part of the order of the Board granting this perm ission.

98. Chapter 16.7 of the Dublin City development plan, dealing with building height, sets out general policies. These include a policy that higher building form s create clusters and prevent visual clutter or negative disruption of the city skyline. The plan em phasises the quality of Dublin as a low-rise city. It allows for buildings of up to 24 m etres in height near rail and Dart and Luas stations and only allows buildings of up to 28 m etres in height in the inner city. Mid-rise buildings of up to 50 m etres in height are allowed in 10 specific areas. High-rise buildings are only allowed in Docklands, Connolly, Heuston and George’s Quay areas. The proposed development at Herbert Park would involve a contravention of this elem ent of the development plan as it is m arginally outside the 500-m etre catchment of rail hubs. The m axim um height of the buildings is 45.1 m etres over the OD. The site is within the 16 m etre height lim it prescribed by the development plan.

99. Section 28 of the 2000 Act, as am ended, deals with m inisterial guidelines. Section 28(1)

specifies as follows:

“The Minister m ay, at any tim e, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities shall have regard to those guidelines in performance of their functions.”

This is supplemented by s.28(1C) which specifies as follows:

“Without prejudice to the generality of subsection (1), guidelines under that subsection m ay contain specific planning policy requirements with which planning authorities, regional assemblies and the Board shall, in the perform ance of their functions, comply.”

100. The following elem ents in subsections of s.9 of the 2016 Act, which sets out what the Board m ust consider before m aking a decision to grant or refuse permission under s.4 of that Act, are also relevant:

“ (2) 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….for the area,

(b) any guidelines issued by the Minister under section 28 of the Act of 2000, …”

(3)(a) When m aking its decision in relation to an application under this section, the Board shall apply, where relevant, specific planning policy requirements of guideline s issued by the Minister under section 28 of the Act of 2000.

(b) Where specific planning policy requirements of guidelines referred to in paragraph (a) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.

(c) In this subsection ‘specific planning policy requirements’ m eans such policy requirem ents identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.”

101. The final provision in s.9 dealing with the relationship between the powers of the Board and a development plan is contained in section 9(6). This subsection extends the power given by s.37(2) of the 2000 Act to the Board to grant perm ission for development which m aterially contravenes a development plan. This power m ay be exercised by the Board in applications for perm ission under the 2016 Act.

102. Strictly speaking, exercise of this power should not arise where a provision of a development plan touching on any issue is over-ridden by a specific planning policy requirem ent in m inisterial guidelines. This is because the effect of s.9(3) of the 2016 Act is that where a specific planning policy requirement m ust be applied, it replaces the relevant portion of the development plan. This is not a m atter for exercise of discretion.

103. Section 9(6) provides as follows:

“(a) Subject to paragraph (b), the Board m ay decide to grant a perm ission for a proposed strategic housing development in respect of an application under section

4 even where the proposed development, or a part of it, contravenes m aterially the development plan or a local area plan relating to the area concerned.

(b) The Board shall not grant perm ission under paragraph (a) where the proposed development, or a part of it, contravenes materially the development p lan or local area plan relating to the area concerned, in relation to zoning of the land.

(c) Where the proposed strategic housing development would m aterially contravene the development plan or local area plan, as the case m ay be, other than in relation to the zoning of the land, then the Board m ay only grant perm ission in accordance with paragraph (a) where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant perm ission for the proposed development.”

104. Section 37(2)(b) of the 2000 Act provides as follows:

“Where a planning authority has decided to refuse permission on the grounds that a proposed development m aterially contravenes the development plan, the Board m ay only grant perm ission in accordance with paragraph (a) where it considers that-

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

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

(iii) perm ission 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 Governm ent, the Minister or any Minister of the Governm ent, or

(iv) perm ission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area sin ce the m aking of the development plan.”

105. The general statements of “Background and Context” set out at Chapter 1 of the m inisterial guidelines are im portant.

106. The context of the regulations is a policy view of the Minister that inflexible or unreasonable application of generic maxim um height lim its: “…can undermine wider national policy objectives to provide m ore compact form s of urban development as outlined in the National Planning Fram ework and instead continue an unsustainable pattern of development whereby m any of our cities and towns continue to grow outwards rather than consolidating and strengthening the existing built up area. Such blanket lim itations can also hinder innovation in urban design and architecture leading to poor planning outcomes.” (para. 1.4 of Chapter 1) “In this regard, these guidelines outline wider and strategic policy considerations and a m ore performance criteria driven approach that planning authorities should apply alongside their statutory development plans in securing the strategic outcomes of the National Planning Fram ework.” (para. 1.6 of Chapter 1)

107. The m inisterial guidelines m ake clear that they are form ulated to assist in carrying forward Governm ent policy as set out in the National Planning Fram ework. “The Governm ent’s National Planning Fram ework, together with the National Development Plan as part of Project Ireland 2040, will ensure our country’s development is planned for appropriately in strategic terms and that there is effective integration between strategic planning and investm ent in the necessary enabling infrastructure.”(para. 1.15 of Chapter 1)

108. “The first of the 10 National Strategic Outcom es in the National Planning Fram ework that the Governm ent is seeking to secure relates to compact urban growth, with the associated objective that at least half of the future housing growth of the m ain cities will be delivered within their existing built-up areas through infill and brownfield development… The Government is determined to ensure that the realisation of this objective is a shared priority across Government, the wider public sector and through private investm ent and it will therefore be a key driver for investm ent and policy delivery at national, regional and local levels.” (para. 1.16 of Chapter 1)

109. “In addition, the National Planning Fram ework has a num ber of directly relevant national policy objectives that articulate delivering on a compact urban growth programme... In particular, NPO 13 (text below) identifies building height as an im portan t m easure for urban areas to deliver and achieve compact growth as required:

‘In urban areas, planning and related standards, including in particular building height and car parking will be based on performance criteria that seek achieve well designed high quality outcomes in order to achieve targeted growth. These standards will be subject to a range of tolerance that enables alternative solutions to be proposed to achieve stated outcomes, provided public safety is not com promised and the environment is s uitably protected.’” (para. 1.18 of Chapter 1)

110. “A key objective of the NPF is therefore to see that greatly increased levels of residential development in our urban centres and significant increases in the building heights and overall density of development is not only facilitated but actively sought out and brought forward by our planning processes and particularly so at local authority and An Bord Pleanála levels.” (para. 1.20 of Chapter 1) “Increasing prevailing building heights therefore has a critical role to play in addressing the delivery of m ore compact growth in our urban areas, particularly our cities and large towns through enhancing both the scale and density of development and our planning process m ust actively address how this objective will be secured.” (para. 1.21 of Chapter 1)

111. The focus of the argum ent m ade by Pem broke Road Association relates to para. 3.1 of Chapter 3 of the m inisterial guidelines. The general heading of Chapter 3 of the guidelines is “Building Height and the Development Management process”. Pem broke Road Association asserts that the decision to grant permission is invalid because there is nothing to show that the Board had regard to the third point set out in para. 3.1 of Chapter 3 of the m inisterial guidelines. This is headed “Development Management Principles”, and it states as follows:

“In relation to the assessment of individual planning applications and appeals, it is Governm ent policy that building heights m ust be generally increased in appropriate urban locations. There is therefore a presumption in favour of buildings of increased height in our town/city cores and in other urban locations with good public transport accessibility. Planning authorities m ust apply the following broad principles in considering development proposals for buildings taller than prevailing building heights in urban areas in pursuit of these guidelines:

• Does the proposal positively assist in securing National Planning Fram ework objectives of focusing development in key urban centres and in particular, fulfilling targets related to brownfield, infill development and in particular, effectively supporting the National Strategic Objective to deliver compact growth in our urban centres?

• Is the proposal in line with the requirem ents of the development plan in force and which plan has taken clear account of the requirements set out in Chapter 2 of these guidelines?

• Where the relevant development plan or local area plan pre -dates these guidelines, can it be dem onstrated that im plementation of the pre-existing policies and objectives of the relevant plan or planning scheme does not align with and support the objectives and policies of the National Planning Fram ework?”

112. It is self-evident from the relevant elements of Dublin City development plan relating to height of buildings in Ballsbridge, that the objectives of that plan do not align with or support the objectives and policies of the National Planning Fram ework as set out in Chapter 1 of the m inisterial guidelines. The Board was fully aware of this. It was unnecessary to state this in its direction or order. The purpose of para. 3.1 of Chapter 3 of the m inisterial guidelines is to require planning authorities to apply broad principles, having regard to a presumption in favour of increased height in city cores and urban areas with good public transport accessibility. Dublin City development plan sets out blanket height rules. The National Planning Fram ework requires higher buildings and that determinations of whether permission should be granted or refused where height of buildings is relevant should use performance criteria.

113. Paragraph 3.2 of Chapter 3 fleshes out this m ove to use of performance criteria in dealing with height of proposed developments. This paragraph sets out detailed criteria at the scales of the relevant city, district, neighbourhood or street and the specific site or building. An applicant is obliged to demonstrate that any proposed development m eets these criteria.

114. Where a planning authority or the Board co nsiders that the specific criteria are appropriately incorporated into the development proposals, the m inisterial directive requires at para. 3.2 that the planning authority and the board in exercising their functions “shall apply the following Strategic Planning Policy Requirem ent under Section 28(1C) of the Planning and Development Act 2000 (as am ended). SPPR3: It is a specific planning policy requirement that where; (A) 1. an applicant for planning perm ission sets out how a development proposal complies with the criteria above; and 2. the assessment of the planning authority concurs, taking account of the wider strategic and national policy param eters set out in the National Planning Fram ework and these guidelines; then the planning authority m ay approve such development, even where specific objectives of the relevant development plan or local area plan m ay indicate otherwise.”

115. All of the issues were fully taken into account in the report of the inspector which addressed the criteria set out in s.37(2)(b) of the 2000 Act. She considered on that basis that the perm ission should be granted, notwithstanding material contravention of the development plan as sub-paragraphs (i) and (iii) of that subsection had been complied with. The Board in its direction also considered that these criteria were satisfied and states the following in its order:

“The Board considers that, while a grant of perm ission for the proposed Strategic Housing Development would not m aterially contravene a zoning objective of the Development Plan, it would m aterially contravene the Plan with respect to building height lim its. The Board considers that, having regard to the provisions of section 37(2)(b)(i) and (iii) of the Planning and Development Act 2000, as am ended, the grant of perm ission in m aterial contravention of the development plan would be justified for the following reasons and considerations:

` In relation to section 37(2)(b)(i) of the Planning and Development Act 2000 (as am ended):

The proposed development is considered to be of strategic or national im portance by reason of its potential to contribute to the achievement of the Government’s policy to increase delivery of housing set out in Rebuilding Ireland – Action Plan for Housing and Hom elessness issued in July 2016, and to facilitate the achievem ent of greater density and height in residential development in an urban centre close to public transport and centres of em ployment. In relation to section 37(2)(b)(iii)of the Planning and Developm ent Act 2000 (as am ended):

Perm ission for the development should be granted having regard to guidelines under section 28 of the Act, specifically SPPR 3 of the Building Height Guidelines which states that where a development complies with the Development Managem ent Criteria in section 3.2, it m ay be approved, even where specific objectives of the relevant development plan or local area plan m ay indicate otherwise and national policy in Project Ireland 2040 National Planning Fram ework (in particular objectives 13 and 35). An assessment of the proposed development was carried out to determine that the proposed development conforms with the development m anagement criteria in section 3.2 of those guidelines.

In accordance with section 9(6) of the 2016 Act, the Board considered that the criteria in section 37(2)(b)(i) and (iii) of the 2000 Act were satisfied for the reasons and considerations set out in the decision.”

116. The Board relied on s.9(6) of the 2016 Act in dealing with the issue of the height of the development and treated this as a m aterial contravention of the development plan which it was prepared to disregard because it applied the provisions of s.37(2)(b)(i) and (iii) of the 2000 Act. The Board did not rely on s.9(3) of the 2016 Act. It was not necessary to com e to any view that the policies and objectives of the height provisions in the Dublin City development plan did not align with the policies and objectives of the National Planning Fram ework on height of buildings in order to reach the Board’s decision under section 9(6).

117. The next ground of challenge is the claim that the Board failed to consider adequately the im pact of the proposed demolition of 40 Herbert Park, contrary to Article 3(1)(d) of the Directive. The com plaint is that there is no evidence that the Board considered the cultural significance of 40 Herbert Park in its screening determination.

118. Article 3(1)(d) of the Directive sets out a requirement that an environm ental im pact assessment “identify, describe and assess in an appropriate m ann er, in the light of each individual case, the direct and indirect significant effects of a project” on “material assets, cultural heritage and the landscape;…”.

119. The proposed development included the demolition of a house at 40 Herbert Park. The issue of the architectural and cultural significance of this building was the subject of extensive submissions. This was both a planning consideration and a relevant m atter under Article 4(3) of the Directive, part of which provides as follows:

“ 3. Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.” This was one of m any m atters which the Board was obliged to consider in determining whether or not there was a real likelihood that there would be a significant effect on the environm ent as a result of the proposed development.

120. Annex III of the Directive is transposed into Irish planning law in the form of Schedule 7 to the Regulations of 2001. The function of Schedule 7 is that it sets out “criteria for determining whether development listed in Part 2 of Schedule 5 (of those regulations)

should be subject to an environm ental im pact assessment.” Schedule 7 m akes som e changes to Annex III, including a change in Section 1, dealing with “Characteristics of proposed development” to include sub-para (c) “the nature of any associated demolition works,”.

121. Section 2, dealing with “Location of proposed development” specifies am ongst the relevant criteria “The environm ental sensitivity of geographical areas likely to be affected by the proposed development, with particular regard to” a num ber of factors. The factors listed include, at (c) “the absorption capacity of the natural environment, paying particular attention to the following areas: … (viii) landscapes and sites of historical, cultural or archaeological significance.”

122. The relevant provisions of the regulations are sub-articles 299B(2)(b) and 299C(1) of the Regulations of 2001 as inserted by article 94 of the Regulations of 2018.

123. Sub-article 299B(2)(b) provides as follows:

“(i) Where the inform ation referred to in sub-article (1)(b)(ii)(II) was provided by the applicant, the Board shall carry out an exam ination of, at least, the nature, size or location of the development for the purposes of a screening determination.

(ii) The Board shall m ake a screening determination and-

(I) if such determination is that there is no real likelihood of significant effect s on the environm ent arising from the proposed development, it shall determine that an EIA is not required, or

(II) if such determination is that there is a real likelihood of significant effects on the environm ent arising from the proposed development, it shall-

(A) determine that the development would be likely to have such effects, and (B) refuse to deal with the application pursuant to section 8(3)(a) of the Act of 2016.

124. The relevant parts of sub-article 299C(1) flow from Article 4, paras. 3, 4, and 5 of the Directive and provide as follows:

“(a) The Board shall, in carrying out its screening determination under article 299B(2)(b) whether there is no real likelihood of significant effects on the environm ent arising from a proposed development or there is a real likelihood of significant effects on the environment arising from the proposed development, have regard to-

(i) the criteria set out in Schedule 7,

(ii) the inform ation submitted pursuant to Schedule 7A,

(iii) the inform ation referred to in article 299B(1)(b)(ii)(II) and the description, if any, referred to in article 299B(1)(c),

(iv) the available results, where relevant, of prelim inary verifications or assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Im pact Assessment Directive, and ….”

(b) The Board shall-

(i) include, or refer to, in its screening determination under article 299B the m ain reasons and considerations, with reference to the relevant criteria listed in Schedule 7, on which the determination is based, ….”

125. These provisions are derived from Article 4(5) of the Directive which provides as follows:

“The com petent authority shall m ake its determination, on the basis of the inform ation provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of prelim inary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determ ination shall be m ade available to the public and:

(a) where it is decided that an environmental im pact assessment is required, state the m ain reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental im pact assessment is not required, state the m ain reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, ….”

126. It is im portant to keep in m ind that the function of the Board here is to m ake a decision on whether, having regard to an extensive range of criteria and considerations set out in article 299C(1)(a), there is or is not a real likelihood of significant effects on the environm ent arising from the proposed development. Article 299C(1)(b) m akes clear that it is not necessary for the Board to specifically refer in its determ ination to every m atter on which the overall determ ination is based. It is sufficient that the Board includes in its screening determination or refers to “the m ain reasons and considerations, with reference to the relevant criteria listed in Schedule 7, on which the determination is based”.

127. I can find nothing in the documentation which led to the decision of the Board which supports the complaint by Pem broke Road Association. There is no evidence that the Board failed to have regard to environm ental issues relating to the house at 40 Herbert Park when deciding that there was no real likelihood of significant effects on the environm ent arising from the proposed development. The Board had sufficient m aterial before it to com e to a conclusion that it was not necessary to require an environmental im pact assessment. This included m aterial in the “Environm ental Im pact Screening Report” which specifically deals with the architectural and cultural significance of 40 Herbert Park in the context of the proposal to demolish that building.

128. The issue of screening for environmental im pact assessment is dealt with extensively in the inspector’s report to the Board. While the architectural and historical significance of this building is not specifically m entioned in chapter 12 of that report which deals with environm ental im pact assessment, her general conclusion in para. 12.1.4 is that “…the application of the criteria in Schedule 7 to the proposed sub-threshold development dem onstrates that it would not be likely to have significant effects on the environment and that an environm ental im pact assessment is not required before a grant of perm ission is considered. This conclusion is consistent with the EIA screening assessment report submitted with the application.”

129. The Board direction and order relating to the grant of perm ission sets out its conclusion that the proposed development would not be likely to have significant effects on the environm ent. The Board provided the m ain reasons and considerations on which this

conclusion was based. It is clear from the term s of the direction and order that the Board had regard to the content of the “Environmental Im pact Screening Report” which specifically dealt with architectural and cultural heritage issues associated with the house at 40 Herbert Park. The text of the relevant elem ent of the order and direction of the Board states the following:

“The Board com pleted an environmental im pact assessment screening of the proposed development and considered that the Environmental Im pact Screening Report submitted by the applicant, identifies and describes adequately the direct, indirect, secondary, and cum ulative effects of the proposed development on the environm ent.”

130. There is no basis on which I can go behind this statement and conclude that the Board, in arriving at its decision on screening, failed to give due consideration to the status of 40 Herbert Park in the context of the environmental im pact of demolition of that house.

131. The final ground on which judicial review is sought relates to condition 26 of the perm ission which reads as follows:

“The developer shall pay to the planning authority a financial contribution as a special contribution under section 48(2)(c) of the Planning and Developm ent Act 2000 in lieu of the provision of public open space within the site. The am ount of the contribution shall be agreed between the planning authority and the developer or, in default of such agreement, the m atter shall be referred to An Bord Pleanála for determination. The contribution shall be paid prior to com mencement of development or in such phased paym ents as the planning authority m ay facilitate and shall be updated at the tim e of paym ent in accordance with changes in the Wholesale Price Index – Building and Construction (Capital Goods), published by the Central Statistics Office.

Reason: It is considered reasonable that the developer should contribute towards the specific exceptional costs which are incurred by the planning authority which are not covered in the Development Contribution Scheme and which will benefit the proposed development.”

132. Condition 27 of the perm ission obliges the developer to pay a financial contribution to the planning authority in accordance with the terms of the “Development Contribution Schem e m ade under section 48 of the Planning and Development Act 2000, as am ended”

in respect of public infrastructure facilities benefiting development in the area.

133. Both of these conditions were inserted as a result of recommendations m ade by the inspector to the Board.

134. The Dublin City Council development contribution scheme has been made under s.48 of the 2000 Act. The scheme envisages development contributions in respect of public infrastructure, including open space, as provided for in paragraphs 7 -9. Condition 27 of the perm ission relates to this and im poses an obligation to m ake financial contributions in respect of public infrastructure.

135. Paragraph 10 of the scheme provides as follows:

“The Dublin City Developm ent Plan provides the discretion to the Council to determine a financial contribution in lieu of all or part of the public open space requirem ent for a particular development. The Plan provides that in the event of the planning authority considering a site to be too sm all or inappropriate to fulfil Dublin City Developm ent Plan requirements for public open space provision a financial contribution of €4,000 per unit towards provision of or im provements to a park and/or enhancement of am enities in the area in line with the City’s Park strategy shall be required.”

I have been unable to locate any reference to €4,000 in extracts from the Dublin City development plan provided.

136. The scheme states the following in relation to “special development contributions:”

“A special development contribution m ay be im posed under Section 48 of the Act where exceptional costs not covered by the Dublin City Council Developm ent Contribution Scheme 2020-2023 are incurred by the Council in the provision of a specific public infrastructure or facility. (The particular works will be specified in the planning conditions when special development contributions are levied). Only developments that will benefit from the public infrastructure or facility in question will be liable to pay the special development contribution. Conditions im posing special contributions m ay be appealed to An Bord Pleanála.”

137. Section 16.10.3 of the Dublin City developme nt plan deals with public open space and provides that “In new residential developments, 10% of the site area shall be reserved as public open space.” This is not an absolute requirement as is clear from a later paragraph which states as follows:

“Public open space will norm ally be located on-site, however in som e instances it m ay be m ore appropriate to seek a financial contribution towards its provision elsewhere in the vicinity. This would include cases where it is not feasible, due to site constraints or other factors, to locate the open space on site, or where it is considered that, having regard to existing provision in the vicinity, the needs of the population would be better served by the provision of a new park in the area (e.g. a neighbourhood park or pocket park) or the upgrading of an existing park. In these cases, financial contributions may be proposed towards the provision and enhancement of open space and landscape in the locality, as set out in the City Council Parks Program m e, in fulfilm ent of the objective.”

138. Pem broke Road Association asserts that the Board acted incorrectly in concluding that the proposed development did not contravene m aterially the Dublin City development plan because it did not provide 10% of the site area as public open space and that the Board failed to apply the provisions of s.9(7) of the 2016 Act and s.37(2)(b) of the 2000 Act in deciding to grant permission notwithstanding this breach of the Dublin City development plan. Pem broke Road Association also asserts that condition 26 is invalid.

139. The Board was entitled to take the view that the requirement in the Dublin City development plan that developments provide for 10% public open space is not an absolute requirement. Site constraints or other factors which m ay m ake it infeasible to locate public open space on site and existing provision of public open space in the vicinity is relevant. The Board took these m atters into consideration and decided, in line with the inspector’s report, that it was appropriate to im pose a financial contribution in lieu of public open space in this case. This course of action was acceptable to the planning authority and to the applicant for perm ission which had offered a financial contribution.

140. Section 9(4), (7) and (8) of the 2016 Act deal with the powers of the Board to attach conditions to a perm ission for a strategic housing development. Subsection (7) provides as follows:

“Without prejudice to the generality of the Board’s powers to attach conditions under subsection (4), the Board m ay attach either or both of the following to a perm ission for the development concerned:

(a) a condition with regard to any of the m atters specified in section 34(4) of the Act of 2000;

(b) a condition requiring the payment of a contribution o r contributions of the sam e kind as the planning authority or authorities in whose area or areas the proposed strategic housing development would be situated could, but for this Part, require to be paid under section 48 or 49 (or both) of the Act of 2000 were that authority to grant the perm ission (and the scheme or schemes referred to in the said section 48 or 49, as appropriate, m ade by that authority shall apply to the determination of such contribution or contributions).

141. Section 9(8) allows for planning conditions to provide that points of detail be agreed between the person carrying out the development and the relevant planning authorities.

142. The inspector’s report to the Board noted that the proposed development did not provide any public open space and that the Dublin City development plan “allows for the paym ent of a financial contribution in some circumstances where a shortfall arises.” The inspector noted that the planning authority had no objection to paym ent of a financial contribution in lieu of public open space provision. The inspector agreed with this, having regard to the urban context of the site and the proxim ity of Herbert Park. The inspector recommended that the Board include a condition requiring a financial contribution. The draft condition produced by the inspector was adopted into the permission.

143. Section 48 of the 2000 Act deals with planning conditions im posing financial contributions in respect of infrastructure. The relevant provisions are subsections (1), (2), (12) and

(17) which provide as follows:

“(1) A planning authority m ay, when granting a perm ission under section 34, include conditions for requiring the paym ent of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities).

(2) (a) Subject to paragraph (c), the basis for the determination of a contribution under subsection (1) shall be set out in a development contribution scheme m ade under this section, and a planning authority m ay m ake one or m ore schemes in respect of different parts of its functional area.

(b) A scheme may m ake provision for paym ent of different contributions in respect of different classes or descriptions of development.

(c) A planning authority m ay, in addition to the term s of a scheme, require the paym ent of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.

(12) Where paym ent of a special contribution is required in accordance with subsection (2)(c), the following provisions shall apply-

(a) the condition shall specify the particular works carried out, or proposed to be carried out, by any local authority to which the contribution relates, …

(17) In this section – ‘public infrastructure and facilities’ m eans -

(a) the acquisition of land,

(b) the provision of open spaces, recreational and community facilities and am enities and landscaping works,

(c) the provision of roads, car parks, car parking places , surface water sewers and flood relief work, and ancillary infrastructure,

(d) the provision of bus corridors and lanes, bus interchange facilities (including car parks for those facilities), infrastructure to facilitate public transport, cycle and pedestrian facilities, and traffic calm ing m easures,

(e) the refurbishment, upgrading, enlargement or replacement of roads, car parks, car parking places, surface water sewers, flood relief work and ancillary infrastructure,

(f) the provision of high-capacity telecommunications infrastructure, such as broadband,

(g) the provision of school sites, and

(h) any m atters ancillary to paragraphs (a) to (g).

“scheme” m eans a development contribution scheme m ade under this section;

“special contribution” means a special contribution referred to in subsection (2)(c).

144. Condition 26 of the perm ission envisages payment of a financial contribution “as a special contribution under section 48(2)(c)” of the 2000 Act “in lieu of the provision of public open space within the site.” The condition does not “specify the particular works carried out, or proposed to be carried out,” by Dublin City Council “to which the contribution relates” as is required by section 48(12)(a).

145. There has been no input by Dublin City Council into what, if any, “specific exceptional costs” within s.48(2)(c), not covered by the development contribution scheme will be incurred by Dublin City Council in respect of infrastructure and facilities which will benefit the proposed development. There may not be any such costs. The result is that it is not possible to give effect to condition 26 of the perm ission under section 48(2)(c).

146. The reason given in the perm ission for the im position of the condition strayed from the circum stances in which the Dublin City development plan and para. 10 of the development contribution scheme envisage that a financial contribution in lieu of provision of public open space will become payable. Condition 26 is an unsuccessful attem pt to shoehorn this contribution into the fram ework of section 48(2)(c).

147. Paragraph 10 of the contribution scheme is not designed to cover “specific exceptional costs”. It is concerned with provision or enhancement of public open space and am enities in the locality in line with the City Council Parks Program m e. The thinking in the development plan is that the provision of public open space as part of a development may not be appropriate in som e cases and in such cases the developer will provide a financial contribution in addition to the public infrastructure contribution. In that case a general levy of €4,000 per unit is im posed as a development contribution towards im provement to a park and/or enhancement of am enities in the locality or area in line with the City’s Park Strategy.

148. Whether the power to im pose this condition for contribution should be regarded as com ing within s.48(2)(a) of the 2000 Act m ay be doubtful. It is within the general power of the Board under s.9(4) of the 2016 Act to im pose a condition that the developer pay a financial contribution in lieu of provision of public open space in line with the relevant provisions in the Dublin City development plan.