High Court clarifies planning guidelines impact on permission refusal in Irish planning law case.

THE HIGH COURT JUDICIAL REVIEW [2021] IEHC 612 [2020 No. 830 JR] IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED BETWEEN SINEAD KERINS AND MARK STEDMAN APPLICANTS AND AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND DBTR-SCRI FUND, A SUB FUND OF CWTC MULTI-FAMILY ICAV NOTICE PARTY (No. 2) JUDGMENT of Humphreys J. delivered on Monday the 4th day of October, 2021

1. In Kerins v. An Bord Pleanála (No. 1) [2021] IEHC 369, [2021] 5 JIC 3102 (Unreported, High Court, 31st May, 2021), I rejected the applicants’ case on domestic law points and decided in principle to refer certain questions to the CJEU subject to providing for the consideration of further submissions by the parties including as to proposed answers to the questions to be referred.

2. The board and the State respondents now contend that certain factual and legal matters should be clarified first, before the order for reference is finalised, and I am now dealing with that submission.

Issues raised by the board

3. Three issues were raised by the board:

(i). the relationship of the masterplan to the development plan;

(ii). condition 24; and

(iii). the building height guidelines,

4. I will deal with those issues in turn.

Relationship of masterplan to development plan

5. The board requests clarification of the following question: “Does the Masterplan form part of or modify the Development Plan?” I think the answer to that is fairly obvious from the No. 1 judgment but if it helps I can say the following. The masterplan is not made under any specific statutory provision nor does it formally form part of the development plan.

However, the masterplan is expressly envisaged by the development plan and is to that extent and in that sense made “under” the statutory development plan, i.e., it is a specific measure taken to implement the development plan that is envisaged by the development plan.

6. The masterplan does not formally modify the development plan, but it envisages developments being allowed that would not be consistent with the development plan as originally adopted.

7. The Chief Executive of the city council has authority to act in relation to a wide range of matters on behalf of the council without the positive approval of elected members. That doesn’t make his acts any less acts of the council. Such actions include agreement to a masterplan. Under s. 149 of the Local Government Act 2001, sub-s. (4) provides that “[e]very function of a local authority which is not a reserved function is, for the purposes of this Act, an executive function of such local authority.” Subsection (3)(a) provides that the Chief Executive shall “exercise and perform in respect of each local authority for which he or she is the chief executive”. Hence, all functions of a local authority are matters for the Chief Executive except those that are specifically provided by statute to be “reserved functions” for the elected members. Hence, it is completely irrelevant that the elected members did not approve the masterplan.

8. I also reject the board’s interpretation that the masterplan was adopted in the council’s capacity as “landowner”. That is, I’m afraid, a complete misunderstanding in context.

The adoption of the masterplan is clearly not limited to the council’s role as landowner because it also envisages works on land not owed by the council. But even if it related to the council’s land alone, it engages the council’s function as local authority.

9. It is true that in relation to particular developments, the council is sometimes the competent authority and sometimes the developer - a distinction reflected in for example art. 9(a) of the EIA directive 2011/92/EU, as amended by directive 2014/52/EU. Insofar as developments on lands owned by the notice party to these proceedings are concerned, the council is clearly not the developer. But as a matter of domestic law, even where the council is both the landowner and the developer, it still acts in its capacity as the council within the clear public law and statutory framework applicable to it.

10. While specific substantive rights might accrue to a council as landowner as opposed to a statutory body, there is no provision in Irish law for the council to carry out any act “as landowner” divorced from its statutory regulatory context and functions “as council”. Any formal act like the agreement of a masterplan, is carried out within the statutory context of its capacity as local authority even if it is also in its capacity as landowner.

11. In addition, given that the development plan was adopted in the council’s capacity as planning authority, and that it envisages a masterplan guiding future planning, any such masterplan (this plan as it turns out) must also be taken to be in law an act of the council in its capacity as planning authority. The notice party argued that there was “no evidence” that it was adopted by the council as planning authority, but it isn’t a matter of evidence. It’s a matter of logic and law. It would make no sense to say that the planning and development of an area, as envisaged by the council as planning authority, would be guided by a document that was adopted by the council, but that somehow such a document can’t be an act of the planning authority because that doesn’t suit an argument now sought to be made by other parties.

12. In the present case, the inevitable conclusion is that the masterplan was agreed to by the council both in its capacity as local authority and in its capacity as planning authority as well in its capacity as landowner.

Condition 24

13. The board seeks clarification on the following question: “Does condition no. 24 attached to the grant of permission contain any binding obligation to give effect to the Masterplan.

Was the imposition of that condition required by the Masterplan?” Again I don’t think there’s much that is really unclear in the No. 1 judgment on this point but if it helps I can say the following.

14. Condition 24 states that the developer shall pay €4,000 per unit (as updated) to the planning authority as a special contribution in lieu of public open space provision under s.

48(2)(c) of the 2000 Act. The reason given is “[i]t is considered reasonable that the payment of a development contribution should be made in respect of the delivery of public open space within the wider masterplan area given that no public open space is provided for within the boundary of the application site”.

15. Condition number 24 obviously does give effect to the masterplan. The purpose of the payment is to give effect to the masterplan to the extent of providing funding for public open space in the masterplan area. While that doesn’t create a binding obligation to give effect to the masterplan in full, it clearly earmarks the specific funds to be used for open space in the masterplan area. If those works are not carried out, the council is obliged to give the money back (see s. 48(12) of the 2000 Act and David Browne, Simons on Planning Law, 3rd ed. (Dublin, Round Hall, 2021), p. 368).

16. The masterplan didn’t specifically require the imposition of condition 24, but the imposition of such conditions is reflected in the development plan which provides (at para.

16.10.3) that “[p]ublic open space will normally be located on-site, however in some instances it may be more appropriate to seek a financial contribution towards its provision elsewhere in the vicinity”. So in effect, the imposition of condition 24 arises from the combination of the statutory framework, the development plan and the masterplan.

Without the masterplan there would be no specific public open space provision for which the special contribution would be required. The imposition of condition 24 doesn’t change the formal legal status of the masterplan, but it does amount to legally enforceable implementation of a measure envisaged by the masterplan.

Building height guidelines

17. Thirdly, the board seeks clarification of the following question: “Do the Building Height Guidelines contain mandatory government policies that define in certain circumstances situations where a grant of permission is not to be ruled out?” Again, I don’t accept there is any clarification that is really required, but I can add the following.

18. Specific Planning Policy Requirement 3 (SPPR 3) states as follows:

“It is a specific planning policy requirement that where; (A)1. an applicant for planning permission 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 parameters set out in the National Planning Framework and these guidelines;

then the planning authority may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise.”

19. I reject the board’s submission that compliance with the guidelines does not preclude any particular outcome. It precludes a decision by the board that the grant of permission is itself precluded by the development plan. Admittedly, the board might go on to refuse permission in any event on other grounds, but the one thing that is absolutely clear is that, if the foregoing applies, then the board is not entitled to refuse permission because “specific objectives of the relevant development plan or local area plan may indicate otherwise”.

20. The fact that there are some permissive-type terms used in the phraseology of SPPR 3(A)

is a matter of wording rather than substance because under the statutory provision in s.

28, compliance is mandatory. The board submits that the “criteria above” referred to in SPPR 3(A) includes the criterion that “[r]elevant environmental assessment requirements, including SEA, EIA, AA and Ecological Impact Assessment, as appropriate” are satisfied.

However, that doesn’t answer the question as to how the SPPR impacts on that process.

The fact that the board under the heading of the EIA in its decision didn’t expressly mention SPPR 3 or the building heights guidelines is irrelevant, both in fact and in law.

Lack of express mention is not equivalent to lack of consideration.

21. The board referred to the building heights guidelines at para. (f) of the “Reasons and Considerations” section at the outset of the board’s decision. In accordance with established law, therefore, the board in carrying out the EIA did rely on the building heights guidelines among a range of other materials. Indeed, it is a point made by the board regularly in judicial reviews (and upheld regularly by the court) that the fact that a matter isn’t specifically referred to under any given heading doesn’t mean it wasn’t taken into consideration. So the fact that the building heights guidelines weren’t referred to under the EIA heading is irrelevant.

22. It is true that EIA is first and foremost a matter of process rather than outcome, but at the end of the assessment process is a judgment as to whether the impacts identified are acceptable or not in environmental terms; and that aspect is clearly tied into the ministerial guidelines.

Issues raised by the State respondents

23. The State respondents raised an implausible 13 separate issues which they alleged required clarification, under the three headings of questions of fact, questions of law and questions in the judgment.

Questions of fact

24. I don’t see anything in the State’s questions of fact that hasn’t already been adequately covered by the issues raised by the board and dealt with above.

Questions of law

25. The State’s first question of law is: “Does the Masterplan set a framework for future development consent of projects in SDRA 12 of the Dublin City Development Plan 2012- 2016?” That question I am afraid is tendentious and is really an attempt to raise the ultimate issue. The questions for the CJEU relate to whether the concept of a plan setting the framework for future development includes a plan in the nature of the masterplan here. That question can’t be collapsed into some form of pre-judgment by me in advance of the reference.

26. The State’s next question of law is: “Is a masterplan capable of effecting a variation or ‘modification’ of a Development Plan, as a matter of Irish law?”. But there is no lack of clarity on this point. The masterplan is not itself directly legally binding, but the outcomes it envisages would amount in effect to a modification of the outcomes envisaged by the development plan.

27. The State’s third question of law relates to the mandatory versus permissive debate relating to SPPR 3 and I have dealt with that above.

28. The remaining questions of law proposed by the State relate to the interplay between the mandatory requirement of s. 28 of the 2000 Act and the EIA requirements under Part X of the 2000 Act, and, in the event of any tension arising, to the question of whether a conforming interpretation is possible. The conclusion offered is that “it is incumbent on the High Court to consider whether it is possible to adopt a conforming interpretation of section 28 to determine whether a reference to the CJEU is necessary.”

29. While that argument at first glance seems very learned and plausible (often a winning strategy one has to admit), when one thinks about it in more depth, there is a basic logical flaw in it, which is as follows.

30. As a matter of fact and law the board clearly had regard to the mandatory guidelines in all of the aspects of the decision. That follows from:

(i). the specific mention of regard having been had to the mandatory guidelines in the “Reasons and Considerations” section;

(ii). the absence of any wording in the decision disapplying that regard in respect of the EIA section of the decision; and

(iii). established domestic caselaw that if the decision-maker states that a matter has been considered then it should be taken as having been considered in the absence of proof to the contrary.

31. Accordingly, the consideration of the guidelines must include the EIA process.

32. The first question, therefore, is whether this is permitted by the directive, and that is the thrust of the reference under this heading. If having regard to the building height guidelines is permitted by the directive, then the decision is valid under that heading and there is no issue for the State to reply to. It is only if such a process of having regard to mandatory ministerial guidelines (particularly those relating to non-environmental considerations) is not permitted by the directive, that we come to a conclusion that a

decision is not valid as a matter of law and that we get to the additional question for the State as to whether the legislation is also invalid or whether a conforming interpretation is possible. We don’t even get to that question nor indeed could we answer it until we know what a conforming interpretation requires. Hence, despite the fact that as I said, the State’s objection sounds extremely plausible, it is in fact putting the caboose before the engine; because the first and primary question is what does the directive mean and what does it require in such a context. Or in other words, yes the State is right to the extent we may have to look at conforming interpretations in due course, but that doesn’t take away the need for the reference which remains relevant to the validity of the specific individual decision here.

Questions for clarification arising from the judgment

33. The State asks for clarification at para. 36 of the No. 1 judgment regarding the permissive versus mandatory nature of SPPR 3. I am not sure that that really calls for much further clarification. Section 28(1C) of the 2000 Act provides that where ministerial guidelines under the section contains specific planning policy requirements, the board shall comply with those requirements. That is mandatory.

34. The guidelines here, the wording of which is referred to above, indicate that the planning authority “may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise”, in respect of developments meeting the stated criteria. While phrased in permissive terms, that has the effect of precluding a decision by the planning authority that the grant of permission would be ruled out by the wording of the development plan or local area plan. That has a mandatory effect that can’t be simply dressed up by pretending that the legislation leaves everything to the discretion of the decision-maker.

35. The next area where the State requested clarification was regarding para. 40 of the No. 1 judgment in regard to the impact, as a matter of Irish law, of guidelines issued under s.

28. Again, there is no real doubt about the impact in Irish law of guidelines issued under s. 28 where specific planning policy requirements are included. The board is obliged to comply with those guidelines and, therefore, is precluded from holding that the development plan or local area plan rules out the grant of permission.

36. The practical effect of that may vary from case to case because it is always conceivable that a permission could be refused on other grounds. But in practical terms the impact of the statutory provision can be vividly demonstrated in the present case by comparing the board’s decision with the inspector’s report. In the inspector’s report of 20th August, 2020, there was considerably more emphasis on environmental issues, which gave rise to a recommendation for refusal of the application. The board, however, gave far more weight to the impact of SPPR 3 in deciding to grant permission on 14th September, 2020.

Thus, while compliance with the guidelines doesn’t entirely pre-determine the outcome, because of the possibility that a permission might be refused on some other basis, it does skew the analysis strongly in favour of granting permission, and that is what happened here.

Order

37. While in broad terms I don’t accept the submission that the No. 1 judgment requires clarification, still less in respect of 16 separate points, the process of seeking clarification, largely unnecessary as it seems (rightly or wrongly) to me, is nonetheless considerably better than the alternative which is that the parties would make their complaints to the CJEU not having made them to the domestic court. So I am grateful to the parties for that.

38. For the reasons stated, I will direct as follows:

(i). this judgment shall be read together with the No. 1 judgment for the purposes of the proceedings and as a combined basis for any further submissions for the purpose of the order for reference;

(ii). I will give all parties the option, within two weeks from the delivery of this judgment, of submitting revised proposed answers to the questions for the CJEU that were previously offered by the parties in line with the Eco Advocacy directions (see Eco Advocacy v. An Bord Pleanála [2021] IEHC 265 (Unreported, High Court, 27th May, 2021)) given in the No. 1 judgment; and

(iii). following the expiry of that period I will proceed to finalise the order for reference, having regard to any further submissions made by that point.