High Court dismisses judicial review of planning permission after CJEU clarifies EIA Directive scope.

[2023] IEHC 186

THE HIGH COURT

JUDICIAL REVIEW

[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-SCR1 FUND, A SUB FUND OF TWTC MULTI-FAMILY ICAV

NOTICE PARTY

(No. 4)

JUDGMENT of Humphreys J. delivered on the 24th day of April, 2023

1. The application for planning permission that is challenged in these proceedings was made

directly to the board under the strategic housing development procedure on 25 th May, 2020. It was

ultimately consented to in the form of a development at 326-328 South Circular Road, Dublin 8 to

include 416 residential units in 5 blocks.

2. On 11th August, 2020, the board’s inspector recommended permission be refused. The board

however disagreed and decided to grant permission by direction of 10 th September, 2020 and order

of 14th September, 2020.

3. The present judicial review application challenging that decision was initiated on 9th

November, 2020.

4. In Kerins & Anor v. An Bord Pleanála & Anor (No. 1) [2021] IEHC 369, [2021] 5 JIC 3102

(Unreported, High Court, 31st May, 2021) I dismissed the applicants’ case on domestic law grounds

and indicated an intention to refer the matter to the CJEU.

5. In Kerins & Anor v. An Bord Pleanála & Anor (No. 2) [2021] IEHC 612, [2021] 10 JIC 0408

(Unreported, High Court, 4th October, 2021) I issued certain clarifications of the No. 1 judgment at

the request of the opposing parties.

6. In Kerins & Anor v. An Bord Pleanála & Anor (No. 3) [2021] IEHC 733, [2021] 11 JIC 3001

(Unreported, High Court, 30th November, 2021) I made the formal order for reference.

7. In Case C-9/22 NJ and OZ v. An Bord Pleanála & Ors (Site de St. Theresa’s Gardens)

(Judgment of 9th March, 2023), the CJEU (seventh chamber) ruled as follows:

“1. Article 2(a) and Article 3(2) and (3) of Directive 2001/42/EC of the European Parliament

and of the Council of 27 June 2001 on the assessment of the effects of certain plans and

programmes on the environment, must be interpreted as meaning that a plan comes within

the scope of that directive where (i) it has been prepared by an authority at local level in

collaboration with a developer of the project concerned by that plan and has been adopted

by that authority, (ii) it has been adopted on the basis of a provision in another plan or

programme and (iii) it envisages developments distinct from those envisaged in another

plan or programme, provided, however, that it is at least binding on the authorities with

competence to grant development consent.

2. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011

on the assessment of the effects of certain public and private projects on the environment,

as amended by Directive 2014/52/EU of the European Parliament and of the Council of

16 April 2014, must be interpreted as not precluding national legislation which requires the

competent authorities of a Member State, when deciding whether or not to grant

development consent for a project, to act in accordance with guidelines which require the

height of buildings to be increased, where possible, and which have been subject to an

environmental assessment under Directive 2001/42.”

8. The matter then returned to the court in order to enable these answers to be applied to the

balance of the case.

Relief sought

9. The applicant has had the benefit of a more than usual number of orders allowing

amendments of pleadings, and the operative statement of grounds appears to be the Fifth Amended

Statement of Grounds dated 14th April, 2021 (the Fourth Amended Statement of Grounds has the

same date, for some reason).

10. The only substantive relief arising from the Fifth Amended Statement of Grounds that now

requires to be addressed is relief number 1 which is as follows:

“1. An Order of Certiorari quashing the decision of the first named Respondent dated 14th

September 2020 to grant planning at lands on 326-328 South Circular Road, Dublin 8 for

strategic housing development consisting inter alia of 416 residential units in 5 blocks.”

11. Relief number 2 is as follows:

“2. Such Declarations as to the legal rights and/or legal position of the Applicants and/or

persons similarly situated and/or of the legal duties and/or the legal position of the

Respondents as to this Honourable Court doth seem fit and meet.”

12. Nothing arises under this heading that doesn’t arise more appropriately under relief 1.

13. Relief 3 is as follows:

“3. A Declaration as against the Second and third Named Respondents that Section 28 of

the Planning and Development Act 2000 (as amended), is inconsistent with Council Directive

2011/92/EU as amended by Council Directive 2014/52/EU in that it unlawfully and

inappropriately limits the competent authority in carrying out an Environmental Impact

Assessment for the purposes of Council Directive 2011/92/EU as amended by Council

Directive 2014/52/EU and/or failed to transpose and/or be consistent with the requirements

of that Directive.”

14. This relief was not pursued following the CJEU judgment.

15. Relief number 4 states:

“4. A Declaration as against the Second and third Named Respondents that Section 28 of

the Planning and Development Act 2000 (as amended), is inconsistent with Council Directive

2011/92/EU as amended by Council Directive 2014/52/EU in that it unlawfully and

inappropriately limits the competent authority in carrying out an Environmental Impact

Assessment for the purposes of Council Directive 2011/92/EU as amended by Council

Directive 2014/52/EU and/or failed to transpose and/or be consistent with the requirements

of that Directive.”

16. Again, this is not being pursued following the judgment of the CJEU.

17. Relief 5 is as follows:

“5. If necessary, a preliminary reference to the Court of Justice of the European Union (CJEU)

pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU).”

18. It isn’t necessary to claim interlocutory relief in a statement of grounds, but in any event,

as noted in the procedural narrative above, that has already been dealt with.

19. Relief 6 seeks an order as follows:

“6. An Order providing for the costs of the application and/or an Order approving costs

protection pursuant to either Section 50B of the Planning and Development Act, 2000 (as

amended) and/or Section 3 of the Environment (Miscellaneous Provisions) Act, 2011 and/or

otherwise pursuant to EU law and/or the Aarhus Convention.”

20. Costs protection in favour of the applicants has already been agreed to by all parties. The

question of the costs of the proceedings has to be viewed in the light of the outcome of the present

module.

21. Relief 7 is as follows:

“7. A stay on the implementation of planning permission ABP-307221-20 pending the

determination of the above entitled proceedings.”

22. No issue appears to have been made of this in any way that needs to be addressed at this

stage.

Core grounds and their disposition

23. Core ground 1.1 states as follows:

“1.1 The First Named Respondent erred in law and acted contrary to the requirements of the

Strategic Housing Act in having regard to pre-application consultations in the consideration

and determination of the substantive application. The Respondent Board in their

consideration and determination of the application had regard to the pre-application

consultations as referenced in Inspector’s report and expressly on the face of their decision

referenced these pre—application discussions and /or incorporated by reference to the report

of the Chief Executive of the City Council these discussions contrary to Section 6 of the

Strategic Housing Act.”

24. This was rejected in the No. 1 judgment.

25. Core ground 2.1 states as follows:

“2.1 The Respondent Planning Appeals Board failed to comply with their obligations under

Council Directive 2011/92/EU as amended by Council Directive 2014/52/EU in the

consideration and determination of the application. The Planning Appeals Board appointed a

Senior Planning Inspector to prepare and advise in respect of the Environmental Impact

Assessment (EIA) which specialist advisor is now a mandatory requirement under Council

Directive 2011/92/EU as amended by Council Directive 2014/52/EU. The Inspector’s report

concluded that the proposed development would have significant adverse landscape and

visual impacts arising from the number, form, bulk, scale and height of the proposed

development, would have an overbearing impact on the surrounding residential area

inclusive of a residential conservation area, significant adverse effects on the amenities of

residential properties in the immediate vicinity of the development and that the said adverse

impacts could not be mitigated and accordingly recommended that the development consent

in respect of the development be refused.”

26. This was also rejected in the No. 1 judgment.

27. Core ground 2.2 states as follows:

“2.2 The Respondent Board acted contrary to the requirements of the EIA Directive in

seeking to particularise the EIA procedure, and failed to carry out an Integrated Assessment

in selecting and adopting those parts of the Inspector’s report which were positive in respect

of the development but substituting their own opinion for those of the Inspector in respect

of those issues which had been identified as having significant adverse effects that could not

be mitigated, and in the manner that the Respondent carried out the EIA it failed to provide

the integrated approach required under the Directive and did not have the appropriate

expertise which is now required under Council Directive 2011/92/EU as amended by Council

Directive 2014/52/EU to form the opinion and the judgment necessary in order to grant the

development consent, did not give any and or any adequate reasons and could not having

regard to the findings made by the expert person appointed by them and or having no or no

appropriate basis for making the findings that they did and/or in failing to properly apply

the requirements of the Directive failed to comply with and/or have appropriate regard to

the requirements of the Council Directive 2011/92/EU as amended by Council Directive

2014/52/EU.”

28. This was likewise rejected in the No. 1 judgment.

29. Core ground 3.1 states as follows:

“3.1 The Respondent erred in law in the manner in which it considered the proposed

development relative to the acknowledged material contravention of the Dublin City

Development Plan, notwithstanding that the proposed development amounted to a material

contravention of the Dublin City Development Plan and that notwithstanding the

Development Plan requires 10% of the lands the subject matter of the application be

required to be provided as public open space, no such public open space was being provided,

and which was the subject matter of definitive findings by the Inspector in his report to the

Board and in respect of such findings the Board concurred.”

30. This was also rejected in the No. 1 judgment.

31. Core ground 3.2 states as follows:

“3.2 The Respondent Board, in considering and determining the matter considered that it

could have regard to future open space that might be provided in phase 2 and 3 of the

development and in reliance on the proposals that might be contained in future planning

application and which does not and could not amount to public open space and on this basis

decided to permit the development in breach of the requirements of the Plan. In so doing

the Respondent acted to contrary to the statutory scheme, erred in law and acted irrationally

and inappropriately, predetermined future applications, failed to provide for any public open

space as is required for this large-scale development as part of this application, had regard

to irrelevant and inappropriate considerations and acted unreasonably and contrary to law.”

32. This was also rejected in the No. 1 judgment.

33. Core ground 3.3 states as follows:

“3.3 The Respondent erred in having regard to a masterplan that had been prepared which

did not comply with the requirements of the Strategic Environmental Assessment Directive

2001/42/EC in respect of the masterplan and /or SDRA 12.”

34. As a domestic law point, that was rejected in the No. 1 judgment. As an EU law point, that

falls following the CJEU judgment. It is clear that strategic environmental assessment (SEA) isn’t

required for plans that are not binding in themselves, even if (like the master plan here) they are

made under statutory plans, are required by statutory plans or give effect to statutory plans.

35. It would be hard for me or anybody to improve on the summary of the position set out at

para. 1 of the board’s written legal submissions:

“The Board’s position following the judgment of the CJEU in Case C-9/22 is straightforward:

• the CJEU determined (§51) that only if the masterplan is binding on the Board under

Irish law, would it be necessary to consider that the masterplan comes within the scope

of the SEA Directive,

• this Honourable Court has already determined that the masterplan is not itself binding

on the Board under Irish law, and so

• the masterplan therefore does not come within the scope of the SEA Directive.”

36. Thus the disposition of this point is beautifully syllogistic in a way that one rarely sees put

with such elegance. Even down to correctly outlining the major premise first. Such an approach

compares favourably with that of some litigants in other cases who might have a potentially winning

point but who see no need to state it at an early stage. Such parties find it preferable to deplete

the court’s finite mental resources to dwindling point first with a labyrinth of preambular material in

their written, or particularly oral, submissions. The logic here is compelling. The applicants sought

in effect to dispute the premises but I am afraid that those propositions are fairly clear.

37. Core ground 4.1 states as follows:

“4.1 The first named Respondent erred in law in its determination that the proposed

development is consistent with the zoning objectives of the site in circumstances where the

issue of open space is critically integrated within the zoning provisions and where in respect

of each of the two principal zoning provisions apply to the residential development that is

Z1 which applies to sustainable residential neighbourhoods and Z14 which applies to

strategic development and regeneration areas, the development of public space and/or

public open space is required to be provided within easy reach and is as consequence integral

to the zoning provisions applicable to the site of the proposed development. In failing to

provide for the appropriate public open space within the development as required by the

Plan, the proposed development is inconsistent with the zoning provisions which integrate

this requirement as a condition precedent to satisfying the test in respect of compliance with

zoning objectives which relate to the residential development.”

38. This was rejected in the No. 1 judgment.

39. Core ground 5.1 states:

“5.1 The first named Respondent erred in law in its imposition of condition 22 in

circumstances where there is no clear proposal in respect of how the Notice Party intends to

comply with Part V or the inclusion of a clear and precise proposal in that regard. Further

the proposal in respect of Part V are inconsistent with and contradictory to condition 2 and

3 of the decision in circumstances where the proposal provides for an allocation for

residential units albeit in contradictory locations included within the application and where a

certain number of specified units are intended to be leased to the housing authority but

where condition 2 requires that a legal agreement be submitted to confirm that the

development permitted shall remained and operated by the institutional entity for a period

of not less than 15 years, and that is in direct conflict with the obligation imposed at condition

22.”

40. This was rejected in the No. 1 judgment.

41. Core ground 6.1 states as follows:

“6.1 Conditions 2 and 3 are void as they are a restriction on the right of alienation, are

contrary to public policy and are matters which are inappropriate to and inconsistent with

the provisions of the Planning and Development Act, 2000 and in particular Section 34(4)

thereof.”

42. This was also rejected in the No. 1 judgment.

43. Core ground 7.1 states as follows:

“7.1 The First Named Respondent erred in law and failed to comply with Council Directive

2011/92/EU as amended by Council Directive 2014/52/EU in a manner in which it relied on

and applied Ministerial Guidelines made pursuant to Section 28 of the Planning and

Development Act, 2000 (as amended) in carrying out an Environmental Impact Assessment.

The first named Respondent had regard to, applied or complied with Ministerial Guidelines

or elements thereof so as to fetter their its discretion to act as a competent authority for the

purposes of the Directive and in so doing had regard to irrelevant considerations.”

44. This wasn’t pursued following the judgment of the CJEU.

45. Core ground 7.2 stated as follows:

“7.2 Further or in the alternative, the statutory requirements that the first named

Respondent have regard to, comply with and apply Ministerial Guidelines or elements thereof

made pursuant to Section 28 of the Planning and Development Act, 2000 as amended are

inconsistent with and contrary to Council Directive 92/43/EEC and/or Council Directive

2011/92/EU as amended by Council Directive 2014/42/EU as such amounts to a restriction

or limitation of and/or political interference with the obligations of the competent authority

under those Directives. Further or in the alternative, such provisions fail to transpose the

requirements of both Directives into Irish domestic law. The assessments required by the

Directives are incompatible with statutory requirements to have regard to, comply with and

apply political directions, and Irish domestic legislation fails to exclude the application of

such requirements to the competent authority in exercising its functions under the

Directives.”

46. This seems to have been removed from the Fifth Amended Statement of Grounds (although

it isn’t struck through, just omitted altogether) but in any event there was no attempt to resuscitate

the point following the judgment of the CJEU.

47. Core ground 8.1 states as follows:

“8.1 Section 28 of the Planning and Development Act, 2000 (as amended) is inconsistent

with and contrary to Council Directive 92/43EEC 2014/52/EU insofar as it restricts and limits

a competent authority both in carrying out an Appropriate Assessment and/or screening for

Appropriate Assessment for the purposes of Council Directive 92/43EEC.”

48. This wasn’t pursued following the judgment of the CJEU.

49. Core ground 9.1 states as follows:

“9.1 The First Respondent failed to comply with Council Directive 92/43/EEC in failing to

carry out screening for Appropriate Assessment in accordance with the requirements of the

Habitats Directive in respect of the proposed development. The First Respondent in applying

the requirements of the Directive considered and determined that there was no pathway in

respect of which emissions and/or discharges could affect or impact on the neighbouring

European Sites, i.e. site code 004024 and 00210 both of which are located proximate to the

site and/or hydrologically connected to the site.

The First Respondent failed to properly consider the existing hydrology and hydrogeology of

the lands in this regard, failed to have regard to other plans or projects in combination with

the proposed development required under Council Directive 92/43/EEC, did not have the

information and/or the level of expertise to make a determination in accordance with the

standard required in respect of screening for Appropriate Assessment that complies with

the requirements of the Directive and failed to apply or adopt the appropriate tests that

applied in respect of Appropriate Assessment and in so doing failed to properly consider and

apply the requirements of the Directive.”

50. This was rejected in the No. 1 judgment.

51. Core ground 10.1 provided as follows:

“10.1 The Second Named Respondent failed to transpose the requirements of Council

Directive 2001/42/EC, and/or provide for its implementation in a manner so as to ensure its

effective operation.”

52. The applicants amended their statement of grounds to delete that issue, so that ground has

been removed from the case.

53. Core ground 11.1 states as follows:

“11.1 The First Named Respondent made a fundamental error of law and fact in its

determination that the lands, the subject matter of the application, were designated for a

tall (mid-size) building either in the Dublin City Development Plan or in any Plan or at all,

and or failed to properly consider whether the Plan / the SDRA 12 was appropriate to and

or consistent with the statutory Development Plan and or failed to properly consider and

have appropriate regard to the expert Inspector’s conclusions, failed to give reasons and or

have appropriate regard to the Plan and constitutes an error of law of the face of the record.”

54. This was rejected in the No. 1 judgment.

55. Core ground 11.2 states as follows:

“11.2 The First Named Respondent erred in law in failing to ensure that the plans and

particulars lodged complied with the requirements of the Planning and Development

Regulations such as to allow for precise determinations as to the height of all buildings,

distance from boundaries and failed to consider the obligations of the validity of the

application so as to ensure the requirements of the Regulations were complied with which is

a condition precedent to its consideration and determination.”

56. This wasn’t pursued, as noted in the No. 1 judgment.

57. The disposition of the various sub-grounds can be taken to follow the fate of the associated

core grounds.

Order

58. Two final contextual points. Firstly, at the risk of stating what will be obvious to lawyers, it

isn’t part of the court’s function to adjudicate on the planning merits of any given proposal, and nor

should any order made by the court be read in that sense. The order made is a function of the

arguments pleaded and pursued, not the planning merits; albeit that all other things being equal, a

poor proposal might be more likely to stumble into a larger number of legal tripwires because the

applicable legal norms generally serve the interests of quality, under the rubric of proper planning

and sustainable development. But that is only a statistical perspective, not something that dictates

the outcome of any given case. I don’t in any way wish to reflect on the quality of this particular

development, acknowledging that the parties have differing views on that. But viewing the matter

in purely general terms, permission for a say low quality development that is challenged on

misconceived legal points will be upheld, whereas permission for a say high quality development

that trips on even a single meritorious legal point going to validity will be quashed. Where this

particular development lies on the merits spectrum is something for the court of public opinion: any

given judge in any given case is only concerned with legality, and more specifically only with legality

by reference exclusively to the particular legal points that are both properly pleaded (including on

pleadings as amended, where appropriate) and pursued at the hearing. For the avoidance of doubt,

that isn’t to suggest that there is some other point that would have changed the outcome had it

been pleaded or pursued here.

59. A final point that I might be forgiven for concluding on is that, in this case, as in all cases in

this list, I have been greatly assisted by the legal practitioners on all sides. The recent Practice

Direction HC119 sets out the court’s expectations of parties (and naturally their legal

representatives) in terms of business-like processing of cases, and the lawyers both in this case and

in cases generally have been providing sustained co-operation with each other and the court in that

regard. The lawyers in the list, if my experience so far is anything to go by, generally do an

admirable job in implementing the desiderata of efficiency and mutual respect and co-operation

contained in PD HC119. The present case is a good example, as the lawyers agreed to compress

the hearing of the present module into about an hour, rather than have it take up a full day or more.

That said, while legal practice comes with some obligations and expectations, it also has rights:

parties have an entitlement to access to justice, and for that purpose to be represented by lawyers

of their choice. Both dimensions should be acknowledged.

60. For the reasons set out in the judgment, the order will be:

(i) that the proceedings be dismissed;

(ii) that the foregoing order be perfected with no order as to costs (including no order

as to costs before the CJEU) unless a written legal submission is delivered setting

out reasons to the contrary, or setting out reasons in relation to any other

consequential issue, within 7 days of the date of delivery of this judgment; and

(iii) that in the event of such application, the matter be listed on the next convenient

Monday.