High Court quashes planning permission for contravening development plan by allowing post-demolition assessment.

[2025] IEHC 255

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2022.0000672]

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT

ACT 2000 AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT (HOUSING) AND

RESIDENTIAL TENANCIES ACT 2016

BETWEEN

DEIRDRE CONDON

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

RUDEN HOMES LIMITED

NOTICE PARTY

JUDGMENT of Humphreys J. delivered on Friday the 2nd day of May 2025

1. The permission under challenge here was taken under the ill-fated, now-repealed and,

empirically speaking, much criticised, strategic housing development (SHD) procedure. That

procedure became contentious not just due to the structural circumvention of decision-making at

the local tier but more specifically to the conspicuous gusto with which, in practice, the board availed

of its powers to materially contravene city and county development plans and reject views put

forward by councils. Indeed, this decision was taken at the very peak of the board’s enthusiasm in

that regard in May 2022, in the same month as the effective suspension of its deputy chairperson.

There are of course special categories of urgent infrastructure, particularly relating to the climate

emergency, where a council’s view can’t be allowed to be decisive, but to take that approach more

generally has been viewed as problematic. In this case, the permission was granted,

characteristically, despite objection from the council on the basis of a provision in the county

development plan (CDP) that old buildings of the type proposed for demolition in the permission

should be subjected to careful assessment. The board now defends this legacy decision (made with

such eagerness that it required not one but two subsequent proposed amendments to correct

mistakes) on the basis of the notion that the interpretation that best gives effect to the wording,

context, intention and purpose of the plan is to say that “should” means you don’t have to do it, and

“assess” means assess after the decision has been taken to knock the structures down. The question

here is whether this conveniently Jesuitical reading of the plan really is the best interpretation

available.

Geographical context

2. The application for development (https://www.pleanala.ie/en-ie/case/312658) is located in

the outer eastern suburbs of Cork city (Ballynaroon, Glounthaune, Co. Cork), a semi-urban, semi-

rural area – in rough terms near here: https://maps.app.goo.gl/Qph9maPpk5k2qLsMA. The project

involves demolition of existing buildings, construction of 112 residential units (72 houses, 40

apartments) and associated site works.

Facts

3. The developer participated in the pre-application consultation with the local authority and

the board. This included a pre-application consultation at which representatives of the developer,

the local authority and board were consulted on 4th March 2021.

4. The board issued an opinion on 11th August 2021, stating that it considered that the

documents submitted with the request to enter into consultations required further consideration and

amendment and these items were identified.

5. A notice placed in The Echo on 28th January 2022 identified that the application contained

a statement of material contravention and statement of consistency in respect of the CDP and the

local area plan (LAP) and invited the public to make submissions within five weeks of that date.

6. An application for planning permission pursuant to s. 4 of the Planning and Development

(Housing) and Residential Tenancies Act 2016 (the 2016 Act) was subsequently submitted by the

developer dated 7th February 2022.

7. The application included a planning report and statement of consistency and a material

contravention statement.

8. The application included an environmental impact assessment (EIA) screening report that

addressed the issues raised by the proposed development. The board subsequently conducted an

environmental impact screening assessment on the proposed development.

9. In response to the application for planning permission, the applicant submitted a

submission/observation that identified a number of criticisms of the proposed development on 11th

March 2022.

10. It is a matter of public record that as this matter was coming before the board, its record of

grant of SHD permissions in breach of development plans was coming to something of a crunch

point, as its deputy chairperson stepped aside on 10th May 2022.

11. The board’s inspector completed a site visit on 16th May 2022, and subsequently submitted

to the board a 142-page report that recommended that planning permission be granted subject to

26 conditions.

12. The board agreed with the inspector’s report and granted planning permission for the

development, the subject matter of these proceedings, by direction dated 31st May 2022.

13. The order of the board is dated 3rd June 2022.

14. The development plan was replaced by the Cork County Development Plan 2022-2028 which

came into effect on 6th June 2022.

Procedural history

15. The proceedings were originally opened on 28th July 2022 in the Non-Jury Judicial Review

List, before being transferred to the Planning and Environment List.

16. There was an additional direction in relation to a clerical error signed by the board’s then

chair on 28th September 2022, and an additional order signed by him on 3rd October 2022 resulting

in an amendment under s. 146A(1) of the Planning and Development Act 2000 (the 2000 Act).

17. The proceedings were transferred in that list to the present List’s predecessor on 14th

November 2022, and were then listed on 28th November 2022. Unfortunately, on that date and on

the following date (5th December 2022) papers were not in order as ShareFile had not been

populated by the applicant (I propose to address this in the provisional costs order below as in

general an applicant should not have costs of any dates necessitated by her own default).

18. On 5th December 2022, the matter was adjourned for one week to allow the applicant to

file an amended statement of grounds. Additionally, the parties were again requested to populate

the ShareFile.

19. Following the upload of papers, leave to seek judicial review was granted on 30th January

2023 with liberty to amend.

20. When the matter returned to the court on 13th February 2023, it transpired that the

applicant was also in default in not issuing the notice of motion on time, and in failing to red-line the

amended statement of grounds. There was then a peremptory order against the applicant to file a

correct amended statement of grounds. (Again I can address this by disallowing costs of default in

the provisional order).

21. The notice of motion was issued on 13th February 2023, returnable for 20th February 2023.

22. The matter was listed on 20th February 2023 for mention. Default directions were applied

from this date, with the applicant’s time for reply reduced from three to two weeks.

23. The board then defaulted on filing opposition papers in time, with time being extended on

5th May 2025, 3rd July 2023, and 9th October 2023 with agreed directions in each case.

24. The board eventually filed its statement of opposition on 27th October 2023, which was

accompanied with a replying affidavit of Mr Pierce Dillion sworn on the 25th of October 2023. The

notice party followed promptly with its opposition including a replying affidavit of Mr Brian

McCutcheon sworn on the 30th of November 2023.

25. On 4th December 2023, the notice party suggested that the matter be addressed in the

December 2023 List to Fix Dates, but failed to supply the necessary form to have the matter so

listed. The form is essential to allow competing priorities to be assessed – the nature of the List is

such that merely assigning dates in record number order would fail to take into account other metrics

of urgency. The form is not especially onerous and is at all times available on the Planning &

Environment Court web page.

26. The applicant filed a replying affidavit on 19th January 2024.

27. At the List to Fix Dates on 22nd January 2024, nobody applied for a date. On the same

date, the applicant sought time to file a final affidavit, and the notice party objected to this late

affidavit that was meant to be filed by 18th December 2023. The affidavit was ultimately allowed

without prejudice with the notice party allowed to reply.

28. Ultimately in the following List to Fix Dates on 12th February 2024, a date was asked for

and therefore was assigned for 30th July 2024.

29. Unfortunately, shortly beforehand, the original hearing date had to be vacated due to a

potential conflict raised by Holland J. who was due to hear it initially, on 26th June 2024. The matter

was then adjourned to the following List to Fix Dates. A new date was assigned on 21st October

2024 for 10th April 2025.

30. Meanwhile the applicant delivered legal submissions to the other parties on 6th March 2025,

and filed them on the same date.

31. On 24th March 2025, the board sought to file a further replying affidavit exhibiting

documents regarding the issue of what was before the board. The board was allowed to file its

affidavit de bene esse by Wednesday 26th March 2024.

32. The board filed a replying affidavit on 27th March 2025, and legal submissions on 2nd April

2025. The notice party filed their legal submissions on 7th April 2025.

33. The matter was heard on Thursday 10th April 2025.

34. At the start of the hearing, the board applied to modularise core ground 2 to enable the

board to exercise its statutory power to amend the permission to correct a second error in its

wording. That was on the basis that the applicant would be entitled to amend her pleadings to

address any such amendment including by way of contending that the board wasn’t entitled to

amend the permission and thus was reserving her position in full. The board suggested modularising

core ground 2 in full rather than in part. The notice party asked that best endeavours would be used

to do so expeditiously. The conceit was that if the applicant succeeded on core grounds 1 or 3, then

the amendment of the permission would be unnecessary – the issue would be dealt with on remittal

if that arose. If the applicant doesn’t so succeed, then there would be a module II post-amendment

of the permission and post-consequential amendment of the pleadings. The applicant said she

wasn’t really opposing this so I made an order in those terms without objection. Again

commentators at a distance can complain about modularisation in the abstract, but in the concrete

situation it almost always happens because the people actually involved want it to happen in the

case at hand.

35. Judgment was reserved at the end of that hearing. I would like to record my thanks to all

of the lawyers involved for their unfailingly courteous, professional and helpful assistance. Insofar

as any points advanced are not being accepted in this or any other given judgment, that is solely to

do with the inherent merits of such points and is no reflection on those instructed to convey such

points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to

all concerned. Perhaps I could be indulged on this one occasion in noting the able presentation of

the matter by junior counsel for the applicant, against vigorous and excellent opposition by two Silks

for the opposing parties, particularly on the metric of concision, which all of the lawyers were helpful

with and which is never far from the top of the court’s own list of desiderata.

36. On 11th April 2025, the board helpfully wrote in to the court, copied to the applicant, with

further information about the procedural history arising from discussion at the hearing. In fact it

would be very useful going forward if this sort of information (including particularly details of the

dates on which matters had to be adjourned due to default on one side or the other) could be

included in the statement of case to assist the court.

37. So in summary, as to why the decision is of a bit of antiquity, one can say as follows. People

sometimes pick up a judgment and ask why there wasn’t an earlier hearing, but in most cases the

answer to that is the adversarial system. A date will be considered if a party applies for that, which

in most cases at present can be done at an early stage and even prior to the grant of leave in

expedited cases. It isn’t always possible but the date-fixing process doesn’t properly begin until

somebody properly asks for it, supplying the requisite minimum of information for that purpose in

the requisite way. The court tries to move cases along in any event but when it comes to allocating

dates, those aren’t going to be imposed on parties without request unless or until there is a surplus

of dates over cases, which is a hypothetical scenario dependent on resources not within the court’s

control. There is no endless indulgence as it is sometimes put for default by opposing parties or any

parties – rather the parties are allowed set the tempo within the overall envelope of the case-

managed nature of the proceedings. The moment somebody asks for a peremptory order or any

particular order to deal with default, that will be actively and sympathetically considered – so not

making such orders when they aren’t sought isn’t indulgence, it is the adversarial system at work.

The participants in any given case are the best judge of urgency. Obviously the court tries to keep

things moving at a reasonable pace, and obviously there are autonomous obligations in that regard

under the ECHR and otherwise, but the obligations of the State overall to organise the system in

such a way that all cases are heard promptly can’t be entirely concentrated on a specific court

working within limited resources provided to it by other branches of government. It is too simplistic

to say that the court should compel people to do something that nobody is looking for, when the

only result of that would be for the case to join a queue for a date that nobody was looking for

either, in a competitive context where the limited number of dates available will be given to those

more actively seeking them. And characteristically, there was no one reason for the lapse of time

here – the case was initiated in another list, the applicant’s papers were not in order, the board

delayed in its papers, the developer did not activate the correct procedure to seek a date and then

didn’t seek one at all in the following List to Fix Dates, with the final stochastic intervention of a

conflict resulting in the matter going back into that list. There are no simplistic solutions to such

situations.

Relief sought

38. The reliefs sought in the amended statement of grounds are as follows:

“1. An order of Certiorari by way of application for judicial review quashing the decision

of the Respondent of 3rd June 2022 granting planning permission to the Notice Party for the

construction of 112 residential units at lands at Ballynaroon Glounthane, Co. Cork (ABP Ref

312658-21).

2. Such declaration(s) of the legal rights and/or legal position of the applicant and/or

persons similarly situated as the court considers appropriate.

3. A Declaration that Section 50B of the Planning and Development Act 2000 as

amended, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011

and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure

Campaign Limited v. An Bord Pleanála whereby proceedings where the application of national

environmental law is at issue, it is for the national court to give an interpretation of national

procedural law which, to the fullest extent possible, is consistent with the objectives laid

down in Article 9(3) and (4) of the Aarhus Convention apply to these proceedings.

4. A stay, if necessary, on works being carried out pursuant to the impugned grant of

planning permission pending the resolution of these proceedings.

5. Further or other order.

6. Costs.”

Grounds of challenge

39. The core grounds of challenge are as follows:

“1. The impugned decision is invalid in that it materially contravenes Objective HOU 4_1

of the Cork County Development Plan 2014-2020. The Board acted ultra vires in breach of

section 9(6)(c) of the 2016 Act in granting permission without considering whether such

material contravention could be justified by reference to the requirements of section

37(2)(b) of the Planning and Development Act 2000 and/or granted permission in respect

of a development in respect of which material contraventions of the CDP were not identified

by the Developer in the course of its Statement of Material Contravention, further particulars

of which are at Part 2 below.

2. The impugned decision is invalid in that it materially contravenes Objective SC 3_1

of the CDP. The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in

granting permission without considering whether such material contravention could be

justified by reference to the requirements of section 37(2)(b) of the Planning and

Development Act 2000 and/or granted permission in respect of a development in respect of

which material contraventions of the CDP were not identified by the Developer in the course

of its Statement of Material Contravention and/or the Board had insufficient regard to the

Childcare Guidelines for Planning Authorities 2001 and/or Child Care Act 1991 (Early Years

Services) Regulations 2016 and/or Condition 3 is void for uncertainty, further particulars of

which are at Part 2 below.

3. The impugned decision is invalid in that it materially contravenes Objective HE 3_4

and sections 12.3.11 and 12.3.12 of the CDP. The Board acted ultra vires in breach of

section 9(6)(c) of the 2016 Act in granting permission without considering whether such

material contravention could be justified by reference to the requirements of section

37(2)(b) of the Planning and Development Act 2000 and/or the Board failed to have any or

any sufficient regard to the Framework and Principles for the Protection of Archaeological

Heritage pursuant to section 28 and/or section 143 of the Planning and Development Act

2000 and/or the Board could not have identified the significant effects on the environment

for the purposes of its EIA assessment, further particulars of which are at Part 2 below.”

Domestic law issues

Core ground 3 – Highlands House

40. It makes sense to begin, as the applicant did in submissions, with core ground 3.

41. Core ground 3 is:

“3. The impugned decision is invalid in that it materially contravenes Objective HE 3_4

and sections 12.3.11 and 12.3.12 of the CDP. The Board acted ultra vires in breach of

section 9(6)(c) of the 2016 Act in granting permission without considering whether such

material contravention could be justified by reference to the requirements of section

37(2)(b) of the Planning and Development Act 2000 and/or the Board failed to have any or

any sufficient regard to the Framework and Principles for the Protection of Archaeological

Heritage pursuant to section 28 and/or section 143 of the Planning and Development Act

2000 and/or the Board could not have identified the significant effects on the environment

for the purposes of its EIA assessment, further particulars of which are at Part 2 below.”

42. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant

Neither the Developer nor the Board inspected the interior of Highlands House even though

(it is now clear) access to the House was possible. Highlands House appears on maps from

the 1840s and therefore benefits from the protections in Objectives HE3_4 and §§12.3.11

and 12. The Developer’s approach was subject to trenchant criticism by the Local Authority.

Further and in the alternative the Applicant argues that the Board could not rule the necessity

for EIA at screening stage in circumstances where it did not know the potential impacts on

archaeology as a result of the proposed demolition of Highlands House.

Respondent

The Board’s decision to grant permission for the proposed development does not conflict

with either §12.3.11-12.3.12 or Objective HE 3-4 of the CDP nor does it amount to a material

contravention of the aforesaid provisions. It is clear that Objective HE 3-4 and §12.3.11-

12.3.12 of the CDP and their application allows flexibility, discretion and/or planning

judgment. The Board’s assessment of consistency with the CDP on these issues is

reviewable for irrationality only. Objective HE 3-4 does not prescribe the method of

preservation to be applied (i.e. preservation in situ or preservation by record). On the basis

of the material before him, the Inspector concluded – and was entitled to conclude – that

Highlands House had been heavily modified over time with little remaining of archaeological

importance. Condition 4 as recommended by the Inspector and attached by the Board

requires that a full building survey of Highlands House will be carried out by a suitably

qualified person prior to any development and ensures preservation by record of any

archaeological features which may exist within the house. This was consistent with the

provisions of the CDP which the Applicant invokes.

In respect of the Applicant’s case impugning the Board’s EIA screening determination, the

Applicant did not place any evidence before the Board as regards the importance of

Highlands House or the basis upon which it could be said that the demolition of the relevant

buildings would give rise to a significant effect on the environment and the Applicant ought

to be precluded from now raising the said issues in these proceedings. Without prejudice to

the foregoing, the Applicant’s case regarding the Board’s EIA screening determination

amounts to an assertion that the Board did not have adequate information before it for the

purpose of making an EIA screening determination. The adequacy of the information for the

purpose of conducting a screening for EIA is a matter within the competency and jurisdiction

of the Board, subject to limited review on rationality grounds only. The Board had sufficient

information before it to make a lawful EIA screening determination.

For completeness, the Board’s legal submissions at §70, 71, and 74 refer to Objective HE 4-

3. This is a typographical error and should read Objective HE 3-4.

Notice Party.

The Board acted wholly within its jurisdiction in interpreting Objective HE3-4 and sections

12.3.11 and 12.3.12 in a evaluative judgement of the expert decision maker. The

construction of the CDP is a matter of discretion and planning judgement, and cannot be

impugned on the facts of this case for irrationality. The Applicant’s case on Core Ground 3

is dependent on an interpretation of the CDP that requires a mandatory physical inspection

of every building or other structure and a mandatory archaeological investigation of every

site along with preservation of any remains (on the basis that preservation by record ‘is not

lawful’). The relevant Objective and policies of the CDP cannot carry the heavy load of this

submission.

The Notice Party adopts the Respondent’s submission on the Board’s EIA screening

determination.”

43. Section 9(6) of the 2016 Act states:

“(6) (a) Subject to paragraph (b), the Board may decide to grant a permission 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 materially the development plan or local

area plan relating to the area concerned.

(b) The Board shall not grant permission under paragraph (a) where the proposed

development, or a part of it, contravenes materially the development plan or local area plan

relating to the area concerned, in relation to the zoning of the land.

(c) Where the proposed strategic housing development would materially contravene the

development plan or local area plan, as the case may be, other than in relation to the zoning

of the land, then the Board may only grant permission 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

permission for the proposed development.”

44. Section 37(2)(b) of the 2000 Act thereby referred to states:

“(b) Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board may only

grant permission in accordance with paragraph (a) where it considers that—

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

(ii) there are conflicting objectives in the development plan or the objectives are not clearly

stated, insofar as the proposed development is concerned, or

(iii) permission 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 Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern

of development, and permissions granted, in the area since the making of the development

plan.”

45. Objective HE 4-3 of the CDP states:

“Protect and preserve the archaeological value of industrial and post medieval archaeology

such as mills, limekilns, bridges, piers, harbours, penal chapels and dwellings. Proposals for

refurbishment, works to or redevelopment/conversion of these sites should be subject to

careful assessment.”

46. Sections 12.3.11 and 12.3.12 of the CDP state:

“Medieval Archaeology

12.3.11 Many of Irelands medieval structures, both rural and urban, were swept away in the

18th /19th century and replaced with buildings that make up the core of our heritage building

stock today. Further potential for archaeology lies within these old buildings, as some were

remodelled retaining elements of older buildings. Buildings shown on the first and second

edition Ordnance Survey’s Maps from 1840s and 1900s have the potential to contain earlier

structures and features. Prior to development of these buildings an assessment should be

carried to assess the heritage value of the structure.

Industrial and Post medieval Archaeology

12.3.12 Other important elements of our archaeological heritage are the later remains of

structures and features associated with industrial, agricultural, cultural, military, docks and

harbours, religious, social activities. These Industrial and postmedieval items of built

heritage include penal chapels, limekilns, houses, mass paths, stepping stones, mills,

bridges, railway features and famine burial grounds. They can make a valuable contribution

to the local historic landscape and have potential to add to our understanding of the past.

Whilst some of these are Archaeological Monuments and/or Protected Structures, the vast

majority have no such protection and are consequently very vulnerable items of our

heritage.”

47. The NPWS Framework and Principles for the Protection of the Archaeological Heritage

envisage preservation by record in certain circumstances but that this would be preceded by

assessment. They state inter alia:

“3.5 Preservation by record

Where archaeological sites or monuments (or portions of such) are to be removed due to

development then it is essential that the approach of preservation by record be applied.

Preservation by record requires that appropriate archaeological excavation and recording is

carried out which ensures that, as a minimum, a complete and meaningful record is

preserved of all archaeological deposits, features and information likely to be damaged as a

result of the development. Such archaeological excavation to mitigate the impact of

development is known as rescue excavation. If preservation by record is to be applied the

developer must accept responsibility for the costs of archaeological excavation to the extent

necessitated by the development. Such costs include those arising from the preparation of

a report on the excavation. It should be noted that the Minister for Arts, Heritage, Gaeltacht

and the Islands may consider a proposed archaeological excavation to be inappropriate

because there will be difficulties in providing for the long term storage and curation of

archaeological objects uncovered in the course of the excavation.”

48. And:

“3.6.3 Benefits of carrying out archaeological assessment Archaeological assessment may

help greatly in securing preservation in-situ. It is an essential preliminary step before the

application of preservation by record and archaeological monitoring. By helping to ensure

that developments have been designed from the outset in such a way as to avoid or minimise

archaeological impacts, archaeological assessment can avoid or reduce costs and delays.”

49. It is common case that Highlands House is a structure appearing on the Ordnance Survey

map of 1840.

50. The archaeological assessment dated December 2021 carried out by Lane Purcell

Archaeology on behalf of the notice party states (at para 2.4):

“Cartographic evidence from the 1842 Ordnance Survey (OS) 6-inch map indicates the

proposed development site was parkland and woodlands associated with The Highlands

country house (Fig.5). The house and a second associated building are unnamed on the

1842 OS map, but the house is named on subsequent editions. The house is depicted as a

north-south rectangular building, with a similarly sized building a short distance to its east”.

51. The assessment goes on to state:

“Cartographic evidence from the turn of the 20th century shows some changes to the

proposed development site (Fig.6). The Highlands is named and has been significantly

altered and extended forming the southwestern side of a range of buildings which enclose a

large yard.”

52. The conservation officer of the council reported as follows, included in the chief executive’s

report:

“Report

I have read and assessed the submitted Archaeological Assessment by Musetta O’Leary and

Avril Purcell dated Dec 2021. The assessment is a desk-based assessment with site

inspection which was curtailed due to presence cereal crop in the field and the woodland

area to north and The Highlands complex were unavailable.

In regards to the archaeological assessment of the open field, I am satisfied there is no

visible or known archaeology within this area. I am also satisfied that the north western site

boundary serves as an appropriate buffer/or the ringfort (C0075-010).

However, I am not satisfied that the geophysical survey and archaeological testing was not

carried out as part of the assessment as recommended in the pre planning in order to guide

the design and layout of the development, facilitating the preservation any archaeological

site/feature identified in situ, which is in accordance with the National Monuments Service

Frameworks and Principles for the Protection of the Archaeological Heritage Section 3.4 :

[quoted]

In the absence of archaeological investigation which would have indicated the potential for

subsurface archaeological within the proposed development site I am also recommending all

topsoil removal is archaeologically monitored.

In regards, to The Highlands and attendant farm building, I note the archaeologist states

they were not accessible at the time and recommends an archaeological inspection of same

along with the woodland area to north. The Highlands dwelling house and associated

buildings and grounds are Post medieval heritage buildings. Apart from some photographs

in the Architectural Design Statement no details are provided, there is no assessment of the

building complex. Two buildings are shown on the 1842 OS map, as outlined in Section

12.3.11 of the County Development Plan they ‘have the potential to contain earlier structures

and features’ and prior to development of these buildings an assessment should be carried

to assess the heritage value of same. In addition, as outlined in Section 12.3.12. of the

County Development Plan later buildings such as this are an important elements of our

heritage, though not specifically designated or protected they do make a valuable

contribution to the local historic landscape and have potential to add to our understanding

of the past. Again as stated in the Development Plan Objective 2014 HE 3-4 these buildings

shall be subjected to careful assessment. The assumption they can be demolished without

acknowledgement and due regard to their heritage value is unacceptable and development

in this area should be omitted pending the outcome of the Historic assessment of the

buildings.

Therefore, it is recommended a Historic assessment of the building is carried out by a

suitably qualified consultant with experience in recording heritage buildings. It is also

recommended that the building is assessed by a suitably qualified conservation engineer to

assess the structural integrity of the building to and the potential for renovation. It is

recommended that these buildings are retained and the area excluded from the development

until the assessment is carried out to establish the nature, date and significance of the

complex in order to make an informed planning decision.

As the buildings are also architectural heritage the comments of the Conservation officer

should be sought.

Finally, the old disused roadway shown on 1840's map as identified in the Archaeological

Assessment, now overgrown with mature trees, should be acknowledged as a heritage

features on the Landscape and Visual Assessment and retained as a pedestrian walk way.”

53. The recommended conditions included:

“The development in the area containing The Highlands and its attendant outbuildings

complex should be omitted pending the outcome of the Historic Buildings assessment. The

applicant is required to engage the services of a heritage building specialist with experience

in recording heritage buildings to undertake an archaeological/architectural record of The

Highlands and its attendant outbuildings complex. This should include the following:

• A detailed history of the proposed development site. All available historical sources

are to be consulted (including photographic material), this should also be supported

by cartographic evidence which will aid in evaluating the development of the site.

• A detailed written description (form, fabric, function, and date) of the existing

building and any associated features or structures. This should include information

on the materials used in the construction of the buildings as well as all architectural

features, fixtures and fittings and associated [features].

• The report should be cross referenced and supported by appropriate illustrations

such as scaled drawings (plans, sections, elevations @ 1:50 and/or 1:100) and a

clearly [labelled] photographic record. Where a building is multi-phased a plan

indicating the different phases shall also be submitted.

• It is advised the appointed consultant to liaise with the Local Authority Heritage Unit

prior to submitting the assessment.”

54. The inspector rejected this:

“11.5.7. Assessment of Section 11.5: I note the comments and reports received from the

applicant and the Planning Authority. The issues in relation to archaeology can be addressed

by way of condition. The applicant can be conditioned to employ an archaeologist during

the removal of topsoil to ensure that there is no potential impact to any archaeology on site.

11.5.8. I disagree in relation to the omission of the Highlands from the development and its

proposed demolition. These buildings are not protected structures and are not listed on the

National Inventory of Architectural Heritage. It is a function of the Local Authority to identify

such structures worthy of protection, and this has not been done in this case. From the

available information, submitted photographs and site visit, these buildings have been

heavily modified over time with little remaining that is of importance. A survey of the

buildings by a suitably qualified person and the preparation of a report on these structures

for record purposes may be adequate.

11.5.9. In conclusion, I have no reason to recommend to the board that the development

be refused permission due to impact.”

55. The board submits:

Ҥ12.3.11 of the CDP provides that, prior to development of the relevant buildings referred

to therein, an assessment should be carried out to assess the heritage value of the structure.

Two observations arise from this. First, the language of ‘should’ is not absolute / mandatory

and leaves some flexibility. Second, and more fundamentally, contrary to the Applicant’s

contention (at §83 of the Applicant’s submissions), §12.3.11 of the CDP does not mandate

that relevant buildings are surveyed in order to determine whether planning permission

should be granted. Rather, they should be surveyed prior to development.”

56. So “should” means you don’t have to, and “assess” means assess after rather than before

permission to demolish. This isn’t the best reading of the CDP.

57. I agree with the board that the plan isn’t mandatory about preserving such buildings in situ

– the possibility of preserving by record and by recovered artefact prior to demolition is an option

following the assessment. But the assessment in the clearly intended sense of a physical survey is

envisaged as required in advance – there is no meaningful evaluative judgement involved in that.

58. In any event on the facts here the board expressly decided that a full physical survey

was required – hence condition 4:

“4. The Developer shall engage the services of a suitably qualified person to undertake a full

building survey and record of the house and associated outbuildings proposed for demolition

to the northwest of the site. Full details of the scope of this survey should be agreed in

writing with the planning authority prior to the commencement of works on site

Reason: In order to conserve the archaeological heritage of the site, it is considered

reasonable that the developer should facilitate the preservation by record of any

archaeological features or materials which may exist within it”

59. That logic is incompatible with the view that there was compliance with the development

plan. Implicitly, the primary purpose of survey of historic buildings can only be to guide whether

development consent should be granted. Otherwise, if anything of interest that would affect the

grant of permission to demolish is discovered in the survey, all that can be done is to close an empty

stable door, with the runaway horse just a dot on the horizon because the decision to demolish has

already been made. The board says there’s nothing to see here and that that is what the CDP

means. Unfortunately that is obviously not what the CDP means.

60. In terms of sub-grounds the applicant pleads as follows (emphasis added):

“17. The Developer submitted an Archaeological Assessment that noted that the

Highlands house appear[s] on OS Maps from the 1840s but (3.1) that neither it nor its

curtilage was not available for inspection. No explanation is provided as to why

no such inspection was possible, albeit some very long distance photographs of the site

were included.”

61. This takes on a particular resonance where the board has now exhibited detailed internal

plans of Highlands House which must have been compiled by somebody with access. There are also

drone survey pictures which show a car parked in the curtilage – the applicant very reasonably

makes the point that the natural and obvious inference is that the car was that of the drone operator.

I agree with the applicant that the claim that the house and curtilage were not available for inspection

is implausible given these factors and the lack of explanation at any stage. That isn’t advanced as

a ground for relief in itself but it does reinforce the non-compliance with the requirement for

assessment.

62. The statement of grounds continues (emphasis added):

“18. This approach was subject to significant criticism by Council. The Archaeology

Officer in the Council noted that the default assumption of the National Monuments Service’s

Frameworks and Principles for the Protection of the Archaeological Heritage at 3.4 was

preservation in situ of building of archaeological importance whereas the Developer proposed

demolition of the building. At 4.7 of the Chief Executive’s Report it was observed:

‘In regards, to The Highlands and attendant farm building, it is noted the applicant’s

archaeologist states they were not accessible at the time and recommends an archaeological

inspection of same along with the woodland area to north. The Highlands dwelling house

and associated buildings and grounds are Post medieval heritage buildings. Little detail has

been provided and there is no assessment of the building complex. Two buildings are shown

here on the 1840’s OS map. As some building are shown on the 1842 OS map, as outlined

in Section 12.3.11 of the County Development Plan they “have the potential to contain earlier

structures and features” and prior to development of these buildings an assessment should

be carried to assess the heritage value of same. In addition, as outlined in Section 12.3.12

of the County Development Plan later buildings such as this are important elements of our

heritage, though not specifically designated or protected they do make a valuable

contribution to the local historic landscape and have potential to add to our understanding

of the past. Again, as stated in the Development Plan Objective 2014 HE 3-4 these buildings

shall be subjected to careful assessment. The assumption that they can be demolished

without acknowledgement and due regard to their heritage value is unacceptable and

development in this area should be omitted pending the outcome of the Historic assessment

of the buildings.

Therefore, it is recommended that an historic assessment of the building is carried out by a

suitably qualified consultant with experience in recording heritage buildings. It is also

recommended that the building is assessed by a suitably qualified conservation engineer to

assess the structural integrity of the building and the potential for renovation. It is

recommended that these buildings are retained and the area excluded from the development

until the assessment is carried out to establish the nature, date and significance of the

complex in order to make an informed planning decision. Should the overall historic

assessment satisfactorily demonstrate that demolition is appropriate, a future application

could be considered for an apartment development along the lines shown in the development

(while addressing design issues raised by the Council’s Architect).’

19. The Report recommended that: ‘The applicant is requested to submit a structural

engineering report/survey from a qualified structural conservation engineer that sets out the

condition and existing structural integrity of the existing dwelling and attendant outbuildings

on site that is proposed to be demolished. Based on this report, the applicant will have to

submit significant reasons as to why the existing habitable dwelling and outbuildings on site

cannot be refurbished and reused for the purposes of habitation before the Planning

Authority can consider its demolition.’

20. The Board’s Inspector disagreed. After summarising the Developer’s position and

that of the Council they noted (11.5):

‘I note the comments and reports received from the applicant and the Planning Authority.

The issues in relation to archaeology can be addressed by way of condition. The applicant

can be conditioned to employ an archaeologist during the removal of topsoil to ensure that

there is no potential impact to any archaeology on site.

I disagree in relation to the omission of the Highlands from the development and its proposed

demolition. These buildings are not protected structures and are not listed on the National

Inventory of Architectural Heritage. It is a function of the Local Authority to identify such

structures worthy of protection, and this has not been done in this case. From the available

information, submitted photographs and site visit, these buildings have been heavily

modified over time with little remaining that is of importance. A survey of the buildings by

a suitably qualified person and the preparation of a report on these structures for record

purposes may be adequate.

In conclusion, I have no reason to recommend to the board that the development be refused

permission due to impact on archaeology.’

21. Condition 4 was attached to the permission in the following terms:

‘The developer shall engage the services of a suitably qualified person to undertake a full

building survey and record of the house and associated outbuildings proposed for demolition

to the north west of the site. Full details of the scope of this survey should be agreed in

writing with the Planning Authority prior to the commencement of works on site.

Reason: In order to conserve the archaeological heritage of the site, it is considered

reasonable that the developer should facilitate the preservation by record of any

archaeological features or materials which may exist within it.’

22. This is not a correct approach. Leaving aside that there does not appear to be any

photographic evidence of the Highlands House on the file and no evidence that the Inspector

inspected the House in the course of their site visit, the scheme of the CDP clearly

identifies that archaeological heritage must be protected outside the narrow ambit

of the Record of Protected Structures. This is made express in 12.3.11 and 12.

Specifically the CDP states:

‘Buildings shown on the first and second edition Ordnance Survey’s Maps from 1840s and

1900s have the potential to contain earlier structures and features. Prior to development of

these buildings an assessment should be carried to assess the heritage value of the

structure.’

23. HE 3_4 states:

‘Industrial and Post Medieval Archaeology Protect and preserve the archaeological value of

industrial and post medieval archaeology such as mills, limekilns, bridges, piers, harbours,

penal chapels and dwellings. Proposals for refurbishment, works to or

redevelopment/conversion of these sites should be subject to careful assessment.’”

63. The applicant is correct in this regard. The reasoning of the inspector is erroneous in placing

outsize reliance on the Record of Protected Structures (RPS) or the National Inventory of

Architectural Heritage (NIAH). The general language of the development plan is unambiguously

designed to cover historic buildings generally above and beyond those with specific protections.

64. The statement of grounds continues (emphasis added):

“24. It is clear that the buildings referred to in sections 12.3.11 and 12 of the CDP

must be surveyed as part of the assessment in order to determine whether

planning permission should be granted and not simply prior to demolition. In this

case, even if significant features of archaeological importance are identified the building shall

still be demolished. This is the opposite of the approach mandated by the CDP.”

65. The applicant is correct in this interpretation of the CDP. It would nullify the intention of the

plan if it were to be given the hyper-literal interpretation that survey could precede actual demolition

but post-date the decision to demolish. That is a textbook example of the precept that the letter

killeth but the spirit giveth life. The intention of the CDP can only be realised if the survey precedes

a decision on what should be demolished. A reasonably well-informed addressee of the plan would

interpret it thus, bearing in mind that the plan is not something written by lawyers and so a certain

informality of language has to be allowed for. But informality of language does not equate to a lack

of intention to give rise to imperative or meaningful effects (which might be the mistaken conclusion

that a literally-minded person could seek to impose on any given document). The council, whose

plan this is, inferentially reject the board’s interpretation in their submission on the project. The

fact that the council’s view isn’t binding doesn’t mean that it isn’t of interest or indeed that it isn’t

correct. The interpretation of the plan is a matter of law and hence a de novo issue for the court –

deference to the views of a decision-taker such as the council or the board on legal matters doesn’t

arise (see analogously Minogue v. Clare County Council [2021] IECA 98, [2021] 3 JIC 2902

(Unreported, Court of Appeal, 29th March 2021) para. 100). But any given council is in practice the

entity that both made the plan concerned and that is most frequently called on to interpret and apply

it in practice, albeit that its interpretation is not definitive, so a council’s view on the meaning of its

own plan, while not something a court defers to, is something that a court should be interested in

knowing about and considering. As it happens, I agree with what is in effect that view here.

66. The statement of grounds continues (emphasis added):

“25. It is the Applicant’s case that the proposed development constitutes a material

contravention of Objective HOU 4_1 and section 12.3.11 and 12 of the CDP which

the Board could only have granted permission pursuant to the section 37(2)(b)

procedure.”

67. The applicant is correct on this point. The terms of the CDP are clear and, while there could

be evaluative issues as to the exact methodology of surveys or how to respond to the outcome of

surveys, they do not leave the issue of whether to conduct a proper survey in advance of a decision

on permission as being a matter meaningfully in the realm of evaluative judgement.

68. The fact that the CDP, not written by lawyers, uses “should” rather than “must” does not

render the concept of prior assessment a mere suggestion, and nor would a reasonable reader take

that to have been the council’s intention. Nor could the CDP be construed as intending that a

meaningful assessment can be postponed until after the decision to demolish has been made. Again,

a reasonable addressee of the plan would not take that as being the appropriate construction of the

terms of the plan.

69. Nor, as the board suggests, does the applicant’s argument have the consequence that an

internal assessment is mandatory in all cases. Whether an internal assessment would be capable of

engaging interests protected by the CDP in a given case depends on the case. For example, if it is

known that all historic features are external and that the internal makeup of the structure has been

totally remodelled, internal examination would serve no particular purpose. Accepting without

interrogation a bare assertion that access was not possible doesn’t put the board in a particularly

strong position under this heading in any event.

70. The statement of grounds continues:

“26. Further, and/or in the alternative it is the Applicant’s case that the Board could not

have screened out the possibility of significant effects on the environment for the purposes

of its screening assessment in circumstances where it had no information as to the potential

archaeological impacts in circumstances where the EIA Screening Report submitted by the

Developer was confined in relevant part to the observation that (3.10.7):

‘Archaeological inspection of the northern part of the proposed development site should be

undertaken to include the woodlands and The Highlands dwelling house and associated

buildings and grounds. The upstanding buildings should be assessed and recorded in

advance of any development.’

27. In the Board’s EIA Screening Report the question is posed ‘2.3 Are there any other

features of landscape, historic, archaeological, or cultural importance that could be affected?’

and the answer provided is ‘No’. It is the Applicant’s case that the Board could not have

answered that in the negative in the absence of any survey data in respect of Highlands

House. It follows that the Board could not have screened out the proposed development for

the purposes of the EIA Directive as it wrongly failed to identify the significant impact on

Highlands House.”

71. I don’t need to consider that as explained further below.

72. For the reasons outlined I would uphold core ground 3.

73. In the light of the foregoing we don’t need to consider core ground 1, or further pursue the

question of amendment of the permission in the light of core ground 2.

European Law issues

74. In the light of the foregoing we also don’t need to consider core ground 3 insofar as it relates

to EU law and in particular the principle that EIA must involve “as complete an assessment as

possible”: the judgment of 3 March 2011, Commission v Ireland, C-50/09, ECLI:EU:C:2011:109.

That only arises for consideration if I am wrong on the foregoing and if the applicant was to fail on

core grounds 1 and 2 had they been necessary to decide. But in the light of the recent answer from

the CJEU in the reference in the judgment of 6 March 2025, Waltham Abbey Residents Association

v An Bord Pleanála and Others, C-41/24, ECLI:EU:C:2025:140, it seems questionable as to whether

the board would have been allowed to leave any lacuna in data unaddressed. The board were explicit

in accepting that the inspector did not look at the interior of the house. But no decision on the EU

law aspects is required. Thus we don’t need to consider the board’s objection that the EIA point

can’t be successfully advanced in the absence of more detailed submissions on this issue from the

applicant. I can note in passing that significant number of cases under the 2016 Act have challenged

alleged structural shortcomings in the Act, in particular the compatibility between the restriction on

seeking further information with the EU law requirement to conduct complete assessments.

Fortunately for me, that challenge wasn’t made here so I don’t need to consider it in any event.

75. That said, this case illustrates some of the disadvantages of the short-cut SHD process. Had

the demolition of historic buildings been ventilated in a normal planning application, the developer

might have been sent down the path of the proposal being conditioned to preserve or repurpose the

historical parts of such buildings – something that often happens when proposing new uses for lands

on which old buildings stand and which can add interest and depth to the development in itself for

future generations. Serious consideration of that never got off the ground because the council’s

recommendation to omit the demolition was dismissed pretty much out of hand by the inspector.

Had there been due prior consideration of the options in the light of full survey data, there could

have been at least a possibility that it might have lead only to partial demolition, saving such older

parts of the structures as might be worth saving, if such exist, and incorporating them into the

development in some appropriate way or just as outdoor features open to public view. However we

never got to that point because of the excessively pinched and dismissive way the board chose to

read the plan here.

Summary

76. In outline summary, without taking from the more specific terms of this judgment:

(i) As follows from sub-ground 22, the board incorrectly placed outsize reliance on the

fact that the structures were not included in the RPS and NIAH, whereas the clear

and express language and intention of the CDP is to extend protection to structures

not so included.

(ii) As follows from sub-ground 24, the intention of the CDP is that assessment would

precede the decision whether to demolish or affect a structure, not just the execution

of such a decision. Indeed, the concept of the CDP that assessment should be carried

out prior to a decision to permit impacts on, or demolition of, historic structures, is

totally logical and makes complete sense in terms of protection of archaeological

heritage and in particular national policy as set out in the NPWS guidance.

(iii) This conclusion is reinforced by the fact that in the present case the board actually

did decide that a full physical survey was required, hence the imposition of condition

4. The conducting of such a full survey does not comply with the intention of the

CDP unless done prior to any decision on the granting of consent for full demolition.

(iv) As follows from sub-ground 25, the foregoing independent grounds, considered

either individually or collectively, give rise to a situation whereby the board

contravened the development plan but without expressly addressing the statutory

procedure for so doing.

(v) The lack of prior assessment is reinforced by the point made in sub-ground 17 that

the board proceeded on the basis that no internal inspection was possible but no

explanation was provided (or has ever been provided) as to why this was the case.

That is further reinforced by the inherent implausibility of that assertion in the light

of the material before the board and the court and indeed by the board’s failure to

meaningfully interrogate that assertion either then or at any stage since. I don’t

need to consider whether this would have constituted an independent ground of

relief because it was only argued in this particular case as a supporting and

reinforcing ground.

77. For the avoidance of doubt, points (i), (iii) and (v) are specific to the facts of this particular

case, and points (ii) and (iv) are specific to the interpretation of the particular development plan at

issue, which ceased to have effect three days after the decision was made.

Order

78. For the foregoing reasons, it is ordered that:

(i) there be an order of certiorari in terms of relief 1;

(ii) unless any party applies otherwise by written legal submission within 14 days from

the date of this judgment, the foregoing order be perfected forthwith thereafter on

the basis that there be an order for costs (including the costs of written submissions)

to the applicant against the first named respondent in respect of the proceedings,

the quantum to be determined, in default of agreement, in the legal costs

adjudication process, but disallowing the costs of the mentions on 28th November

2022, 5th December 2022 and 13th February 2023, and the costs of the initial

incorrectly formatted amended statement of grounds; and there be no order as to

costs in favour of or against any other party; and

(iii) the matter be listed on Monday 19th May 2025 to confirm the foregoing.