High Court quashes planning decision for failure to address ministerial guidelines in reasons.

[2025] IEHC 406

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000829]

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

ACT 2000, AS AMENDED

BETWEEN

VENTAWAY LIMITED

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

Date of impugned decision: 7 May 2024

Date proceedings commenced: 27 June 2024

Date of main hearing: 27-28 May 2025

Date draft judgment sent to parties: 8 July 2025

JUDGMENT of Humphreys J. delivered on Wednesday the 16th day of July 2025

1. The law as to reasons is a mainstay of judicial review nowadays. It applies to the main

reasons on the main issues. Where the commission differs from its inspector on any decisive point,

such differences will virtually by definition be main issues, so any failure by the commission to regard

such issues as pertinent for the purpose of giving reasons will be likely to be amenable to judicial

review. Here, the workaday application of this workaday principle produces a fairly unsurprising

result where the inspector placed decisive reliance on ministerial guidelines which are not addressed

in any identifiable way by the commission in terms of reasons when coming to the opposite

conclusion.

Geographical context

2. The application (https://www.pleanala.ie/en-ie/case/315053) for demolition of buildings and

construction of 24-storey mixed-use building with all ancillary site works is in respect of a site bound

by City Quay to the north, Moss Street to the west & Gloucester Street South to the south, Dublin

2. The site includes 1-4 City Quay (D02 PC03), 5 City Quay and 23-25 Moss Street (D02 F854).

Facts

3. In 2017 and 2019, high-rise buildings were consented fairly near to the site of the present

development at Apollo House and Tara Street respectively. The permission for the 2019 project is

particularly instructive (https://www.pleanala.ie/en-ie/case/302980) – much of the language there

is a carbon copy of what we have here except that there the inspector was negative and the board

was positive – taking the view that a 22-storey building would positively enhance the skyline and

not negatively affect protected views. Here, the roles are reversed.

4. On 17 August 2022, the applicant applied to Dublin City Council (the council) for a ten-year

permission for demolition of existing buildings and structures on site and the construction of a 24-

storey mixed-use building comprising office accommodation, arts centre and gym (Planning Reg No.

4674/22).

5. Submissions/objections were made to the council in respect of the proposed development

including from, inter alia: An Taisce, dated 20 September 2022 and the Office of Public Works (OPW),

dated 8 September 2022 – both of whom raised objections by reference to the adverse impact on

the Custom House and environs.

6. The council’s planner’s report, dated 11 October 2022, was prepared with regard to the

Dublin City Development Plan 2016-2022 (the previous development plan) and the Urban

Development and Building Height – Guidelines for Planning Authorities (2018) (the height

guidelines). The council’s planner’s report recommended that permission be refused for the

proposed development.

7. The council, by way of decision dated 11 October 2022, proceeded to refuse permission for

two reasons.

8. The new development plan was adopted on 2 November 2022.

9. The applicant appealed the council’s decision to the board on 7 November 2022 – submitting,

inter alia, an appeal response document to the board.

10. A number of submissions/observations were submitted on the appeal, including from the

OPW, dated 1 December 2022. Again, the OPW made further submissions in relation to the Custom

House, including in respect of concerns arising from the impact of the proposed development on

same.

11. The new development plan came into effect on 14 December 2022 – an important date in

the proceedings here.

12. The board’s inspector prepared a report, dated 12 October 2023, which recommended that

permission be granted for the proposed development, subject to conditions (the inspector’s report).

13. Subsequent to same, the board issued a board direction (BD-014704-23), dated 28

November 2023, which – pursuant to s. 137 of the 2000 Act – sought observations on the new

development plan and in particular Appendix 3.

14. On 4 December 2023, the board invited submissions from participants in the appeal in

relation to the performance criteria.

15. Submissions were received from various parties, including from the applicant through its

planning consultant, dated 9 January 2024; and the OPW, received by the board on 8 January 2024.

The submission from the OPW, dated 22 December 2023, raised further concerns with the proposed

development in terms of the impact on the Custom House, including by reference to s. 6 of Appendix

3 of the development plan.

16. The applicant made a submission, dated 8 February 2024, through its planning consultant

in response to the said observations from third parties.

17. A further board direction (BD-015655-24), dated 1 March 2024, was issued requesting that

an addendum be prepared by the inspector in relation to the said submissions. The inspector

prepared a further report (the inspector’s addendum report), dated 8 March 2024, which reiterated

the recommendation that permission be granted with an additional condition to those set out in the

inspector’s report to be included.

18. The board direction (BD-015873-24) (ABP-315053-22), dated 21 March 2024, outlined, inter

alia, that the board considered the submissions on file and the inspector’s report.

19. The board order (ABP-315053-22), dated 7 May 2024, was then made refusing permission.

Procedural history

20. Proceedings issued on 27 June 2024.

21. An ex parte application for leave to apply for judicial review was made before Holland J. on

8 July 2024. An order was made granting leave.

22. Originating notice of motion issued on 11 July 2024 returnable to 29 July 2024. Directions

were agreed between the parties and the matter was adjourned to 21 October 2024.

23. In December 2024, the developer submitted an alternative application for a 14-storey

development at 61.05 m or 14 storeys (https://planning.agileapplications.ie/dublincity/application-

details/164969).

24. On the 21 October 2024, I fixed a hearing date of 27 May 2025.

25. The respondent filed its statement of opposition on 29 November 2024.

26. The applicant filed its written submissions on the 2 May 2025.

27. The respondent filed its written submissions on the 20 May 2025.

28. The matter was heard on 27-28 May 2025.

29. 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. As I have

previously sought to make clear, 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.

30. On 4 June 2025, I sent the parties a list of provisional conclusions and requested their views

on whether a formal judgment was required and if so, on which points. This was the first case in

which this experimental procedure was tried so it must be considered to be still a work in progress

at time of writing.

31. On 18 June 2025, the commission substituted for the board by operation of law.

32. According to the council website referred to above, the fresh application for an alternative

14-storey building appears to have been granted permission by the council on 27 June 2025.

33. When the matter was next listed on 30 June 2025, the applicant said that no judgment was

required, but the commission requested a judgment on all issues. I indicated that I would consider

these views, but reserving the right not to decide all issues and/or to base the judgment on

something falling short of the widest set of grounds available.

34. What I propose to do is to articulate views on virtually all issues as requested by the

commission but indicating that I prefer to base the judgment on the domestic grounds so that the

EU-related issues are technically obiter.

35. On 8 July 2025, a draft of the present judgment was sent to the parties to give an opportunity

to identify any errors. The rules of engagement in such a situation are that the draft is without

prejudice to the right of the court ultimately to issue a judgment in whatever form or with whatever

content it considers appropriate. Any comments must be emailed to the relevant judicial assistant

and uploaded to ShareFile in writing prior to the listing date and should not be to reargue the

substance (submissions to that effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) typographical, factual or legal errors in the decision;

(d) requesting the court to decide a point that, while obiter/ unnecessary to decide, is

one the party considers could beneficially be decided;

(e) identifying significant points that the party considers that the court was required to

address but has not;

(f) identifying points that the court proposes to address but that the parties consider it

unnecessary to address;

(g) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; and

(h) any suggestions as to the wording (as opposed to substance) of the decision if the

proposed wording causes any significant issue for a party for any identified reason.

36. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the listing date, whether comments are made or not. That period will not

be extended save in exceptional circumstances. All parties involved are requested to positively

confirm to the court the position including if they have no observations on the draft legitimately

falling within the foregoing parameters. Overall the draft judgment procedure is a concession which

parties can engage with but must do so with immediate dispatch, discipline and focus – it is not the

opening of a new phase of the litigation that gives rise to “an entitlement to elaborate procedures

at every point” (borrowing the point made by O’Donnell C.J. (Dunne, Charleton and Baker JJ.

concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para.

39).

37. The listing date for this purpose was to be Monday 14 July 2025 at 09:30. At that point the

parties did not have any particular substantive changes proposed so the judgment is along the lines

of the draft, subject to refinement of the provision for consequential applications.

Relief sought

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

“1. An Order of certiorari by way of an application for judicial review quashing the

decision of the Respondent, An Bord Pleanála (the ‘Board’) made on 7 May 2024 (Ref. ABP-

315053-22) refusing planning permission for the demolition of existing buildings and

structures and the construction of a 24 storey mixed use building with all ancillary site works

at a site bound by City Quay to the north, Moss Street to the west & Gloucester Street South

to the south, Dublin 2 (the ‘Proposed Development’).

2. An Order remitting the application to the Board to be determined in accordance with

law.

3. Such declaration(s) as to the legal rights and/or legal position of the Applicant and

(if and insofar as legally permissible and appropriate) persons similarly situated and/or of

the legal duties and/or legal position of the Board as the court considers appropriate.

4. A declaration that the protective cost provisions contained in section 50B of the

Planning and Development 2000 Act, as amended and/or section 3 of the Environment

(Miscellaneous Provisions) Act 2011, and/or Order 99 and/or section 169 of Legal Services

Regulation Act 2015, as interpreted in light of Article 9 of the Aarhus Convention, apply to

these proceedings.

5. Such interlocutory relief as the court may order, including interlocutory relief as

defined by the Practice Direction applicable to the List.

6. If necessary, an order for discovery.

7. Such further or other order.

8. Liberty to Apply.

9. An Order in respect of the costs of these proceedings.”

Grounds of challenge

39. The core grounds of challenge are as follows:

“1. The finding by the Board that the Proposed Development was located within the

‘Dublin Historic Core’ for the purposes of Chapter 11 of the Dublin City Development Plan

2022-2028 amounts to a material error of law and/or fact in the interpretation of the relevant

provisions of the Dublin City Development Plan 2022-2028 including in particular, Figure 11-

2, entitled ‘Dublin’s Historic Core’ in Chapter 11 of the said Plan, and/or the said finding is

irrational, as a consequence of which the Board Decision is invalid. Further, or in the

alternative, the Board Decision is invalid in so far as it contains no adequate reasons as

required by law for concluding that the Proposed Development was located within the historic

city core or why it disagreed with the Inspector in that respect. The said material error of

law and/or fact undermines the Board’s reasons and considerations more generally in

relation to its assessment of visual impact and/or impact on architectural heritage, including

its reasoning for departing from the recommendation of its Inspector, as set out in more

detail in the particulars below. Further particulars of which are set out in Part 2 below.

2. The Board Decision is invalid in that it is unreasoned and/or contains no adequate

reasons as required by law for finding that the Proposed Development did not meet the

requirements of Tables 3 and 4 of Appendix 3 to the Dublin City Development Plan 2022-

2028. Further or in the alternative, the Board erred in its interpretation of the criteria in

Tables 3 and 4 of Appendix 3 to the Dublin City Development Plan 2022-2028. Further

particulars of which are set out in Part 2 below.

3. The Board Decision is invalid and irrational in that the Board refused permission for

the Proposed Development on the basis of a limited amount of cultural space despite the

requirements of objective CUO25 of the Dublin City Development Plan 2022-2028 being

exceeded. Further or in the alternative (i) the Board failed to give any or any adequate

reasons for not adopting the Inspector’s finding that the Proposed Development exceeded

the requirements of CUO25 and enhanced the public realm and / or (ii) the Board erred in

its interpretation of objective CUO25 of the Dublin City Development Plan 2022-2028.

Further particulars of which are set out in Part 2 below.

4. The Board Decision is invalid in so far as the Board failed to carry out an

environmental impact assessment (‘EIA’) of the proposed development notwithstanding the

fact that the application was accompanied by an EIAR, and so was in breach of section 172

of the Planning and Development Act 2000 as amended (‘the 2000 Act’) and/or section

172(1J) thereof, and/or Article 102 of the Planning and Development Regulations 2001, as

amended (‘the 2001 Regulations’), which give effect to Council Directive 85/337/EEC of 27

June 1985 on the assessment of the effects of certain public and private projects on the

environment, as amended (‘the EIA Directive’) and in particular, Articles 3-9 thereof. Further

particulars of which are set out in Part 2 below.

5. The Board Decision is invalid by reason of (i) its failure to have regard to or engage

in any meaningful way, or at all, with the criteria under §3.2 of the Urban Development and

Building Height Guidelines 2018 in considering the said application and/or in its Reasons and

Considerations, in breach of Section 28(2) and/or section 34(2)(a)(ia) of the 2000 Act,

and/or (ii) its failure to apply and/or comply with SPPR 3A of the said Guidelines in

considering the said application, in breach of Section 28(1C) and/or section 34(2)(aa) of the

2000 Act. Further or in the alternative, the reasons for the Board’s decision were inadequate

in so far as the said criteria under §3.2 of the said Guidelines were not properly considered,

or if they were considered (which is denied), the findings of the Board in relation to each of

the criteria were not recorded in its decision and are, therefore, not reviewable, as a

consequence of which the Board Decision was invalid. Further particulars of which are set

out in Part 2 below.

6. The Board Decision is invalid by reason of its failure to have regard to and/or engage

in any meaningful way with the performance criteria set out in Tables 3 and 4 of Appendix

3 of the Dublin City Development Plan 2022-2028 in breach of section 34(2)(a)(i) of the

2000 Act. Further, or in the alternative, the reasons for the Board’s decision were inadequate

in so far as the said performance criteria were not properly considered by the Board, or if

they were considered (which is denied), the findings of the Board in relation to each of the

criteria were not recorded in its decision and are, therefore, not reviewable, as a

consequence of which the Board Decision was invalid. Further, to the extent that there was

engagement with some of the said performance criteria, it was extremely selective,

perfunctory and superficial in light of the detailed expert evidence furnished by the Applicant

in relation to visual and townscape/heritage impact and also in light of the detailed analysis

provided by the Inspector in addressing these criteria. Moreover, such consideration as was

given by the Board is tainted by a number of errors of law and/or fact which are detailed

below. Further, two of the Board members did not have sufficient expertise or competence

to carry out a landscape and visual impact assessment in relation to the Proposed

Development or to examine or evaluate evidence relating to such matters. Further

particulars of which are set out in Part 2 below.

7. The finding by the Board that the location of the site is ‘a local landmark within

Dublin Docklands Strategic Development Regeneration Area 6 under the Dublin City

Development Plan 2022-2028, where a 5 to 8 storey building is envisaged’ in respect of

which ‘the Board considered the proposed development would fail to achieve this objective’

amounts to a material error of law and/or fact in the interpretation of the relevant provisions

of the Dublin City Development Plan 2022-2028 including in particular, Figure 13-6, which

accompanies the SDRA 6 provisions in the Development Plan, as a consequence of which

the Board Decision is invalid. Further, the said material error of law and/or fact, whether

considered on its own or together with the material error of law and/or fact referred to above

in relation to the location of the site in the historic City core, undermines the Board’s reasons

and considerations more generally in relation to its assessment of visual impact and/or

impact on architectural heritage, including its reasoning for departing from the

recommendation of its Inspector, as set out in more detail in the particulars below, as a

result of which the Board’s reasons for refusal are so flawed, erroneous and /or misconceived

as to be incapable of supporting its decision, and as a consequence of which the Board

Decision is invalid, void and of no legal effect. Further particulars of which are set out in

Part 2 below.”

The impugned decision

40. The basic rationale of the impugned decision was as follows (emphasis added):

“Reasons and Considerations

Having regard to the prominent and sensitive location of the subject site, by reason

of its important location within the historic City core fronting onto the River Liffey,

its proximity to the Custom House and having regard to Policies SC16, SC17 and SC18

of the Dublin City Development Plan 2022-2028 which seek to protect and enhance

the skyline of the inner city, and to ensure that all proposals for taller buildings

demonstrate sensitivity to the historic city centre, the proposed development due to

its scale, bulk and height would seriously detract from the setting and character of the

Custom House and environs.

Furthermore, having regard to the location of the site as a local landmark within Dublin

Docklands Strategic Development Regeneration Area 6, where a 5 to 8 storey

building is envisaged, the Board considered the proposed development would fail to

achieve this objective. In respect of the exception for landmark buildings, the Board

considered the proposed development failed to achieve the performance criteria for

Enhanced Height, Density and Scale as set out in Table 3 and the performance

criteria for Landmark Tall Buildings as set out in Table 4 of Appendix 3 of the

development plan. In particular, the Board considered the building height, form and layout

failed to adequately address the sensitive location, resulting in a negative impact

on important views and vistas, and would stand apart as an overly assertive solo

building which would not form part of a coherent cluster. In addition, the Board

considered the delivery of planning gain to the community was not sufficiently

demonstrated given the limited upgrades to the public realm and the limited amount of

cultural space proposed. The proposed development would, therefore, be contrary to the

proper planning and sustainable development of the area.

In deciding not to accept the Inspector's recommendation to grant permission, the Board

did not agree with the Inspector that the overall visual contribution to Dublin's city skyscape

would be positive and that there would be no harm to the setting and/or character of heritage

assets in the area, and particularly the Custom House. In reaching this conclusion, the

Board considered the entirety of documentation on file and shared the view of the

planning authority that the proposed development would stand apart from the

cluster of existing and emerging higher buildings at Tara Street and environs. The

Board disagreed with the commentary by the Inspector in respect of the proposed

development's ability to achieve the Performance Criteria for Enhanced Height, Density and

Scale and also Landmark Tall Buildings as set out in Tables 3 and 4 of Appendix 3 of the

Dublin City Development Plan 2022-2028. In particular the Board considered that the

development as proposed would fail to demonstrate sensitivity to the historic core fronting

on to the River Liffey and would visually intrude on important vistas, as evident in the

photomontages submitted, including the Custom House. Furthermore, the Board considered

that the proposed development would not appropriately integrate with or enhance the public

realm. The Board considered that a building of a different scale, mass and form could

reasonably promote a sense of place and character at this location which would be more

consistent with the character of the area.”

41. While one could summarise this in various ways, one can say that the basic and underlying

reasons for the refusal were two-fold:

(i) the development would “seriously detract from the setting and character of the

Custom House and environs” having regard to:

i. “the prominent and sensitive location of the subject site, by reason of its

important location within the historic City core fronting onto the River

Liffey”;

ii. “its proximity to the Custom House”; and

iii. “Policies SC16, SC17 and SC18 of the Dublin City Development Plan 2022-

2028 which seek to protect and enhance the skyline of the inner city”; and

(ii) the “proposed development failed to achieve the performance criteria” for exceptions

to the 5 to 8 storey norm for Dublin Docklands Strategic Development Regeneration

Area 6 because:

i. of impacts on views and vistas – the issue just referred to;

ii. the board shared the view of the planning authority that it “would stand

apart as an overly assertive solo building which would not form part of a

coherent cluster”; and

iii. “delivery of planning gain to the community was not sufficiently

demonstrated”.

42. The words “shared the view of the planning authority” are not without significance – that

involves an adoption of the council’s reasoning to some extent. More widely, the reasons are self-

evidently intertwined so sharing the planning authority’s view is not necessarily limited to the specific

matter identified. The intertwining of the reasons works both ways – on the one hand it allows the

commission to rely on the planning report but on the other hand it works against the commission

under the heading of severance. This has to be a coherent, joined up, concept – it isn’t a convenient

heads-I-win-tails-you-lose point that only operates to the benefit of the decision-taker.

The conclusions of the inspector’s report

43. The inspector’s conclusions were as follows:

“10.0 Conclusion

10.1. The proposed development is for a landmark tower on a city centre site situated within

a SDRA, where Policy SC16 under the Dublin City Development Plan 2022-2028 supports

increased height in appropriate locations. The proposed development conforms with the

land use zoning for the site and incorporates a new Arts/Cultural Centre in accordance with

policies/objectives CU12, CUO25 and CUO31 in the Development Plan. The proposed

development would also result in positive economic impact and provide modern office

floorspace in accordance with policies CEE3 and CEE21 of the Development Plan.

10.2. The proposed tower successfully incorporates criteria under section 3.2 of the Building

Height Guidelines and accords with performance criteria set out in tables 3 and 4 of Appendix

3 of the Dublin City Development Plan 2022-2028. The proposed high quality architectural

design and finish ensure that the overall visual contribution to Dublin’s city skyscape will be

positive and contribute to the cluster of existing and emerging higher buildings in the area

where the site is situated. While of a significant scale, the proposal will not overwhelm or

overbear surrounding areas. It is situated on a site that is appropriate for a taller building,

and with modulation to both its plan form and vertically across the structure to create visual

interest in its built form. The proposal therefore accords with policies SC17 and SC18 of the

Development Plan. A detailed assessment of visual and heritage impact has been carried

out and determined that overall, there will be no harm to the setting and/or character of

heritage assets in the area, and particularly the Customs House, in accordance with policy

SC17 of the Development Plan, as well as the Architectural Heritage Protection Guidelines.

While increased overshadowing and loss of daylight will result in some cases to surrounding

areas, this reduction in light and increased shading is commensurate with the impact that

would be experienced even if the proposed development were at a significantly reduced

scale. The proposal also incorporates compensatory design measures, contributes towards

regeneration of the area, renewal of the subject site which is derelict, and contributing

positively to the repair of the streetscape in accordance with criteria under section 3.2 of the

Building Height Guidelines.

10.3. An Environmental Impact Assessment and Appropriate Assessment has been carried

out and determined that with the incorporation of mitigation, no significant negative impact

results with respect to environmental considerations, and there would be no harm to the

integrity of any European site.

10.4. Overall, the proposed development conforms with national, regional and local planning

policies.”

The planner’s report

44. On the issue of views and the issue of the cluster, the council’s planner’s report includes the

following (emphasis added):

“Assessment

…

Proposals, including proposals in architecturally sensitive areas, to successfully integrate into

and enhance the character and public realm of the area, with a landscape and visual

assessment to be undertaken.

A Landscape and Visual Impact Assessment and Tall Building Statement have been

submitted as part of the proposal. There are elements and aspects of the subject site’s

receiving environment which are of a high sensitivity. These include the Custom House, the

Liffey Corridor and key views, such as from Gardiner St, Kildare St and Trinity College. In

the Landscape and Visual Impact Assessment Report 52 representative

viewpoints/photomontages have been submitted as follows

The immediate/surrounding public realm:

• Talbot Memorial Bridge (VIEW(S)1)

• George's Quay (VIEW(S)2)

• City Quay (VIEW(S) 3, 4)

• Moss Street alongside site (VIEW(S)5)

• Moss Street approaching site from the south (VIEW(S)6, 7)

• Gloucester St South beside the school and church (VIEW(S)8)

• Gloucester St South from the east (VIEW(S)9)

• Lombard St. (VIEW(S) 10)

• Sandwith Street Lower (VIEW(S)11)

Trinity College:

• Parliament Square - A, B, C (VIEW(S)12, 13, 14)

• Library Square (VIEW(S)15)

• Berkeley Library entrance (VIEW(S)16)

• Fellows' Square (VIEW(S)17)

• Path beside Rugby Ground (VIEW(S)18)

• Path beside Fitzgerald Building (VIEW(S)19)

• Moyne Institute entrance (VIEW(S)20) • The Pavilion (VIEW(S)21)

• Nassau Street (VIEW(S)22)

Kildare Street, Stephen's Green and Merrion Square:

• Kildare Street at Molesworth Street junction (VIEW(S)23)

• Kildare Street at St. Stephen's Green (VIEW(S)24)

• Merrion Square (VIEW(S)25)

Dame Street and College Street:

• Dame Street at Church Lane junction (VIEW(S)26)

• College Street (VIEW(S)27)

Liffey River in the city centre west of the Loopline Bridge:

• Grattan Bridge (VIEW(S)28)

• Ha'penny Bridge (VIEW(S)29)

• O'Connell Street beside O'Connell Bridge (VIEW(S)30)

• Junction of Marlborough Street and Eden Quay beside Rosie Hackett Bridge (VIEW(S)31)

Custom House environs:

• Custom House Quay near Loopline Bridge (VIEW(S)32, 32b)

• Custom House front steps and Custom House Quay (VIEW(S)33, 33b)

• Beresford Place and Memorial Road approaching Talbot Bridge (VIEW(S)34, 34b)

• Beresford Place beside Gardner Street junction (VIEW(S)35, 35b)

• Irish Life Centre (VIEW(S)36)

Gardner Street:

• Gardner Street near corner of Mountjoy Square (VIEW(S)37)

• Gardiner Street middle stretch (VIEW(S)38, 38b)

• Gardner Street lower stretch approaching the Loopline Bridge (VIEW(S)39)

• Gardner Street junction with Beresford Place (VIEW(S)40)

Amiens Street:

• Amiens Street beside Busáras and the IFSC (VIEW(S)41)

• Amiens Street at Talbot Street junction opposite Connolly Station (VIEW(S)42)

• Amiens Street at junction of Portland Row and Seville Place (VIEW(S)43)

IFSC:

• George's Dock (VIEW(S)44)

Liffey River in the Docklands east of City Quay:

• Sean 'Casey Bridge (VIEW(S)45)

• Samuel Beckett Bridge (VIEW(S)46)

• East Link Bridge (VIEW(S)47)

It should be noted, that there is serious concern, that the photomontages do not

give a true reflection of the proposed schemes visual impact on the skyline. In many

of the photomontages, the scheme has a blue/clear sky background, and the proposed

building, including the facades, appear to lack definition. In reality, tall buildings, particularly

those with large glazed facades, do not fully integrate into a picturesque blue/clear sky and

the glazed materiality is actually reflected in a dark tone. It is considered that the submitted

photomontages somewhat misrepresent how the scheme will appear and although the

photos do give a sense of the scale, it is considered they do not give a true representation

of the visual impact of the proposed building. Dublin City Development Plan Section 16.7

Building Height in a Sustainable City states

‘Dublin City Council acknowledges the intrinsic quality of Dublin as a low-rise city and it is

policy that it should predominantly remain so. There is a recognised need to protect

conservation areas and the architectural character of existing buildings, streets and spaces

of artistic, civic or historic importance. In particular, any new proposal must be sensitive to

the historic city centre, the river Liffey and quays, Trinity College, Dublin Castle, the historic

squares and the canals. It is important to protect and enhance the skyline of the inner city

and to ensure that any proposals for high buildings make a positive contribution to the urban

character of the city, and create opportunities for place-making and identity.’

Assessment Criteria for Higher Buildings

• Relationship to context, including topography, built form, and skyline having regard to the

need to protect important views, landmarks, prospects and vistas

• Effect on the historic environment at a city-wide and local level

• Relationship to transport infrastructure, particularly public transport provision

• Architectural excellence of a building which is of slender proportions, whereby a

slenderness ratio of 3:1 or more should be aimed for

• Contribution to public spaces and facilities, including the mix of uses

• Effect on the local environment, including micro-climate and general amenity

considerations

• Contribution to permeability and legibility of the site and wider area

• Sufficient accompanying material to enable a proper assessment, including urban design

study/masterplan, a 360 degree view analysis, shadow impact assessment, wind impact

analysis, details of signage, branding and lighting, and relative height studies

• Adoption of best practice guidance related to the sustainable design and construction of

tall buildings

• Evaluation of providing a similar level of density in an alternative urban form.

It is noted that within the, now expired, Georges Quay LAP, an objective regarding the City

Quay Site specified:

The heights of each block shall respect the quayside shoulder height of 6 storeys (24m) to

the front of the Church building line and in the remaining portion of the sites, have the

potential; subject to design, amenity and visual assessment, to rise to a maximum of 36m.

This height will provide for no more than a 9 storey commercial building and a 9/10 storey

residential use over a commercial/leisure/amenity use at ground floor level

The assessment criteria for Higher Buildings listed in Section 16.7 Building Height in a

Sustainable City of the Development Plan is vitally important in establishing whether the

proposed 24 storey, 108 metre high building is appropriate for this location. As mentioned,

the Applicant has submitted a series of detailed photomontages and associated commentary

of viewpoints at key views and locations and states that proposed development will deliver

a new landmark building that will contribute positively to the skyline and act as a visual

marker for the City close to a key public transport node.

The Applicant states the proposed design is a bold intervention which will fit into the existing

cityscape and the quality of the architecture is exemplar with the use of high quality

materials and extensive glazing. The total height of the proposed development is 108 metres

and has a total of 24 storeys. As set out in the Development Plan the spatial approach to

taller buildings in the city is in essence to protect the vast majority of the city as a low-rise

city, including established residential areas and conservation areas within the historic core.

Dublin has many different character areas, all of which require different approaches to

building height. The vast majority of the city area is not identified as being appropriate for

mid-rise or taller buildings and the Development Plan states the City Council remains

committed to the need to protect conservation areas, architectural conservation areas and

the historic core of the city. Policy SC17 states

‘To protect and enhance the skyline of the inner city, and to ensure that all proposals for

mid-rise and taller buildings make a positive contribution to the urban character of the city,

having regard to the criteria and principles set out in chapter 15 (Guiding Principles) and

Chapter 16 (development standards). In particular, all new proposals must demonstrate

sensitivity to the historic city centre, the river Liffey and quays, Trinity College, the

cathedrals, Dublin Castle, the historic squares and the city canals, and to established

residential areas, open recreation areas and civic spaces of local and citywide importance.’

Taller buildings at any location create a change to the skyline and character of adjoining

districts and indeed more distant areas. The River Liffey and the Quays are identified in the

Development Plan as one of the most significant elements of the public domain which lie at

the heart of the city’s identity and in their totality are designated Conservation Area. The

site is also in close proximity to the Custom House on the north side of the Liffey, Liberty

Hall, College Green, O’Connell St, the South Georgian Core and a number of Protected

Structures of national importance are clustered in the local area. The impact of the proposed

development regarding its height and massing has been assessed and is largely based on

the photomontages submitted by the Applicant within the Environmental Impact Assessment

Report. The Report presents a spread of close, medium and longer views towards the

development site and each view is assessed based on the comparison of the existing

situation, with an interpretation of likely effects using the proposed and permitted view as a

tool. As part of these submitted photomontages the Applicant has individually assessed

each of the views. In terms of the Townscape Impacts, broadly the Report states

• The immediate/surrounding public realm is listed as a significant change but a positive

change

• The views from Trinity College are referenced as moderate and positive.

• The Views from Kildare Street and Stephen's Green are listed as moderate and positive.

• The views from Merrion Square were considered not significant and neutral

• The views from College Green and College St were considered moderate/significant and

positive.

• When viewed from The Liffey River corridor, west of the Loopline Bridge, the development

is considered significant and positive.

• The views from the Custom House environs are considered significant and positive.

• The Townscape impacts from Gardiner St are defined as significant and positive.

• The townscape impacts from Amiens St is considered slight/moderate and positive.

• The views from Liffey River corridor east of the site are categorised as moderate/significant

and positive/negative.

In its conclusion, the Environmental Impact Assessment Report states that from a visual

effects perspective the proposed development would be seen in many views with the Tara

St Tower and College Square towers, including views from Trinity College and from east and

(particularly) west along the Liffey. The Applicant states the two permitted buildings are

uncomfortably close together in many of the views (in an otherwise mostly low-rise city),

forming a tightly spaced pair. As a result, it is perceived that the photomontages show that

a third tall building in the same part of the city/skyline, but standing slightly apart from

them, would strengthen the cluster and cement the character of the area (the transitional

zone between the old city and the Docklands) as a contemporary, high density quarter. In

addition the proposal creates a better balanced composition of vertical forms, which would

be easier on the eye than the tightly spaced pair and diminish the relative prominence of

the other two buildings by adding a third building (a more diverse cluster has greater

'tolerance' for peoples' varying aesthetic/architectural preferences than a smaller cluster).

In the Reports conclusion, it is stated that the cumulative townscape and visual effects of

the proposed development in combination with the Tara Towers Building and College Square

developments and considering also trend towards high density/tall developments around the

city would be positive.

The scale of the proposed tower is undoubtedly large and the Applicant has a proposed a

scheme which is intended as a landmark building which will be seen as a distinctive new

element on the Dublin skyline. In regard to the impact in the immediate/surrounding public

realm, the change will be significant. Setting aside the height of the proposed development,

there will likely be a positive change at street level, with the replacement of the existing

vacant and underutilised buildings with a modern mixed use development. The proposal

would cause a significant change in character to the Talbot Bridge, George's Quay, City Quay

and the surrounding area. It would become the focal point of the view when crossing Talbot

Bridge, and views along Moss St. / Shaw St and would likely have a strong place- making

effect. Given the scale of the building, the medium to long distance views of the scheme

also give the impression of a building which will make a significant and long lasting

impression on Dublin’s skyline. The photomontages show that given the height of the

building, it can be clearly seen from numerous viewpoints across the City, both north and

south of the River Liffey. It should be noted that the proposed building is an interesting

modern and assertive design which exhibits the use of high quality materials and finishes

and if viewed in isolation and not taking into account the sensitivities of the surrounding

context, the scheme has significant positive attributes. Whilst the visual impact assessment

submitted by the Applicant is acknowledged, the Planning Department has serious concerns

regarding the dramatic and cumulative impacts of a building of such height, scale and mass

at this location. Distance views, such as Views 23, 24, 28, 31, 34, 35, 36, 37, 38, 39,

40, 44, 45, 46, and 47 give a clear indication of the significant visual impacts of

the proposed scheme. There are serious reservations however regarding not only

the height of the proposed scheme and its dramatic and cumulative impact on

Dublin’s skyline but also the somewhat isolated nature of the building, in

comparison to the 2 permitted tall buildings at Tara Station and Apollo House.

In regard to the height, one of the key themes within the Georges Quay LAP was

the inclusion of a tall building at Tara St Station. As a result, Planning Permission

was approved for an 88 metre tower at this location. Following this permission,

approval was also granted for an 82.5 metre, residential tower, within the Apollo

redevelopment scheme, opposite Tara St Station. It is important to acknowledge

that the Apollo Building, is not only a residential scheme, but also maintains the

hierarchy of scale and height within the vicinity and is subservient to the Tara

Office Building. In other words, the Tara St Tower was intended to be the tallest

building within, not only the Georges Quay LAP area but also the local area.

The current scheme is not, despite a clear indication at pre-application stage,

subservient in scale, mass or height to the permitted Tara St Tower and is approx.

20 metres higher. Furthermore, it is considered that the location of the subject

site is somewhat removed from the 2 permitted buildings at Tara St Station and

Apollo House. The subject site is removed from the 2 tall buildings mentioned,

appears isolated and set apart and this becomes apparent in the photomontages

submitted with the scheme. A number of close up and distance views, such as

Views 7, 10, 11, 23, 24, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, and 45 show

the proposal, for the most part, would stand apart, as a solo building, in

comparison to the Tara St Tower and the Apollo Tower buildings which are more

clustered.

This perception of a solitary tall building can also be seen, in the views from Trinity

College. It could be argued that the views from Trinity College will be

compromised by the permitted tall buildings at Tara St Station and Apollo House,

however views 13, 14, 16, 18, 19 and 20 clearly showcase the isolated nature of

the proposal in comparison to the clustered nature of the Tara and Apollo

developments.

As a result, it is considered that a building of such height, scale and mass at this

location would have a detrimental, dramatic and cumulative visual impact on the

Dublin skyline. Given the prominent and sensitive location of the subject site by reason of

its important location within the historic city core, its relationship to the River Liffey, and its

proximity to the Custom House and having regard to Policy SC7 and Policy SC17, as set out

in the Dublin City Development Plan 2016-2022, which seek to protect important views and

view corridors and to protect and enhance the skyline of the inner city and to ensure that all

proposals for mid-rise and taller buildings make a positive contribution to the urban

character of the inner city, it is considered that the proposed development, due to its

excessive height, scale and bulk, would seriously detract from the setting and character of

the Custom House, one of the city’s most important architectural set pieces, and would also

adversely affect the River Liffey Conservation Area. It is further considered that the scheme

would, by reason of visual intrusion, have a significant and detrimental visual impact on a

number of important views and vistas in the city, as referenced in the Dublin City

Development Plan Key Views & Prospects (Fig.4), including those views from Amiens St,

Mountjoy Square, Gardiner St Lower, Custom House environs, Trinity College Campus and

views westward from the River Liffey. In particular, the views from Gardiner St (View No.

35, 38 & 39) and Mountjoy Square (View 37) illustrate the stark reality a proposed building

of such scale and mass will have on the Dublin skyline and the corresponding detrimental

visual impacts on the integrity of the historic Custom House building.

The proposed development would, therefore, seriously injure the urban character

and visual amenities of the historic city core, would create a precedent for similar

type undesirable development and would be contrary to the proper planning and

sustainable development of the area. On balance, the impact of the proposal on

views from the Custom House environs, Custom House Quay, Mountjoy Square and

Kildare St would indicate an unacceptably negative impact on the skyline from

these historic locations. In addition, there appears to be equally dramatic and

piercing views from Pearse St, Lombard St East, Townsend St, Eden Quay, Amiens

St, and the Five Lamps and the proposal appears to be overly assertive in terms of

its influence on Dublin’s historic skyline. It should also be noted any intervention

in the proposed scheme to address the fundamental concerns, set out above by

way of condition would likely result in a significant material amendment to the

scheme that would require a redesign of the building and as such could not be

overcome via an Additional Information Request or by attached conditions.

…

Summary

One of the key themes within the narrative of the, now expired, Georges Quay LAP was the

inclusion of a tall building at Tara St Station. As a result, planning permission was approved

for an 88 metre tower at this location. Following this permission, approval was also granted

for an 82.5 metre, residential tower, within the Apollo redevelopment scheme, opposite Tara

St Station. It is important to acknowledge that the Apollo Tower Building, is not only a

residential scheme, but also maintains the hierarchy of scale and height within the vicinity

and is subservient to the Tara Office Building. In other words, the Tara St Tower was

intended to be the tallest building within, not only the Georges Quay LAP area, but also the

local area.

The current scheme is not, despite a clear indication at pre-application stage, subservient in

scale, mass or height to the permitted Tara St Tower and is approx. 20 metres higher. As

a result, it is considered that a building of such height, scale and mass would have a dramatic

and detrimental visual impact the Dublin skyline. Given the prominent and sensitive location

of the subject site by reason of its important location within the historic city core, its

relationship to the River Liffey, and its proximity to the Custom House and having regard to

Policy SC7 and Policy SC17, as set out in the Dublin City Development Plan 2016-2022,

which seeks to protect important views and view corridors and to protect and enhance the

skyline of the inner city and to ensure that all proposals for mid-rise and taller buildings

make a positive contribution to the urban character of the inner city, it is considered that

the proposed development, due to its excessive height, scale and bulk, would seriously

detract from the setting and character of the Custom House, one of the city’s most important

architectural set pieces, and would also adversely affect the River Liffey Conservation Area.

Furthermore, and setting aside reservations whether the photomontages give a true

representation of the visual impact of the proposed building, it is considered that the location

of the subject site is removed from the 2 permitted buildings at Tara St Station and Apollo

House. The subject site appears isolated and set apart. This becomes apparent in the

photomontages submitted with the scheme. A number of close up and distance views, such

as Views 7, 10, 11, 23, 24, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, and 45 show the

proposal, for the most part, would stand apart, as a solo building, in comparison to the Tara

St Tower and the Apollo Tower buildings. This perception of a solitary tall building can also

be seen, in views 13, 14, 16, 18, 19 and 20 from Trinity College which clearly show the

isolated nature of the proposal in comparison to the more clustered nature of the Tara and

Apollo developments.

As a result it is considered the scheme would be overly assertive in terms of its influence on

Dublin’s historic skyline, by reason of visual intrusion, have a significant and detrimental

visual impact on a number of important views and vistas in the city, some of which are

referenced in the Dublin City Development Plan Key Views & Prospects (Fig.4), including

those views from Amiens St, Mountjoy Square, Gardiner St Lower, Custom House environs,

Trinity College Campus and views westward from the River Liffey. In particular, the views

from Gardiner St (View No. 35, 38 & 39) and Mountjoy Square (View 37) illustrate the stark

reality a proposed building of such scale and mass will have on the Dublin skyline and the

corresponding detrimental visual impacts on the integrity of the historic Custom House

building. The proposed development would, therefore, seriously injure the urban character

and visual amenities of the historic city core, will create a precedent for similar type

undesirable development and would be contrary to the proper planning and sustainable

development of the area. Given the scale of the proposed building, there is also serious

concerns regarding the impacts of the proposal on the surrounding receiving urban

environment. On balance, it is considered the scheme is likely to have noticeable and

detrimental overbearing and overshadowing impacts on neighbouring property. The

Overshadowing Study indicates a proposed building of such scale, mass and height will

undoubtedly cast a shadow and have an overbearing impact on the surrounding

environment, including the Church and the public space to the front, the nearby school and

associated grounds and public space to the front of the Grant Thornton Building. The

proposed development would therefore constitute an overdevelopment of the subject site,

would seriously injure the amenities of neighbouring property, would devalue property in

the vicinity, create a precedent for similar type undesirable development and would be

contrary to the proper planning and sustainable development of the area.

As previously noted, the Planning Authority has no issue with the appropriate development

of the subject site and it may be the case that a more appropriately scaled building could be

accommodated at this location, however if any such building was to be constructed, given

the sensitive and historic nature of the subject site and views from the surrounding context,

it should be subservient to the Tara St Tower, should be more reflective and sensitive in

terms of scale and impacts on the surrounding context and be of the highest architectural

quality to justify any breaking of the skyline.

Recommendation

It is recommended that planning permission be REFUSED for the following reasons.

1. Having regard to the prominent and sensitive location of the subject site by reason of its

important location within the historic City core fronting onto the River Liffey, its proximity to

the Custom House and having regard to Policy SC7 & SC17 of the Dublin City Development

Plan 2016-2022 which seeks to protect and enhance the skyline of the inner city, and to

ensure that all proposals for mid-rise and taller buildings make a positive contribution to the

urban character of the inner city, the proposed development due to its scale, bulk and height

would seriously detract from the setting and character of the Custom House and environs.

In addition the proposal would have a significant and detrimental visual impact on the River

Liffey Conservation Area and important views and vistas, including those views from the

Custom House environs, Amiens Street, Mountjoy Square, Gardiner Street Lower, Trinity

College Campus and views westward from the River Liffey. Moreover, due to the excessive

scale of the proposed building and its proposed location, removed from the permitted

buildings at Tara Street Station and Apollo House, the proposed building would stand apart

as an overly assertive solo building which would not form part of a coherent cluster. The

proposal would therefore have a significant and detrimental visual impact on Dublin’s historic

skyline, by reason of fragmentation and visual intrusion and would thereby seriously injure

the urban character of the City Centre skyline, would create a precedent for similar type

undesirable development and would be contrary to the proper planning and sustainable

development of the area.

2. Taking into account, the scale of the proposed building and the impacts on the surrounding

receiving urban environment, it is considered the scheme is likely to have noticeable and

detrimental overbearing and overshadowing impacts on neighbouring property. The

Overshadowing Study indicates a proposed building of overwhelming scale, mass and height

that will undoubtedly cast a significant shadow and have an overbearing impact on the

surrounding environment, including the Church and the public space to the front, the nearby

school and associated grounds and public space to the front of the adjacent office building.

The proposed development would therefore constitute an overdevelopment of the subject

site, would seriously injure the amenities of neighbouring property, would devalue property

in the vicinity, create a precedent for similar type undesirable development and would be

contrary to the proper planning and sustainable development of the area.”

Domestic law issues

45. By way of general context, challenges to refusals of permission are now fairly commonplace,

a trend that has intensified significantly in recent years. Simons J. in Ardagh Wind Farm v. An Bord

Pleanála [2019] IEHC 795 (Unreported, High Court, 22 October 2019) at paras. 3 and 63 queried

the practical benefit of challenging a refusal in some cases, which can be a fair point where a fresh

application can solve matters more quickly, but there are many cases where judicial review has to

be an option and indeed this option is now fairly commonplace. That is to be welcomed in many

respects as it brings balance to the field and demonstrates that environmental law is for everyone

rather than for particular categories of litigant. Arguably the now potentially enormous additional

costs and delay of a fresh application as opposed to a remittal can create a significant benefit to

challenge and remittal in many cases. Any rigid demand that there should be some demonstrated

practical benefit for the developer in impugning a refusal is ultimately misplaced when held against

the concept of equality before the law – nobody normally asks whether certiorari is of benefit to an

environmental challenger who is simply taken as exercising her right of access to the court. A similar

logic should apply to developers who bring challenges in the exercise of their own rights of access

to the court in that regard.

The law in relation to reasons

46. Key elements of the law relating to reasons include:

(i) The standard is the obligation to provide the main reasons on the main issues:

Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 45 (Clarke C.J.)

(O’Donnell, Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Balscadden Road

SAA Residents Association Ltd. v. An Bord Pleanála (No. 1) [2020] IEHC 586, [2020]

11 JIC 2501 (Unreported, High Court, 25 November 2020); Atlantic Diamond v. An

Bord Pleanála [2021] IEHC 322 (Unreported, High Court, 14 May 2021); Grassridge

v. Dun Laoghaire Rathdown County Council [2024] IEHC 669 (Unreported, High

Court, Holland J., 25 November 2024), para. 59; Pat O’Donnell v. Dublin City Council

[2024] IEHC 671 (Unreported, High Court, Holland J., 26 November 2024), para.

129; per Barr J. in Graymount House Action Group v. An Bord Pleanála [2024] IEHC

327 (Unreported, High Court, 31 May 2024), leave to appeal refused in Graymount

House Action Group v. An Bord Pleanála [2025] IESCDET 22 (Dunne, Woulfe and

Hogan JJ., 17 February 2025); see also non-precedentially Morris v. An Bord

Pleanála [2025] IESCDET 25 (Dunne, Woulfe and Hogan JJ., 17 February 2025);

reasons are to be understood in context of the “Broad issues” – Finlay C.J. (Griffin,

Hedeman and Lynch JJ. concurring) in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39,

[1992] I.L.R.M. 237 at p. 76 or “Broad gist” – Faulkner v. Minister for Industry and

Commerce 1997 WJSC-SC 962, [1996] 12 JIC 1007 (Unreported, Supreme Court,

10 December 1996) per O’Flaherty J. (Hamilton C.J. and Barrington J. concurring).

(ii) Certain issues are objectively main reasons given the nature of the process

or decision at issue – for example if it is in dispute as to whether key statutory

criteria for the decision have been satisfied. By way of other example, where the

commission is disagreeing with a council (Sherwin v. An Bord Pleanála [2023] IEHC

26 (Unreported, High Court, 27 January 2023)) or with its own inspector (Clonres

CLG v. An Bord Pleanála & Ors. [2021] IEHC 303 (Unreported, High Court, 7 May

2021)) on a point on which the grant or refusal of permission turns, such an issue

is virtually by definition a main issue, speaking objectively, such that a decision not

to give reasons on it would be held to be erroneous.

(iii) As to what are the main issues arising from submissions of interested parties,

the decision in Friends of the Irish Environment CLG & Anor v. Minister for Housing,

Local Government and Heritage & Ors. [2025] IECA 128 (Unreported, Court of

Appeal, 5 June 2024) is clear that, per Hyland J. (Costello P. and Collins J.

concurring) at para. 148, it is for the decision-taker in the first instance to decide

whether submissions raise relevant issues. Failure to address an issue in a

submission can be challenged in the normal way.

(iv) There is no obligation to provide a discursive, narrative consideration or to

“engage with” submissions in such a sense, or to provide an issue-by-issue or

submission-by-submission response: see Oguekwe v. Minister for Justice, Equality

and Law Reform [2008] IESC 25, [2008] 3 I.R. 795, per Denham J. (Murray C.J.,

Fennelly, Kearns and Finnegan JJ. concurring) referring to the lack of a need for a

“micro specific format” (at p. 819); per Clarke J. (Fennelly and MacMenamin JJ.

concurring) in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme

Court, 1 May 2012) at para. 6.9, referring to the need for a “reasoned but not

discursive ruling”.

(v) Reasons may be found anywhere, not necessarily in the decision itself, for

example in an inspectors report: Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453, para. 9.2 per Clarke C.J. (O’Donnell,

Dunne, O’Malley and Finlay Geoghegan JJ. concurring); Sherwin v. An Bord Pleanála

[2024] IESC 13 (Unreported, Supreme Court, 11 April 2024) per Woulfe J.

(Charleton, O’Malley, Baker and Murray JJ. concurring) at para. 129; thus no

additional requirement for reasons is required when adopting a reasoned report (for

example of a chief executive or indeed an inspector): Killegland Estates v. Meath

County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July

2022) at para. 65; Pat O’Donnell v. Dublin City Council [2024] IEHC 671

(Unreported, High Court, Holland J., 26 November 2024) at para. 144, Shadowmill

v. An Bord Pleanála [2023] IEHC 157 (Unreported, High Court, Holland J., 31 March

2023), para 84.

(vi) Reasons may be implicit from the context, for example it can be implicit that

matters submitted were held not to be outweighing when placed against factors

supporting the conclusion arrived at: Rana v. Minister for Justice [2024] IESC 46

(Unreported, Supreme Court, O’Malley J., 18 October 2024), paras. 96-99 (Dunne,

Hogan, Collins and Donnelly JJ. concurring).

(vii) There is no obligation to state reasons for what is obvious: Killegland Estates

v. Meath County Council [2022] IEHC 393, [2022] 7 JIC 0106 (Unreported, High

Court, 1 July 2022) (from which the Supreme Court dismissed an appeal, [2023]

IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023) (O’Donnell C.J.,

Charleton, O’Malley, Baker, Woulfe and Donnelly JJ. concurring)), para. 83;

Industrial Development Agency v. Information Commissioner [2024] IEHC 649

(Unreported, High Court, Phelan J., 15 November 2024), para. 132.

(viii) There is generally no obligation to give reasons for not changing one’s mind

from a previously articulated position absent a significant change in circumstances

or a significant new point: Killegland Estates v. Meath County Council [2022] IEHC

393, [2022] 7 JIC 0106 (Unreported, High Court, 1 July 2022), para. 67; Pat

O’Donnell v. Dublin City Council [2024] IEHC 671 (Unreported, High Court, 26

November 2024), para. 145 per Holland J.

(ix) There is no obligation to give reasons for rejecting a legally incorrect point:

see Ironborn v. Dun Laoghaire Rathdown County Council [2023] IEHC 477

(Unreported, High Court, Mulcahy J., 31 July 2023). Reasons are tied into the

exercise of evaluation and judgement, so if the latter do not arise then neither does

the former – thus there is no need for reasons if there is in fact no evaluation

by the decision-taker - if the issue is correctly applying a mandatory, non-

discretionary, non-evaluative, legal rule, a valid decision does not become invalid

due to failure to explain the law or indeed to give reasons for the rejection of a

legally incorrect submission.

(x) A decision should not be quashed for lack of reasons if nobody could be in any

real doubt as to what the reasons were: Killegland Estates v. Meath County Council

[2023] IESC 39, [2023] 12 JIC 2109 (Unreported, Supreme Court, 21 December

2023) per Hogan J. (O’Donnell C.J., Charleton, O’Malley, Baker, Woulfe and Donnelly

JJ. concurring).

(xi) If some reasons are good and others are bad, the decision may be severable if the

good reasons are stand-alone (Murtagh v. An Bord Pleanála [2023] IEHC 345

(Unreported, High Court, Owens J., 29 March 2023), Ironborn Real Estate Ltd v. Dun

Laoghaire-Rathdown County Council [2023] IEHC 477 (Unreported, High Court,

Mulcahy J., 31 July 2023), but not if there is a certain link between the reasons

(Element Power Ireland Ltd v. An Bord Pleanála [2017] IEHC 550 (Unreported, High

Court, Haughton J., 28 September 2017)).

(xii) Reasons should not be created ex post facto: K v. Minister for Justice [2022]

IEHC 582 (Unreported, High Court, Bolger J., 21 October 2022), Ballindooley

Developments Limited v. Minister for Housing, Local Government and Heritage

[2025] IEHC 109 (Unreported, High Court, Holland J., 20 February 2025), although

reasons that existed at the relevant time can be evidenced after the event if

appropriate: RPS Consulting Engineers Ltd v. Kildare County Council [2016] IEHC

113, [2017] 3 I.R. 61 at para. 109.

47. As regards the level of reasons the applicant here didn’t argue that the reasons should be of

such a level that would assist a future planning application (see South Buckinghamshire DC v. Porter

[2004] UKHL 33, 2004 1 W.L.R. 1953) so I don’t need to get into that.

Application of the law as to reasons here

48. On the issue of where reasons can be found, here the board was following the council and

the OPW submissions so reasons can be found there.

49. On whether the commission is relying on ex post facto reasons, the commission is generally

confined to reasons that were operative at the time and evident from the material when it made its

decision – I think broadly and for all relevant practical purposes it has kept within that.

50. There are several critical points on which the board differed from the inspector. Given how

decisive these points are they must be regarded as being main issues.

51. The performance criteria generally (which encompass most of the issues in one shape or

form) are obviously main reasons for the separate reason that they were the specific subject of a

request for further information, as noted above. This was an issue identified by the decision-taker

itself.

52. We can consider the main issues under six headings below.

I – historic core (and core ground 1)

53. In core ground 1 the applicant pleads (emphasis added):

“1. The finding by the Board that the Proposed Development was located within the

‘Dublin Historic Core’ for the purposes of Chapter 11 of the Dublin City Development Plan

2022-2028 amounts to a material error of law and/or fact in the interpretation of the relevant

provisions of the Dublin City Development Plan 2022-2028 including in particular, Figure 11-

2, entitled ‘Dublin’s Historic Core’ in Chapter 11 of the said Plan, and/or the said finding is

irrational, as a consequence of which the Board Decision is invalid. Further, or in the

alternative, the Board Decision is invalid in so far as it contains no adequate reasons as

required by law for concluding that the Proposed Development was located within

the historic city core or why it disagreed with the Inspector in that respect. The

said material error of law and/or fact undermines the Board’s reasons and considerations

more generally in relation to its assessment of visual impact and/or impact on architectural

heritage, including its reasoning for departing from the recommendation of its Inspector, as

set out in more detail in the particulars below. Further particulars of which are set out in

Part 2 below.”

54. Sub-ground 20 provides (emphasis added):

“20. The Board Decision contains no adequate reasons, as required by law, for

concluding that the Proposed Development was located within the historic city core

or as to why it disagreed with the Inspector’s finding to the contrary. The said

material error of law and/or fact undermines the Board’s reasons and considerations more

generally in relation to its assessment of visual impact and/or impact on architectural

heritage, including its reasoning for departing from the recommendation of its appointed

Inspector.”

55. The inspector’s reasoning was as follows:

“7.4.8 ... Figure 11-2: ‘Dublin’s Historic Core’ in the Development Plan does not include the

subject site within the historic areas identified (i.e. Walled City, Medieval City and Georgian

Core), however it is located within the 1840 Municipal Boundary Line. While the site is

located in the historic municipal boundary line, it is not situated in the Georgian Core,

Medieval City or Walled City. Other areas included within the historic municipal boundary

include the Docklands, East Wall and Dolphins Barn, which would not be considered

synonymous with ‘historic cores’ of the city. While the site is located within a sensitive

context, given its greater proximity to the Georgian Core and protected structures, and it is

also ABP-315053-22 Inspector’s Report Page 35 of 134 prominently positioned on the river,

it’s position within the historic municipal boundary does not in itself convey a specific

sensitivity.”

56. The foregoing seems to represent her own view as opposed to the developer’s submission.

57. This is tied into core ground 1 which alleges a substantive misinterpretation of the

development plan.

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

“Applicants Position

2. It was necessary for the Board to have correctly interpreted the Development Plan,

which it did not. The planning authority considered that the site was within the historic core,

whilst the developer contended on appeal that it was not located within the historic core

and, in those circumstances, the issue was central to the appeal. In contradistinction to the

position adopted by the Inspector in her report, there is no analysis whatsoever by the Board

of this main issue raised on the appeal. There is no consideration of this issue in the Board

Order but rather a bare and unreasoned assertion by the Board that the site is located ‘within

the historic City core’ – which was precisely the same decision made by the planning

authority.

3. In order to have lawfully had regard to the relevant provisions of the Development

Plan, including Policies SC16, SC17 and SC18, the Board must have had regard to the

context in which those policies are posited in the Development Plan. However, the Board

made no reference to Figure 11-2, which is entitled ‘Dublin’s Historic Core’ or any of the

sensitive areas identified therein, such as ‘Walled City’, ‘Medieval City’ or ‘Georgian Core’.

The Board Direction and Order even omits reference to the ‘1840 Municipal Boundary Line’,

upon which it now seeks to rely in these proceedings to ascribe reasons for the Impugned

Decision ex post facto.

4. The ordinary meaning of the relevant provisions of the Development Plan is that the

site of the Proposed Development is not positioned in or located within the walled city, the

medieval city or the Georgian core and, thus, is not located ‘within the historic City core’, as

determined by the Board. The intelligent layperson would be presumed to have regard to

the figure in the Development Plan entitled ‘Dublin’s Historic Core’ in order to understand

whether or not the site of the Proposed Development is located in the ‘historic city core’.

5. The Applicants maintain that the Impugned Decision is predicated upon a material

error of fact – namely, that the site of the Proposed Development is located within the

historic city core. This had significant consequential effects on its assessment of visual

impact and architectural heritage, in particular. By way of example, the Board decided that

the proposed development ‘would fail to demonstrate sensitivity to the historic core fronting

on to the River Liffey’.

6. The Board was obliged to provide the main or broad reasons for its decision on the

issue as to whether or not the site of the Proposed Development is located within the historic

core.

7. However, the Board provided no reasons at all in relation to this issue and in

circumstances where the Board did not make any reference to the 1840 Municipal Boundary

Line in its Direction and Order, and did not carry out any assessment whatever of the

significance of the site of the Proposed Development in the context of the historic municipal

boundary.

8. The Board cannot rely, ex post facto, on reasons which did not form part of its

decision as the Board did not carry out any analysis as to whether or not the location of the

site of the Proposed Development within the historic municipal boundary conveyed a specific

sensitivity in circumstances where the Inspector, having carried out such an analysis

concluded that the location of the site within the historic municipal boundary does not, in

itself, convey a specific sensitivity.

Respondent’s Position

9. The Applicant’s case is largely predicated on a failure to engage with or properly

understand the central aspects of the Board’s reasoning – in particular the conclusion of the

Board that the development would seriously detract from the setting and character of the

Custom House and environs. Remarkably, despite the entire case being made by the

Applicant being one that is focused on reasons, no reference at all is made to the main

conclusion reached by the Board – that this development would have a seriously negative

impact on the Custom House, being one of the most significant buildings in Dublin - a view

shared by the Council and also the OPW. Rather than engaging with that core conclusion,

the Applicant elects to ignore it and, instead, parse other aspects of the Board’s analysis in

order to find fault with same. This is a clear example of an Applicant trying to read the

decision of the Board ‘in the most erroneous way possible’. Notably, the Applicant’s Legal

Submissions do not address either the substantive conclusion reached by the Board as

regards the impact on the Custom House nor the plea that, in the absence of that conclusion

having been challenged, it cannot obtain relief.

10. In regard to the foregoing, on an objective reading of the Board’s Decision, a central

or substantive finding/conclusion concerned, for stated reasons, the impact of the Proposed

Development on the Custom House and environs – same was considered to ‘seriously detract

from the setting and character of’ same. This conclusion was reached by reference to the

location of the Proposed Development fronting onto the River Liffey and its proximity to the

Custom House, rather than it turning on the question of whether the site is located within

the historic city core. Further, this conclusion, which is consistent with the requirements of

Policy SC17 of the Development Plan for developments to be sensitive to the historic city

centre, is not otherwise challenged in these proceedings. Thus, any error regarding the

historic city (which is denied) does not and should not vitiate the Board’s Decision as same

was not central to the decision made or this aspect of the Board’s reasoning. The impacts

of the Proposed Development on the Custom House do not change as a result of the

identification of the historic city. Thus, the claim of material error of fact is misconceived,

is based on a misinterpretation of the Board’s reasoning, and is premised on a failure to

actually engage with/reference to same.

11. In relation to the Applicant’s complaints regarding the historic city, it is not accepted

that the Board’s reference to same comprises an error, let alone a material error. Further,

in truth, this is really a factual question as to the location of the Proposed Development and

so the Applicant’s various complaints regarding an absence of reasons are of little merit

because, as a question of fact, the site is either in the historic city or it is not. There is no

obligation to provide reasons for being factually correct.

12. As to the historic city, it is noted:

- The Council (who the Applicant has not named as a Notice Party to these

proceedings, notwithstanding this issue), the author of the Previous Development Plan and

the Development Plan – which contained similar policies to the current development plan

(see Chapter 11 – the similar figures therein, policy SC7 and SC17, with the latter policy

referring to ‘the historic city’) – considered, as per its reasons for refusal, the Proposed

Development to be located in the historic city.

- Map Set L of the Development Plan (referred to in Chapter 11 of the Development

Plan) entitled ‘Historic City’ – when read in conjunction with the Site Location Map/Drawing

– depicts the development site, located near the Talbot Memorial Bridge and adjacent to

Moss Street, as being within the boundary of the Historic City

- Chapter 4 of the Development Plan, at §4.5.4, entitled ‘Increased Height as Part of

the Urban Form and Spatial Structure of Dublin’, refers to the historic core in a non-

exhaustive manner and includes areas like the Georgian core, the Liffey Quays, and the

medieval centre.

- Chapter 11 of the Development Plan, ‘Built Heritage and Archaeology’, at Fig.11-1,

provides a depiction of the evolution of Dublin. Figure 11-2, entitled ‘Dublin’s Historic Core’,

outlines the historic core of Dublin City – within which, and contrary to the Applicant’s

assertion, the site of the Proposed Development is located, as is the Custom House

(reference number 16 on Figure 11-2), noting the boundary of the 1840 Municipal Boundary

Line

13. The Applicant takes issue with the reference in the Board’s opposition papers to the

1840 Boundary Line and claims that same comprises an attempt to retrospectively provide

reasons for the decision – this is misconceived. The pleas in opposition merely point to what

is contained within Figure 11-2 – the purpose of including a boundary is objectively capable

of being construed as depicting the area to which the Figure purports to refer. In this regard,

Figure 11-2 does not purport to limit the historic city to only the coloured areas – that is to

say the Walled City, the Medieval City, and the Georgian Core. As outlined above, Chapter

4 appears to recognise that the historic city is more expansive than the Applicant suggests

– which is consistent with the Map Set L.

14. A common/overarching complaint which one might infer from this core ground (and

indeed the other core grounds outlined below) – particularly the reasons-based grounds of

challenge – is that the Applicant is generally unhappy with the fact that its submissions and

the views of the Inspector were not agreed with by the Board. Such grounds of challenge

largely comprise impermissible complaints relating to the merits.”

59. The decision opens by defining the site as located within the historic city core:

“Having regard to the prominent and sensitive location of the subject site, by reason of its

important location within the historic City core ...”

60. It isn’t in doubt that interpretation of the plan is a matter of law for the court ultimately.

61. Figure 11-2 entitled “Dublin’s Historic Core” highlights the walled city, mediaeval city and

Georgian core – all definitely part of the historic core, within a wider area of the 1840 municipal

boundary, which includes many areas obviously not part of the historic core in a vernacular sense –

such as the docklands area.

62. Map Set L refers to the “Historic City”, not the historic core although it is not immediately

clear whether this is intended to be a different concept.

63. Ideally where a development plan falls to be interpreted, the maker of the plan should be a

notice party and should be permitted to give its view – non-binding of course but still of interest.

That wasn’t done here. Nobody asked for matters to be parked pending the city council getting

involved so I will decide this issue on what I have as of now. Of course they might not want to get

involved but it is good practice to give them the option.

64. Paragraph 4.5.4 of the plan includes the following:

“The appropriateness of building heights is also a key consideration within the historic core,

particularly in key sensitive areas of the city such as the Georgian core, the Liffey Quays and

medieval centre. Proposals for increased height in these areas must demonstrate that they

do not have an adverse impact on these sensitive environments and that they make a

positive contribution to the historic context. The City Council remains committed to the need

to protect and enhance conservation areas, Architectural Conservation Areas and the historic

core of the city.”

65. This implies that the mediaeval and Georgian areas are not exhaustive of the historic core.

66. The issue is not what is Dublin’s historic core in any ordinary or vernacular sense. It is how

the development plan defines the term. Terms can be defined to mean anything. The primary stab

made by the plan at defining the term is the relevant map.

67. Of course it would be too simple for the plan to actually define what it means by the historic

core, or to use such a definitive legend on the map. In the absence of that, the map is unfortunately

not unambiguous but it must be given some meaning if a meaning is available. There are in essence

three interpretations of the map. In descending order of their natural meaning in isolation from

other provisions of the plan, they are:

(i) the historic core is the walled city, mediaeval city and Georgian city;

(ii) the historic core is the 1840 boundary; or

(iii) the historic core is the walled, mediaeval and Georgian city and anywhere else on

the map within the 1840 boundary that is judged to be the historic city in the

exercise of evaluative judgment (that is certainly an option but would be highly

complex and convoluted).

68. If there is a clear and non-evaluative standard, its interpretation would be for the court

whether reasons were given by the decision-taker or not (by analogy, Ironborn v. Dun Laoghaire

Rathdown County Council [2023] IEHC 477 (Unreported, High Court, Mulcahy J., 31 July 2023)). If

the board acted within an evaluative zone then it has to explain what it is doing (to the standard of

main reasons on main issues). In other words, evaluative judgement on main issues brings with it

a need for reasons. Or alternatively phrased, if the issue is correctly applying a clear legal test, a

valid decision does not become invalid due to failure to explain the law or indeed to give reasons for

the rejection of a legally incorrect submission.

69. Options (i) and (ii) are objective standards whereas option (iii) involves evaluative

judgement and hence reasons.

70. Unfortunately, the most natural meaning, option (i), is not available because it is

contradicted by para. 4.5.4.

71. So option (ii) is the best interpretation available. As this is an objective, non-evaluative

standard which is simply applied as is, reasons don’t arise. So the board was correct in holding that

the site was within the city historic core and was not required to give reasons for disagreeing with

the inspector because that is a matter of legal interpretation not evaluation. A correct legal

interpretation doesn’t become invalid because it is unreasoned.

72. In any event, the historic nature of the development site is apparent from the planner’s

report:

“Analysis of desktop sources and excavations in the vicinity, as presented in the submitted

assessment, demonstrated that several metres of archaeological strata may survive within

the site, including organic material within the riverine silt layers and post-medieval structural

remains as depicted on historical cartographic sources (Figure 1). Further, the site is listed

on the Dublin City Industrial Heritage Record (DCIHR Ref: 18_11_192 (Coal Yard/Brewery)

suggesting the presence of industrial archaeological material. Prehistoric remains have been

recorded in estuarine/riverine silt layers in 2004 with the discovery of Mesolithic fish traps

(c. 6000BC) during the development of the Spencer Dock area (M. McQuade, Licence

06E06684) c. 190 m north of the proposed site. Other marine archaeological features, such

as shipwrecks, may also survive within the riverine deposits that underlie the site. It is also

possible evidence of post-medieval land reclamation will survive at a subsurface level. Figure

1 John Rocques’s map of Dublin, 1756.”

73. Finally I might suggest that the parties might draw the attention of the council to the

foregoing so they can set out expressly what the term means in a future plan document, if they

disagree.

II – cluster

74. In sub-ground 27 (emphasis added):

“29. Without prejudice to the foregoing, the Inspector found that the Proposed

Development would contribute to and expand upon an existing cluster of buildings which

was in the process of evolving and included: the existing or approved towers at Tara Street,

Apollo House, Liberty Hall, the Customs House, George’s Quay and O’Connell Bridge House.

The Inspector addressed the issue of ‘clusters’ in detail at §7.5.19- §7.5.23 of her Report.

The Board failed to provide reasons for determining that the Proposed

Development would not form part of a cluster and/or why it disagreed with its

appointed Inspector’s finding in that respect.”

75. This is reinforced by sub-ground 60:

“60. Furthermore, the Board does not explain on the basis of what criteria, the Proposed

Development ‘would not form part of a coherent cluster’ in circumstances where it is in close

proximity, in particular, to the AquaVetro building and the College Square building. As noted

in the Urban Strategies Appeal Response Report dated November 2022 at page 59:

‘The City Quay building is designed to add to the quality and enjoyment of the built

environment of Dublin. The City Quay building will form part of a composition of buildings

completing the George’s Quay cluster. That cluster, which now consists of the George’s

Plaza complex, the College Square development under construction at Hawkins Street and

the approved building at Tara Street will define the edges of a tight, triangular grouping of

taller buildings.’

76. The performance criteria in appendix 4 include on this theme:

“• In general, opportunities for singular landmark/ tall buildings in the city is likely to be

limited. It is acknowledged from an architectural and land use perspective that it is

preferable that landmark/ tall buildings are clustered and the City Council supports this

approach in the locations identified as suitable for taller buildings. A cohesive group of

landmark/tall buildings maximises their economic and sustainable advantages.

• Where clusters of landmark/tall buildings are proposed, careful attention must be paid to

the roof profile in the context of the whole cluster. Clusters of such towers should be

composed with the tallest at the centre of the group, falling away to the edges.”

77. The group of tall buildings on the south side of the river near the location is illustrated at p.

15 of the applicant’s response to the request for further information on this issue. This includes

consented new structures at Apollo House/ College Square at 82 m (consented 2017) and Tara

Street (Aquavetro ABP-302980-18, consented 2019) at 88 m. Liberty Hall at 59 m is just across the

river. O’Connell Bridge House upriver is 44 m.

78. The inspector’s view on the cluster were (emphasis added):

“7.4.21. From the west looking east along the river, view no.29 illustrates how the curvature

of the river impacts the perspective at this point, with the dome for the Customs House

appearing towards the centre of the view, and the proposed development set in the backdrop

to the O’Connell Bridge House building. Similarly, views 30 and 31 from the north bank of

the river looking towards the Customs House, demonstrate the extensive separation that

the river provides between the dome for the Customs House that appears in these views

and the proposed development. These views also demonstrate how the proposed

development will be read as part of a cluster of emerging approved tall buildings in the area

(cumulative views). From the east looking west towards the Customs House, views no.45,

46 and 47 again demonstrate the significant separation between the proposed development

and the Customs House in these views. The presence of Liberty Hall in the setting of the

Customs House is also readily apparent in these views. I note that the OPW state

dissatisfaction with the extent of views in this direction, and the appellant provides additional

view no.51 with the appeal. This additional view reinforces the separation between the

Customs House and the proposed development in these views along the river, and the

existing presence of Liberty Hall in the immediate context of the Customs House. These

views demonstrate the existing and emerging contemporary context that currently

characterises the southern river edge, which the proposed development would contribute

towards. View no.45 particularly demonstrates how there would be no harm to the setting

of the Customs House in views from this direction. While the proposed development would

ABP-315053-22 Inspector’s Report Page 38 of 134 appear as a prominent new tall building,

contextually it successfully integrates with the existing and emerging character of the area.

I am satisfied with reference to the foregoing, that the proposed development does not

intrude upon the setting of the Customs House in these views from the east and west

...

7.4.35. With specific reference to views from Amiens Street and view no.’s 41, 42 and 43,

these views demonstrate that the proposed development increases in visual prominence on

the approach to the city centre, contributing towards the legibility of this approach to the

centre. The proposed building expands upon existing more contemporary built forms such

as the IFSU building and does not detract from the view. From the Five Lamps (a protected

structure) specifically (view no.43), the proposed development has less visual prominence,

appearing only above roof tops, while the approved Tara Street and Apollo House towers

form the most prominent landmarks for the city centre at this point. View no.43

demonstrates how clusters of tall buildings in city skyscapes work together in informing

views and contributing towards legibility, depending upon the perspective of the viewer.

...

7.4.41. While the reason for refusal states that the proposed development does not form a

cluster with the approved towers, it is clear from the cumulative views presented (no.’s 13,

14, 16, 18, 19, 20 and 21) that the proposed development will be received as part of a group

of taller buildings of similar scale, at a similar backdrop position from the college, and

therefore forming a cluster in these views. The context of campus location, in the city centre,

is also important in considering these views, and creates an environment where the visibility

of taller buildings in the back-drop to the college would not be unusual. In this regard, I

note that the permitted Tara Street and Apollo Towers are under construction (construction

notice serviced for below ground levels for the Tara Street tower and substantial works on

site as part of the Apollo House tower) and will change the current back-drop from the

college. The proposed development would therefore be received in that context. The Trinity

buildings remain the prominent structures in the views presented, as a result of their

foreground position and fine architecture. The distinction between the proposed

development and the Trinity buildings is also ensured through the differing material finish.

This ensures that the Trinity buildings remain visually separate and therefore appreciable in

the view and the proposed development does not therefore diminish or distort how the

Trinity buildings are received. The roofline for the Trinity buildings remains legible with the

proposed building in place. Overall, the proposed development comprises a back-drop

feature, of high-quality architectural design, and as part of a group of emerging taller

buildings in this back-drop. In this context, there is no negative impact upon the setting of

Trinity College as a result.

...

7.5.20. The subject site is situated c.160m away, or around a 3 minute walk, to the Tara

Street Station tower site, which is itself adjacent to the Apollo House site. It is situated in

an adjacent urban block to the Station, separated by Luke Street, the 1 Georges Quay

building and Moss Street. There is no strict definition of how close buildings need to be to

be considered a ‘cluster’ which will depend upon the scale of the area in which they are

located. In my opinion, for a city centre, being situated less than 200m apart would

reasonably indicate a sufficient degree of proximation to be considered a group. This is

particularly the case when there are similarities in scale, which when viewed in the

surrounding area, creates a visual relationship between the blocks. In short, I do not agree

with the Planning Authority that the subject site is isolated from the tall buildings approved

and under construction at Tara Street and Apollo House.

This is readily apparent in verified views provided in the application and appeal, including

cumulative views 28, 29 and 30. Indeed, the views also demonstrate that other buildings

in the context also contribute to this cluster, including George’s Quay, the Customs House,

Liberty Hall and O’Connell Bridge House (refer to cumulative views 30, 45, 46, 47, as well

as Aerials 01, 02 and 03 albeit noting that aerial views do not present a human scale view).

7.5.21. The Planner’s Report refers to some isolated viewpoints in close proximity to the

subject site in support of their assessment, however this is a selective approach, which

discounts the impression provided in other views. There is also reference in the Planner’s

Report to views which I consider demonstrate that the proposal is a part of an emerging

cluster of buildings, particularly cumulative views presented (such as no.’s 36 and 45), and

I therefore disagree with the Planner’s assessment in this regard. There are of course views

where the proposed development will be seen without the approved Tara Street and Apollo

House towers, which is the nature of perspective, proximity and context in informing any

particular viewpoint. Indeed, some of the views presented demonstrate that the Tara Street

and Apollo House tower will not always be viewed together depending upon perspective

(no.’s permitted 3, 4, 14 and 40). It should also be noted that the field of view presented

is narrower in photomontages, than what may be perceived in reality to a viewer on the

street.

7.5.22. It would be unreasonable in my opinion to only consider buildings immediately

adjacent to one another as forming a cluster. Indeed, requiring the cluster of tall buildings

to be immediately adjacent in all cases would likely lead to unfavourable microclimate

conditions. The overall effect when reviewing all of the views presented, is that the proposed

development will contribute towards an existing and emerging cluster of higher/tall buildings

in the area.

7.5.23. The Planner’s Report also suggests that had the proposed development been

subservient to the approved Tara Street tower then it may have been considered acceptable,

(page 23 of the report states that Tara Street tower is intended to be the tallest building in

the local area). Incidentally, I notice that this part of the Planner’s Report effectively

acknowledges that the site is in the local area to Tara Street tower, and that it will be viewed

together with that tower (and the approved Apollo House tower), equating to a cluster in my

view. In terms of the planning policy concerning height on the subject site and the Tara

Street tower site, Figure 13-6 of the Development Plan identifies the subject site as

appropriate for a locally higher building and the Tara Street Station site as appropriate for a

landmark building, the Plan states on page 448 that:

‘In some more limited locations where the planning context is suitable, locally higher

buildings of greater height and landmark buildings can be appropriate, and positions for

these buildings are clearly described for key sites. All new development of increased height

compared to the existing context must accord with the specific performance criteria as set

out in Appendix 3 of this development plan.’

ABP-315053-22 Inspector’s Report Page 52 of 134

7.5.24. Appendix 3 of the Plan also includes a description of locally higher and landmark

buildings as follows:

‘Locally Higher Buildings: These are buildings that are significantly higher than their

surroundings and are typically up to 50 metres in height. Higher buildings can act as Local

or District landmarks.

Landmark/Tall Buildings: A landmark or tall building is one that is a significant intervention

in the cityscape and skyline. They are typically located in an area that denotes a specific

function such as a public transport interchange or a key urban quarter/ regeneration site.

Landmark/tall buildings are typically in excess of 50 metres in height, of exceptional

architectural quality, can help people navigate through the City and form memorable

reference points.’ (Pages 213-214).

7.5.25. The proposed building therefore reflects the scale of a landmark building and not a

local higher building with reference to the descriptions set out above. However, the appellant

argues that Figure 13-6 does not preclude a landmark building on the subject site, with the

key assessment being related to compliance with the performance criteria set out in

Appendix 3 (which I address in detail below). The Local Authority Planner’s Report gives

reference to the Georges Quay LAP in terms of justifying the need for the tallest building in

the area to be on the Tara Street Station site, however this expired in July 2022.

7.5.26. With reference to the description in the Plan to what comprises a landmark building

as set out above, the subject site is situated in a key urban quarter/regeneration site (i.e.

SDRA 6), at the southern junction for the Talbot Memorial Bridge, marking a key vehicular

entrance to the city centre. The subject site is also proximate to tall buildings approved and

under construction (at Tara Street and Apollo) and these buildings would combine, to form

a memorable reference point for the city centre and the area of the Tara Street Station. As

such, I agree with the appellant that the subject site may be suitable for a landmark building

where performance criteria is satisfied and that while a locally higher building is identified

on the site in Figure 13-6, this does not preclude a landmark building where

policy/performance criteria is satisfied as set out in the Development Plan.

7.5.27. The proposed building would not be viewed as a solo building in the Dublin skyline,

and the subject site can be considered appropriate for a tall building, where national and

local performance criteria is satisfied. As such, I will continue my assessment ABP-315053-

22 Inspector’s Report Page 53 of 134 below with respect to the criteria at section 3.2 of the

Building Height Guidelines. (I address the performance criteria under Appendix 3 of the

Development Plan further below).”

79. The problem for the applicant is that the reasons don’t have to be found in the board order.

They can be found in the supporting documentation. For good measure the board references the

city council conclusions, although that could be inferred anyway. The city council referred to specific

views whereby the cluster was not evident. So the rationale was sufficiently apparent. That is a

matter of evaluative judgement. There really isn’t anything more to this point, even bearing in mind

that reasonable people could potentially (and do in fact) disagree about it.

III – public realm

80. In sub-ground 43 the applicant pleads (emphasis added):

“43. The Board order provides no reasons why it found that permission for the Proposed

Development ought to be refused on the basis of the ‘limited amount of cultural space

proposed’ or ‘limited upgrades to the public realm where the Inspector had found that the

Proposed Development exceeded CUO25 and /or would enhance public realm. Furthermore,

the Board Order sets out no basis upon which it departs from the Inspector’s findings

on these two issues.”

81. The council found significant enhancement of the public realm by the development:

“Overall, the proposed development will provide for a significantly enhanced public realm

and pedestrian access to the proposed development, particularly along Moss Street and City

Quay. The proposed development will therefore increase the accessibility and permeability

of the subject area thus improving the resilience of locations in terms of public access and

egress at surface level. On balance, the proposal responds to its overall natural and built

environment and makes a positive contribution to the urban neighbourhood and

streetscape.”

82. The inspector went through the building heights guidelines development criteria and the

performance criteria in detail, including the text quoted above and as follows:

“7.5.28. At the scale of the district/neighbourhood/street, and the fourth criterion of section

3.2 of the guidelines, consideration is required of the response of the proposal to the natural

and built environment, and positive contribution to the urban neighbourhood and

streetscape. I have described above how the proposal will improve upon the current

condition of the site in relation to contribution to the urban streetscape. I give detailed

consideration to how the proposal responds to the historic built environment in section 7.4

above. In general, the proposal has incorporated a high quality architectural finish, which

is appropriate to its prominent position on the river. The incorporation of a 6 storey shoulder

height and brick finish to that level, also successfully ties the development in with adjacent

buildings, reflecting the scale of more modern development on the river, with a brick finish

in a nod to the more historic (and protected structures) immediately to its east.

7.5.29. With reference to the next criterion, the proposed development incorporates

variation both vertically and horizontally in the building design (as described above in this

section 7.5) and does not include long uninterrupted walls or slab block forms. The main

materials to the tower are formed of glazing and aluminium, while the 6 storey frontage is

formed of a brick frame, and the overall effect is of high quality architecture that while

comprising a substantial building form, is not a visually negative monolithic structure.

7.5.30. The next criterion relates to the enhancement of public spaces, key thoroughfares

and inland waterway frontage. The proposed building significantly improves upon the

current setting of Moss Street and Gloucester Street South. The proposed presentation to

the river frontage is also an enhancement and is a positive contribution towards addressing

the river edge, with an appropriate shoulder height in reflection of adjacent buildings, and a

general scale, that encloses this edge appropriately.

7.5.31. In relation to legibility of the site and integration with the area (another criterion

under section 3.2), the proposed building would form a landmark for this part of the river,

adjacent to a key vehicular (and pedestrian) bridge route into and out of the city centre.

The views provided with the application and appeal clearly identify the prominence of the

proposal in wider views on the approach to the city, particularly ABP-315053-22 Inspector’s

Report Page 54 of 134 from Gardiner Street in the north which is a key inter-city vehicular

route. The proposed building would also be viewed cohesively alongside the Tara Street and

Apollo House towers, which would combine to form a cluster of taller buildings of similar

scale marking this part of the city centre.

7.5.32. The proposal also contributes positively to the mix of uses in the area, incorporating

an Arts/Cultural use that reflects historic use of the subject site, as well as office floorspace

which is appropriate for the city centre location. These uses also compare favourably, and

diversify upon the intended uses at Apollo House, which includes residential, as well as

complimenting office and retail/restaurant uses at the permitted Tara Street tower.

7.5.33. At the scale of the site/building, the section 3.2 criteria under the Building Height

Guidelines refers to the appropriate and reasonable regard of quantitative performance

approaches to daylight provision, with a need to minimise overshadowing. I set out a

detailed assessment of daylight, sunlight and overshadowing effects in section 7.6 below.

7.5.34. Lastly, the Building Height Guidelines describe the need for specific assessments

commensurate to the scale of the building proposed, including micro-climatic effects,

consideration of bird/bat flight lines and retention of important telecommunication links. In

relation to micro-climatic effect a Wind Microclimate Assessment has been provided. This

shows that the wind conditions on and around the site will be suitable for pedestrian activity

in summer. During winter, wind mitigation measures are described in Appendix C of the

assessment and include the use of planting and/or sculptures to reduce wind exposure,

particularly at the doorway and at ground level. A Telecommunications Report is also

provided and recommends mitigation in the form of the inclusion of antennas and dishes

(along with ancillary equipment) to the roof of the proposed building to allow for retention

of telecommunication channels. This can be incorporated behind the roof level plant screen

on the proposed building and therefore will have no impact upon its design or aesthetics.

An Aeronautical Assessment Report outlines consideration of aviation flight paths over Dublin

and how the proposal responds to this during construction and operation. PV panels are not

proposed to the roof (they are proposed to the elevation) and therefore a glint and glare

study is not required, as the PV strips to the façade will not give rise to reflections that would

impact aviation. In addition, the modulation of the building does not give rise to any other

glint or glare concerns. My Appropriate Assessment in section 9 of this report below

considers potential impact upon bird flight lines, and concludes that no significant adverse

impact is expected. In relation to bats, the EIAR submitted with the application confirms

that there is no evidence of current or past bat roosts in structures on the site and foraging

activity was not present, as such no negative impact is anticipated.

7.5.35. Overall, I am satisfied that the proposed development successfully incorporates the

development management criteria set out in section 3.2 of the Building Height Guidelines.

It is also necessary however, to address the performance criteria set out in Appendix 3 of

the Dublin City Development Plan 2022-2028, and I address this specifically below.

7.5.36. Policy SC17 ‘Building Height’ of the Development Plan, requires proposals for

enhanced scale and height to follow a design-led approach, make a positive contribution to

the urban character of the city and context, deliver vibrant, equitable, walkable, compact,

green, accessible, mixed and balanced neighbourhoods, without negative affect upon aircraft

operations and having regard to the performance-based criteria set out in Appendix 3.

Sensitivity to the historic city centre is also required, and I address this in detail in section

7.4 above. Throughout this section, I have already described why I am satisfied that the

proposed development would be a positive contribution to the neighbourhood, reflecting the

principles of compact growth, with an appropriate mix of uses and with a high-quality

architectural design. Policy SC18 ‘Landmark/Tall Buildings’ promotes the locating of

landmark/tall buildings through SDRA principles to prevent visual clutter, and in compliance

with the performance criteria set out in Appendix 3. I have already set out my consideration

of the suitability of the site for a tall/landmark building in principle above, while I address

the performance criteria in Appendix 3 in detail below.

7.5.37. Table 2 of Appendix 3 sets out indicative plot ratio and site coverage figures, however

the text immediately below the table states that higher plot ratio and site coverage may be

permitted in certain circumstances, including adjoining major public transport corridors. Site

coverage standards are 90% for Z5 and plot ratio standards are 2.5-3.0 for Z5. The site

coverage for the proposed development is stated as 83% and within this threshold, while

the stated plot ratio for the development is 14.4:1, and thus higher than the indicative

figures for Z5. However, I note that the Planner’s Report (page 37) states that each proposal

is to be assessed on its own merits, and I concur that the Development Plan does not set an

upper limit for plot ratio and a merit based assessment is required. This is facilitated by the

performance criteria set out in Appendix 3 which I address below.

7.5.38. Table 3: ‘Performance Criteria in Assessing Proposals for Enhanced Height, Density

and Scale’ contains the objectives and criteria to be considered in the assessment of

buildings of increased scale. I have regard to each of these criteria in my table 7.1 below,

for ease of presentation I address the detailed criteria in the assessment column of the table,

with reference to the overarching objective and without repeating the criteria themselves.

To avoid repetition, I cross reference to any matters that overlap with my assessment set

out elsewhere in this report where relevant. The applicant also addresses the performance

criteria set out in the Plan in their Appendix 5: Urban Strategies document.”

83. Her conclusion on public realm in particular was:

“4. To provide well connected, high quality and active public and communal spaces.

The proposal will enhance the public realm by improving the streetscape onto all streets that

it fronts (cross ref. to response to objective 2 above). The applicant also confirms that the

ABP-315053-22 Inspector’s Report Page 58 of 134 proposal incorporates public realm

improvements, that can be delivered in agreement with the City Council, and to the Councils

requirements. The envelope of the building at ground floor has been pulled back from the

boundary line at the northwest corner to increase the size of the open space at the main

entrance. A detailed assessment of daylight, sunlight and overshadowing is set out in section

7.6 below. A Wind Microclimate Assessment also concluded that with mitigation, conditions

on adjacent streets would be suitable for pedestrian activity (see section 7.5.34).”

84. She continues at 7.5.44:

“The landmark/tall building will bring significant planning gain to the community including

measures such as:

o substantial upgrades to the public realm;

Response: The proposed development includes proposals for upgraded public realm adjacent

to the site. The design includes a setback at ground level to the northwest corner to give

over additional space to the public realm at the entrance to the building. A granite bench is

proposed to be situated in the space creating a feature and meeting point at the front of the

building. Proposals also include the upgrading of footpaths along the west side of the

building to DCC standards and continuation of this into the area adjacent to the entrance,

with the use of brass pavement studs to demarcate the ownership line, ensuring consistency

in material finish and a minimal visual marker of the delineation between public and private

ownership. Upgrade to footpaths to the north of the building are also proposed to DCC

standards. All works outside of the application boundary (works to DCC lands) will require

consent and agreement with DCC. I am satisfied that the set back of the building to provide

additional space can be considered a substantial contribution to the public realm.

o environmental enhancements including open space and green infrastructure to be enjoyed

by residents and the wider community;

Response: This criterion is applicable to residential schemes which are required to

incorporate open space and external amenity space. The proposed development includes a

new Arts/Cultural Centre which can be enjoyed by the public and proposals to upgrade the

public realm, which are enhancements commensurate to the form of development

proposed.

o significant new social and community infrastructure for the benefit of the wider area;

Response: The proposed development includes the demolition of existing buildings on the

site, formally in use as a cultural space, and replacement with a modern, high-quality,

cultural space, art gallery and artist studios. I note that the Local Authority Planner’s Report

notes that this new arts centre is fit for purpose and can become a significant part of the

Dublin City community, and I concur with this.”

85. The commission’s response is that the plan envisages a presumption against landmark

buildings in areas not so earmarked without the meeting of certain criteria:

“• The landmark/tall building will bring significant planning gain to the community including

measures such as:

• substantial upgrades to the public realm;

• environmental enhancements including open space and green infrastructure to be enjoyed

by residents and the wider community;

• significant new social and community infrastructure for the benefit of the wider area;

• where the landmark/tall building is for residential use, the provision of a broad range of

accommodation for people living in different household sizes and throughout various life

cycle stages.”

86. The word “limited” in the refusal decision has to be construed in the context of the statutory

and regulatory framework. Placed against that background, a valid interpretation is available – the

upgrades are not “substantial” and “significant” in the sense of the exception for landmark buildings.

87. The fulcrum of the board’s decision in respect of community/public realm gain was in relation

to its assessment of the performance criteria – which are evaluative. The board’s evaluation was

that the gain was insufficient.

88. That is, perhaps, an unsympathetic conclusion and yet again reasonable people could and

will disagree. But insofar as it was evaluative, the board didn’t exceed its margin of evaluation.

There was no misinterpretation of the plan in that exercise because the board’s conclusion can validly

be read in the context of the regulatory framework which provide evaluative criteria above and

beyond specific minimum public realm objectives.

IV – visual impacts specifically (and core grounds 2, 3 and 6)

89. Figure 4-1 sets out key views and prospects, and it’s obvious when one looks at the

photomontages that some of these views aren’t affected a whole lot, whereas some key views are

going to be affected by the project.

90. The previous development plan was similar, so the fact that submissions were made on the

previous plan rather than on this plan isn’t something on anything vital is going to turn.

91. The key point is that reasons can be found outside of the text of the decision itself. The

impact on protected views was raised as an issue by both the OPW and the council. The OPW

specifically identified the view from Gardiner Street which was a protected view. If we confine the

reasons to the decision itself, they aren’t hugely specified, but read in the context of the OPW

submission and the planner’s report, the reasons are a lot clearer. As in Killegland Estates Ltd v.

Meath County Council [2023] IESC 39 (Unreported, Supreme Court, Hogan J., 21 December 2023),

nobody could be in any real doubt as to what the reasons were.

92. Insofar as the inspector dealt with views, and the board didn’t expressly respond to that,

this comes under the heading of the decision-taker simply preferring one position to another without

the necessity for a point by point refutation of the contrary position. That is familiar from, for

example, a context where a developer’s expert is preferred to an environmental observer’s or vice

versa.

93. This again may be something on which reasonable people may have to agree to differ. I

wouldn’t in any way discount an argument that both the development plan and the commission’s

approach to the criteria for higher buildings may currently somewhat err on the conservative side,

and nor would I discount the arguments in favour of higher rise buildings or higher density

developments generally in the interests of contributing to the response to the climate emergency if

nothing else. Climate legislation wasn’t pleaded here so I don’t need to consider it further. Nor

would I discount the argument that significant sections of the docklands and other areas could not

be regarded as having specific historical exceptionality, and could be particularly suitable for higher-

rise buildings. Obviously there are cities elsewhere where very large clusters of very central high

rise have worked well. But all of this can be filed under the heading of merits which will have to be

fought out in City Hall and elsewhere. All one can do for the applicant for the time being under this

heading is, with all caveats that are appropriate, to encourage decision-takers to give whatever

reasonable attention may be warranted to any climate-related or planning policy-related arguments

as may be put forward for sustainable higher-rise in areas such as the docklands, alongside any

counter-arguments of course.

V – performance criteria (and core grounds 2, 3 and 6)

94. In sub-ground 70 the applicant contends (emphasis added):

“70. The Board undervalues the careful and detailed analysis by the Inspector of the

townscape and visual impact of the Proposed Development in her consideration of the

performance criteria first, by characterising it as mere ‘commentary’, but second, and more

substantively, the validity of the Board’s findings is undermined by its failure to provide

any or any adequate reasoned explanation for disagreeing with that analysis.”

95. On the performance criteria more generally, there is a reasons complaint in relation to the

finding of assertiveness:

“59. In relation to Finding (b) above, the Board appears to view the fact that the building

is ‘overly assertive’ in terms of its design, for reasons which are unexplained, as a

characteristic which should support a refusal of permission notwithstanding the fact that

‘assertiveness’ as a positive quality in design terms is recognised in the Dublin City Council

Planner’s Report (although the report goes on to consider it to be ‘overly assertive’) where

it is stated as follows:

‘It should be noted that the proposed building is an interesting modern and assertive design

which exhibits the use of high quality materials and finishes and if viewed in isolation and

not taking into account the sensitivities of the surrounding context, the scheme has

significant positive attributes.’”

96. This is tied into core grounds 2, 3 and 6.

97. Core ground 2 is:

“2. The Board Decision is invalid in that it is unreasoned and/or contains no adequate

reasons as required by law for finding that the Proposed Development did not meet the

requirements of Tables 3 and 4 of Appendix 3 to the Dublin City Development Plan 2022-

2028. Further or in the alternative, the Board erred in its interpretation of the criteria in

Tables 3 and 4 of Appendix 3 to the Dublin City Development Plan 2022-2028. Further

particulars of which are set out in Part 2 below.”

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

“Applicants Position

15. The Board failed to provide any, or any adequate, reasons for its conclusion that the

Proposed Development did not meet the requirements of Appendix 3 to the Development

Plan. Further the Board erred in its interpretation of the criteria in Tables 3 and 4 of

‘Appendix 3: Achieving Sustainable Compact Growth Policy for Density and Building Height

in the City.’

16. The requirement for the Board to consider the criteria set out in Tables 3 and 4 of

Appendix 3 to the Development Plan is evident from the fact that the principal reason for

the decision to defer consideration of the appeal in November 2023 was to facilitate

submissions and observations on Appendix 3 and the application of the performance criteria.

Upon receipt of those submissions, the Board decided that an addendum report should be

sought from the Inspector on the responses receive. The Inspector stated in the addendum

report that one of the ‘main matters’ to be considered was: ‘Appendix 3 “Height Strategy”

for the Dublin City Development Plan 2022-2028.’ The Inspector engaged in a detailed

considerations of the Proposed Development against each one of the criteria identified in

Tables 3 and 4 of Appendix 3.

17. The Applicant accepts that the Board was not required to ‘address points on a

submission-by-submission basis’ nor to ‘engage in a discursive, narrative analysis’. Rather,

the obligation placed on the Board was to give a reasoned decision and to ‘indicate the main

reasons for not accepting the recommendation’ of the Inspector to grant permission.

18. The context required the Board to provide adequate reasons for its decision to reach

a different conclusion from that set out by the Inspector (in two detailed reports) on this

issue of compliance with the performance-based criteria in Tables 3 and 4 of Appendix 3.

19. The Board found that the Proposed Development did not comply with the criteria in

Tables 3 and 4 of Appendix 3 to the Development without identifying which criteria had not

been satisfied or the reasons for which it concluded that such unidentified criteria had not

been complied with.

20. Insofar as the Board seeks to place reliance upon the reference in its Reasons and

Considerations to the assertion that the Proposed Development ‘would stand apart as on

overly assertive solo building which would not form part of a coherent cluster’, the Board

clearly misinterpreted the relevant criterion in Table 4 of Appendix 3 to the Development

Plan. Objective 7 in Table 4 identifies a preference for clusters of landmark/tall buildings,

whereas the Board interpreted this provision of the Development Plan as precluding

permission for the Proposed development on the basis that it ‘would not form part of a

coherent cluster’.

21. The Inspector significantly concluded (at section 5.3.5 of the Addendum Report)

that, ‘[t]overall approach to height set out in Appendix 3 is not one that precludes all

locations except those identified specifically for height…’

22. Insofar as the Board seeks to submit that it discharged its obligation under section

34(10), and by way of example only, in relation to reference to ‘coherent cluster’ issue

referenced in paragraph 1, this term is not referenced at all in Tables 3 and 4 of Appendix 3

(or anywhere in the Development Plan). Rather, Objective 7 in Table 4 references a cohesive

group of landmark/tall buildings.

Respondent’s Position

23. This ground of challenge is premised on an incorrect interpretation of the

Development Plan – including a failure to note the evaluative nature of the criteria provided

for in Appendix 3 – Table 3 and Table 4. Moreover, the ground is advanced on the basis of

a selective, as opposed to a complete, reference to the evidence that was before the Board

– with, for example, no reference made at all to the views of the Council or the OPW.

24. The criteria under the Development Plan (Appendix 3 – Table 3 and Table 4) clearly

include consideration of the sensitive setting of proposed taller buildings (in particular as

regards the impacts on the Custom House) – what is equally apparent, to any participant in

the planning process, is that this was a central aspect to the Board’s reasoning.

25. The Board was not satisfied that the criteria/objectives considered in Table 3 –

including Objective 1, Objective 4 and Objective 9 and Section 6 of Appendix 3 – had been

met. Further, in respect of Table 4, the objectives considered included Objective 3, Objective

6 and Objective 7 – which the Board determined had not been satisfied. The Board engaged

with the criteria and, by reference to the evidence presented, formed a different view on

same to the Applicant and/or Inspector. There is nothing irrational about the Board’s

position in this regard and no legal error arises from such an approach. The Board’s Decision

has to be considered by reference to the nature of the criteria in question – which, as outlined

above, are of an evaluative nature and require the exercise of planning judgment – with the

consequence that there can only be limited review of any such judgment by the courts on

grounds of irrationality.

26. Moreover, it is not for an applicant to dictate the form of a decision.

27. The Applicant places extensive reliance on the analysis of the Inspector. In truth,

the argument made is little more than a demand for a discursive consideration of that

analysis by the Board. It is well established that no such requirement exists.

28. The Court’s comments in Stapleton v An Bord Pleanála [2024] IEHC 3 summarise

the problem with the Applicant’s case under this (and other) core grounds (§97):

‘…there may, in a given case, be multiple possible views of what is consistent with proper

planning and sustainable development and, ceteris paribus, if the Board’s is reasonable it

prevails and the Court will not interfere.’

29. In this respect, it is worth emphasising, as per Eco Advocacy CLG [2025] IEHC 15

(§63), that judicial review ‘is not an appeal on the merits and it is not for the court to

substitute its view for that of the decision-maker’.”

99. The first set of the performance criteria in table 3 are as follows:

“Enhanced density and scale should:

• respect and/or complement existing and established surrounding urban structure,

character and local context, scale and built and natural heritage and have regard to any

development constraints,

• have a positive impact on the local community and environment and contribute to ‘healthy

placemaking’,

• create a distinctive design and add to and enhance the quality design of the area,

• be appropriately located in highly accessible places of greater activity and land use

intensity,

• have sufficient variety in scale and form and have an appropriate transition in scale to the

boundaries of a site/adjacent development in an established area,

• not be monolithic and should have a well considered design response that avoids long slab

blocks,

• ensure that set back floors are appropriately scaled and designed.”

100. Objective 4 is:

“To provide well connected, high quality and active public and communal spaces”

101. The performance criteria are:

“Enhanced density and scale should:

• integrate into and enhance the public realm and prioritises pedestrians, cyclists and public

transport,

• be appropriately scaled and distanced to provide appropriate enclosure/exposure to public

and communal spaces, particularly to residential courtyards,

• ensure adequate sunlight and daylight penetration to public spaces and communal areas

is received throughout the year to ensure that they are useable and can support outdoor

recreation, amenity and other activities – see Appendix 16,

• ensure the use of the perimeter block is not compromised and that it utilised as an

important typology that can include courtyards for residential development,

• ensure that potential negative microclimatic effects (particularly wind impacts) are avoided

and or mitigated,

• provide for people friendly streets and spaces”

102. These are evaluative criteria – the board clearly thought that public realm and community

gain was insufficient.

103. Unfortunately, it’s obvious from the board’s reasons why it thinks the development doesn’t

meet the criteria. The applicant got the main reasons on the main issues.

104. As far as appendix 4 is concerned, the first set of criteria are:

“• All proposals must be accompanied by a detailed design statement that demonstrates the

achievement of excellent design and the highest standards for future occupants.

• The development should make a significant contribution to the built environment of the

city. Detailed consideration must be given to the scale, form, massing and proportions of

the building. A slenderness ratio of 3:1 is desirable.

• The facades must be carefully articulated and animated. This can be achieved through the

use of high quality materials, colour, fenestration, reflectiveness and/or expression of depth.

Large, blank or inactive gables should be avoided.

• The building form and layout must have regard to the density and character of the

surrounding development. The applicant will be required to demonstrate the relationship

and potential impacts of the proposal to the surrounding context, including topography, built

form, scale, height, urban grain, streetscape, public realm, open spaces, rivers and

waterways, important views and prospects, skyline and that these factors have been

considered in the design approach.

• Detailed consideration will be required for all lighting proposals to ensure that they are

energy efficient, contribute to the design and quality of the building whilst limiting the

potential for excessive light spill, glare and sky glow.

• The impact of the roofscape (including telecommunications apparatus and plant rooms)

must be considered and it should be designed to make an appropriate contribution to the

city’s skyline.

• Where a landmark/tall building/s proposal abuts a lower density areas [sic], such sites

should be planned to provide lower level buildings at the perimeter assisting the transition

in scale from the landmark/tall building/s down to the surrounding context.

• Where a proposal of significant height is proposed, the process of design selection should

preferably be by means of an architectural competition”

105. Objective 6 includes:

“• Landmark/tall building proposals must demonstrate the impacts on the historic context,

including the need to ensure that the proposal will preserve and/or enhance historic

buildings, sites, landscapes and skylines. Landmark/tall building proposals must address

their effect on the setting of, and views to and from historic buildings, sites and landscapes

over a wide area. It must be demonstrated that the building will have no adverse impact

on the built cultural or historical heritage of the city including Architectural Conservation

Areas and Protected Structures and their curtilage and National Monuments.”

106. Core ground 3 is:

“3. The Board Decision is invalid and irrational in that the Board refused permission for

the Proposed Development on the basis of a limited amount of cultural space despite the

requirements of objective CUO25 of the Dublin City Development Plan 2022-2028 being

exceeded. Further or in the alternative (i) the Board failed to give any or any adequate

reasons for not adopting the Inspector’s finding that the Proposed Development exceeded

the requirements of CUO25 and enhanced the public realm and / or (ii) the Board erred in

its interpretation of objective CUO25 of the Dublin City Development Plan 2022-2028.

Further particulars of which are set out in Part 2 below.”

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

“Applicants Position

30. The Board erred in its interpretation of Policy Objective CU025 of the Development

plan specifically by not referencing objective CUO25 nor did it give any reasons for

disagreeing with the Inspector’s conclusion that the Proposed Development exceeded the

requirements of Objective CUO25 and enhanced the public realm.

31. Objective CUO25 requires that, for strategic regeneration development areas and

large-scale developments above 10,000 sq. m, a minimum of 5% of the total area must be

provided for community, arts and cultural spaces.

The Inspector considered the requirements of Objective CUO25 and concluded (at section

7.3.6 of her original report) that the proposed development included:

‘…1,404sqm arts centre, 22,587sqm offices and 244sqm gym, amounting to a total internal

floorspace for these uses of 24,235sqm, of which, the arts centre (including exhibition /

performance / workshop and studios) equates to 5.79%, and in compliance with the

requirement under CUO25.’ [Emphasis added]

32. The Inspector conducted a criterion-by-criterion analysis of the objectives in Table

3 of Appendix 3 to the Development Plan in Table 7.1 of her original report, and concluded

that the Proposed Development would enhance the public realm (‘in addition to her

conclusion – at page 69 of her original report – that the Proposed Development “can be

considered a substantial contribution to the public realm”).

33. The Direction and Order do not provide any reasons for the Board’s conclusion that

the Proposed Development failed to achieve the performance criteria in Tables 3 and 4 of

Appendix 3 to the Development Plan on the basis of the purportedly ‘limited amount of

cultural space proposed’ and/or ‘limited upgrades to the public realm’.

34. Under section 34(10) to:

(a) provide reasons of its own for concluding that the upgrades to the public realm and

the amount of cultural space proposed were both ‘limited’; and

(b) engage with the Inspector’s rationale for her conclusions that the Proposed

Development exceeded the requirements of Objective CUO25 and enhanced the public

realm.

Respondent’s Position

35. This Core Ground is illustrative of the refusal by the Applicant to engage with the

Board’s reasoning and again demonstrates a selective approach to interpreting the Board’s

Decision to try to find fault with same.

36. It is important to note, as the Applicant fails to, that the Board’s statements that the

Proposed Development would not ‘appropriately integrate with or enhance the public realm’,

and that it considered that the ‘delivery of planning gain to the community was not

sufficiently demonstrated given the limited upgrades to the public realm and the limited

amount of cultural space proposed’, were made in the context of considering the criteria

provided for in Appendix 3 - Table 3 and Table 4 of the Development Plan – which, for

example, include objectives relevant to enhancing the public realm (see Table 3, Objective

4). Thus, the Applicant’s purported invocation of Objective CUO25 is misplaced and

demonstrates a failure to properly understand the correct context to the impugned

statements.

37. The Board’s conclusions that the Proposed Development would not ‘appropriately

integrate with or enhance the public realm’ comprise expert evaluative judgment and arose

in considering the criteria outlined in Appendix 3 of the Development Plan – which criteria

are in no way curtailed or limited by any other objective of the Development Plan, including

Objective CUO25 – noting, in any event, that the proposed Development was only marginally

above the minimum requirement set out in Objective CUO25.”

108. The development plan is, as noted above, on one view fairly conservative in terms of building

heights, starting from a position of Dublin being a low-rise city but allowing for locally higher and

landmark buildings:

“Landmark/Tall Buildings

Dublin City Council acknowledges that taller landmark buildings can play an important visual

role and can make a positive contribution to the skyline of a city. A landmark/tall building

is defined as a building that is substantially taller than its surroundings and that causes a

significant change to the skyline. As such, landmark/tall buildings shall be used to signal

major urban functions such as high capacity public transport interchanges or to create a

civic statement. Dublin City Council recognises the merit of taller buildings, including

landmark/tall buildings, in a very limited number of locations, at a scale appropriate for

Dublin.

Accordingly, the spatial approach to landmark/tall buildings in the city is in essence to protect

the vast majority of the city as a predominantly low-rise city, including established

residential areas and conservation areas within the historic core, while also recognising the

potential and the need for taller landmark buildings to deliver more sustainable compact

growth. It is considered that landmark/tall buildings are most appropriately located in areas

identified for large scale regeneration and redevelopment; that are well connected centres

of employment; which have the capacity to create their own character and identity and

where the existing character of the area would not be adversely impacted by the scale, mass

and height of such tall building/s. Clustering of taller buildings of the type needed to promote

significant densities of commercial and residential space are likely to be achieved in a limited

number of areas only.

In all cases, all proposals for enhanced scale and height, including landmark/tall buildings

must respect their context and address the assessment criteria set out in Appendix 3, to

ensure that such developments achieve high standards in relation to design, sustainability,

amenity, impacts on the receiving environment and the protection or framing of important

views.”

109. Relevant policies include:

“SC16 Building Height Locations

To recognise the predominantly low rise character of Dublin City whilst also recognising the

potential and need for increased height in appropriate locations including the city centre,

Strategic Development Zones, Strategic Development Regeneration Areas, Key Urban

Villages and other locations as identified in Appendix 3, provided that proposals ensure a

balance with the reasonable protection of existing amenities and environmental sensitivities,

protection of residential amenity and the established character of the area.

SC17 Building Height

To protect and enhance the skyline of the city, and to ensure that all proposals with enhanced

scale and height:

• follow a design led approach;

• include a masterplan for any site over 0.5ha (in accordance with the criteria for assessment

set out in Appendix 3);

• make a positive contribution to the urban character of the city and that responds positively

to the existing or emerging context;

• deliver vibrant and equitable neighbourhoods that are walkable, compact, green,

accessible, mixed and balanced;

• Do not affect the safety of aircraft operations at Dublin Airport (including cranage); and

• have regard to the performance-based criteria set out in Appendix 3.

All new proposals in the inner city must demonstrate sensitivity to the historic city centre,

the River Liffey and quays, Trinity College, the cathedrals, Dublin Castle, the historic squares

and the city canals, and to established residential areas and civic spaces of local and citywide

importance.

SC18 Landmark/Tall Buildings

To promote a co-ordinated approach to the provision of landmark/tall buildings through Local

Area Plans, Strategic Development Zones and the Strategic Development and Regeneration

Area principles, in order to prevent visual clutter or cumulative negative visual disruption of

the skyline and that such proposals comply with the performance based criteria set out in

Appendix 3.”

110. Strategic development and regeneration area (SDRA) 6 (docklands) is dealt with in chapter

13.8 of the plan:

“Height

Existing building heights in the area vary considerably. Suitable heights for any given site

are influenced by urban design principles with regard to existing built context, national

guidelines, conservation issues and setting. In relation to the SDZs for North Lotts and

Grand Canal Dock and Poolbeg West, specific height requirements apply as set out in the

Planning Schemes, where heights are set out for individual city blocks or elements within

them.

More generally for the SDRA area, Ministerial guidance published in 2018 has redefined a

planned approach to building heights which is now to be implemented, and this SDRA has

clear locational advantages that support some increased height in appropriate locations.

General height guidance is provided for selected key development sites in the SDRA,

informed by urban design principles responsive to context. More specifically, appropriate

locations for enhanced height within key sites are identified, with specific positions illustrated

within indicative site layouts. These taller elements can contribute towards visual variety

and help define an area’s character whilst avoiding significant negative impacts on amenities.

They can also provide for greater architectural expression. For clarity, these taller elements

can be up to one third taller than the dominant height of the main building, as measured

from ground level. This additional height should be expressed vertically, and where forming

part only of a larger building should not extend horizontally along the block such that its

visual prominence is flattened.

In some more limited locations where the planning context is suitable, locally higher

buildings of greater height and landmark buildings can be appropriate, and positions for

these buildings are clearly described for key sites.

All new development of increased height compared to the existing context must accord with

the specific performance criteria as set out in Appendix 3 of this development plan.”

111. Core ground 6 is:

“6. The Board Decision is invalid by reason of its failure to have regard to and/or engage

in any meaningful way with the performance criteria set out in Tables 3 and 4 of Appendix

3 of the Dublin City Development Plan 2022-2028 in breach of section 34(2)(a)(i) of the

2000 Act. Further, or in the alternative, the reasons for the Board’s decision were inadequate

in so far as the said performance criteria were not properly considered by the Board, or if

they were considered (which is denied), the findings of the Board in relation to each of the

criteria were not recorded in its decision and are, therefore, not reviewable, as a

consequence of which the Board Decision was invalid. Further, to the extent that there was

engagement with some of the said performance criteria, it was extremely selective,

perfunctory and superficial in light of the detailed expert evidence furnished by the Applicant

in relation to visual and townscape/heritage impact and also in light of the detailed analysis

provided by the Inspector in addressing these criteria. Moreover, such consideration as was

given by the Board is tainted by a number of errors of law and/or fact which are detailed

below. Further, two of the Board members did not have sufficient expertise or competence

to carry out a landscape and visual impact assessment in relation to the Proposed

Development or to examine or evaluate evidence relating to such matters. Further

particulars of which are set out in Part 2 below.”

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

“Applicant’s Position

28. The Board’s failed to have regard to and/or engage and/or consider properly, or in

any meaningful way, the performance-based criteria set out in Tables 3 and 4 of Appendix

3 to the Development Plan. there was no evidence before the Board – and the Board did

not advert in its Reasons and Conclusions to any such evidence – which supported the

Board’s conclusion that planning permission should be refused on the basis that the Proposed

Development failed to achieve the performance criteria of Tables 3 and 4 as the Proposed

Development would result in a negative impact on important views and vistas.

29. The failure of the Board to properly understand the materials before it and the

material shortcomings in evaluating the Proposed Development against the criteria in Tables

3 and 4 of Appendix 3 are, it is respectfully submitted, attributable at least in part, to the

fact that two of the three Board members considering and determining the appeal did not

have sufficient expertise or competence to carry out a landscape and visual impact

assessment in relation to the Proposed Development or to examine or evaluate evidence

relating to such matters.

30. Many of the considerations arising under the relevant criteria in Tables 3 and 4 in

Appendix 3 to the Development Plan were also required to be assessed in the context of

carrying out an Environmental Impact Assessment, which the Board was obliged to carry

out.

Respondent’s Position

31. Insofar as this Core Ground reiterates complaints advanced under the other Core

Grounds – see, for example, Core Ground 2 – the Board repeats its opposition to same.

32. Whilst the Applicant’s complaints are premised on its own subjective view of the

criteria under Appendix 3 and 4 – it is important to emphasise, noting the evaluative nature

of the matters under consideration, that in order to show that the Board acted irrationally

or unreasonably, it is necessary for the Applicant to establish that the Board had no relevant

material before it which would support its decision or that no reasonable decision-maker

could come to the same conclusion – the Applicant has failed to do this and largely ignores

any evidence before the Board which does not suit its case.

33. Further, there was no failure on the part of the Board to understand the materials

before it and the assertion that there was no evidence before the Board to support the

conclusion that planning permission should be refused by reference to the performance

criteria of Tables 3 and 4 is simply incorrect. As already noted, the consideration of the

performance criteria is a matter of evaluative judgment. In any event, there was evidence

before the Board which supports the conclusions reached by it (for example, the Council’s

Planner’s Report and the OPW Submissions). In reality, this is a merits disagreement

dressed up in legal language.

34. The Applicant places extensive reliance on the analysis of the Inspector. In truth,

the argument made is little more than a demand for a discursive consideration of that

analysis by the Board. It is well established that no such requirement exists.

35. When the Board’s Decision is considered in its correct context and read objectively

there is no substance to the complaint that it failed to ‘have regard to’ the Table 3 and Table

4 of Appendix 3 of the Development Plan – it had express regard to same. In this context,

a lack of narrative discussion does not equate to a failure to have regard to something.

Further, the Board is not obliged to simply accept the information contained in an application,

regardless of whether the Inspector does, and is perfectly entitled to come to a different

view on matters having regard to the totality of the evidence presented and in the exercise

of planning judgment.

36. Insofar as the Applicant, in its pleaded case and in Submissions, advances an

unsubstantiated allegation of lack of expertise by the Board to assess the visual impact of

the Proposed Development - same has not been established evidentially.”

113. While it has generated a lot of written material, the disposition of the performance criteria

issue and the many sub-issues is in effect dependent on the disposition of the previous issues. If

the board gave adequate reasons regarding the cluster, public realm and visual impacts then it gave

adequate reasons regarding the non-satisfaction of the performance criteria, because the latter

conclusion follows from the former points.

114. Whether the board’s language came from the plan, the planner’s report or somewhere else

doesn’t particularly matter if in substance the issues in the criteria were considered in a reasoned

manner. The reasons were not extensive but the minimum standard was met.

115. In particular, figure 13-9 identifies this site as one for a locally taller building. That still

requires satisfaction of the performance criteria. Whether such criteria are satisfied involves an

appreciable degree of planning judgement which has not been shown to have been exceeded here.

Again the decision is perhaps unsympathetic and reasonable people can and will disagree (to

illustrate that, there isn’t anything conspicuously unreasonable about the inspector’s extremely

detailed and conscientious examination of all issues), but the applicant hasn’t shown an unlawfulness

in the board’s view to the contrary either in reasons or in substance under this heading.

VI – 2018 guidelines (and core ground 5)

116. As far as the ministerial guidelines are concerned, sub-ground 54 specifically pleads reasons

in this regard:

“54. Further or in the alternative, the reasons for the Board’s decision were inadequate

in so far as the said criteria under §3.2 of the said Guidelines were not properly considered,

or if they were considered (which is denied), the findings of the Board in relation to each of

the criteria were not recorded in its decision and are, therefore, not reviewable, as a

consequence of which the Board Decision was invalid.”

117. This issue is tied into core ground 5.

118. Core ground 5 is:

“5. The Board Decision is invalid by reason of (i) its failure to have regard to or engage

in any meaningful way, or at all, with the criteria under §3.2 of the Urban Development and

Building Height Guidelines 2018 in considering the said application and/or in its Reasons and

Considerations, in breach of Section 28(2) and/or section 34(2)(a)(ia) of the 2000 Act,

and/or (ii) its failure to apply and/or comply with SPPR 3A of the said Guidelines in

considering the said application, in breach of Section 28(1C) and/or section 34(2)(aa) of the

2000 Act. Further or in the alternative, the reasons for the Board’s decision were inadequate

in so far as the said criteria under §3.2 of the said Guidelines were not properly considered,

or if they were considered (which is denied), the findings of the Board in relation to each of

the criteria were not recorded in its decision and are, therefore, not reviewable, as a

consequence of which the Board Decision was invalid. Further particulars of which are set

out in Part 2 below.”

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

“[Applicant:]

42. The Board Decision made no reference to the 2018 Guidelines in its Reasons and

Considerations and failed to address the manner in which the Proposed Development

performs in relation to each of the criteria under §3.2, as required by SPPR 3, in breach of

the provisions of sections 28(1C), 28(2), 34(2)(aa) and 34(2)(a)(ia) of the 2000 Act and in

the teeth of the Inspector having carefully considered each of the performance criteria under

§3.2 of the 2018 Guidelines in considering the application and recorded her findings in her

original report.

43. The Board decided not to accept the Inspector’s recommendation and did not carry

out any separate consideration of the criteria under §3.2 and/or did not make any reference

to those criteria in its Direction or Order.

44. In addition, the reasons for the Board’s decision were inadequate insofar as the

criteria under §3.2 of the 2018 Guidelines were not properly considered and/or were not

referenced or recorded in the Board Direction or Order.

45. The absence of reasons in relation to the Board’s purported consideration of the

criteria under §3.2 of the 2018 Guidelines or, indeed any reference to those Guidelines at

all, in the Reasons and Considerations vitiates the Impugned Decision to refuse permission.

Respondent’s Position

46. The Applicant fails to appreciate or engage with the fact that the Development Plan

was based upon and informed by the Building Height Guidelines – as noted in Murtagh v An

Bord Pleanála [2023] IEHC 345:

‘…the scheme of the legislation is such that where a development plan has been prepared in

accordance with ministerial guidelines…conflict between the provisions of the plan and the

Guidelines…is unlikely to arise…’ [§48]

‘The scheme of the 2000 Act, as amended is clear. A development plan is the core document

setting out planning policy in the functional area of any planning authority. Policies in the

Guidelines and the NPF cannot be deployed to contradict policies in a development plan

which implemented the Guidelines…’ [§69]

The Applicant advances no case against the content of Appendix 3 in terms of inconsistency

with the Height Guidelines – noting that conformity with Appendix 3 has been designed to

achieve compliance/consistency with the Height Guidelines.

47. The Applicant’s assertions in this regard are premised on a failure to properly

interpret the Development Plan – which the Board considered – and to understand the

relationship between Appendix 3 of same and the Building Height Guidelines. Further, the

Building Height Guidelines would not have altered the Board’s evaluative conclusions which

informed the reasons for refusal.”

120. Insofar as the 2018 guidelines are binding, specific planning policy requirement (SPPR) 3A

is:

“SPPR 3

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.”

121. The criteria concerned (notes omitted) are:

“Development Management Criteria

3.2 In the event of making a planning application, the applicant shall demonstrate to the

satisfaction of the Planning Authority/ An Bord Pleanála, that the proposed development

satisfies the following criteria:

At the scale of the relevant city/town

• The site is well served by public transport with high capacity, frequent service and good

links to other modes of public transport.

• Development proposals incorporating increased building height, including proposals within

architecturally sensitive areas, should successfully integrate into/ enhance the character and

public realm of the area, having regard to topography, its cultural context, setting of key

landmarks, protection of key views.

Such development proposals shall undertake a landscape and visual assessment, by a

suitably qualified practitioner such as a chartered landscape architect.

• On larger urban redevelopment sites, proposed developments should

make a positive contribution to place-making, incorporating new streets and public spaces,

using massing and height to achieve the required densities but with sufficient variety in scale

and form to respond to the scale of adjoining developments and create visual interest in the

streetscape.

At the scale of district/ neighbourhood/ street

• The proposal responds to its overall natural and built environment and makes a positive

contribution to the urban neighbourhood and streetscape

• The proposal is not monolithic and avoids long, uninterrupted walls of building in the form

of slab blocks with materials / building fabric well considered.

• The proposal enhances the urban design context for public spaces and key thoroughfares

and inland waterway/ marine frontage, thereby enabling additional height in development

form to be favourably considered in terms of enhancing a sense of scale and enclosure while

being in line with the requirements of ‘The Planning System and Flood Risk Management –

Guidelines for Planning Authorities’ (2009).

• The proposal makes a positive contribution to the improvement of legibility through the

site or wider urban area within which the development is situated and integrates in a

cohesive manner.

• The proposal positively contributes to the mix of uses and/ or building/ dwelling typologies

available in the neighbourhood.

At the scale of the site/building

• The form, massing and height of proposed developments should be carefully modulated

so as to maximise access to natural daylight, ventilation and views and minimise

overshadowing and loss of light.

• Appropriate and reasonable regard should be taken of quantitative performance

approaches to daylight provision outlined in guides like the Building Research

Establishment’s ‘Site Layout Planning for Daylight and Sunlight’ (2nd edition) or BS 8206-2:

2008 – ‘Lighting for Buildings – Part 2: Code of Practice for Daylighting’.

• Where a proposal may not be able to fully meet all the requirements

of the daylight provisions above, this must be clearly identified and a rationale for any

alternative, compensatory design solutions must be set out, in respect of which the planning

authority or An Bord Pleanála should apply their discretion, having regard to local factors

including specific site constraints and the balancing of that assessment against the

desirability of achieving wider planning objectives. Such objectives might include securing

comprehensive urban regeneration and or an effective urban design and streetscape

solution.

Specific Asses[s]ments

To support proposals at some or all of these scales, specific assessments may be required

and these may include:

• Specific impact assessment of the micro-climatic effects such as downdraft. Such

assessments shall include measures to avoid/ mitigate such micro-climatic effects and,

where appropriate, shall include an assessment of the cumulative micro-climatic effects

where taller buildings are clustered.

• In development locations in proximity to sensitive bird and / or bat areas, proposed

developments need to consider the potential interaction of the building location, building

materials and artificial lighting to impact flight lines and / or collision.

• An assessment that the proposal allows for the retention of important telecommunication

channels, such as microwave links. 15

• An assessment that the proposal maintains safe air navigation.

• An urban design statement including, as appropriate, impact on the historic built

environment.

• Relevant environmental assessment requirements, including SEA, EIA, AA and Ecological

Impact Assessment, as appropriate.

Where the relevant planning authority or An Bord Pleanála considers that such criteria are

appropriately incorporated into development proposals, the relevant authority shall apply

the following Strategic Planning Policy Requirement under Section 28 (1C) of the Planning

and Development Act 2000 (as amended).”

122. The inspector considered the 2018 guidelines and found in effect that they were supportive

of the grant of permission. Critically, the board decision doesn’t mention the guidelines in any

way, good, bad or indifferent, despite the guidelines being one of the bases of the

inspector’s proposal to grant permission – a proposal with which the board disagreed – thereby

requiring it to come up with its own reasons to the contrary.

123. The focus of the applicant’s argument was on reasons. One has to ask why the board differed

from the inspector as to the satisfaction of the conditions in the 2018 guidelines. Unfortunately

there are no reasons – indeed there is no reference to the 2018 guidelines at all.

124. The fact that the compliance with the 2018 criteria featured centrally in the inspector’s

proposed grant of permission makes those criteria a main issue where the board disagrees. The

inspector deals with this at length over ten pages from pp. 47-56 in a very detailed treatment of the

guidelines. We can also for good measure and at least for context contrast the Tara Street decision

referred to above, which expressly relies on the guidelines. Here, unfortunately, ten pages of

analysis by the inspector results in a contrary asserted conclusion with not even a passing

reference to the 2018 guidelines by the board anywhere in the decision.

125. An issue on which the inspector would have granted permission – especially where

referenced in the conclusion section of her report – is pivotal and decisive and thus objectively (or

alternatively phrased, but it comes to the same thing, would be seen by a reasonable decision-taker)

a relevant issue and a main issue. Failure to give reasons for differing is in the circumstances

constitutes a failure to give the main reasons on one of the main issues.

126. The commission’s main answer was that none of this mattered because the guidelines

informed the development plan, which was considered and in relation to which reasons were

provided (i.e., the project did not comply with it in the board’s view, contra the inspector). But that

unfortunately misunderstands the whole point of the guidelines and in particular SPPR 3. The latter

is not just guidance in the plan-making process, still less only applicable to plans in the pipeline in

2018. SPPR 3 is a permanent, ongoing, fixture of the planning regulatory framework with

prospective effects on future individual planning applications.

127. At the risk of repetition, the guidelines provide that permission can be granted

notwithstanding the development plan – in other words, even though the plan has actually (or didn’t

but should have) taken into account the guidelines, in the context of an individual permission

application, the decision-taker can grant permission even if the plan doesn’t provide for heights of

the type sought for the development site, if the specified criteria are satisfied.

128. As noted above, SPPR 3A provides that (emphasis added):

“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.”

129. The sequence is that guidelines are issued (in 2018 here), development plans then take

them into account on an ongoing basis into the indefinite future (which happened in 2022 here), and

then individual planning applications are decided upon, also on an ongoing basis into the indefinite

future (in 2024 here). Even assuming that the plan was informed by prior guidelines, the SPPR

allows the planning decision-taker to grant permission notwithstanding the development plan if the

guideline criteria are satisfied. It most certainly does not allow a planning decision-taker to approach

the matter on the basis that the council must have fully incorporated the guidelines (still less that

this must be the case if the Office of the Planning Regulator (OPR)/ Minister haven’t intervened to a

contrary effect) and thus that there is no necessity to consider whether permission should be granted

notwithstanding the plan.

130. The legal effect of the guidelines is that they have to be engaged with in a reasoned way

where they apply or where they are a main issue, such as where they are a central issue in

submissions or were held decisive by the inspector. If the board is following the inspector it can be

taken to also follow her reasoning. But if it is differing then it needs to provide its own reasons.

131. That didn’t happen here. This isn’t a complex or novel point.

Severability

132. Since the 2018 guidelines have a hierarchically superior status to the plan, an infirmity in

producing a reasoned decision on the guidelines can and should here be the basis of certiorari

notwithstanding that the board gave a decision that on its own terms was in compliance with the

plan. In such a context the issue of “valid” plan-related reasons isn’t severable from the issue of

the superior ministerial-guidance-related reasons.

133. In other words, even on the basis that the applicant hasn’t shown anything wrong with the

conclusion of non-compliance with the development plan, that logically can’t excuse a failure to

engage in a reasoned way with an SPPR that allows the commission to override the plan. The fact

that a plan was adopted with knowledge of the SPPR doesn’t absolve the commission from such an

exercise either – that can’t logically be an answer and would nullify the express wording of the SPPR

itself (permission can be granted “even where ... the ... plan ... may indicate otherwise”).

134. Independently but reinforcing this, the reasons are interlinked in their wording and concepts

as noted above.

135. To put it another way, the commission seems to think that upholding their evaluative

judgement of non-compliance with the development plan is game, set and match. The reason that

isn’t logically the case isn’t that complex – it is because the whole point of SPPR3 is to override non-

compliance with the plan. Therefore the latter conclusion doesn’t dispense with the need to engage

with the former provision.

Core ground 1 as a substantive point – definition of historic core

136. Returning to the issues viewed as substantive breaches rather than as being about reasons,

it follows from the foregoing discussion that the board did not err in its finding that the development

site was within the historic core.

Core grounds 2, 3 and 6 as a substantive point – misinterpretation of plan

137. It also follows that core grounds 2, 3 and 6 as a substantive point, i.e., misinterpretation of

the plan, is not made out. The criteria are essentially evaluative and the fact that certain particular

elements of the plan may be said to have been satisfied (e.g., the 5% public realm gain under

CUO25) does not have the consequence that the board could not lawfully have held that the criteria

were not satisfied in respect of public realm given the additional requirement of significant gain for

a landmark building.

Core ground 7 – error regarding SDRA provisions of plan

138. Core ground 7 is:

“7. The finding by the Board that the location of the site is ‘a local landmark within

Dublin Docklands Strategic Development Regeneration Area 6 under the Dublin City

Development Plan 2022-2028, where a 5 to 8 storey building is envisaged’ in respect of

which ‘the Board considered the proposed development would fail to achieve this objective’

amounts to a material error of law and/or fact in the interpretation of the relevant provisions

of the Dublin City Development Plan 2022-2028 including in particular, Figure 13-6, which

accompanies the SDRA 6 provisions in the Development Plan, as a consequence of which

the Board Decision is invalid. Further, the said material error of law and/or fact, whether

considered on its own or together with the material error of law and/or fact referred to above

in relation to the location of the site in the historic City core, undermines the Board’s reasons

and considerations more generally in relation to its assessment of visual impact and/or

impact on architectural heritage, including its reasoning for departing from the

recommendation of its Inspector, as set out in more detail in the particulars below, as a

result of which the Board’s reasons for refusal are so flawed, erroneous and /or misconceived

as to be incapable of supporting its decision, and as a consequence of which the Board

Decision is invalid, void and of no legal effect. Further particulars of which are set out in

Part 2 below.”

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

“Applicant’s Position

37. The relevant provisions of the Development Plan must be considered in context,

when considering the Board’s decision that the location of the Proposed Development ‘as a

local landmark within Dublin Docklands Strategic Development Regeneration Area 6, where

a 5 to 8 storey building is envisaged’. The site of the Proposed Development is located

within Strategic Development Regeneration Area 6 (‘SDRA 6’). Figure 13-6, which

accompanies the SDRA 6 provisions in the Development Plan, albeit at low resolution,

identifies the site for a locally higher building. The Board’s finding that ‘a 5 to 8 storey

building is envisaged’ on the subject site amounts to a material error in its interpretation of

the relevant provisions of the Development Plan, which vitiates the Impugned Decision to

refuse permission.

38. The Statement of Opposition from §§87 to 95 amounts to an impermissible attempt

by the Board to provide reasons for and explain its decision ex post facto

39. The material error of interpretation in relation to the provisions of SDRA 6, together

with the material error of interpretation in relation to the location of the Proposed

Development in the ‘historic core’, renders the Board’s reasons and considerations legally

unsustainable, such as to invalidate the Impugned Decision

Respondent’s Position

40. As with the previous grounds of challenge, this selective approach to parsing the

Board’s Decision to isolate and impugn certain sentences has the consequence of the

Applicant failing to properly understand or engage with the central consideration of the

Board’s Decision – which was whether a landmark building of the type proposed could be

accommodated at the sensitive site of the Proposed Development. Having considered the

criteria under Table 3 and Table 4 of Appendix 3, the Board determined that it could not

and, as such, refused permission. The Board correctly considered the Proposed

Development by reference to the relevant criteria under Appendix 3.

41. In respect of the foregoing, the Inspector’s Report (inter alia, §5.3.13 et seq and

§7.5.6 et seq) details the approach in the Development Plan to building height. The

Development Plan, SDRA 6 (Docklands), and the associated map indicate that the subject

site is suitable for a ‘locally higher building’ which is referenced as a building up to 50m in

height. Whilst this was acknowledged by the Inspector, she proceeded to assess the height

of the Proposed Development, which is significantly greater, against the performance criteria

as set out in Appendix 3. The Board Order indicates that the Board did not agree with the

Inspector’s conclusions and concluded that the Proposed Development did not meet the

performance criteria in Appendix 3 for the reasons outlined. The Board added that it would

fail to achieve the objective for the site as set out in SDRA 6. The Board added it considered

that a ‘building of a different scale, mass and form’ would be more appropriate in this

location.

42. If any error occurred in respect of this aspect of the Board’s Decision (which is

denied), same was clearly not material to the Board’s central and substantive reasoning.”

140. The inspector identified the area as being one subject to a locally higher building designation

(rather than the 5-8 storey limit):

“5.3.13. Chapter 13 relates to Strategic Development Regeneration Areas (SDRA). The

subject site forms part of SDRA 6 Docklands. SDRA 6 is described from section 13.8 and

Figure 13-6 identifies the location of locally higher buildings and landmark buildings in SDRA

6, with the subject site identified as appropriate for a locally higher building.”

141. She went on:

“7.5.6. As highlighted above, the site is located in SDRA 6 Docklands. Figure 13-9 of the

Plan identifies the location of locally higher buildings and landmark buildings in SDRA 6, with

the subject site identified as appropriate for a locally higher building. Appendix 3 of the Plan

categorises ‘locally higher buildings’ as ‘buildings that are significantly higher than their

surroundings and are typically up to 50 metres in height. Higher buildings can act as Local

or District landmarks.’ The subject site is not identified as a site for a landmark/tall building

which is also categorised under the Plan. The Local Authority Planner’s Report stipulates in

its concluding paragraphs, that in their view a more appropriately scaled building could be

accommodated on the site and should be subservient to the permitted Tara Street tower,

which should set the maximum height for the area. Therefore, whilst the subject site is

identified as appropriate for increased height and complies with both national and local

planning policy approaches in relation to broad locational characteristics, a key consideration

in the determination of this appeal is whether the extent of height proposed (at c.108m from

ground) is acceptable. The performance criteria under both the Building Height Guidelines

and the City Development Plan are therefore of relevance in this regard and I consider this

in further detail below in consideration of visual effect upon the skyline.”

142. And (emphasis added):

“7.5.23. The Planner’s Report also suggests that had the proposed development been

subservient to the approved Tara Street tower then it may have been considered acceptable,

(page 23 of the report states that Tara Street tower is intended to be the tallest building in

the local area). Incidentally, I notice that this part of the Planner’s Report effectively

acknowledges that the site is in the local area to Tara Street tower, and that it will be viewed

together with that tower (and the approved Apollo House tower), equating to a cluster in

my view. In terms of the planning policy concerning height on the subject site and the Tara

Street tower site, Figure 13-6 of the Development Plan identifies the subject site as

appropriate for a locally higher building and the Tara Street Station site as appropriate for a

landmark building, the Plan states on page 448 that:

‘In some more limited locations where the planning context is suitable, locally higher

buildings of greater height and landmark buildings can be appropriate, and positions for

these buildings are clearly described for key sites. All new development of increased height

compared to the existing context must accord with the specific performance criteria as set

out in Appendix 3 of this development plan.’”

143. It isn’t clear to me that the board misinterpreted the plan here. Both table 3 and 4 require

assessment of performance criteria in order to exceed the default storey level. That applies even if

the site is earmarked as a locally taller building. So I don’t see any fundamental error here. The

applicant seems to be reading the decision as erroneous where a non-erroneous reading is available.

144. The applicant makes the point that:

“Objective 7 in Table 4 identifies a preference for clusters of landmark/tall buildings, whereas

the Board interpreted this provision of the Development Plan as precluding permission for

the Proposed development on the basis that it ‘would not form part of a coherent cluster’.”

145. Such a submission unfortunately amounts to an attempt to interpret the decision in an

erroneous way when a non-erroneous interpretation is available. The decision doesn’t have to be

read as an unlawful preclusion of permission – it can be read as the lawful exercise of a preference.

EU law issues

146. Having decided the matter on the basis of domestic law issues, it is not in fact necessary to

address the EU law related issues. In an attempt to assist the commission, who requested a

recording of the position on all matters, I will indulge that preference up to a point, but on the basis

that my views on these grounds are not necessary to the order being made and are therefore

technically obiter.

Core ground 6 – lack of expertise

147. Insofar as core ground 6 alleges a lack of expertise on the part of the board, this relates to

an obligation that transposes an EU law obligation in similar terms.

148. In Reid v. An Bord Pleanála [2021] IEHC 362 (Unreported, High Court, 27 May 2021), I

noted at para. 41 that the EIA directive says that the developer’s material must be prepared by

competent experts (art. 5(3)(a)) and that “the competent authority shall ensure that it has, or has

access as necessary to, sufficient expertise to examine the environmental impact assessment report”

(art. 5(3)(b)).

149. So it doesn’t matter if individual board members did not have personal expertise on

something relevant, as long as the board has “access as necessary to” such expertise.

150. The onus of proving a lack of that is on the applicant and isn’t discharged by proving that a

couple of individual board members don’t have any specific expertise on something. An applicant

would have to do somewhat more than was done here.

151. So (by way of obiter finding) this point fails on an onus of proof basis.

Core ground 4 – failure to carry out EIA

152. Core ground 4 is:

“4. The Board Decision is invalid in so far as the Board failed to carry out an

environmental impact assessment (‘EIA’) of the proposed development notwithstanding the

fact that the application was accompanied by an EIAR, and so was in breach of section 172

of the Planning and Development Act 2000 as amended (‘the 2000 Act’) and/or section

172(1J) thereof, and/or Article 102 of the Planning and Development Regulations 2001, as

amended (‘the 2001 Regulations’), which give effect to Council Directive 85/337/EEC of 27

June 1985 on the assessment of the effects of certain public and private projects on the

environment, as amended (‘the EIA Directive’) and in particular, Articles 3-9 thereof. Further

particulars of which are set out in Part 2 below.”

153. The pleaded sub-grounds are as follows:

“Core Ground 4: The Board Decision is invalid in so far as the Board failed to carry out an

environmental impact assessment (‘EIA’) of the proposed development notwithstanding the

fact that the application was accompanied by an EIAR, and so was in breach of section 172

of the Planning and Development Act 2000 as amended (‘the 2000 Act’) and/or section

172(1J) thereof, and/or Article 102 of the Planning and Development Regulations 2001, as

amended (‘the 2001 Regulations’), which give effect to Council Directive 85/337/EEC of 27

June 1985 on the assessment of the effects of certain public and private projects on the

environment, as amended (‘the EIA Directive’) and in particular, Articles 3-9 thereof.

46. Article 102 of the 2001 Regulations, which was substituted by article 98 of SI No.

296/2018 European Union (Planning and Development) (Environmental Impact Assessment)

Regulations 2018, provides that where a planning application for sub- threshold

development is accompanied by an EIAR, the application ‘shall’ be dealt with as if the EIAR

had been submitted in accordance with section 172 of the 2000 Act.

47. Section 172(1J)(b) of the 2000 Act provides:

‘(1J) When the planning authority or the Board, as the case may be, has decided whether to

grant or to refuse consent for the proposed development, it shall inform the applicant for

consent and the public of the decision and shall make the following information available to

the applicant for consent and the public:

(a) the content of the decision and any conditions attached thereto;

(b) an evaluation of the direct and indirect significant effects of the proposed development

on the matters set out in paragraph (b) of the definition of “environmental impact

assessment” in section 171A….”’

[Emphasis added]

48. The Inspector appointed by the Board conducted an EIA in accordance with section

172, but the Board Order itself contains no record of any EIA, nor did the Board adopt the

EIA carried out by the Inspector, whose recommendation was not followed by the Board.

49. The decision of the Board should have been informed by an EIA carried out in

accordance with all the requirements of Articles 3-9 of the EIA Directive, as implemented by

Section 172 of the 2000 Act, as a consequence of which, the Board Decision is invalid.

50. The jurisdiction of the Board to grant or refuse permission under section 34(1) of

the 2000 Act (as extended to the Board by section 37(1)(b) thereof) is predicated on

compliance with all requirements of the permission regulations, i.e. all relevant requirements

of the 2000 Regulations. The Board did not comply with the requirements of the said Article

102, nor did it comply with the requirements of section 172 of the 2000 Act and/or Articles

3-9 of the EIA Directive, as a consequence of which its decision was invalid and of no legal

effect.”

154. The commission ambitiously offers a pleading objection that only sub-s. (1J) is relied on.

This is unfortunately without substance. The whole of s. 172 of the 2000 Act and art. 102 of the

2001 regulations is pleaded and can be relied on.

155. The commission also makes an unfortunately misconceived suggestion that this was put

forward as a reasons point only. That isn’t the case – the argument was that reasons were relevant

to this issue, not that they were exhaustive of it.

156. The commission’s pleaded response is:

“Core Ground 4: Alleges that the Board Decision is invalid in so far as the Board failed to

carry out an Environmental Impact Assessment (‘EIA’) of the Proposed Development

notwithstanding the fact that the application was accompanied by an EIAR, and so was in

breach of s.172 of the PDA and/or s.172(1J) of the PDA and/or Art.102 of the 2001

Regulations. (Amended Statement of Grounds, Section E, Part 1, Core Ground 4 and Part 2,

§47-§51)

60. The Applicant’s contention (Core Ground 4 and §47-§51) that the Board’s Decision

is invalid because the Board failed to carry out an EIA of the Proposed Development is

denied. It is denied that the Board’s Decision was in breach of s.172 and/or s.172(1J) of

the PDA or Art.102 of the 2001 Regulations (or the associated provisions of the EIA Directive

(Art.3-Art.9)) as alleged or at all.

61. This ground of challenge does not concern and/or relate to the Board’s reasons for

refusal and, as such, does not provide any basis for impugning the Board’s Decision.

62. Without prejudice to the foregoing, this ground of challenge is without substance.

In terms of relevant context, whilst an EIA was carried out by the Board’s Inspector, there

was no requirement on the Board to repeat this exercise before refusing permission having

regard to, and in the context of, the stated reasons for refusal. The Board was lawfully

entitled to refuse permission for the reasons stated and insofar as the Board differed with

the Inspector, the Board provided reasons for same. The Applicant’s assertion that the

Board contravened s.172 and/or s.172(1J) of the PDA or Art.102 of the 2001 Regulations

(or the associated provisions of the EIA Directive (Art.3-Art.9)) in such circumstances is

denied. The Board outlined the main reasons for refusing permission and no unlawfulness

arises in this regard.

63. It is denied that the Applicant is entitled to any relief in respect of this Core Ground

of challenge.”

157. This does not include any plea that an environmental impact assessment (EIA) was

carried out by the board. What they plead is that the inspector carried out an EIA and the board

didn’t contravene the legislation by not “repeati[ing] this exercise” where they gave reasons for

differing from the inspector. Of course this virtually gives the game away – the whole point is that

to conduct an EIA supportive of a refusal of permission is not “to repeat th[e] exercise” of an EIA

supportive of a grant of permission – which is the only EIA actually conducted by anybody.

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

“Applicants Position

38. The Board was obliged to carry out an EIA pursuant to the relevant provisions of

Articles 3 to 9 of the EIA Directive, as implemented by section 172 of the 2000 Act. In

particular, article 102 of the Planning and Development Regulations 2001, as amended,

provides that where a planning application for sub-threshold development is accompanied

by an EIAR, the application ‘shall’ be dealt with as if the EIAR had been submitted in

accordance with section 172 of the 2000 Act. The Inspector conducted an EIA in accordance

with section 172, but the Board Order itself contains no record of any EIA, nor did the Board

adopt the EIA carried out by the Inspector, whose recommendation was not followed by the

Board. The decision of the Board should have been informed by an EIA carried out in

accordance with all the applicable requirements of Articles 3 to 9 of the EIA Directive, as

implemented by Section 172 of the 2000 Act.

39. The Board did not comply with the requirements of article 102 of the 2001

Regulations, section 172 of the 2000 Act and/or Articles 3 to 9 of the EIA Directive, as a

consequence of which its decision was invalid and of no legal effect.

Respondent’s Position

40. The Applicant’s contention - that in circumstances where the Board refused

permission for the Proposed Development for non-EIA reasons, it was, in any event, obliged

to carry out an EIA – is advanced absent any reference to any authority to support this

proposition.

41. Whilst the Applicant relies on, inter alia, Art.3-Art.9 of the EIA Directive – it does

not refer to Art.2(1) which requires an EIA to be carried out ‘before development consent is

given’. In this case, the Board had determined not to grant ‘development consent’ – thus,

the obligation to carry out EIA did not arise. The EIA Directive does not place any

requirement or obligation (and the Applicant has not attempted to identify same) on a

Competent Authority to carry out an EIA where development consent is being refused for

other non-EIA reasons, nor does such a requirement arise under the corresponding

requirements of the PDA/PDRs – s.172 and Art.102 PDRs – on a proper and harmonious

interpretation of same with the EIA Directive. An interpretation of the EIA Directive and

transposing legislation which results in the imposition of a requirement on a competent

authority to carry out an EIA where it is not granting development consent for specified non-

EIA reasons is difficult to justify – from a textual and purposive interpretation to the statutory

scheme. Such an obligation would be totally unnecessary and overly burdensome on the

decision-maker and serve no obvious benefit to anyone.”

159. The applicant’s more detailed submission on this was as follows:

“Failure to carry out an Environmental Impact Assessment [EIA]

123. The Board was obliged to carry out an EIA pursuant to the relevant provisions of

Articles 3 to 9 of the EIA Directive, as implemented by section 172 of the 2000 Act. In

particular, article 102 of the Planning and Development Regulations 2001, as amended,

provides that where a planning application for sub-threshold development is accompanied

by an EIAR, the application ‘shall’ be dealt with as if the EIAR had been submitted in

accordance with section 172 of the 2000 Act. In that context, section 172(1J)(b) of the

2000 Act provides:

‘(1J) When the planning authority or the Board, as the case may be, has decided whether to

grant or to refuse consent for the proposed development, it shall inform the applicant for

consent and the public of the decision and shall make the following information available to

the applicant for consent and the public:

(a) the content of the decision and any conditions attached thereto;

(b) an evaluation of the direct and indirect significant effects of the proposed

development on the matters set out in paragraph (b) of the definition of “environmental

impact assessment” in section 171A....’

124. The Inspector conducted an EIA in accordance with section 172, but the Board Order

itself contains no record of any EIA, nor did the Board adopt the EIA carried out by the

Inspector, whose recommendation was not followed by the Board. The decision of the Board

should have been informed by an EIA carried out in accordance with all the applicable

requirements of Articles 3 to 9 of the EIA Directive, as implemented by Section 172 of the

2000 Act.

125. The Board did not comply with the requirements of article 102 of the 2001

Regulations, section 172 of the 2000 Act and/or Articles 3 to 9 of the EIA Directive, as a

consequence of which its decision was invalid and of no legal effect.

126. In Ardragh Windfarm v. An Bord Pleanála [2019] IEHC 795, Simons J. held as

follows, in the context of a decision to refuse permission:

‘51. The legal test as per Connelly is that the planning decision, or other relevant and

connected materials available to any interested party, must demonstrate (i) that an EIA was

carried out, and (ii) that the decision-maker properly had regard to the results of the EIA in

coming to its conclusion.’

127. However, in contradistinction to the circumstances in this case, in Ardragh Windfarm,

Simons J. held that:

51. An informed participant—which is the relevant test as per Connelly—would have

immediately understood from reading the inspector's two reports; the Board Direction; and

the Board Decision that the Board agreed with and accepted the inspector's recommendation

to refuse planning permission precisely because of the significant negative impact it would

have on the environment. The requirements of the EIA Directive were fulfilled...’

128. The Board’s decision fails both limbs of the test in Connelly as it cannot be

demonstrated that: (i) an EIA was carried out, and (ii) the Board properly had regard to the

results of the EIA in coming to its conclusion to refuse permission.

129. In the light of the judgments in Connelly and Ardragh Windfarm, the Board cannot

rely on its plea, at §72 of the Statement of Opposition, ‘whilst an EIA was carried out by the

Board's Inspector, there was no requirement on the Board to repeat this exercise before

refusing permission having regard to, and in the context of, the stated reasons for refusal.’

130. Indeed, the difficulty posed for the Applicant is identified in the judgment in

Shadowmill v. An Bord Pleanála [2023] IEHC 157, per Holland J.:

‘90. ...Assume an inspector's report records, as here, a preliminary examination in EIA.

Assume, as here, that the Board's decision says nothing on the issue of preliminary

examination in EIA. Assume next that the members of the Board in fact overlooked the

issue entirely. How possibly could an applicant, in judicial review of the Board's decision,

prove that the Board had overlooked the issue and that the Board did not perform a

Preliminary Examination in EIA — displacing the inference that it had done so?...

92. I should make clear however, that my purpose in these observations is not to purport to

change the law. It is to repeat, illustrate and amplify the importance of the judicial pleas in

Connelly, Ardragh, Owens, Redmond, Ballyboden, MRRA, and again now, that the Board

make expressly clear whether and to what extent it agrees or disagrees with its inspector...’

131. In all the circumstances, the failure of the Board to carry out and/or record an EIA

vitiates the Impugned Decision.”

160. The commission’s response is as follows:

“Core Ground 4

EIA

96. The Applicant’s contention in respect of this Core Ground of challenge is that in

circumstances where the Board refused permission for the Proposed Development for non-

EIA reasons, it was, in any event, obliged to carry out an EIA. What is notable from the

Applicant’s Submissions is the absence of any authority to support this proposition – with

the argument premised solely on the basis of a highly literal and formulistic interpretation

of the PDA and PDRs.

97. The Supreme Court has had cause to consider and interpret various provisions of

the PDA and the PDRs in recent years – emphasising that the provisions should be

interpreted in light of the Act as a whole and ‘should be read… so as to produce a workable

and coherent interpretation’ – Waltham Abbey/Pembroke Road Association v An Bord

Pleanála [2022] IESC 30 (§43); Heather Hill Management Company CLG v. An Bord Pleanála

[2022] IESC 43 (§106 et seq); and Save Cork City Community Association CLG v An Bord

Pleanála [2022] IESC 52 (inter alia, §47).

98. It is notable that in advancing this Core Ground, the Applicant relies on, inter alia,

Art.3-Art.9 of the EIA Directive – Council Directive 2011/92/EU as amended by Council

Directive 2014/52/EU) – but does not refer to Art.2(1) which requires an EIA to be carried

out ‘before development consent is given’. In this case, the Board had determined not to

grant ‘development consent’ – thus, the obligation to carry out EIA did not arise.

99. The EIA Directive does not place any requirement or obligation (and the Applicant

has not attempted to identify same) on a Competent Authority to carry out an EIA where

development consent is being refused for other non-EIA reasons, nor does such a

requirement arise under the corresponding requirements of the PDA/PDRs – s.172 and

Art.102 PDRs – on a proper and harmonious interpretation of same with the EIA Directive.

100. An interpretation of the EIA Directive and transposing legislation which results in the

imposition of a requirement on a competent authority to carry out an EIA where it is not

granting development consent for specified non-EIA reasons is difficult to justify – from a

textual and purposive interpretation to the statutory scheme. Such an obligation would be

totally unnecessary and overly burdensome on the decision-maker and serve no obvious

benefit to anyone.”

161. Article 2(1) of the EIA directive provides:

“1. Member States shall adopt all measures necessary to ensure that, before development

consent is given, projects likely to have significant effects on the environment by virtue,

inter alia, of their nature, size or location are made subject to a requirement for development

consent and an assessment with regard to their effects on the environment. Those projects

are defined in Article 4.”

162. Before we get to whether the directive implicitly requires EIA prior to refusal of permission,

we need to look at the domestic legislation.

163. This is not a mere technical objection in circumstances such as here. Where the complaint

is one of reasons, the applicant’s concerns may have been assuaged to a significant extent and any

deficit in reasons would have been supplemented had an EIA been carried out.

164. The starting point in statutory interpretation is what does the legislation say, and having

addressed that we can then consider if there is reason to interpret it in some other way.

165. Article 102 of the 2001 regulations (substituted by article 98 of S.I. No. 296 of 2018

European Union (Planning and Development) (Environmental Impact Assessment) Regulations

2018) provides (emphasis added):

“Where a planning application for sub-threshold development is accompanied by an EIAR,

the application shall be dealt with as if the EIAR had been submitted in accordance with

section 172(1) of the Act.”

166. It is common ground that this was sub-threshold development accompanied by an

environmental impact assessment report (EIAR). So what is to happen here is clear enough – the

application “shall” be dealt with as if the EIAR had been submitted under s. 172(1).

167. Section 172 of the 2000 Act says (emphasis added):

“Requirement for environmental impact statement.

172.—(1) An environmental impact assessment shall be carried out by the planning

authority or the Board, as the case may be, in respect of an application for consent for

proposed development where either—

(a) the proposed development would be of a class specified in—

(i) Part 1 of Schedule 5 of the Planning and Development Regulations 2001, and

either—

(I) such development would equal or exceed, as the case may be, any

relevant quantity, area or other limit specified in that Part, or

(II) no quantity, area or other limit is specified in that Part in respect of the

development concerned,

or

(ii) Part 2 (other than subparagraph (a) of paragraph 2) of Schedule 5 of the Planning

and Development Regulations 2001 and either—

(I) such development would equal or exceed, as the case may be, any

relevant quantity, area or other limit specified in that Part, or

(II) no quantity, area or other limit is specified in that Part in respect of the

development concerned,

or

(b) (i) the proposed development would be of a class specified in Part 2 of Schedule 5 of the

Planning and Development Regulations 2001 but does not equal or exceed, as the case may

be, the relevant quantity, area or other limit specified in that Part, and

(ii) it is concluded, determined or decided, as the case may be,—

(I) by a planning authority, in exercise of the powers conferred on it by this

Act or the Planning and Development Regulations 2001 (S.I. No. 600 of

2001),

(II) by the Board, in exercise of the powers conferred on it by this Act or

those regulations,

(III) by a local authority in exercise of the powers conferred on it by

regulation 120 of those regulations,

(IV) by a State authority, in exercise of the powers conferred on it by

regulation 123A of those regulations,

(V) in accordance with section 13A of the Foreshore Act, by the appropriate

Minister (within the meaning of that Act), or

(VI) by the Minister for Communications, Climate Action and Environment,

in exercise of the powers conferred on him or her by section 8A of the

Minerals Development Act 1940,

that the proposed development is likely to have a significant effect on the

environment.

(1A) In subsection (1)—

(a) ‘proposed development’ means—

(i) a proposal to carry out one of the following:

(I) development to which Part III applies;

(II) development that may be carried out under Part IX;

(III) development that may be carried out by a local authority under Part X

or development that may be carried out under Part XI;

(IV) development on the foreshore under Part XV;

(V) development under section 43 of the Act of 2001;

(VI) development under section 51 of the Roads Act 1993;

(VII) development to which Chapter III of Part XXI applies; and

(ii) notwithstanding that development has been carried out, development in relation

to which an application for substitute consent is required under Part XA;

(b) ‘consent for proposed development’ means, as appropriate—

(i) grant of permission;

(ii) a decision of the Board to grant permission on application or on appeal;

(iii) consent to development under Part IX;

(iv) consent to development that may be carried out by a local authority under Part

X or development that may be carried out under Part XI;

(v) consent to development on the foreshore under Part XV;

(vi) consent to development under section 43 of the Act of 2001;

(vii) consent to development under section 51 of the Roads Act 1993; or

(viii) substitute consent under Part XA.

(1B) An applicant for consent to carry out a proposed development referred to in subsection

(1)(a) shall furnish an environmental impact assessment report, which shall be prepared by

experts with the competence to ensure its completeness and quality, to the planning

authority or the Board, as the case may be, in accordance with the permission regulations.

(1C) Where the planning authority or the Board receives an application for consent for

proposed development referred to in paragraph (b) of subsection (1) in relation to which the

authority or the Board has made a determination referred to in that paragraph, and the

application is not accompanied by an environmental impact assessment report, the planning

authority or Board, as the case may be, shall require the applicant to submit an

environmental impact assessment report and where the environmental impact assessment

report is not submitted within the period specified, or any further period as may be specified

by the planning authority or the Board, the application for consent for the proposed

development shall be deemed to be withdrawn.

(1D)(a) The planning authority or the Board, as the case may be, shall consider

whether an environmental impact assessment report submitted under this section

identifies and describes adequately the direct and indirect significant effects on

the environment of the proposed development.

(b) Where the planning authority or the Board, as the case may be, considers that the

environmental impact assessment report does not identify or adequately describe such

effects, it shall require the applicant for consent to furnish, within a specified period, such

further information, prescribed under section 177, which is necessary to ensure the

completeness and quality of the environmental impact assessment report and which is

directly relevant to reaching the reasoned conclusion on the significant effects on the

environment of the proposed development, as the planning authority or the Board, as the

case may be, considers necessary to remedy such defect.

(1E) In addition to any requirement arising under subsection (1D), the planning authority or

the Board, as the case may be, shall require an applicant for consent to furnish, within a

specified period, any further information that the planning authority or the Board considers

necessary to enable it to carry out an environmental impact assessment under this section.

(1F) Where information required by the planning authority or the Board under subsection

(1D) or subsection (1E) is not furnished by the applicant for consent within the period

specified, or any further period as may be specified by the planning authority or the Board,

the application for consent for the proposed development shall be deemed to be withdrawn.

(1G) In carrying out an environmental impact assessment under this section the

planning authority or the Board, as the case may be, shall consider—

(a) the environmental impact assessment report;

(b) any further information furnished to the planning authority or the Board pursuant to

subsections (1D) or (1E);

(c) any submissions or observations validly made in relation to the environmental effects of

the proposed development;

(d) the views, if any, provided by any other Member State under section 174 or Regulations

made under that section.

(1GA)(a) Paragraph (b) applies where an environmental impact assessment under this

section and an appropriate assessment following a determination under section 177U(4) are

required to be carried out simultaneously in respect of the same development.

(b) The planning authority or the Board, as the case may be, shall coordinate the 2

assessments.

(1H) In carrying out an environmental impact assessment under this section the

planning authority or the Board, as the case may be, shall ensure it has, or has

access as necessary to, sufficient expertise to examine the environmental impact

assessment report to ensure its completeness and quality and may have regard to

and adopt in whole or in part any reports prepared by its officials or by consultants,

experts or other advisers.

(1I)(a) Where the planning authority or the Board, as the case may be, decides to

grant consent for the proposed development, it shall—

(i) attach such conditions, if any, to the grant as it considers necessary, to avoid,

prevent or reduce and, if possible, offset the significant adverse effects on the

environment of the proposed development,

(ii) in the decision, specify the features, if any, of the proposed development and

the measures, if any, envisaged to avoid, prevent or reduce and, if possible, offset

the significant adverse effects on the environment of the proposed development,

and

(iii) subject to paragraph (b), where appropriate, specify in the decision measures

to monitor the significant adverse effects on the environment of the proposed

development, being measures which, as regards the types of parameters to be

monitored and the duration of the monitoring, are proportionate to the nature,

location and size of the proposed development and the significance of the effects on

the environment of the proposed development.

(b) Where the planning authority or the Board, as the case may be, decides to grant

consent for the proposed development, it may, if appropriate to avoid duplication of

monitoring, and without prejudice to existing monitoring arrangements pursuant to national

or European Union legislation (other than the Environmental Impact Assessment Directive),

identify those arrangements (or such of those arrangements as it thinks appropriate in the

particular case) to be used for the purpose of paragraph (a)(iii).]

(1J) When the planning authority or the Board, as the case may be, has decided

whether to grant or to refuse consent for the proposed development, it shall inform

the applicant for consent and the public of the decision and shall make the following

information available to the applicant for consent and the public:

(a) the content of the decision and any conditions attached thereto;

(b) an evaluation of the direct and indirect significant effects of the proposed development

on the matters set out in paragraph (b) of the definition of ‘environmental impact

assessment’ in section 171A;

(c) having examined any submission or observation validly made,

(i) the main reasons and considerations on which the decision is based, and

(ii) the main reasons and considerations for the attachment of any conditions,

including reasons and considerations arising from or related to submissions or

observations made by a member of the public;

(d)

(e) any report referred to in subsection (1H);

(f) information for the public on the procedures available to review the substantive and

procedural legality of the decision, and

(g) the views, if any, furnished by other Member States of the European Union pursuant to

section 174.

(2) In addition to the matters set out in section 33(2), the Minister may make permission

regulations in relation to the submission of planning applications which are to be

accompanied by environmental impact assessment reports.

(3) (a)(i) At the request of an applicant or of a person intending to apply for permission, the

Board may take the action specified in subparagraph (ii) after having afforded the planning

authority concerned an opportunity to furnish observations on the request and where the

Board is satisfied that—

(I) exceptional circumstances so warrant,

(II) the application of the requirement to prepare an environmental impact

assessment report would adversely affect the purpose of the proposed

development, and

(III) the objectives of the Environmental Impact Assessment Directive are

otherwise met.

(ii) Subject to subparagraph (iii), the Board may grant in respect of the proposed

development an exemption from a requirement of or under regulations under this

section to prepare an environmental impact assessment report.

(iii) No exemption may be granted under subparagraph (ii) in respect of the

proposed development if another Member State of the European Union or other state

party to the Transboundary Convention, having been informed about the proposed

development and its likely significant effects on the environment in that State or

state, as the case may be, has indicated that it intends to furnish views on those

effects.

(b) The Board shall, in granting an exemption under paragraph (a), —

(i) consider whether the effects, if any, of the proposed development on the

environment should be assessed in some other form, and

(ii) make available to members of the public the information relating to the

exemption decision referred to under paragraph (a), the reasons for granting such

exemption and the information obtained under any other form of assessment

referred to in subparagraph (i),

and the Board may apply such requirements regarding these matters in relation to

the application for permission as it considers necessary or appropriate.

(c) The Board shall, as soon as may be, notify the planning authority concerned of the

Board’s decision on any request made under paragraph (a), and of any requirements applied

under paragraph (b).

(d) Notice of any exemption granted under paragraph (a), of the reasons for granting the

exemption, and of any requirements applied under paragraph (b) shall, as soon as may be—

(i) be published in Iris Oifigiúil and in at least one daily newspaper published in the

State,

(ii) be given, together with a copy of the information, if any, made available to the

members of the public in accordance with paragraph (b), to the Commission of the

European Communities.

(4) (a) A person who makes a request to the Board for an exemption under subsection (3)

shall, as soon as may be, inform the planning authority concerned of the making of the

request and the date on which it was made.

(b) Notwithstanding subsection (8) of section 34, the period for making a decision referred

to in that subsection shall not, in a case in which a request is made to the Board under

subsection (3) of this section, include the period beginning on the day of the making of the

request and ending on the day of receipt by the planning authority concerned of notice of

the Board’s decision on the request.

(5) In addition to the matters provided for under Part VI, Chapter III, the Minister may

prescribe additional requirements in relation to the submission of appeals to the Board which

are to be accompanied by environmental impact assessment reports.”

168. The language is crystal clear – the obligation is to conduct an EIA in circumstances such as

apply here.

169. This is reinforced by the terms of sub-s. (1I) and (1J) – the fact that specific provision is

made for cases where there is a grant or a decision whether to grant implies necessarily that the

section is wider. If it is wider than decisions granting permission that rather suggests that it has to

cover decisions refusing permission. Presumably freak situations such as where the application or

appeal is invalid don’t engage obligations that flow from the procedure being validly invoked in the

first place. Any other such freak situations if there are any (none were identified) could only be

fairly marginal to what we are dealing with here. The natural and ordinary meaning of EIA being

wider than case resulting in a grant means including cases resulting in a refusal.

170. The commission’s implausible, esprit d’escalier and unpleaded fall-back position is that they

did carry out an EIA – something of which there is not even the whisper of a shadow of a trace in

the materials prior to the hearing. The commission, of all litigants, should be conscious that they

can’t rely on a factual and legal circumstance not pleaded but in any event this post-hoc confection

has no reality or merit anyway.

171. An attempt was made to place reliance on Connelly v. An Bord Pleanála [2018] IESC 31,

[2021] 2 I.R. 752, [2018] 2 I.L.R.M. 453 (Clarke C.J.):

“10.8 I have already identified the materials by reference to which the reasons can be

ascertained. Obviously, the starting point has to be to consider the reasons given in the

Decision including the reasons given for the application of various conditions. However, as

noted earlier, it is obvious from the Decision that it came at the end of a process involving

the Inspector’s report and the further information thereafter supplied. It follows that it

would be obvious to any reasonable observer that the reasons given by the Board in the

Decision must be seen in the context of the Inspector’s report, including the matters on

which the Inspector did not express concern, together with the problematic issues identified

by the Inspector and the manner in which those issues were addressed in the additional

information supplied including the NIS.”

172. Unfortunately that deals with a rather different situation. In general terms the commission

can be taken to adopt the inspector’s reasoning where it adopts her conclusion – see Shadowmill

Ltd v. An Bord Pleanála [2023] IEHC 157 (Unreported, High Court, Holland J., 31 March 2023), para.

84 and caselaw cited. Where the commission differs from her conclusion they need to do their own

assessment, because the inspector’s EIA will come to a reasoned conclusion to the contrary effect.

In Connelly the board differed from the inspector’s refusal recommendation and decided to grant

permission – but there the board did conduct its own EIA and appropriate assessment (AA) when

deciding to grant permission. That doesn’t help the commission here where there is a total absence

from the decision on an EIA.

173. It would be a radical and unwarranted extension of the foregoing unremarkable doctrine to

say that the commission doesn’t have to carry out an EIA if it wishes to reverse the reasoned

conclusion of the inspector’s EIA but only to provide reasons for differing on individual points without

conducting an overall assessment with an overall reasoned conclusion. That contradicts the whole

basis of an EIA which is not a disconnected set of points but an assessment leading to an overall

conclusion, through a process that is illuminated by reasons throughout.

174. Such specific requirements and formalities for an EIA are illustrated by the OPR guidance for

the commission and planning authorities (https://www.opr.ie/wp-content/uploads/2019/08/2018-

Environmental-Impact-Assessment-1.pdf) in which the term “reasoned conclusion” occurs a mere

42 times, most notably in the Foreword by Mr Eoghan Murphy, T.D., Minister for Housing, Planning

and Local Government, who refers to it as part of the very definition of EIA (emphasis added):

“Environmental Impact Assessment is a process to be undertaken in respect of applications

for specified classes of development listed in the Directive before a decision in respect of

development consent is made. The process involves the preparation of an Environmental

Impact Assessment Report (EIAR) by the applicant, consultations with the public, relevant

prescribed bodies and any other affected Member States, and an examination and analysis

of the EIAR and other relevant information leading to a reasoned conclusion by the

competent authority on the likely significant effects of the proposed development

on the environment. EIA does not, in itself, dictate the outcome of the development

consent decision of the competent authority, but is an important and essential consideration

in decision making procedures and the achievement of high quality, sustainable

development.”

175. So that’s the voice of the State speaking. The OPR takes up the theme later in the document,

including the following (emphasis added):

“6 The Assessment Examination/Assessment/Reasoned Conclusion

6.1. The competent authority is responsible for carrying out the environmental impact

assessment.

The competent authority is defined as the authority which Member States designate as

responsible for performing the duties arising from the EIA Directive. In the Irish planning

system the authorities designated are the planning authorities and An Bord Pleanála.

6.2. The initial consideration of the EIAR should include examining the completeness and

quality of the report, in light of the requirement of the Directive that the EIAR is prepared

by competent experts 90. The EIAR must include a list of the contributors to each section of

the report, together with their qualifications and expertise 91. This is addressed in more

detail at subsections 4.8 and 4.9 of these Guidelines.

6.3. In order to carry out the examination of the EIAR it is a requirement that the competent

authority has, or has access as necessary to, sufficient expertise 92. The ‘sufficiency’ of

expertise will depend on qualifications and/or experience in the examination of EIARs and

will be a matter for each competent authority. This is addressed in more detail at paragraph

4.10 and 4.11 of these Guidelines.

6.4. The assessment by the competent authority involves the identification, description and

assessment of the direct and indirect effects of the proposed project on specified

environmental factors 93. It is not sufficient for the competent authority to adopt any

assessment carried out by the developer in the EIAR as it must undertake its own

assessment. The competent authority must undertake both an investigation and an

analysis to reach as complete an assessment as possible of the direct and indirect

effects on the environmental factors 94. The assessment must be carried out before the

decision making process is completed 95.

6.5. The EIA process requires the competent authority to come to a reasoned

conclusion on the significant effects of the project on the environment. The

reasoned conclusion must take into account the results of its examination of the EIAR and,

any supplementary information requested by the competent authority and provided by the

developer and any relevant information received through consultations, or otherwise

available to the competent authority and the competent authority’s own supplementary

examination, where appropriate 96. The reasoned conclusion must be incorporated into any

decision to grant development consent 97. Where the decision is made to grant permission

this must be accompanied by a statement that the planning authority or the Board is satisfied

that the reasoned conclusion is up to date at the time of making the decision 98.”

176. The relevant footnotes are:

“90 Article 5(3)(a) of the Directive. See also Sn 172(1B) of the Act.

91 Article 94(e) of the Regulations.

92 Article 5(3)(b) of the Directive. See also Sn 172(1H) of the Act.

93 Article 3 of the Directive. See also paragraph (b)(i) of definition of ‘Environmental Impact

Assessment’ in Sn 171A of the Act.

94 C-50/09, Commission v. Ireland.

95 Case C-508/03 Commission v UK (2006) ECR I-3969, paragraph 103.”

177. The claim that the need for a properly prepared EIA with a reasoned conclusion in

circumstances such as here is “formulaic” ignores the fact that the legal requirement for EIA including

a reasoned conclusion is substantively core to the whole EIA process. An EIA isn’t something that

can happen by accident or by a side-wind. It is not a formula and should not be diminished as such

by the commission. The whole point is to require a detailed reasoned assessment, leading to a

reasoned conclusion, in the course of which the decision-taker will be required to consider all aspects

appropriately, which will hopefully inform and stimulate the best available decision. To call it

formulaic, unnecessary, overly burdensome and serving no benefit to anyone somewhat brings to

mind Oscar Wilde’s comment about knowing the price of everything and the value of nothing (Lady

Windermere's Fan, A Play about a Good Woman (22 February 1892) (1893, London, The Bodley

Head)), Lord Darlington, act III). (At the risk of impertinent digression, Wilde’s childhood home is

(per Google Maps) 625 m to the south of the site – maybe still within naming distance should that

be an option for developments in the area.) EIA has a price of course, as the commission were

eager to stress in this case at length and in forceful terms, but it also has a value, for the reasons

just mentioned.

178. As regards the commission’s objections to the contrary, the position is as follows:

(i) The lack of authority is hardly decisive in relation to a clear point – “there must

always be a first case” as the applicant correctly submits. The legislation is clear –

for reasons already discussed. It is not the case that clear legislation becomes

uncertain merely because it hasn’t been judicially considered. That would be taking

legal amour propre way too far. Legislation speaks for itself 99% of the time – the

court normally only sees the pathological cases of interpretation, but by and large

the statute book ticks along without the need for judges getting involved. Such lack

of involvement does not equate to a lack of clarity in the law.

(ii) The need for a workable and coherent interpretation is not undermined by the

requirement to have an EIA in every case where a project comes within the directive

– proper analysis is promoted by a full assessment, which may give rise to grounds

to reconsider any proposed rejection.

(iii) The fact that the directive doesn’t expressly cover rejection is a factor but doesn’t

override the express terms of the transposing legislation, especially where (for the

reason just mentioned) there is a strong argument that the directive must impliedly

include a need for EIA prior to rejection – since how can a decision-taker know what

to decide unless an assessment is first carried out.

(iv) The concept of refusal for non-EIA reasons, put forward by the commission here, is

an unfortunate misconception and a misunderstanding of the concept of

environmental impact assessment having regard to the wide definition of the

environment. The assessment is meant to be “as complete as possible” according

to the CJEU, so virtually any reason giving rise to refusal is in principle an EIA reason.

(v) The complaint that EIA is totally unnecessary, overly burdensome and serves no

benefit to anyone not only misses the obvious point that the statutory language is

clear and mandatory and not properly open to the plasticity of manipulation

attempted, but also the more fundamental substance point that EIA does benefit the

process by ensuring that any provisional decision to refuse is taken within a holistic

view of all of the circumstances, to use Donnelly J.’s all-purpose phrase from a

different context, but a phrase that is relevant here (Heaney v. An Bord Pleanála

[2022] IECA 123, [2022] 5 JIC 3123 (Unreported, Court of Appeal, 31 May 2022),

para. 95).

179. Ultimately having regard to the foregoing there isn’t any sufficient reason to interpret the

legislation contrary to its clear terms – and in any event for the avoidance of doubt I consider that

the conveniently malleable interpretation proposed by the board would not be legitimate as it results

in a reading that is contra legem.

180. It therefore follows (by way of obiter conclusion) that the board contravened the express

terms of the legislation (including s. 172(1) (emphasis added): “[a]n environmental impact

assessment shall be carried out ...”) by failing to carry out an EIA here.

Core ground 4 – The EIA issue as an EU law point

181. If I am wrong as to my interpretation of the 2000 Act then we would need to consider the

EIA point as an issue of EU law. This is not a straightforward point despite the apparently clear

language of the directive, not least because a decision-taker can’t know whether it is going to grant

or refuse an application until it has assessed the application. Thus to answer such a question would

require a reference to the CJEU. So there is no point even offering a view even on an obiter basis.

Summary

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

(i) Reading the relevant development plan map in context, the 1840 boundary is the

best interpretation available as to the meaning of the historic core.

(ii) Applying that here, this does not involve evaluative judgement so the board did not

err in not giving reasons for such judgement and nor did it misunderstand the plan.

(iii) It is settled law that a decision-taker has a margin of evaluation for matters that are

ones of evaluative judgement.

(iv) Applying that here, issues of whether the project forms part of a cluster, whether it

delivers sufficient public realm gain, and the acceptability of visual impacts, as well

as performance criteria more generally, are evaluative and the applicant hasn’t

demonstrated that the margin of evaluation has been exceeded. For similar reasons

there is no substantive breach or misinterpretation of the plan under these headings.

(v) It is settled law that the decision-taker should provide the main reasons on the main

issues, and that where the commission differs from the inspector on a point pivotal

to the result, this is virtually by definition a main issue.

(vi) Applying such law to the facts here, the complete absence of engagement with the

inspector’s ten-page analysis to the effect that the ministerial guidelines supported

the grant of permission (being a factor that by the express terms of SPPR 3A of the

2018 building heights guidelines potentially overrides the development plan) and

complete lack of reference to the 2018 guidelines at all constitutes a lack of reasons

on a main issue.

(vii) It is settled law that reasons can be severed if they are stand-alone but not if there

is a relationship between them.

(viii) Applying such law to the facts here, the reasons are not severable because of the

intertwined nature of the reasons but more fundamentally because the need to

address whether the guidelines would justify granting permission even assuming

that the project was not in compliance with the development plan (irrespective of

the extent to which the plan took into account the guidelines when adopted) – indeed

that is the whole point of SPPR 3A and the very basis on which that SPPR falls for

consideration.

(ix) It is not necessary to decide the EU law-related points so the following are obiter.

(x) It is settled law that the onus of proof is on an applicant in judicial review. In relation

to the commission’s expertise, the commission is required either to have or to have

access to necessary expertise.

(xi) Applying such law to the facts here (by way of obiter conclusion) the applicant hasn’t

evidentially demonstrated the contrary.

(xii) The statute is clear and unambiguous that EIA is required in circumstances such as

exist here. That is not to be dismissed as an empty formality for obvious reasons –

proper and full assessment may require reconsideration of a proposed decision

including a proposed refusal.

(xiii) Applying such law to the facts here, (by way of obiter conclusion), a breach of the

legislation and in particular s. 172(1) of the 2000 Act was involved in refusing

permission in the absence of a properly conducted EIA by the board with a reasoned

conclusion.

Order

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

(i) there be an order amending the Central Office cause book to reflect the substitution

of the commission for the board;

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

(iii) there be an order of remittal in terms of relief 2;

(iv) unless any party applies otherwise as provided for below, the foregoing order be

perfected forthwith thereafter on the basis that there be an order for costs (including

reserved costs and the costs of written submissions to the applicant against the

respondent in respect of the proceedings, limited to the matters in respect of which

the applicant was successful (and thus in particular limited to the costs of a one-day

hearing); and

(v) any party wishing to apply otherwise should notify the List Registrar by 30 July 2025

(so that in the absence of such application the order can be perfected forthwith

thereafter), but in the event of such notification, the matter be listed on 29

September 2025 for mention with parties to agree arrangements for delivery of

submissions.