High Court quashes planning permission for residential units due to failure to submit a comprehensive masterplan for institutional lands.

THE HIGH COURT PLANNING & ENVIRONMENT [2025] IEHC 495 Record No: 2021/874 JR

In the matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the matter of the Planning and Development (Housing) and Residential Tenancies Act 2016 Between/ CHURCHFIELDS MANAGEMENT COMPANY CLG Applicant and AN BORD PLEANÁLA, IRELAND and the ATTORNEY GENERAL Respondents and WINTERBROOK HOMES LIMITED Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 19th day of September 2025

Introduction

1. This is an application for an order by way of judicial review quashing the decision of the Respondent (‘the Board’) to grant planning permission to the Notice Party Developer (‘the Developer’) for the construction of 231 residential units and associated works on a site at Mount St. Marys off the Dundrum Road, Dundrum, Dublin 14. The Board’s decision was made on 25th August 2021 (ABP-310138-20). The Applicant is the owners’ management company for the Churchfields Estate which is a residential development immediately beside the site of the proposed development.

2. I can briefly summarise the facts from the Statement of Case helpfully provided by the parties. The Developer consulted with the planning authority (Dún Laoghaire Rathdown County Council) on 15th April 2020.

3. The Developer lodged a request for pre-application consultation with the Board on 14th July 2020 (ref 307557).

4. The Developer, the Board and the planning authority participated in the SHD tripartite meeting on 7th December 2020.

5. On 17th December 2020 the Board issued its opinion, identifying documents which it considered required further consideration or amendment for an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016.

6. The application for planning permission (ref TA06. 310138) was submitted on 6th May 2021.

7. The Applicant made a submission to the Board, which was prepared by Kieran O’Malley and Co. Limited on 9th June 2021.

8. The Chief Executive of the planning authority’s opinion to the Board issued on 30th June 2021 recommending refusal for four reasons.

9. The Board’s Inspector issued her report on 9th August 2021. She recommended a grant of permission subject to 32 conditions.

10. The Board held a meeting on 23rd August 2021 and decided to grant permission generally in accordance with the Inspector’s recommendations. The Board invoked Sections 37(2)(b)(i), 37(2)(b)(ii) and 37(2)(b)(iii) in deciding to grant permission and imposed 31 conditions.

11. The Board Direction was signed on 23rd August 2021 and the Board Order was sealed on 25th August 2021.

Summary of main issues raised by parties

12. The main issues raised by the parties are, in summary, as follows.

13. In relation to the designation of institutional land, the Applicant contends that the decision is invalid “because the proposed development constitutes a material contravention of the Institutional Lands Zoning Objective and/or in relation to the zoning of the land in the Dún

Laoghaire Rathdown County Development Plan 2016-2022 (‘the CDP’) contrary to section 9(6)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016 (‘the 2016 Act’) and / or constitutes a material contravention of §2.1.3.5 and §8.2.3.4 of the CDP that was not subject to the material contravention procedure contained in section 37(2)(b) of the Planning and Development Act 2000 (‘the 2000 Act’) required by section 9(6)(c) of the 2016 Act” (quotations in this section of the judgment are from the pleaded core grounds unless otherwise stated). In the written submissions (at paragraph 7), the Applicant withdrew this in part: “The Applicant is not maintaining that the decision is a grant of permission contrary to the requirements of section 9(6)(c) of the 2016 Act. The Applicant is maintaining the balance of this Core Ground.”

14. The Applicant also contends that the grant of permission in material contravention of the CDP is also submitted to be contrary to Directive 2001/42/EC of the European Parliament and of the Council on the Assessment of the Effects of Certain Plans and Programmes on the Environment (‘the SEA Directive’) and/or that it was not identified by the Developer in the application documents and therefore not subject to any or any adequate public participation.

15. In relation to the need for a Master Plan for the area, the Applicant pleads that the decision is invalid because “it constitutes a material contravention of §8.2.3.4(xi) of the CDP for which the Board could only have granted permission if it had been identified in the Statement of Material Contravention and the Board had satisfied itself that the requirements of section 37(2)(b) of the 2000 Act had been complied with”. Similar points are made about SEA and public participation. This issue is closely tied to the first issue, and both can be considered together.

16. Thirdly, on a similar basis, in relation to issues of density (policy RES5), the Applicant contends that the decision is “a material contravention of Policy RES5 of the CDP for which the Board could only have granted permission if it had been identified in the Statement of Material Contravention and the Board had satisfied itself that the requirements of section 37(2)(b) of the 2000 Act had been complied with and/or because the Board failed to have any or any adequate regard to §5.10 of the Sustainable Residential Development in Urban Areas Guidelines 2009 for the purposes of section 28 of the 2000 Act”.

17. The Applicant had complained of a further material contravention regarding the “Zoning Objective/Objective to Preserve Trees and Woodlands and §8.2.8.6 of the CDP”, but this ground was withdrawn (Core Ground 4 – withdrawal noted in Statement of Case).

18. At Core Ground 5, the Applicant raises the issue of land ownership, in relation to the entrance area to the site from the Churchfields Estate. The Applicant complains that the documentation “did not comply with Article 297(2)(a) of the Planning and Development Regulations 2001 (‘the 2001 Regulations’) and/or the Board has erred in law and/or has no jurisdiction to grant permission for development outside the red-line boundary and in respect of which no consent has been given and/or the Board’s Order did not comply with the requirements of section 34(10)(b) of the 2000 Act.”

19. The Applicant sought to impugn the application documentation by way of alleging breach of Article 299B(1)(b)(ii)(II)(c) of the 2001 Regulations, either by reason that “the required statement was not submitted by the Developer and therefore the Board was obliged to refuse to consider the application” or because “the Board failed to conduct the required preliminary EIA screening exercise as required or at all”. However, this point was also withdrawn (Core Grounds 6 and 7 – withdrawal noted in Statement of Case).

20. A further material contravention is alleged in relation to “§8.2.3.3(iv) of the CDP”

regarding separation distances.

21. While it did not form part of the hearing before me, I note that by way of fall-back modularised relief against the State, the Applicant impugns the material contravention procedure and pleads that “Section 9(6)(c) of the 2016 Act when read with section 37(2)(b)

of the 2000 Act is invalid in that it is repugnant to Articles 15.2.1 and 28A of the Constitution insofar as it allows the Board a broad discretion to derogate from and alter the CDP”.

22. The Applicant also impugns the material contravention procedure by reference to EU law, and pleads that “Section 9(6)(c) of the 2016 Act when read with section 37(2)(b) of the 2000 Act is invalid in that it is contrary to an contravenes Articles 1 and 3 of the SEA Directive of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment.”

23. There is also a general EU law plea of breach of the SEA Directive: “The impugned

decision is invalid in that it contravenes Articles 1 and 3 of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (‘the SEA Directive’) by granting planning permission in Material Contraventions of the CDP as identified at Grounds 1, 2,

3 and 4 and 8 above (and the additional material contraventions identified by the Inspector).” This point was formally moved to preserve the position on appeal although no substantive arguments were made (Submissions, paragraph 6). That point can be dealt with briefly at the outset.

General complaint regarding SEA directive (core ground 11)

24. The Applicant’s submissions note that “The Applicant is formally maintaining Core Ground 11. A very similar point was rejected by Holland J. in Ballyboden TTG v. ABP [2023 IEHC 722]. The Applicant is maintaining the ground in the event that this point is successful at appellate level. However, it is not addressed herein.”

25. In circumstances where the Applicant advances no arguments and concedes that the point is the subject of adverse authority, I can reject the point on that basis, but I accept that the procedure of formally moving a point is sufficient in such circumstances to preserve the position on appeal.

Institutional land and the need for Master Plan (Core grounds 1 and 2)

26. It is settled law that the misinterpretation of the development plan is an error of law which goes to jurisdiction. A decision-maker cannot be said to have properly had regard to objectives or policies which it has misunderstood: Sherwin v. An Bord Pleanála [2024] IESC 13, per Woulfe J. at para 96:

“It is well established that the interpretation of a development plan is ultimately a matter for the courts. Any misinterpretation of the development plan by the relevant planning authority is an error of law which goes to jurisdiction. It is also well established that the development plan is not to be treated as if it were a piece of primary or secondary legislation emanating from skilled draughtsmen, and inviting the exceptive canons of construction applicable to such material. Instead, a development plan falls to be construed in its ordinary meaning as it would be understood by members of the public without legal training, as well as by developers and their agents, unless the document, read as a whole, necessarily indicates some other meaning.”

27. This point was also discussed by Simons J. in Redmond v An Bord Pleanála (No. 1) [2020] IEHC 151 and Redmond (No. 2) [2020] IEHC 322 at paras. 37 to 40.

28. The relevant provisions of the CDP are as follows:

29. Section 2.1.3.5 sets out policy RES5 regarding institutional lands:

“2.1.3.5 Policy RES5: Institutional Lands Where distinct parcels of land are in institutional use (such as education, residential or other such uses) and are proposed for redevelopment, it is Council policy to retain the open character and/or recreational amenity of these lands wherever possible, subject to the context of the quantity of provision of existing open space in the general environs.”

30. The accompanying text states:

“It is recognised that many institutions in Dún Laoghaire-Rathdown are undergoing change for various reasons. Protecting and facilitating the open and landscaped ‘parkland’ settings and the activities of these institutions is encouraged. Where a well established institution plans to close, rationalise or relocate, the Council will endeavour to reserve the use of the lands for other institutional uses, especially if the site has an open and landscaped setting and recreational amenities are provided.

Where no demand for an alternative institutional use is evident or foreseen, the Council may permit alternative uses subject to the zoning objectives of the area and the open character of the lands being retained.

A minimum open space provision of 25% of the total site area (or a population based provision in accordance with Section 8.2.8.2 whichever is the greater) will be required on Institutional Lands. This provision must be sufficient to maintain the open character of the site with development proposals structured around existing features and layout, particularly by reference to retention of trees, boundary walls and other features as considered necessary by the Council (Refer also to Section 8.2.3.4(xi) and 8.2.8).

In the development of such lands, average net densities should be in the region of 35 -

50 units p/ha. In certain instances higher densities will be allowed where it is demonstrated that they can contribute towards the objective of retaining the open character and/or recreational amenities of the lands.

In cases of rationalisation of an existing institutional use, as opposed to the complete cessation of that use, the possible need for the future provision of additional facilities related to the residual retained institutional use retained on site may require to be taken into account. (This particularly applies to schools where a portion of the site has been disposed of but a school use remains on the residual part of the site.)”

31. The requirement for an appropriate Master Plan is set out in Section 8.2.3.4(xi) of the CDP. This states that:

“In order to promote a high standard of development a comprehensive masterplan should accompany a planning application for institutional sites. Such a masterplan must adequately take account of the built heritage and natural assets of a site and established recreational use patterns. Public access to all or some of the lands may be required. Every planning application lodged on institutional lands shall clearly demonstrate how they conform with the agreed masterplan for the overall site. Should any proposed development deviate from the agreed masterplan then a revised masterplan shall be agreed with the Planning Authority”.

32. Zoning Map 1 shows the INST symbol in a black box towards the lower part of the area zoned A (residential amenity), with a zoning F (open space) to the south of that. The size and appearance of the symbol is consistent throughout the maps, although the location of the symbol within specific plots of land varies. Both parts of the area were originally part of institutional lands. A critical factual issue here is that the boundary of the site owned by the Marist Fathers in 2016, when the CDP was adopted, was greater than the area covered by the Master Plan. The issue therefore is whether the purported Master Plan complies with the CDP requirement to relate to the “institutional sit[e]”.

33. The Applicant submits that the Board’s decision is invalid because it granted planning permission for a development which materially contravened the County Development Plan in respect of the institutional lands zoning objective and Sections 2.1.3.5 and 8.2.3.4 of the Plan, including RES 5, and that this had not been identified by the Developer in its application, nor had a justification been proposed by the Developer for such a material contravention. The Applicant also submits that Condition 2, by which the Board required the omission of Block (Villa) A and the space to be incorporated into public open space, does not have the effect of validating the application or the Board’s decision as the application was invalid from the outset.

34. The Board states that the proposed development does not materially contravene Sections

2.1.3.5 and 8.2.3.4(xi) of the County Development Plan as alleged by the Applicant and that accordingly, there was no failure to comply with section 9(6)(c) of the 2016 Act. The Board also submits that Condition 2 is valid and that it is entitled to grant permission for a development modified by conditions which does not materially contravene the Development Plan. The Board relies on sections 9(4)(b) and (c) of the 2016 Act in this regard.

35. The Master Plan submitted did not include the sports fields adjacent to the site of the proposed development. The Applicant maintains that this was required, as, it argues, the INST designation covers the entire site.

36. I shall consider Core Grounds 1 and 2 together as it has been accepted by the Applicant and the Board that Core Ground 2 will necessarily be resolved in the same way as CG 1.

37. It is common case that the Notice Party’s Material Contravention Statement did not refer to a contravention, or potential contravention of the provisions of the County Development Plan in respect of institutional lands or the INST designation and in particular, the requirement that the open character of such lands is maintained. As Simons J. held in Redmond, the failure to identify a material contravention of a development plan in an SHD application renders an application invalid.

38. The question is whether the proposed development materially contravenes the Plan as alleged by the Applicant. If the lands are not covered by the institutional lands / INST designation, the Applicant concedes that Core Grounds 1 and 2 must fail. Similarly, the Board accepts that the Master Plan submitted by the Notice Party did not include the lands which remain in the ownership of the Marist Fathers and which are zoned F. Therefore, if the lands, including the Catholic University School (CUS) playing fields are institutional lands and/or covered by the INST designation, the Board’s decision would be invalid because there was no Master Plan for the “institutional lands” as envisaged by the CDP.

39. Accordingly, the matter comes down to a very case-specific examination of whether the institutional lands symbol in the CDP applies to the full lands of the institution concerned (thus including the lands zoned F which are outside the Master Plan) i.e. the lands owned by the Marist Fathers in 2016. In my view this very case-specific question must be resolved in favour of the Applicants, for a number of reasons.

40. By way of context, whilst this is an SHD development, the Development Plan must not be interpreted through the prism of any particular application procedure. There is a sense in which a zoning provision (such as F on part of the lands here) represents a greater obstacle to a development than an institutional designation, because in ordinary planning, the planning authority, or the Board on appeal, could grant permission in material contravention of a zoning objective if the necessary process is followed in an application under section 34. However, if the same development was applied for under the SHD process, the Board would have no jurisdiction to grant permission if the proposed development would materially contravene the CDP in respect of zoning. As the CDP must be interpreted independently, regardless of the type of application made, even though the designation of Zone F might appear to provide similar or even great protection than the INST designation, it does not follow that INST designation is not relevant or could not apply in respect of lands zoned F. There can only be one interpretation of the CDP, which applies to all planning applications and decisions, regardless how they are made or come before the Board.

41. How a development plan deals with particular designations and zonings is a matter which varies from plan to plan. Simons J. held in Redmond, that the institutional lands designation does not amount to a zoning objective. He noted, at para. 68, that the designation does not purport to override the residential zoning objective on the lands in question, but the institutional lands designation seeks to regulate the precise circumstances in which the development, permitted by the applicable zoning, might be authorised and the conditions, for example, in respect of open space, which might be attached to the grant.

42. Nothing in this specific development plan links the institutional lands provisions of the Plan, or the INST designation, to any particular zoning objective, nor is that designation excluded on lands subject to any particular land use zoning. Therefore, there is nothing in this Plan which prevents the INST designation being on lands Zoned F (or any other particular zoning).

43. The XJS principles (Re XJS Investments Limited [1986] IR 750; Tennyson v. Corporation of Dun Laoghaire [1991] 2 IR 527; Sherwin) for interpretation of a CDP are well known, bearing in mind that the intelligent non-expert reader is not to be deemed to be wholly ignorant of planning matters – decisions are addressed not only to participants in the process but also their “agents” (as noted by Woulfe J. in Sherwin, cited above). One then must ask, how would an intelligent lay person interpret the Plan. The intelligent person in this context (as in other contexts) must be presumed to be armed with relevant facts – one of which is the common ownership and institutional-related use of both sections of the lands concerned.

44. The maps set out in the CDP include an “INST” designation placed over the site of the proposed development. Where such a label, or any label, is applied to a particular area, the CDP has the option of either specifying exactly which lands are covered by it or leaving that to be determined as a matter of interpretation, ultimately by the court. Here the CDP does not specify with precision what lands are covered by the INST symbol. Thus, the fact that it appears at a particular place within a site (and it must appear somewhere) cannot be determinative of the boundaries of the site to which it refers other than to say that the institutional site must include the location of the symbol.

45. The part of the lands in which the INST symbol appears are zoned “Objective A”: “To protect and/or improve residential amenity”. At the time of adoption of the CDP, the Marist Fathers owned those lands and the CUS sports fields lands immediately to the south, which are zoned “Objective F”: “To preserve and provide for open space with ancillary active recreational amenities”.

46. The response of the Developer to the Opinion of the Board, dated 8th January 2021, stated:

“There is no demand for an alternative institutional use for the site. The Marist Fathers (most recent occupiers) have no desire to continue using the site and have sold the lands to the applicant. Other parties such as the Joint Managerial Body Secretariat of Secondary Schools (who use Robert Emmet House adjoining the main site) and the Catholic University School (CUS) (adjoining sports grounds to the south) have demonstrated no intention to expand their uses and, in any event, do not have any legal interest or control over the subject lands.”

47. The Inspector considered that there was no longer an obvious demand for an alternative institutional use on the site. However, it must be noted that these are not matters (even if decisions to that effect had been made at that time) which would have been known by the public at large when the CDP was made.

48. When preparing the Master Plan in relation to its own lands, the Developer stated:

“The proposal outlined in the enclosed material should therefore be considered to be a masterplan for the site. The applicant has no control over the adjoining lands, namely the sports fields. It is therefore not considered appropriate to include these lands as part of the masterplan nor are they covered by the ‘INST’ Development Plan objective.”

49. However, the whole purpose of a Master Plan (as reflected in the provisions of the CDP relevant to this site) is to cover a larger area than any particular development site – this frequently involves co-operation between different landowners to come up with an overall plan for an area. If the making of a “comprehensive” Master Plan for an area is not possible, then a developer would have to proceed on the basis of material contravention. To accept the concept that a developer need only produce a plan for its own lands and call that a Master Plan would be to undermine the distinction between a Master Plan and an individual planning application.

50. Reinforcing the issue of the need to consider the institutional lands as a whole is the lack of a clear boundary between the two parts concerned, at the time when the CDP was adopted. In contrast to the east margin of the site, where the Zone A area protrudes below the Churchfields houses, there is no site boundary between the lands the subject of the planning application and the rest of the site which was also owned by the Marist Fathers at the time the Development Plan was made. These sports fields, sometimes referred to as the CUS lands, were not a separate landholding or separately identified plot of land at that time. It is evident from the photos, including the photo at page 44 of the Masterplan at Appendix 2 to the Architectural Design Statement, that there is no delineation of the boundary between the site sold by the Marist Fathers and purchased by the Notice Party subsequent to the adoption of the Development Plan in 2016. However, there are trees which straddle the boundary of the site which was sold to the Notice Party.

51. There is no evidence before the court, nor was there evidence before the Board, from which it could be established that the boundary of the site owned by the Notice Party is where the zoning change occurs. While there is a change of colour on Map 1, indicating the change of zoning, within the site which was owned by the Marist Fathers when the CDP was made, there is no line across the site, nor anything to support the contention that it should be regarded as two separate plots of land or landholdings or that the INST designation was limited to part only of the lands owned by the Marist Fathers.

52. Drawing on the analysis of Simons J. in Redmond, it seems to me to be critical that when the Development Plan was made, the lands were all owned by the Marist Fathers and they were all used for institutional purposes. It does not seem particularly critical that the CUS sports grounds were used for a purpose connected with that school rather than with the Clonskeagh buildings specifically. CUS is one of the three schools governed by the Marist Fathers, who owned the lands, but its school building is on Leeson Street.

53. Given the common ownership and related institutional uses, it seems to me that on these particular facts, the buildings and fields should be regarded as a single planning unit in the sense used at paras. 41 - 44 of the judgment of Simons J. in Redmond (No. 1), citing Bridge LJ. in Burdle v. Secretary of State for the Environment [1972] 1 WLR 1207. Bridge L.J. suggested the following “working rule”.

“It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.”

54. As Simons J. did in Redmond, I am satisfied that the intelligent reader of the 2016–2022 Development Plan would attach weight to the ownership of the lands at that time, in identifying the extent of the “institutional lands” designation. As of the date of the adoption of the Development Plan, what is now the application site had been part of the overall lands in the ownership of the religious congregation. These lands were being used for religious and educational uses associated with the congregation. That can be said for the entire lands owned by the Marist Fathers in 2016.

55. The position of the INST marking (see para. 46 of Redmond per Simons J.) is not particularly determinative. It must be placed somewhere. In this case it is on lands which are Zoned A, but the lands Zoned F are part of the same parcel of land.

56. Both parts were in the same ownership and there was no distinct site boundary. Therefore, I am satisfied that the INST designation, and institutional nature of the lands, covered the entire piece of land owned by the Marist Fathers at that time. I do not consider that the fact that there was not a second INST symbol on part of the lands zoned F had the effect of confining the institutional lands to the portion of the site which was zoned A.

57. Having regard to the above I am compelled to the conclusion that I must uphold the Applicant’s submission on this issue:

“38. The Board’s approach is incorrect in law. The Institutional designation applies, as the name suggests, to the entirety of the institutional lands, including the CUS lands to the south. The CUS lands are—and were at all material times—in institutional use.

It is nonsensical to exclude lands actually in current institutional use from the express, “comprehensive” masterplan requirement.

39. This is particularly so where the CUS lands form a part of the complex of historically Marist lands, with the seminary to the north and the school grounds to the south. As noted by the Inspector, CUS is under the trusteeship of the Marist Fathers and there is no basis to describe the continuing use of the sports grounds by the school as anything other than institutional use, which should have been included in the masterplan.”

58. It follows that certiorari should be granted on this basis.

Other issues

59. In view of the above, it is not necessary to decide the other issues including the issues against the State respondents.

Conclusion

60. In summary, Core Grounds 4, 6 and 7 were withdrawn. Core Ground 11, regarding a general breach of the SEA directive, fails in circumstances where the Applicant effectively concedes that there is adverse authority, which I am satisfied it is appropriate to follow.

61. The Applicant succeeds on a very case-specific point involved in Core Grounds 1 and 2, on the basis that, when interpreting the CDP Zoning Map 1 which forms part of the applicable Development Plan, having regard to the common ownership and common institutional-related use of the fields and the institutional buildings North and South of where the INST symbol is located, the intention was that the INST symbol related to a single institutional site including both parcels of land. It follows that Section 8.2.3.4(xi) of the CDP, insofar as it required that “a comprehensive masterplan should accompany a planning application for institutional sites”, envisaged a comprehensive Master Plan would cover both the buildings and the playing fields. Such a comprehensive Master Plan was not submitted, and no material contravention was identified.

62. In those circumstances it is not necessary to decide the other issues raised by the Applicant.

Order

63. For those reasons, I shall make an order of certiorari by way of application for judicial review quashing the decision of the First Named Respondent to grant planning permission to the Notice Party Developer for the construction of 231 residential units and associated works on 25th August 2021 on a site at Mount St. Marys off the Dundrum Road, Dundrum, Dublin

14 (ABP-310138-20).

64. The matter is to be listed before me on 13th October 2025, on which date an application can be made for any consequential orders.

Emily Farrell