High Court quashes planning permission for housing development due to material contravention of Local Area Plan requirements.

THE HIGH COURT PLANNING & ENVIRONMENT

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 and Order 84 of the Rules of the Superior Courts

[2025] IEHC 523 Record No. 2022/1061 JR Between

JOSEPH WILSON, MARGARET PRICE AND RODERICK O’MAHONY Applicants and

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, AND WICKLOW COUNTY COUNCIL Respondents and

CAPAMI LIMITED AND BLUESTONE PROPERTY LIMITED (IN RECEIVERSHIP)

Notice Parties

JUDGMENT of Ms. Justice Emily Farrell delivered the 3rd day of October 2025

Introduction

1. The Applicants seek an order quashing the decision of An Bord Pleanála to grant planning permission for the construction of 219 residential units, a crèche and ancillary works at Parknasillogue, Enniskerry (ABP Ref 312652 -22). The application made by the first named Notice Party (“Capami”) was for a Strategic Housing Development (“SHD”) under section

4 of the Planning and Development (Housing) and Residential Tenancies Act, 2016.

Facts

2. The lands the subject of this application are included in the area covered by the LAP. They are also within a 13.5ha parcel of land identified as an Area Action plan location, Area Action Plan 2, Parknasillogue, Enniskerry, Co. Wicklow (the “AAP”) for the purposes of Chapter 10 of the Bray Municipal District Local Area Plan 2018 – 2024 (the ‘LAP’).

3. Capami had a pre-planning meeting with Wicklow County Council on 7th October 2020.

4. The application for a SHD pre-application consultation was made on 17th November 2020 under reference ABP-308676-20. It related to a proposed development of 219 residential units (135 houses and 84 apartments), a childcare facility and associated site works.

5. The pre-application meeting between the Capami, the Council and the Board took place on 27th January 2021.

6. An Inspector of the Board issued an ‘Inspector’s Report on Recommended Opinion’ on 28th January 2021 recommending that the Board form the opinion that the submitted documentation would constitute a reasonable basis for an application for SHD.

7. The Director of Planning of the Board issued a direction in January 2021 that an order should be issued generally in accordance with the Inspector’s recommendation.

8. A Notice of Pre-Application Consultation Opinion (ABP ref. 308676-20) was issued on 28th January 2021 and was signed by the Director of Planning of the Board which stated that the Board was of the opinion that the documents submitted constituted a reasonable basis for an application under section 4 of the Act of 2016.

9. Capami submitted its application for 219 residential units (135 houses, 84 apartments), a childcare facility and associated site works on 4th February 2022 under reference ABP- 312652-22.

10. The second and third Named Applicants made a submission on or around 9th March 2022, and the first named Applicant’s submission was received by the Board on 10th March 2022.

They each objected to the grant of permission sought.

11. The Chief Executive of the Council submitted his Report dated 30th March 2022 for the purposes of section 8(5)(a) of the Planning and Development Act 2000 recommending refusal of planning permission on the following two grounds (underlining added):

“Following consideration of the proposed Strategic Housing Development and its effects on the proper planning and Sustainable development of the area and the environment it is considered that while the development of these lands is acceptable in principle, the scheme as currently proposed is not recommended for reasons outlined below:

The Proposed Development would materially contravene the objectives for these lands as set out in the Bray Municipal District Local Area Plan 2018 as the proposed scheme fails to meet the criteria set out for the development of the lands within Action Area 2 Parknasilloge, for the following reasons:

• The scale of the development proposed far exceeds the maximum permitted density of the residential lands within the Action Area (that being 128 no. units for the application site).

• The proposed phasing plan is inadequate in that it fails to adequately demonstrate that the proposed residential development is to be linked to the provision of the physical infrastructure, social/community infrastructure and employment that is required to ensure the sustainable, phased and managed development of the Action Area lands.

• The relocation of land use zonings within the Action Area is subject to compliance with the requirements of the approved Action Area Plan, March 2019. As the proposed scheme fails to comply with the approved Action Area Plan it is considered that the development of these lands for residential purposes as proposed would be contrary to the zoning objectives for the site.

To allow this development to proceed outside of the parameters set out in the Bray Municipal District Local Area Plan and the approved action area plan would be contrary to the objectives of the Bray Municipal District Local Area Plan 2018, and would be contrary to proper planning and sustainable development.

The proposed development would be contrary to the proper planning and sustainable development of this area because:

a) It would result in a development of a nature and scale that would be out of keeping with the established pattern and character of development in Enniskerry

b) It would result in a significant increase in the population of Enniskerry, a settlement which currently lacks the necessary infrastructure and services that would be required to accommodate this additional growth in a sustainable manner

c) It would due to the lack of employment opportunities and services in the area, result in a large scale residential development that would be excessively car dependent.”

12. An Inspector was appointed by the Board and prepared a Report dated 30th August 2022, which recorded that a site inspection took place on 29th August 2022. The Board’s Inspector recommended that permission be granted for the proposed SHD subject to 26 conditions.

13. A Board Direction (BD-011310-22) was made on 7th October 2022. It is recorded that the Board considered the submissions on file and the Inspector’s Report at a meeting held on 20th September 2022 and decided to grant permission subject to 24 conditions.

14. By Order of the Board (ABP-312652-22) dated 13th October 2022, the Board granted permission subject to 24 conditions.

The main issues

15. The Applicants were granted leave to seek judicial review on the grounds ultimately set out at Core Grounds 1 – 11 (including an inserted ground 7A) of the Third Amended Statement of Grounds (as amended on 26th October 2023 pursuant to an order of Humphreys J. made the 23rd October 2023).

16. The position in relation to these grounds is, in summary, as follows:

Domestic law grounds

(i) Core Ground 1 – contravention of Objective R20 – withdrawn by the Applicants.

(ii) Core Ground 2 – contravenes phasing in Chapter 10 of LAP.

(iii) Core Ground 3 – contravention of objective for employment and community use.

(iv) Core Ground 4 – contravention of Objective R6/ Chapter 10 LAP.

(v) Core Ground 5 – contravention of Objective NH52 of CDP.

(vi) Core Ground 6 – irrelevant considerations.

(vii) Core Ground 7 – lack of notice to statutory consultee.

(viii) Core Ground 7A – validity of general measures relied on for the challenge to the decision.

EU law grounds

(ix) Core ground 8 – EIA/ derogation licence issues

(x) Core ground 9 – deficient AA Grounds relating to validity of measures of general application

(xi) Core ground 10 – Area Action Plan 2 ultra vires or in breach of SEA directive.

Without prejudice to the Applicants’ contention that the challenge, in Core Ground 10, to the AAP2 was brought within time, an application is made for an extension of time if necessary. That application is opposed by the Respondents and first Notice Party. Wicklow County Council confined its submissions to the challenge to the AAP2 raised in Core Ground 10.

(xii) Core ground 11 – legislation is in breach of SEA directive – modularised by agreement.

17. The written submissions dated 4th April 2024 did not refer to Core Ground 7A. However, on 15th May 2024, a brief additional written submission was served in which the Applicants explained that they do rely on Core Ground 7A in support of their application for an order of certiorari, in the event that they succeed on Core Ground 10. They submit that the absence of reference in the original written submissions to Core Ground 7A was not intended to be regarded as an abandonment of that core ground. The agreed Statement of the Case stated, at para. 38, that Core Ground 1 and 7A were not being pursued. The Statement of the Case was uploaded to share file on the 9th of May 2024. Core Ground 7A was not addressed in this Statement of the Case.

18. It will be appropriate to start with Core Ground 2, because depending on the outcome of that, the other points may or may not arise.

Core Ground 2: material contravention re phasing

19. I shall address the issues arising under Core Ground 2 in a sequence along the following lines:

(i) Submissions;

(ii) The law in relation to material contravention;

(iii) The LAP and AAP and the Board decision;

(iv) The validity of the finding of no material contravention;

(v) The various defences offered on this issue.

The Parties’ Submissions

20. The Statement of Case helpfully summarises the main contentions of the parties:

“Core Ground 2 – Material Contravention/Phasing Applicant – The impugned decision is invalid because the Board granted permission for an application which identified a material contravention of the development plan in relation to phasing without invoking Section 37(2)(b). The Board was not permitted to impose a condition aimed at removing the material contravention and in any event Condition No 4 did not remove the said material contravention.

Board – The Board contends that the plea at E10 of the Applicant's Third Amended Statement of Grounds is a collateral challenge to the adoption of the AAP-2 on the basis that it is not a measure of general application, but rather a discrete decision having standalone legal effect. The challenge to the AAP-2 is therefore statute barred.

Without prejudice to that, it is denied that the Board decision failed to identify a material contravention of the phasing requirements of the AAP-2 and that the Board could not grant permission for the proposed development, subject to Condition 4.

Council - The Council is only addressing Core Ground 10, which forms the basis of relief sought against it.

Capami - Core Ground 2 does not relate to a complaint that there was a material contravention of the phasing requirements of the development plan. Core Ground 2 alleges that the proposed development materially contravenes the phasing arrangements in Chapter 10 of LAP. The Board interpreted the LAP lawfully and carried out a lawful assessment of the application of phasing requirements of the LAP to the proposed development. The Board clearly identified the reasons upon which it found that the proposed development did not materially contravene the phasing requirements of the LAP and was entitled to attach condition 4 to the grant of permission.

The law in relation to material contravention

21. As I noted in Churchfields Management Co v An Bord Pleanála [2025] IEHC 495, 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. In Sherwin v. An Bord Pleanála [2024] IESC 13, Woulfe J. stated, 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.”

22. This point was also discussed in Redmond v. An Bord Pleanála (No. 1) [2020] IEHC 151 and Redmond v. An Bord Pleanála (No. 2) [2020] IEHC 322.

23. In Sherwin Woulfe J. went on to stress the necessity to engage with the plan and correctly identify any contravention, saying at para. 105 that:

“... the first question must be the nature of the determination (if any) actually made by the decision-maker, ‘as to whether or not the proposed application as a matter of law and fact would materially contravene the development plan’, ... in circumstances where there has been the required focus by the decision-maker on the specific provision of the plan allegedly materially contravened. In my opinion that question is the crucial starting point, before one gets to the questions as to the standard of review by the court.”

The LAP

24. The critical document is the Bray Municipal District Local Area Plan 2018 – 2024 which was adopted in May 2018.

25. The LAP benefits from a presumption of validity, and is not challenged in these proceedings. In terms of interpretation of the LAP, where different interpretations are reasonably open, a general instrument such as the AAP (or indeed an individual decision)

must be interpreted in a manner which is consistent with that instrument’s validity, so the AAP should not be construed as conflicting with the LAP if possible.

26. As set out in its preamble, the purpose of the LAP is to put in place a land use framework that will guide the future sustainable development of the Bray Municipal District which includes the settlement of Enniskerry. Para. 1.1 of the LAP says that it, in conjunction with the County Development Plan, will inform and manage the future development of the area.

It is also stated that this LAP “shall only include objectives that are area specific and achievable”, and avoids those that are aspirational, or which are best dealt with through the annual budget or road works programme etc.. It is highlighted in the LAP that “The role of land use plan is to put in place a framework within which development can occur, but does not decide what works actually get done by either private individuals or public bodies.” (original emphasis)

27. In particular, residential land zoning provisions have been made on the basis of providing enough housing land to meet the 2025 population and housing targets, in order to ensure that there is enough flexibility in the zoning commission to achieve the target in the event that impediments to the development of certain lands arise.

28. The LAP expressly states that if there is a conflict between the statement and the map, the written statement shall prevail.

29. Chapter 2 of the LAP contains the factors on which the plan objectives are built and it is stated that “the objectives are consistent with the core strategy of the County Development Plan”.

30. Enniskerry is identified as a small growth town (level V) in the County settlement hierarchy. Such settlements were not to be prioritised for major growth investment, but rather it is stated, they should be prioritised as attractors for more local indigenous growth and investments. The LAP also states that small growth towns “would likely contain facilities such as a primary and sometimes a secondary school, as well as a health clinic.”

31. It is stated at para. 2.2.2:

“In deciding how the town should develop there are many options given the fashion of its spatial development history. Again the key parameters however, must be based on environmental protection, sustainability and developing the town in a manner that would generate the minimal number of car journeys. The solution adopted in this plan is to designate residential lands as close as possible to the town centre and existing community facilities whilst avoiding the environmentally sensitive and EU designated areas (Knocksink Wood and Ballyman Glen are both SACs), with new employment being located on existing zoned land to the west of the settlement.

In recognition of the above this plan has aimed to consolidate the existing built pattern in Enniskerry by maximising the potential of large sites close to the settlement core and any infill sites along the main roads within the settlement. The designation of specific lands for residential development has been provided in a manner that facilitates greater connectivity between the settlement core and the existing developed lands within the plan area. Sufficient lands have been zoned in order to meet the projected population targets as set out in the Core Strategy of the County Development Plan.”

32. The stated population of Enniskerry town as of the census in 2016 is 1,889. The anticipated growth of the housing stock for Enniskerry between 2016 and 2025 is significant, an increase from 640 to 1,112 units.

33. The zoning of lands for employment purposes is a matter highlighted at para. 2.2.4 (pp. 15- 16).

34. In Chapter 3, p. 24, the LAP states:

“RESIDENTIAL ZONINGS It is an aim of this plan to focus new residential development into the existing built envelope of the districts’ three settlements. While the ‘Town Centre’ zones in Bray and Enniskerry, the ‘Primary Zone’ in Kilmacanogue and the ‘Existing Residential’ / ‘Secondary Zone’ areas all present significant housing opportunities through redevelopment, infill and backland developments, these areas are not sufficient in size and scope to accommodate all of the required future housing growth in the area.

Therefore new residential development is also provided for on ‘greenfield’ lands zoned ‘new residential’ (R-HD, R20, R15 R10, R-Special17) and ‘Mixed Use (MD). ‘Edge of centre’ locations will be considered the priority location for new residential development while ‘out of centre’ housing sites will only be considered on the basis of integrated housing / community facilities / open space schemes that can be well connected to the existing built up area. Such areas may be ‘Specific Local Objective’ or ‘Action Areas’ which are to be the subject of comprehensive (not piecemeal)

integrated schemes of development that allow for the sustainable, phased and managed development of the area during the plan period.”

35. The area in which the site is located is designated Area Action Plan 2 Parknasillogue, which is zoned R20 (New residential) and the potential number of units are stated to be 156.

36. At p. 26, the LAP sets out residential objectives:

“Residential Development Objectives (General)

R1 All new housing developments shall be required to accord with the housing objectives and standards set out in the Wicklow County Development Plan.

R2 In order to make best use of land resources and services, unless there are cogent reasons to the contrary, new residential development shall be expected to aim for the highest density indicated for the lands. The Council reserves the right to refuse permission for any development that is not consistent with this principle. Lands zoned Residential – High Density will be expected to achieve a density of not less than 50 units / hectare.

R3 Housing development shall be managed and phased to ensure that infrastructure and in particular, community infrastructure, is provided to match the need of new residents. Where specified by the Planning Authority, new significant residential or mixed use development proposals, may be required to provide a social and community facility/facilities as part of the proposed development or the developer may be required to carry out a social infrastructure audit, to determine if social and community facilities in the area are sufficient to provide for the needs of the future residents. Where deficiencies are identified, proposals will be required to either rectify the deficiency, or suitably restrict or phase the development in accordance with the capacity of existing or planned services.

R4 To encourage in-fill housing developments, the use of under-utilised and vacant sites and vacant upper floors for accommodation purposes and facilitate higher residential densities at appropriate locations, subject to a high standard of design, layout and finish.”

37. Objectives for the specific area at issue in this case are then set out:

“Enniskerry Specific Housing Objectives R6 The maximum size of any single ‘housing estate’ shall be 60 units and developments that include more than 60 units should be broken into a number of smaller ‘estates’, which shall be differentiated from each other by the use of materially different design themes.

R7 A full range of unit sizes, including smaller 1 and 2-bedroomed units shall be provided in all new housing areas. No more than 50% of the units in any development shall exceed 3 bedrooms or 125sqm in size.

R8 To allow for a maximum of 5 new dwelling units on the lands zoned R-Special on the Cookstown Road (east of AA3).”

38. At p. 57, the LAP includes the following:

“CHAPTER 10 KEY DEVELOPMENT AREAS Action Area Plans

‘Action Area Plans’ have been identified in this plan. ‘Action Area Plans’ are to be the subject of comprehensive (not piecemeal) integrated schemes of development that allow for the sustainable, phased and managed development of the Action Area during the plan period. Separate applications for sections of each Action Area Plan will not be considered until an overall Action Area Plan has been agreed in writing with the Planning Authority unless it can be shown that any application will not undermine the achievement of the overall objectives for that Action Area and would contribute its ‘pro rata’ share of the public infrastructure and facilities set out in this plan for that specific area.

The position, location and size of the land use zonings shown on plan maps are indicative only and may be altered in light of eventual road and service layouts, detailed design and topography, subject to compliance with the criteria set out for the Action Area Plan.

By time related conditions, agreements or otherwise, the Council will regulate the building programme to ensure that the needs of the population do not exceed the provision of essential support systems and the Council will use its powers under the Planning & Development Acts to effect this control.”

39. At p. 61, the LAP envisages an Area Action Plan 2 to be adopted for Parknasillogue.

Critically, the LAP states:

“This Action Area Plan is located west of Enniskerry town centre and immediately north of Kilgarron housing development, in the townland of Parknasilloge. This action area plan measures c. 13.5ha. This action area plan shall be developed as a residential, open space, employment and community zone in accordance with the following criteria:

A minimum area of 2ha shall be reserved as Active Open Space (this is the size of the area currently occupied by Enniskerry GAA). In the event of the relocation of the GAA to an alternative location, this quantum of AOS shall, as a minimum, be maintained within the overall action area. Any alternative AOS shall be maintained available for general public use, shall be suitably sized to allow for organised sporting activities i.e. pitches, courts etc and shall be so located within the action area so as to be easily accessible by the wider community. (Any proposals to redevelop the existing GAA grounds will only be considered when the Planning Authority has been satisfied that suitable alternative lands have been secured for this sporting facility).

A minimum of 1.2ha shall be reserved for education use.

A minimum of 0.4ha shall be provided for a community uses, including a community centre of not less than 500sqm and an equipped playground of not less than 400sqm.

A minimum of 1ha shall be provided for employment uses. Generally, this shall comprise office/studio/surgery type development of the highest architectural quality and layout. A minimum of 0.4ha of this area shall however be reserved for local service and incubator businesses.

The car park associated with the employment area shall be so located and designed to facilitate tourist use during non-business hours and shall at all times remain available and open for this use.

A maximum of 156 residential units may be provided on the remainder of the site (8.8ha).

The development shall be delivered in phases such that adequate education, community and employment facilities are provided for each phase; in particular, the school site shall be provided in Phase 1 accompanied by no more than 50% of the residential development and the employment facilities shall be provided no later than Phase 2 accompanied by no more than an additional 75% of the residential units.

A maximum of two vehicular access points onto Local Primary Road L1010 (Enniskerry – Glencree) shall be permitted.

To achieve a sense of place and allow for visual diversity any residential application should provide for a number of identifiable and distinct housing estates (not exceed 60 units), each containing different house designs within an overall unified theme.

Full geotechnical and archaeological assessment of the lands shall be undertaken prior to any development taking place.

Development proposals within the Parknasilloge Action Area shall take cognisance of the requirement to maintain the rate, quality and general areas where groundwater recharge occurs in order to maintain or enhance the recharge supplying the groundwater-dependent habitats of Knocksink Wood SAC. This shall be achieved through the review of existing hydrogeological assessment(s) and the carrying out of new hydrogeological assessment as necessary to inform the development of an appropriate SuDS system(s) throughout any development site and taking into account the cumulative in-combination impact of other development.” (emphasis added)

40. The LAP states, at Chapter 10:

“‘Action Area Plans’ have been identified in this plan. ‘Action Area Plans’ are to be the subject of comprehensive (not piecemeal) integrated schemes of development that allow for the sustainable, phased and managed development of the Action Area during the plan period. Separate applications for sections of each Action Area Plan will not be considered until an overall Action Area Plan has been agreed in writing with the Planning Authority unless it can be shown that any application will not undermine the achievement of the overall objectives for that Action Area and would contribute its ‘pro rata’ share of the public infrastructure and facilities set out in this plan for that specific area.”

The AAP

41. Subsequent to the adoption of the LAP, AAP2 was adopted by the Council.

42. Area Action Plan 2: Parknasilloge is located west of Enniskerry town centre and measures approximately 13.5 ha. In referring to it, the LAP states inter alia:

“This action area plan shall be developed as a residential, open space, employment and community zone in accordance with the following criteria:

• A minimum area of 2ha shall be reserved as Active Open Space (this is the size of the area currently occupied by Enniskerry GAA). In the event of the relocation of the GAA to an alternative location, this quantum of AOS shall, as a minimum, be maintained within the overall action area. Any alternative AOS shall be maintained available for general public use, shall be suitably sized to allow for organised sporting activities i.e.

pitches, courts etc and shall be so located within the action area so as to be easily accessible by the wider community. (Any proposals to redevelop the existing GAA grounds will only be considered when the Planning Authority has been satisfied that suitable alternative lands have been secured for this sporting facility).

• A minimum of 1.2ha shall be reserved for education use.

• A minimum of 0.4ha shall be provided for a community uses, including a community centre of not less than 500sqm and an equipped playground of not less than 400sqm.

• A minimum of 1ha shall be provided for employment uses. Generally, this shall comprise office/studio/surgery type development of the highest architectural quality

and layout. A minimum of 0.4ha of this area shall however be reserved for local service and incubator businesses.

• The car park associated with the employment area shall be so located and designed to facilitate tourist use during non-business hours and shall at all times remain available and open for this use.

• A maximum of 156 residential units may be provided on the remainder of the site (8.8ha).

• The development shall be delivered in phases such that adequate education, community and employment facilities are provided for each phase; in particular, the school site shall be provided in Phase 1 accompanied by no more than 50% of the residential development and the employment facilities shall be provided no later than Phase 2 accompanied by no more than an additional 75% of the residential units.

…

• To achieve a sense of place and allow for visual diversity any residential application should provide for a number of identifiable and distinct housing estates (not exceed 60 units), each containing different house designs within an overall unified theme.

…”

43. The relationship between the AAP and LAP is relevant to the issue before the court in this case. The Applicants have challenged the validity of the AAP but the LAP is unchallenged.

The APP, which was prepared by John Spain Associates, Planning and Development Consultants, was approved by Wicklow County Council by Chief Executive’s Order in 2019. John Spain Associates also act as consultant for Capami.

44. Having quoted from the AAP 2 in the LAP, the Memorandum which was approved by Chief Executive Order, stated inter alia:

“The submitted Action Area Plan does not outline in detail how all of the above criteria are to be achieved, in particular it is noted that the proposal does not include a detailed phasing plan however following assessment of the Action Area Plan submitted for approval I am satisfied that the proposed plan would not prohibit the achievement of these objectives, that the submitted plan for these lands can be approved subject to the approval requirements of the Planning Authority.

In particular, it is recommended that the development of these lands be phased in accordance with the following:

Phase 1

• 50% of Residential Units (max: 78no. units)

• School Site

Phase 2

• Employment uses

• Additional 75% of the remaining residential units (58no. units)

• Community uses (including the provision of a community centre of not less than 500sqm and an equipped playground of not less than 400sqm)”

45. On 2nd April 2019, John Spain Associates were informed that the AAP had been approved and that planning applications may be submitted in relation to the area. It was stated that:

“Any application must take cognizance of this Action Plan and also all relevant development control standard policies within the County Development Plan 2016-2022 and the Bray Municipal District Local Area Plan 2018 as applicable.”

The Board’s Decision

46. The Board Order does not refer to the phasing provisions at all. The provisions are referred to in the Direction, not by way of the normal narrative but as a note added to the final page (p. 20) stating:

“Note: The Board had regard to the phasing objectives of Area Action Plan 2:

Parknasillogue of the Bray Municipal Local Area Plan 2018, and considered that subject to compliance with Condition Number 4 set out above, the proposed development would be in keeping with the spirit and intent of the phasing provisions, and would not materially contravene the Local Area Plan.”

47. The text of the LAP is not engaged with in the Board’s note, despite the fact that a material contravention had previously been identified within the process, including by the Board’s Inspector. The conclusion of no material contravention is not supported by reference to any part of the text, or even by an attempt at giving it a textual foundation, but referring to the “spirit and intent”.

Validity of the finding of no material contravention

48. One striking feature of this case is that virtually all participants in the process – the Developer, the Elected Members, the Chief Executive of the Council and the Inspector – considered that there was a material contravention. Only the Board demurred, and their

conclusion was based not on the text of the written statement but on the “spirit and intent”

of the LAP.

49. In the Material Contravention Statement submitted on behalf of Capami it was stated:

“When taken cumulatively with the completed and permitted development in Enniskerry, the proposed development would represent a material contravention with respect of core strategy of both the Wicklow County Development Plan 2016 and Bray Municipal District Local Area Plan 2018 and objective HD6 of the Wicklow County Development Plan 2016.” (para. 3.4)

50. Para 3.5 of the Material Contravention Statement states that the subject proposal would represent 34% of existing housing stock (2016) and 46% of required housing stock to 2025.

It stated:

“In this context the subject proposal may be considered a material contravention in terms of the number of units being delivered (compared to the specified number of units for AA to set out in the previous section) and the overall zoned residential land in Enniskerry.”

51. The Material Contravention Statement also states that the proposed development is a material contravention of the Area Action Plan in terms of objectives/ phasing provision.

52. AAP2 provides that:

“The development shall be delivered in phases such that adequate education, community and employment facilities are provided for each phase; in particular, the school site shall be provided in Phase 1 accompanied by no more than 50% of the residential development in the employment facilities shall be provided no later than Phase 2 accompanied by no more than an additional 75% of the residential units.”

53. Having referred to the Local Area Plan where it provides that a minimum of 1ha shall be provided for employment uses and a minimum of 0.4ha of this area shall be reserved for local services and incubator businesses, the Material Contravention Statement states that there may be a material contravention of the LAP with respect to Policy E2 and the employment use provisions of the LAP. Similarly, at para. 33.13, the Material Contravention Statement states that as the community centre is not provided for in the proposed development, it may be considered that there is a material contravention of Objective HD 8 of the Wicklow County Development Plan 2016, and the community centre provisions of the LAP related to the action area to lands.

54. The issue of phasing of the development, which was stated not to be consistent with the Plan, was raised in the observations submitted to the Board.

55. The Chief Executive recommended refusal of the SHD application stating that, while the development of these lands is acceptable in principle, the scheme as currently proposed is not recommended. The Chief Executive stated that the proposed development would amount to a material contravention of the objectives for the lands as set out in the local area plan as the proposed scheme fails to meet the criteria set out for the development of the lands within Action Area 2 Parknasilloge, for reasons including, as noted above, that:

“the proposed phasing plan is inadequate in that it fails to adequately demonstrate that the proposed residential development is to be linked to the provision of the physical infrastructure, social / community infrastructure and employment that is required to ensure the sustainable, phased and managed development of the Action Area lands.”

56. The Chief Executive advised that the development as proposed was contrary to the objectives of the LAP and would be contrary to proper planning and sustainable development of the area. The Chief Executive also stated that the proposed phasing plan did not comply with the controls specified in the AAP and as such was contrary to the objectives of the LAP. It was stated that:

“Any development of on these lands should be appropriately phased so that the residential units are provided in tandem with the physical and social infrastructure and services that are necessary to ensure that the settlement of Enniskerry can accommodate, in a sustainable manner, the significant increase in population that would result from this development. The proposed phasing programme is insufficient in this regard.”

57. The Inspector addressed the issue of phasing at para 12.2.11 – 13 and further at para.12.11 in assessing Material Contravention. In particular, the Inspector stated:

“12.2.11 The Local Area Plan envisages the sustainable, phased and managed development of the action area plan lands during the plan, requiring development to be delivered in phases such that adequate education, community and employment facilities are provided for each phase. Under the terms of the Local Area Plan, the school site is required to be provided in phase one accompanied by no more than 50% of the residential development, while the employment facilities shall be provided no later than phase two accompanied by no more than an additional 75% of the residential units. The agreed action area plan appears to follow this approach. With respect to zoning and land use, Chapter 11 of the local area plan stipulates that phasing should generally be undertaken in an orderly and sustainable manner and that in certain situations development can be phased to promote an appropriate balance of employment, residential and service facilities.

12.2.12 The Planning Authority, Elected Members and observers raised concerns with respect to the extent of residential units proposed, which they consider not be suitably linked with the provision of social and physical infrastructure, as well as employment uses, envisaged in the action area plan. The proposed development does not feature the provision of a school or employment uses and it would be reasonable to state that the proposed development would materially contravene the stated local area plan phasing requirements for these lands. The applicant addresses the issue of phasing in their statement of material contravention and they refer to correspondence submitted with the application, which they assert to confirm that the other action area plan lands would be made available for residential, school, employment and other development to meet phasing requirements when it is considered viable to do so.”

58. The Inspector noted at para. 12.11.20:

“With respect to phasing proposals and the absence of a community centre from the development, my conclusions above refer to the proposed development materially contravening the provisions of the Local Area Plan.”

59. At para. 12.11.18 - 23 the Inspector considered that it was open to the Board to grant permission for the proposed development in material contravention of the phasing objectives of the LAP, which he considered did not conflict with the Development Plan. The Inspector considered that such a material contravention could be justified under section 37(2)(b)(i), but that sub-paragraphs (ii), (iii) and (iv) of section 37(2) would not apply. He concluded that the grant of permission for the proposed development could be justified as a development of strategic or national importance in that it would positively assist in securing objectives of the National Planning Framework by focussing development into key urban centres, contributing to housing supply and delivering compact growth in urban centres.

60. The Inspector recommended the inclusion of the following Condition 4:

“(a) The development shall be carried out on a phased basis, in accordance with a phasing scheme, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. The first phase of the development shall consist of not more than 75 residential units and the crèche / childcare facilities, as well as the main spine road (street 1) and upgrade works along Glencree Road (L- 1011)…

Work on any subsequent phases shall not commence until substantial completion of Phase 1 or prior phase or such time as the written agreement of the planning authority is given to commence the next phase. Details of further phases shall be as agreed in writing with the planning authority.

Reason: To ensure the timely provision of services and facilities, for the benefit of the occupants and residents of the proposed units and the satisfactory completion of the overall development.”

61. As noted above, the Board disagreed with its Inspector in relation to the existence of a material contravention in respect of phasing. In the Note appended to the Direction, the Board stated that it “…had regard to the phasing objectives of Area Action Plan 2:

Parknasillogue of the Bray Municipal Local Area Plan 2018, and considered that subject to compliance with Condition number 4 set out above, the proposed development would be in keeping with the spirt and intent of the phasing provision and would not materially contravene the Local Area Plan”.

62. Condition 4 provides: “4. (a) The development shall be carried out on a phased basis, in accordance with a phasing scheme, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. The first phase of the development shall consist of not more than 75 number residential units and the creche and childcare facilities, as well as the main spine road (Street 1) and upgrade works along Glencree Road (L-1011 ). The phasing scheme shall identify how vehicular access, as well as a sufficient quantum of parking spaces and open spaces to serve residents, occupants and visitors for each phase of the development, would be provided throughout the construction phases of the development, as well as all services, including drainage and external lighting.

(b) Work on any subsequent phases shall not commence until substantial completion of Phase 1 or prior phase or such time as the written agreement of the planning authority is given to commence the next phase. Details of further phases shall be as agreed in writing with the planning authority.

Reason: To ensure the timely provision of services and facilities, for the benefit of the occupants and residents of the proposed units and the satisfactory completion of the overall development.”

63. The critical context is that this is an SHD application. It is only open to the Board to grant permission for a development which materially contravenes the Development Plan or the LAP, in accordance with section 9(6)(c) of the 2016 Act and section 37(2)(b) of the 2000 Act.

64. Section 9(6) of the 2016 Act provides:

“(6) (a) Subject to paragraph (b), the Board may decide to grant a permission for a proposed strategic housing development in respect of an application under section 4 even where the proposed development, or a part of it, contravenes materially the development plan or local area plan relating to the area concerned.

(b) The Board shall not grant permission under paragraph (a) where the proposed development, or a part of it, contravenes materially the development plan or local area plan relating to the area concerned, in relation to the zoning of the land.

(c) Where the proposed strategic housing development would materially contravene the development plan or local area plan, as the case may be, other than in relation to the zoning of the land, then the Board may only grant permission in accordance with paragraph (a) where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development.” (emphasis added)

65. The rationale of section 9(6) of the 2016 Act and of section 37(2) of the 2000 Act is that the Board cannot grant permission which contravenes the applicable CDP/ LAP made in accordance with the 2000 Act (i.e. with the benefit of public participation and adoption of the CDP / LAP by resolution of the Elected Members) unless certain conditions are met.

66. Therefore, in general, and in the light of Sherwin, the correct approach where an issue of material contravention potentially arises is:

(i) The decision-maker must consider the text of the applicable Plan and decide whether there is a material contravention.

(ii) That decision must be based on a correct interpretation of the Plan and must be rational and otherwise lawful.

(iii) If there is a material contravention, the decision-maker must comply with any special procedure that exists to permit the grant of permission notwithstanding that contravention, if it wishes to come to such a conclusion.

(iv) The exercise of any such procedure must also be rational and otherwise lawful.

67. In the present case, the Board did not go beyond the first and second stages. The consideration of and engagement with the Plan was limited to the point of inadequacy. As the Board did not accept the Inspector’s reasoning in that regard, it was required to provide its own reasons for the decision. The Board relied only on the LAP’s “spirit and intent”

rather than the actual wording of the Plan. Consequently perhaps, but in any event more fundamentally, the conclusion of no material contravention was based on a misinterpretation, or alternatively was irrational.

68. The decision is simply not reconcilable with the text of the LAP, properly interpreted – that is indirectly acknowledged by the Board having spoken of the “spirit” of the LAP in granting permission. Unless a clear intention is discernible, the debatable spirit of a document is not normally something that prevails against its clear text, and does not do so in this case. I am therefore driven to the conclusion that either the Board misunderstood the Plan (an error of law reviewable de novo by the court) or its conclusion of no material contravention was irrational in the legal sense. I would prefer to formally base my decision on misconstruction of the Plan, but if I am wrong about that, the conclusion of no material contravention was unreasonable.

69. I can turn now to the main issues raised by way of defence.

Defence 1 - the AAP as an answer

70. Insofar as it is suggested that the adoption of the AAP is an answer, or that the present proceedings are a collateral challenge to the AAP, the simple answer to that is, as the Applicants correctly submit, the adoption of the AAP did not change, and could not legally have changed, the phasing requirements in the LAP.

71. It is not envisaged by the LAP that the criteria would be overridden by the contents of the AAP- 2, when agreed, nor would that be a procedure entirely free from debate even if that was envisaged.

72. It is accepted by the Council, in its Statement of Opposition and the affidavit of Fergal Keogh, that the AAP-2 is not a statutory plan and that it is not binding on the Council or the Board in considering planning applications in respect of the lands to which it relates.

73. The basis on which I am deciding the issues which arise under Core Ground 2 is that those issues are based on an assumption that the AAP-2 is valid.

74. Furthermore, section 9(6) of the 2016 Act and section 37(2) of the 2000 Act refer to a material contravention of the CDP/ LAP, not of subordinate or non-statutory plans such as the AAP-2. Therefore, the LAP remains the operative document and so it does not make sense to construe the challenge as inherently or in fact amounting to a collateral attack on the AAP. The issue of whether a challenge to, or collateral attack on, an AAP either requires an extension of time, or should benefit from one, simply does not arise under this Core Ground.

Defence 2 – Condition 4

75. To the extent that it is argued that Condition 4 saves this, I do not consider that it ensures compliance with the LAP either. Capami classifies Condition 4 as a points of detail condition, and notes that the Applicants have not challenged the validity thereof.

76. This condition applies only to phasing of the development permitted by the specific grant.

It does not have the effect of requiring the provision of employment, education or community facilities in a subsequent phase.

77. It was submitted that the Council can approve phasing proposals under Condition 4 which will deliver community facilities in tandem with the proposed development. But all that could be achieved by Condition 4 is the delaying (potentially until beyond the life of the permission) of phase 2 and subsequent phases until the Council agrees those phases may commence. This condition does not require development of employment, community or educational facilities, nor does it prevent the developer from proceeding with phase 2 until it, or someone else, proceeds to develop employment, community or educational facilities on other lands within the area covered by the AAP-2.

78. As the Applicants say in submissions, in my view correctly:

“... the application of Condition 4 in no way addresses the phasing deficiency. All it does is limit the size of Phase 1, ensure the delivery of the creche in that phase (as is separately required by the LAP) and address the timing of road upgrade works. It does not make provision for “adequate education, community and employment facilities” at Phase 1 or any other phase as there is no proposal to develop such facilities before the Board. Nor does it provide for the school site to be provided in Phase 1 or provide for, still less require the provision of, employment facilities at Phase 2 or at all, bearing in mind the permission is for 219 residential units rather than the 156 identified as the maximum in the LAP.

None of this brings the proposed development into compliance with the requirements of the LAP. The LAP provides for the delivery of “facilities” and not, per the letters furnished by the Developer, vague references to unidentified lands being made available to unidentified persons for unspecified purposes at some unidentified time.

The proposed development is for 219 residential units on a site identified as suitable for no more than 156 residential units. The school site is not being delivered in Phase

1. There is no provision for any, let alone any adequate, education, community or employment facilities in either Phase 1 or Phase 2 (or any other future Phase). In simple terms the proposed development is for 140% of the residential development on site and 0% of the education, community and employment facilities identified by the LAP as required to be delivered in tandem with residential development on the Parknasilloge lands.”

79. The Board submits “The relevant question is whether the development is consistent with the objectives of the LAP. If the development is consistent and does not frustrate any potential future applications within the area identified in the AAP-2, then it is not in material contravention of the LAP.” Even if the proposed development can be regarded as Phase 1 for the purposes of the LAP and AAP, and that Phase 2 may be carried out on foot of a different planning permission, it does not address the issue of the delivery of development “in phases such that adequate education, community and employment facilities are provided for each phase.” For the reasons set out herein (including in the following paragraphs) I cannot accept the Board’s submission that the development, as permitted by the impugned grant, does not materially contravene the phasing requirements of the LAP. Therefore, the question which the Board accepts must be posed – whether the development is consistent with the objectives of the LAP – must be answered in the negative.

Defence 3 – correspondence making lands available

80. The Board said:

“The Planning Report states (§6.34) that a letter was included in Appendix 4 (letter dated 29 April 2019 from PWC as Receiver of Bluetone Properties Limited) which stated that lands allocated to educational use and community use would be made available to the Department of Education (the "Department") and WCC at any stage and therefore the proposal is compliant with the phasing strategy, as these lands are made available in Phase 1. Similarly, lands facilitating employment uses will be delivered when viable.”

81. I do not consider this provides an answer to the issue of contravention of the LAP with respect to phasing. The provision of letters indicating that the Department of Education does not require lands for a school now is not sufficient to satisfy the phasing requirements of the

LAP. The fact that the developer would make land available, whether the Department or Council want to use it or not, is not something that satisfies the phasing requirements of the LAP. This is an issue which can be considered by the Council in making the next LAP.

82. As the Inspector pointed out, at para. 12.2.12, “The proposed development does not feature the provision of a school or employment uses and it would be reasonable to state that the proposed development would materially contravene the stated Local Area Plan phasing requirements for these lands.”

Defence 4 – onus of proof

83. The Board submits that if there is a contravention of the LAP, the onus is on the Applicants to demonstrate that any such contravention is material, by reference to Sherwin v. An Bord Pleanála [2023] IEHC 26.

84. As noted above, the decision as to no material contravention is not reconcilable with the text of the LAP and/or is irrational, so this argument does not arise. The Board did not find that there was a contravention which did not reach the threshold of materiality, but rather it found that the development was consistent with the spirit and intent of the LAP.

85. In the circumstances, there is no separate issue that saves the decision in this case by reference to the distinction between material and immaterial contraventions, because contrary to the approach required by Sherwin, the Board failed to identify the contravention in the first place.

86. In any event, no reasonable decision-maker could doubt the materiality of the point.

87. The issue of material contravention of the LAP in relation to phasing was raised as an issue by the developer in the Material Contravention Statement, in observations submitted to the Board, by the Chief Executive and Elected Members and the Inspector also found such a material contravention to arise. I am satisfied that, applying the Roughan test (Roughan v.

Clare County Council, unreported, High Court, Barron J. 18th December 1996), which has been repeatedly applied by the Superior Courts (Byrnes v. Dublin City Council [2017] IEHC 19, Ballyboden v. An Bord Pleanála [2022] IEHC 7; Jennings v. An Bord Pleanála [2022]

IEHC 14; Grafton Group plc. v An Bord Pleanála [2023] IEHC 725, that this is a material contravention.

88. In Roughan, Barron J. held that the materiality of a contravention of the development plan depends on the grounds on which the proposed development is, or might reasonably be expected to be, opposed by local interests. He explained that the local population is entitled to the benefit of the right to be consulted during the procedure of making a development plan and that “to allow any alteration of the plan which would not have been anticipated by those reading the plan would be in breach of the rights of the local population to such consultation.” (p. 6).

89. As Hedigan J. held in Ryan v. Clare County Council [2009] IEHC 115 “… objections are only relevant when considering the materiality of a contravention as opposed to assessing whether one exists.” (para. 42)

Defence 5 - discretion

90. The Board’s final argument in defence of the Applicants’ claim for relief on this ground is that relief should be refused as a matter of discretion if the Applicants succeed on this ground because the Applicants had not raised phasing as an issue in their submission to the Board, nor have they provided evidence that they will be prejudiced by the phasing proposals for the development. As a matter of fact, it does appear correct that they had not raised it as an issue – but it was raised by Carl Strickland (Exhibit JW1 tab 18d). However, more fundamentally, compliance with the statutory provisions is an autonomous obligation on a planning decision-maker. It does not depend on such compliance being raised by anybody (although I agree that failure to mention something may be relevant to discretion). Nor is prejudice to a particular applicant required for relief to be granted, albeit that it could be relevant to discretion. I do not consider that the reasons advanced by the Board are sufficient to tip the balance against the grant of discretionary relief in this case. Having regard to the nature of development plans and LAPs as an environmental contract between the Council and the public, and given the importance placed on those plans by both the 2000 and 2016 Acts, very weighty adverse factors would be required to refuse relief where a planning

decision-maker has granted permission in material contravention of the CDP/LAP other than in compliance with the requirements of section 9(6) of the 2016 Act. The Board does not have jurisdiction to grant permission for an SHD in material contravention of the

CDP/LAP unless it complies with section 9(6) of the 2016 Act i.e. it may only do so “where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development.” The obligation to satisfy itself that if section 37(2)(b) applied, that it would grant permission is an autonomous one. I consider that the balance clearly favours the grant of certiorari here.

Conclusion

91. Despite the vast volume of material placed before the court, and number of issues raised, the case itself, particularly that raised at Core Ground 2, is not a complex one. Rather it is a straightforward application to particular facts of the Supreme Court decision in Sherwin that a decision maker must correctly understand and engage with the provisions of a plan. The LAP states that relevant development “shall be delivered in phases such that adequate education, community and employment facilities are provided for each phase”. (emphasis added). This development manifestly does not comply with that. Therefore, insofar as the Board held that there was no material contravention, it misconstrued the LAP, or if I am wrong about that, it was an irrational conclusion. There can be no question but that the contravention was material. I am satisfied that the Applicants have overcome the burden of establishing that the contravention was material. I do not regard Condition 4 as being capable to bringing the development as permitted into compliance with the LAP, nor do the various items of correspondence, or the adoption of the AAP circumvent that material contravention.

92. Having regard in particular to the importance of the LAP in the statutory scheme, and the autonomous obligation on the Board to comply with section 9(6) of the 2016 Act, I do not consider that there are sufficiently weighty discretionary factors to deny the Applicants relief.

93. In those circumstances it is not necessary to decide the other issues.

Order

94. For those reasons, I shall make an order of certiorari against the Board in the terms sought at relief 1, that is an order of certiorari by way of application for judicial review quashing the decision of the first named Respondent of 13th October 2022 granting planning permission to the first Notice Party for the construction of 219 residential units, a crèche and ancillary works at lands at Parknasillogue, Enniskerry, Co. Wicklow (ABP Ref 312652- 22).

95. I would propose making no Order against the Council. The modularised reliefs against the State Respondents will be struck out as it is not necessary to determine them to determine the proceedings.

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

Emily Farrell