High Court dismisses judicial review where applicant challenges planning refusal on grounds already decided in Phase 1 review.

[2025] IEHC 642

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000041]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

AAI BANESHANE LIMITED

APPLICANT

AND

AN COIMISIÚN PLEANÁLA

RESPONDENT

AND

FINGAL COUNTY COUNCIL

NOTICE PARTY

(II)

Date of impugned decision: 13 November 2024

Date proceedings commenced: 14 January 2025

Date of main hearing: 6 November 2025

Date draft judgment circulated: 10 November 2025

JUDGMENT of Humphreys J. delivered on Friday the 21st day of November 2025

1. For unexplained reasons (but one infers in order to split the project to avoid strategic housing

development thresholds), the developer divided the development site into two parts and made two

separate planning applications, which were refused (the primary ground of refusal was in effect that

each half didn’t make sense as a stand-alone application). Maintaining the fiction that these were

two distinct applications, both decisions were challenged in separate judicial reviews. All issues in

this judicial review have been addressed in the Phase 1 judicial review so the result here follows

from that case.

Judgment history

2. The present judgment should be read in tandem with the AAI Baneshane I judgment (AAI

Baneshane v. An Coimisiún Pleanála [2025] IEHC 641 (Unreported, High Court, 21 November

2025)).

Geographical context

3. The proposed development consists of the construction of 91 built-to-rent apartments and

associated site works at the same site as Phase 1 in Canterbury Gate, Old Navan Road, Mulhuddart,

Dublin 15.

Facts

4. On 19 October 2022, the applicant applied for permission to the council to construct 91

build-to-rent apartments at Canterbury Gate, Mulhuddart, Dublin 15 (reg. ref. FW22A/0237) (Phase

2) (https://www.pleanala.ie/en-ie/case/315450).

5. On 1 December 2022, the council refused permission for Phase 2.

6. In December 2022, the applicant appealed the decisions in respect of Phases 1 and 2 to the

commission and they were assigned references ABP 315425-22 and ABP-315450-23 respectively.

7. On 30 January 2023, the council made submission in respect of both appeals and stated that

in its view permission should be refused on the grounds that the development would be premature,

until such time as the route for the proposed N3 Littlepace to M50 upgrade was finalised.

8. On 30 January 2024, the commission’s inspector carried out an inspection of the site for

Phases 1 and 2.

9. On 28 February 2024, the inspector completed reports in respect of Phases 1 and 2 and

recommended that permission be granted.

10. On 22 May 2024, the commission invited the applicant and the council, pursuant to s. 137

of the Planning and Development Act 2000 (the 2000 Act), in both appeals, to make submissions on

the new development plan that had come into effect and the Sustainable Residential Development

and Compact Settlement Guidelines for Planning Authorities (the 2024 Guidelines) that came into

effect in January 2024 (https://www.opr.ie/wp-content/uploads/2024/01/Sustainable-Residential-

Development-and-Compact-Settlements-Guidelines-for-Planning-Authorities.pdf).

11. On 7 June 2024, the council responded to the commission’s s. 137 notice and stated that it

had no further submissions to make.

12. On 17 June 2024, the applicant responded to the commission’s s. 137 notice.

13. On 20 June 2024, the commission, pursuant to s. 131 of the 2000 Act, invited the council to

comment on the response of the applicant in respect of the appeals concerning Phases 1 and 2.

14. On 10 July 2024, the council responded to the s. 131 notice in respect of the appeals

concerning Phases 1 and 2, and stated that it had no further submissions to make.

15. On 20 August 2024, the commission issued a further request pursuant to s. 137 of the 2000

Act to both the applicant and the council in respect of the appeal concerning Phase 1, stating the

notice superseded the notice of the 22 May 2024. In addition to requesting comment on the issues

raised in the original notice, the applicant was invited to comment as to how residential amenities

requirements for Phase 1 would be met in the absence of Phase 2.

16. On 6 September 2024, the council replied to the s. 137 notice recording that it had no further

submissions to make.

17. On 13 September 2024, the applicant responded to the s. 137 notice, stating how the

recreational amenities requirement for Phase 1 would be met in the absence of Phase 2.

18. On 16 September 2024, the commission, pursuant to s. 131 of the 2000 Act, invited the

council to comment on the responses of the applicant.

19. On 19 September 2024, the council replied stating that it had no further comment.

20. On 21 October 2024, the inspector prepared an addendum report in respect of Phase 2. He

continued to recommend that permission be granted for Phase 2.

21. On 23 October 2024, the inspector prepared an addendum report in respect of Phase 1. He

continued to recommend that permission be granted for Phase 1.

22. On 4 November 2024, the commission met in respect of both the appeals concerning Phase

1 and Phase 2, and made a direction that permission be refused for both Phases.

23. On 13 November 2024, the commission made an order in both appeals refusing permission.

24. The applicant has brought two sets of proceedings, the present case being AAI Baneshane

II challenging the refusal for Phase 2, and a second case, AAI Baneshane I challenging the refusal

for Phase 1.

Procedural history

25. Much of the procedural history in the first set of proceedings is relevant here.

26. The proceedings were issued on 14 January 2025.

27. On 20 January 2025, I granted the applicant leave to seek judicial review in proceedings

concerning Phase 1 and Phase 2.

28. The matter was heard on 6 November 2025 in tandem with AAI Baneshane I.

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

of the lawyers involved for their unfailingly courteous, professional and helpful assistance. As I have

previously sought to make clear, insofar as any points advanced are not being accepted in this or

any other given judgment, that is solely to do with the inherent merits of such points and is no

reflection on those instructed to convey such points, a distinction that most certainly should be, and

I believe generally is in fact, self-evident to all concerned.

30. On 10 November 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The rules of engagement in such a situation are that the draft is

without prejudice to the right of the court ultimately to issue a judgment in whatever form or with

whatever content it considers appropriate.

31. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile

in writing within 7 days and should not be to reargue the substance (submissions to that effect will

be disregarded) but are confined to matters such as:

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

issues;

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

both modes;

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

(d) any redaction of personal information that the party wishes to request;

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

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

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

such material should not lead to the proposed conclusion; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

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

if the proposed wording causes any significant issue for a party for any identified

reason.

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

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

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

further notice following the expiry of the 7 day period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are requested to

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

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

concession which parties can engage with but must do so with immediate dispatch, discipline and

focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to

elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker

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

para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are

prone, to approach any such case on the tacit assumption that only procedures which approximate

to a criminal trial are fair, and anything which departs from that is somehow dubious" (O’Donnell J.

in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1

I.L.R.M. 245, 780).

33. For the avoidance of doubt, draft judgments are not public domain materials and, while they

can be shared between the lawyers concerned and their clients, they are not intended for publication

(indeed given their lack of status it is impracticable to refer to them, even in the context of

considering such drafts in other litigation, until the judgment is formally issued) or for any other

transmission save for the legitimate purposes of the litigation. Therefore anyone with information as

to the text, content or proposed outcome of any draft is required not to transmit such information

to others save solely by way of private transmission for the legitimate purposes of the litigation and

subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021]

UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication

of draft judgments is in the interests of the administration of justice). The contents of this paragraph

constitute an immediately effective direction of the court to the parties and anyone having notice of

the draft judgment with effect from the date of circulation of the draft.

34. The mention date to review matters following the foregoing was to be 17 November 2025,

changed to 18 November 2025 at the applicant’s request. The applicant sought various changes to

the Phase I judgment and then said that these should be reflected in paras. 42 and 45 of this

judgment, but no changes is necessary here as those paragraphs will simply incorporate the

discussion in the Phase I judgment.

Relief sought

35. The reliefs sought are as follows:

“(i) An order of certiorari quashing the decision of the first respondent ‘the Board’ dated

the 13th November, 2024, refusing permission in respect of application ref ABP 315450-23.

(ii) An Order remitting the application to the Board to be determined in accordance with

law.

(iii) Such Declaration(s) of the legal rights and/or legal position of the Applicant and/or

Respondents and/or persons similarly situated as the Court considers appropriate.

(iv) A declaration that the protective cost provisions contained in s.50B of the Planning

and Development Act 2000 ‘the PDA 2000’, and/or the Environment (Miscellaneous

Provisions) Act 2011 as amended and/or O.99 of the Rules of the Superior Courts and/or

section 169 of Legal Services Regulation Act 2015, as interpreted in light of Article 9 of the

Aarhus Convention, apply to these proceedings.

(v) If necessary, an order for discovery.

(vi) Such further or other order.

(vii) Liberty to Apply.

(viii) An Order in respect of the costs of these proceedings.”

Grounds of challenge

36. The core grounds of challenge are as follows:

“PART I – CORE GROUNDS

DOMESTIC CORE GROUNDS

CORE GROUND 1

The conclusion of the Board that the location of the site for the proposed development was

in relative isolation from high frequency public transport, and consequently not suitable to

cater for the density ranges that were open for consideration in circumstances where the

site was within a ‘City-Suburban/Urban Extension’ for the purposes of the Sustainable

Residential Development and Compact Settlements Guidelines for Planning Authorities 2024,

(‘the Compact Settlements Guidelines 2024’), was irrational and ultra vires the Board, as

the evidence before the Board was not capable of supporting such a conclusion. Further, or

in the alternative, the Board erred in law by failing to have regard to, and/or misinterpreting

the true meaning and effect of, the definition of accessible location in Table 3.8 of the

Compact Settlements Guidelines 2024, in breach of s.34(2)(ia) of the Planning and

Development Act 2000, as amended (‘the PDA 2000’).

CORE GROUND 2

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and/or its obligation to give reasons

in accordance with Constitutional justice, in failing to explain adequately or at all, the basis

for its disagreement with the conclusion of the Inspector that the site the subject of the

application for permission was an ‘accessible location’ within the meaning of Table 3.8 of the

Compact Settlements Guidelines 2024.

CORE GROUND 3

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and or its obligation to give reasons

as a requirement of Constitutional justice, in failing to identify the basis for its conclusion

that the proposed layout on the site represented a ‘poor disposition of units on the overall

site’, in circumstances where the Inspector had assessed and indicated his approval of the

proposed layout.”

The impugned decision

37. The impugned decision provides as follows (emphasis added):

“Decision

REFUSE permission for the above proposed development in accordance with the reasons and

considerations set out below.

Reasons and Considerations

Having regard to the relevant provisions of the Fingal Development Plan 2023-2029 and to

the density provisions of the Sustainable Residential Development and Compact Settlements

Guidelines for Planning Authorities issued by the Department of Housing, Local Government

and Heritage in January 2024, it is considered that the proposed development of itself

constitutes a poor disposition of units on the overall site. This is compounded by the

overall scheme, including the elements proposed under the concurrent planning application

(An Bord Pleanala reference number ABP-315425-23/planning register reference number

FW22A/0228), which would lead to a net density of 184 dwellings per hectare,

significantly in excess of the range which would generally be considered for such

a site under the Ministerial Guidelines. Having regard to the specific location of the site,

which it is considered to be ‘City - Suburban/Urban Extension’ as set out in the Guidelines

and in relative isolation from high frequency public transport, it is considered that the

proposed development would not be in accordance with the density ranges which are open

for consideration. The proposed development would, therefore, be contrary to the proper

planning and sustainable development of the area.

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

considered it appropriate to consider the density of the overall scheme, taking account

of the concurrent planning applications, (An Bord Pleanala reference number ABP-315425-

23/planning register reference number FW22A/0228 and An Bord Pleanala reference number

ABP-315450-23/planning register reference number FW22A/0237), on the subject site,

which it is considered would meet the definition of a ‘City - Suburban/Urban Extension’

location as set out in the ‘Sustainable Residential Development and Compact Settlements

Guidelines for Planning Authorities’ issued by the Department of Housing, Local Government

and Heritage in January 2024. In such suburban areas, densities in the range 40 dwellings

per hectare to 80 dwellings per hectare (net) shall generally be applied. While the Board

noted that densities of up to 150 dwellings per hectare (net) shall be open for consideration

at 'accessible' suburban/urban locations, it is considered that the subject site fails to meet

this test, given the distance to existing or planned high frequency public transport services.”

Preliminary issues

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

“PRELIMINARY ISSUE OF THE RESPONDENT

It is the Commission’s position that the Applicant has failed to challenge all of the reasons

for the refusals and, in particular, has failed to challenge the Commission’s approach in

respect of the calculation of density with applies across both Decisions.

On any reading of the Commission Orders, it is clear that the concurrent density breached

the range in the Compact Settlement Guidelines and that the Commission refused permission

on this basis. The Commission Orders clearly stated that a density of 184 dph is ‘significantly

in excess of the range which would generally be considered for such a site under the

Ministerial Guidelines’. Clearly, the terms ‘generally be considered’ refers to the density

level of up to 150 dph, which is ‘open for consideration’ under Table 3.1 of the Compact

Settlement Guidelines. Contrary to what is advanced by the Applicant, the suggestion that

the Commission must have been referring to the other category of density being 40-80 dph

which is to be ‘generally applied’ is simply not made out.

RESPONSE OF THE APPLICANT

The Applicant argues that this plea is contrived and fashioned as an ex post facto analysis

to evade the consequence of irrational/unlawful reasoning on the part of the Respondent.

In particular, the Applicant submits that the Respondent is attempting to impose on its own

decision a meaning it simply cannot bear.

The 2024 Guidelines stipulate in Table 3.1 ‘it is a policy and objective of these Guidelines

that residential densities in the range 40 dph to 80 dph (net) shall generally be applied at

suburban and urban extension locations in Dublin and Cork, and that densities of up to 150

dph (net) shall be open for consideration at “accessible” suburban / urban extension

locations (as defined in Table 3.8)’

The Respondent in its decision determined that the site of the proposed development was

not an accessible location, being in its words ‘in relative isolation from high frequency public

transport’. Consequent on that finding the Respondent concluded that the proposed density

of 184 units per hectare would be ‘significantly in excess of the range which would generally

be considered for such a site under the Ministerial Guidelines.’ i.e. the range of 40dph to

80dph.

That the Board excluded the upper range of up to 150 dph from its consideration consequent

on its finding that the site was not an accessible location is made explicit later in its decision

where it states:-

‘While the Board noted that densities up to 150 dwellings per hectare (net) shall be open for

consideration at “accessible” suburban/urban locations, it is considered that the subject site

fails to meet this test, given the distance to existing or planned high frequency public

transport services.’

Notwithstanding the clarity of what the Respondent says in its own decision, that it formed

the view that it was confined to considering the density range generally applicable to a

suburban/urban location, i.e. 40dph to 80 dph, the Respondent now argues that the when

it stated that the proposed density was ‘significantly in excess of the range which would

generally be considered for such a site’ the word ‘generally’ in its decision referred to the

density of 150 dph which is ‘open for consideration’ under Table 3.1 (Respondent’s

submissions, §62). The Respondent argues that because the applicant has not put in issue

this conclusion, but only the more narrow question of whether the site was an accessible

location, the case must be dismissed in limine.

With respect, this argument is unstateable. The reasoning of the Board is crystal clear. It

finds that the site is not an accessible location and consequent on that finding concludes that

it is confined to assessing what density would be appropriate for the site by reference to the

lower range of 40dph to 80 dph and concludes that the proposed density of 184 dph would

be significantly in excess of that range. The Applicant submits that if it is successful in

demonstrating to this Court that the Respondent’s conclusion that the site at issue not an

accessible location, it follows, logically, that the conclusions of the Respondent on the issue

of density that flowed from that premise must be deficient also.”

39. For reasons adverted to in the Phase I judgment, I am not completely persuaded that this

is a fatal objection here, but overcoming that obstacles only gets the applicant to the next, and fatal,

set of obstacles.

Domestic law issues

Core ground 1 – misinterpretation of guidelines/ irrationality

40. Core ground 1 is:

“CORE GROUND 1

The conclusion of the Board that the location of the site for the proposed development was

in relative isolation from high frequency public transport, and consequently not suitable to

cater for the density ranges that were open for consideration in circumstances where the

site was within a ‘City-Suburban/Urban Extension’ for the purposes of the Sustainable

Residential Development and Compact Settlements Guidelines for Planning Authorities 2024,

(‘the Compact Settlements Guidelines 2024’), was irrational and ultra vires the Board, as

the evidence before the Board was not capable of supporting such a conclusion. Further, or

in the alternative, the Board erred in law by failing to have regard to, and/or misinterpreting

the true meaning and effect of, the definition of accessible location in Table 3.8 of the

Compact Settlements Guidelines 2024, in breach of s.34(2)(ia) of the Planning and

Development Act 2000, as amended (‘the PDA 2000’).”

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

“POSITION OF THE APPLICANT

The Applicant’s position is that the Inspector, when reporting on Phases 1 and Phase 2

engaged with and applied the 2024 Guidelines in a textbook fashion. First, he noted that as

the proposed development was within 500 metres of high frequency public transport it was

an accessible location within the definition of that term in Table 3.8 of the 2024 guidelines

and that accordingly a density of up to 150 dph was open for consideration. Then the

Inspector reasoned that it was possible to exceed the stated limit of 150dph in the 2024

guidelines, having regard to the particular suitability of the proposed location and the fact

that the scheme was Build to Rent, which typically involved higher density.

In contrast to the Inspector, the Respondent, when analysing the issue of density, concluded

that the development was ‘in relative isolation from high frequency public transport’. There

was no evidence available to the Respondent to support this conclusion, nor has the

Respondent been able in its opposition papers or submissions to point to any such evidence.

The Respondent argues in reply that the definition of accessible location in Table 3.8 allows

for a subjective case by case assessment and its reasoning was the product of that subjective

assessment. The Applicant has submitted that there are three difficulties with this position.

First, the conclusion of the Inspector that the site was within 500 metres of High Frequency

Public Transport and consequently an accessible location within the meaning of the 2024

guidelines, is not compatible with the Respondent’s conclusion that the site is in relative

isolation from high frequency public transport, as both are an assessment of the distance of

the site for the proposed development from high frequency public transport. Secondly,

nowhere does the Board record that it was departing from the stated definition of accessible

location in the 2024 guidelines. Finally, while Table 3.8 of the 2024 Guidelines does allow

for a decision maker to respond to the outcome of what is termed a local assessment, it

does not admit of the possibility of displacing the distance of 500m as being the

measurement against which to consider if a location is within sufficient distance of high

frequency public transport. In that regard Table 3.8 specifically states that this

measurement has been stated ‘to allow for consistent application.’

In addition to these matters, the Respondent failed to provide any reasons as to why it

concluded that the site was not an accessible location, which was a main issue in the appeal

and one in respect of which the Inspector had come to a diametrically opposed conclusion.

POSITION OF THE RESPONDENT

Core Ground 1

Core Ground No. 1 and the associated sub-pleas are premised on a selective reading of the

reasons for refusal and fail to address the contents of Table 3.1 of the Compact Settlement

Guidelines, which identify that a density range of 40 – 80 dph is appropriate in areas

identified as City – Suburban/Urban Extension with it being permissible to have a range of

‘up to 150 dph’ where the location is an ‘accessible location’ as defined in Table 8.3. Having

regard to Table 3.1 of the Compact Settlement Guidelines, there are two categories of

density ranges. At ‘suburban and urban extension locations in Dublin and Cork’ the range

‘generally applied’ is 40-80 dph (net) and at ‘“accessible” suburban / urban extension

locations’ density of up to 150 dph (net) shall be open for consideration.

The Commission (and the Inspector) determined that the concurrent density for Phase 1 and

Phase 2 was 184 dph (net), and the Applicant has not challenged this aspect of the

Commission’s Decisions. In the circumstances, the complaint raised in Core Ground 1 simply

does not arise as the proposed development exceeds 150 dph net the proposed density is

significantly in excess of any of the ranges identified for a site of this nature in the Compact

Settlement Guidelines.

Further, this ground of challenge is advanced on the basis that the definition of ‘accessible

location’ provided for in Table 3.8 of the Compact Settlement Guidelines is a set objective

assessment. This is not correct. As explained in the Compact Settlement Guidelines ‘The

characteristics detailed in Table 3.8 are not exhaustive and a local assessment will be

required.’. The Compact Settlement Guidelines advocate for a subjective case-by-case

assessment of whether the site of the Proposed Development is at a ‘accessible location’,

which is what the Commission did in this Appeal. The Commission clearly found that based

on a density of 184 dph of the Proposed Development, that ‘it is considered that the proposed

development would not be in accordance with the density ranges which are open for

consideration’. The analysis of the Commission is consistent with the Compact Settlement

Guidelines, and no legal error, which would justify the grant of relief, has been identified in

Core Ground 1.”

42. This ground corresponds to ground 1 in the Phase I case and fails for similar reasons so no

further elaboration is necessary.

Core ground 2 – lack of reasons regarding accessible location

43. Core ground 2 is:

“CORE GROUND 2

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and/or its obligation to give reasons

in accordance with Constitutional justice, in failing to explain adequately or at all, the basis

for its disagreement with the conclusion of the Inspector that the site the subject of the

application for permission was an ‘accessible location’ within the meaning of Table 3.8 of the

Compact Settlements Guidelines 2024”

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

“POSITION OF THE RESPONDENT

Similarly to Core Ground 1, even if the Applicant were correct on this ground that the

Commission erred in not accepting that the Proposed Development is at an ‘accessible

location’ (which is not accepted), then the permissible density is 150 dph and having not

challenged the Commission’s calculation on density, this ground of challenge cannot avail

the Applicant.

Contrary to what is advanced by the Applicant, the Commission provided a specific reasoning

for not accepting the Inspector’s recommendation to grant permission and expressly stated

why it did not accept the Inspector’s view that the Proposed Development was at an

‘accessible location’ within the meaning of Table 3.8 of the Compact Settlement Guidelines.

The Commission’s reason for not accepting the Inspector’s view on ‘accessible location’,

having regard to Table 3.8 of the Compact Settlement Guidelines (i.e. that it was in relative

isolation from public transport), is adequate and meets its statutory obligations arising from

section 34(10)(b) of the 2000 Act and/or the general obligation to give reasons has been

discharged. Put simply, the Applicant can be in no doubt why the Commission refused

permission and departed from the conclusions of the Inspector in respect of density.”

45. This ground corresponds to ground 2 in the Phase I case and fails for similar reasons so no

further elaboration is necessary.

Core ground 3 – lack of reasons regarding layout

46. Core ground 3 is:

“CORE GROUND 3

The Board acted ultra vires s.34(10)(b) of the PDA 2000, and or its obligation to give reasons

as a requirement of Constitutional justice, in failing to identify the basis for its conclusion

that the proposed layout on the site represented a ‘poor disposition of units on the overall

site’, in circumstances where the Inspector had assessed and indicated his approval of the

proposed layout.”

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

“POSITION OF THE APPLICANT

The applicant contends that a reference to unspecified provisions of the Fingal Development

Plan 2023-2029 and to unspecified density provisions of the Sustainable Residential

Development and Compact Settlements Guidelines for Planning Authorities, does not inform

the Applicant as to why Respondent came to an opposing conclusion of the Inspector on the

matter of layout. The absence of any reasoning on the part of the Board is in sharp relief to

the detailed reasons given by the Inspector as to why the layout of the development over

the entire site in respect of the issues of flood risk, access to daylight, overlooking, internal

traffic and open spaces/planting, was acceptable. In circumstances where the Respondent

did not provide a reasoned view on this a main issue and an evaluative judgment, the

decision is infirm, whether as breach of s.34(10)(b) of the PDA 2000 or the principles of fair

procedures.

The Applicant has argued in its written submissions that the Respondent’s SOO only serves

to highlight the substance of this ground of challenge in that the Respondent was not able

to identify in its pleading the provisions of the Development Plan and guidelines that the

Board has referenced in its decision, but could do no more than house its pleaded reply in

generic and boiler plate pleading.

The Respondent in its written submissions, presumably in response to this criticism, has

sought to migrate to a new ground of defence in relation to this Core Ground of challenge.

Specifically, in §78 of its composite submissions, the Respondent now argues that the

Respondent and the Inspector addressed two different matters: the Respondent considered

that the layout of the Phase 1 development was poor, while the Inspector only considered

the layout of the site overall. In that way the Respondent did not take a different view to

the Inspector on the issue of layout, but rather addressed an issue the Inspector ignored.

The Applicant objects to the Respondent advancing this argument as it is nowhere pleaded.

Without prejudice to that objection, the Applicant contends that the point is artificial and

contrived, in as much the Inspector engaged in a detailed way with the layout of Phases 1

and 2. The Respondent provides no reasoned analysis of any kind to support its conclusion

that the layout of Phase 1, and the development as a whole, was poor. Accordingly, it is not

that the Respondent and the Inspector addressed different issues, but that the Respondent

failed to reason its conclusions at all.

POSITION OF THE RESPONDENT

It is the Commission’s position that it stated expressly in each decision that one of the

reasons for refusal was due to the ‘poor disposition of units on the overall site’. The Applicant

contends that further narrative was required here by the Commission and / or that what the

Commission has said here is unclear. Neither are correct.

The alleged lack of understanding on the Applicant’s part of what the Commission meant

when refusing permission on this basis is simply not made out where the Applicant pleads

its understanding of this reason for refusal and which aligns which the Commission’s position.

It is clear from §31 of the Statement of Grounds that the Applicant fully understands the

meaning of the Commission Decisions and that this statement relates to the poor layout of

the units of the Proposed Development of itself (i.e. the single phase of the overall

development which was the subject of the application for planning permission) in respect of

the overall site in a context where permission for the overall scheme was not sought by way

of a unified application for planning permission but rather by way of two concurrent planning

applications. In other words, examining the layout of each of the phases of development on

their own merits, rather than collectively (as done by the Inspector), the Commission

considered each development to be poorly laid out having regard to the totality of the overall

site.

So, while the Applicant contends that the Commission’s Statement of Opposition has brought

some clarity to the matters, that is simply not correct, as it is clear that the Applicant has

always understood the reasoning of the Commission. In that regard, the issue identified by

the Commission is not one which was addressed by the Inspector, as the Inspector only

considered the layout of the development by reference to both phases together.

Consequently, this is not an issue in respect of which the Commission reached a different

conclusion to the Inspector, rather the Commission’s reason is directed at a different issue,

one which is fully understood by the Applicant, demonstrating that the obligation to give

reasons has been discharged.”

48. This ground corresponds to ground 3 in the Phase I case and fails for similar reasons so no

further elaboration is necessary.

Relationship between reasons

49. While there was some debate about the relationship between the reasons they are clearly

related to some extent, but that doesn’t matter because both of them survive.

Summary

50. One can summarise this case very simply – the points in this judicial review fail for the same

reasons set out in the Phase I judicial review.

Order

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

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission within 7 days, the

foregoing order be perfected forthwith thereafter on the basis of no order as to costs

including reserved costs;

(iii) pursuant to O. 103 r. 40(4) RSC, for the avoidance of doubt, any unsuccessful

application to vary any provisional order as to costs proposed in the judgment may

give rise to an adverse award of costs (in the case of an award against a costs-

protected applicant, such award would not give rise to a positive balance at a level

that is prohibitively expensive);

(iv) perfection of the substantive provisions of the foregoing order be postponed pending

any post-judgment applications; and

(v) the matter be listed on Monday 1 December 2025 to confirm the foregoing.