High Court quashes planning decision for private amenity space breach but dismisses other grounds including water pollution claims.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

THE HIGH COURT PLANNING & ENVIRONMENT JUDICIAL REVIEW [2025] IEHC 655 Record Number: 2023/1449 JR IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000 AND THE PLANNING AND DEVELOPMENT (HOUSING) AND RESIDENTIAL TENANCIES ACT 2016

Between Fernleigh RA CLG Applicant and An Coimisiún Pleanála Respondent and Ironborn Real Estate Limited Notice Party

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 28 NOVEMBER 2025

Contents

Judgment of Mr Justice David Holland delivered 28 November 2025 ................................................................ 1

INTRODUCTION ................................................................................................................................................... 2

CORE GROUNDS LISTED ....................................................................................................................................... 3

GROUND 5: PRIVATE AMENITY SPACE – MATERIAL CONTRAVENTION ........................................................ 5

G5 CDP, Guidelines & Statutory Provisions ................................................................................................. 5

G5 Ironborn Design Statement .................................................................................................................... 8

G5 Fernleigh’s Submissions to the Board & Inspector’s Report .................................................................. 8

G5 Arguments: XJS interpretation of “Reduction”, Caselaw & Decision .................................................... 9

GROUND 4: DAYLIGHT/SUNLIGHT – MATERIAL CONTRAVENTION & IRRELEVANT CONSIDERATION ...... 15 G4 CDP, Applicable Standards, Ironborn’s Sunlight, Daylight & Shadow Assessment, Fernleigh

Submissions to the Board & Inspector’s Report............................................................................................ 15

G4 Arguments ............................................................................................................................................ 19

G4 Decision ................................................................................................................................................ 20

GROUND 8: DUAL ASPECT UNITS – MATERIAL CONTRAVENTION ............................................................. 23

GROUND 1: ZONING FOR WORKS REQUIRED BY UISCE EIREANN - MATERIAL CONTRAVENTION ............. 28

G1 Introduction .......................................................................................................................................... 28

G1 Inspector’s Report ................................................................................................................................ 31

G1 Fernleigh’s Case .................................................................................................................................... 32

G1 Commission’s Case ............................................................................................................................... 33

G1 Discussion & Decision ........................................................................................................................... 34

GROUND 9: EFFECT ON WATERWAYS - NO NOTICE TO INLAND FISHERIES IRELAND ................................ 36

G9 Introduction .......................................................................................................................................... 36

G9 Legislation & Some Commentary ......................................................................................................... 39

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

G9 Inspector’s Report ................................................................................................................................ 41

G9 Fernleigh’s Case .................................................................................................................................... 42

G9 Commission’s case, Discussion & Decision........................................................................................... 43

Commission’s Opinion ............................................................................................................................... 43

Ius Tertii ..................................................................................................................................................... 44

Other Standing/Similar Points ................................................................................................................... 46

Kemper & Atlantic Diamond ...................................................................................................................... 47

Mandatory Obligations – Breach not de minimis ...................................................................................... 48

Evidential Deficit ........................................................................................................................................ 48

CONCLUSION ................................................................................................................................................. 49

INTRODUCTION

1. The Applicant (“Fernleigh”) seek certiorari quashing the Commission’s order1 dated 20 October 2023 (“the Impugned Decision”) granting SHD2 planning permission, pursuant to the 2016 Act,3 to the Notice Party

(“Ironborn”) for 422 Build-to-Rent (“BTR”) apartments, a childcare facility and associated works at lands off

Aiken’s Village, Stepaside, Dublin 18 (“the Site” and “the Proposed Development”).

2. Ironborn is not participating in the proceedings. The Dún Laoghaire-Rathdown County Development Plan 2022 – 2028 (the “CDP”) applies. In Fernleigh #1, a previous SHD permission for the Site was quashed on grounds related to daylight/sunlight, public transport capacity and open space.4

3. Ironborn’s planning application for permission,5 submitted on 6th September 2022, included, inter alia, a Planning Report, a Statement of Consistency and a Material Contravention Statement.6 Ironborn’s planning report7 describes its planning application as for 438 BTR apartments arranged in two courtyard buildings ranging in height from 2 - 8 storeys, with the majority of the buildings being 3 - 6 storeys, with two focal elements at 7 storeys and 8 storeys. Between the two courtyard buildings there is a large area of public open space. The car parking is in two single level basements, all on a site of circa 3.32 ha. It says the proposal is largely the same as that which resulted in the quashed permission. The primary difference is that a floor has been omitted from Block F (reduced from 5 to 4 storeys) resulting in a reduction in the number of units from 445 to 438. Ironborn’s planning report8 describes the key amendments to the proposed scheme following pre-planning consultation with the Commission as follows:

1 ABP Ref 314546-22 - underlying Direction dated 8th September 2023 (BD-013615-23).

2 Strategic Housing Development within the meaning of the 2016 Act.

3 The Planning and Development (Housing) and Residential Tenancies Act 2016.

4 Fernleigh Residents Association & Brian Cassidy v An Bord Pleanála [2023] IEHC 525 - as summarised at §360.

5 Pursuant to section 4 of the 2016 Act.

6 Both required by s.8(1)(a)(iv) of the 2016 Act as follows:

“(iv) stating that the application contains a statement—

(I) setting out how the proposal will be consistent with the objectives of the relevant development plan or local area plan, or

(II) where the proposed development materially contravenes the said plan other than in relation to the zoning of the land, indicating why permission

should, nonetheless, be granted, having regard to a consideration specified in section 37(2)(b) of the Act of 2000,”

7 Written before the result of the earlier judicial review was known.

§7.1.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

• Reduction in height of Block F (onto Thornberry Road) from 5 storeys to 4 storeys.

• Omission of 74 balconies.

• Amendment to window opening heights from 2.25m to 2.4m.

• Associated adjustments to elevation treatments. The omission of balconies and increase of window sizes was said to improve daylighting and sunlighting of the units. Fernleigh characterised this as sacrificing private amenity space (the balconies) to daylight and sunlight.

4. A stream runs generally south-west of the Site. It is given various names in the papers. The EPA apparently call it the Barnaculla Stream. It is also known as the Barnacullia Stream9 and the Ballyogan Stream.10 I will refer to it as the Ballyogan Stream and will amend any citations accordingly. The Ballyogan Stream joins the Carrickmines Stream about 2.8 km to the south-east of the Site. The Carrickmines Stream joins the Shanganagh River at Cherrywood and it outfalls to the Irish Sea at Killiney Bay about 7.3 km from the subject site.

5. Fernleigh is an association of residents of the Fernleigh residential estate immediately east of and adjoining the Proposed Development. Fernleigh say they do not oppose residential development of the Site but that the Proposed Development would overdevelop it. By planning consultants, Fernleigh made a submission dated 10 October 2022, in response to the planning application.

6. The Commission’s Inspector, by report dated 29 June 2023, recommended that planning permission be granted subject to 28 Conditions. He recommended by Condition 2 the omission of the proposed Block E,11 - which would result in permission for 422 units in 8 blocks. The Commission agreed and granted permission accordingly. It screened out any need for EIA12 and AA.13

CORE GROUNDS LISTED

7. Fernleigh is not pursuing Core Grounds 2, 3, 6 and 7 and argued the remaining grounds in a revised order. Thus reordered, the core grounds are as follows:

GROUND 5: PRIVATE AMENITY SPACE – MATERIAL CONTRAVENTION

9 Inspector’s Report §13.5.8.

10 Hydrological & Hydrogeological Qualitative Risk Assessment p5.

16 units – 10 1-bed units and 6 2-bed units.

12 Environmental Impact Assessment in accordance with the EIA Directive - Directive 2011/92/EU* on the assessment of the effects of certain public

and private projects on the environment as amended by Directive 2014/52/EU.

13 Appropriate Assessment in accordance with Article 6(3) of the Habitats Directive - Directive 92/43/EEC on the conservation of natural habitats and of

wild fauna and flora.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

The impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.6 of the CDP in relation to private amenity space. The Board erred in law in concluding that the proposed development did not materially contravene §12.3.6 of the CDP. The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in granting permission without considering whether such material contravention could be justified by reference to the requirements of section 37(2)(b) of the 2000 Act and/or the decision was invalid as it was on foot of a planning application which failed to identify in the material contravention statement that the planning application materially contravened §12.3.6 of the CDP in breach of section 8(1)(a)(iv)(II)

of the 2016 Act.

GROUND 4: DAYLIGHT/SUNLIGHT – MATERIAL CONTRAVENTION & IRRELEVANT CONSIDERATION

The impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.4.2 of the CDP …14 which the Board is required to comply with under section 9(3) of the 2016 Act.

The Board erred in law in concluding that the proposed development did not materially contravene §12.3.4.2.

The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in granting permission without considering whether such material contravention could be justified by reference to the requirements of section 37(2)(b) of the 2000 Act and/or took into account an irrelevant consideration/failed to take into account a relevant consideration.

GROUND 8: DUAL ASPECT – MATERIAL CONTRAVENTION

The impugned decision is invalid as it constitutes a material contravention of §12.3.5.1 of the CDP in relation to dual aspect units for which the Board could only have granted permission once it had been identified in the Statement of Material Contravention and the Board satisfied itself that the requirements of section 37(2)(b) of the 2000 Act had been complied with and/or the decision is invalid as it was made on foot of a planning application which failed to identify in the material contravention statement that the planning application materially contravened §12.3.5.1 of the CDP in breach of section 8(1)(a)(iv)(II) of the 2016 Act.

GROUND 9: EFFECT ON WATERWAYS - NO NOTICE TO INLAND FISHERIES IRELAND AS STATUTORY CONSULTEE

The impugned decision is invalid as no notice was given to statutory consultees pursuant to Article 295(h)(i) of the 2001 Regulations when read with section 8(1)(b)(ii) of the 2016 Act as required in respect of a development that might have a significant effect on waterways.

14 The following words are omitted as Fernleigh abandoned its case in this regard: “and/or did not comply with the requirements of SPPR3 of the Urban

Development and Building Heights: Guidelines for Planning Authorities and/or Sustainable Urban Housing: Design Guidelines for New Apartments

(2020)”.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

GROUND 1: OPEN SPACE - ZONING – MATERIAL CONTRAVENTION – CONDITION 14 UNCERTAIN

The decision to grant permission (ABP Reference 314546) dated 20th October 2023 (‘the impugned

decision’) is invalid as it constitutes a grant of permission that contravenes a Zoning Objective of the Dun Laoghaire-Rathdown County Development Plan 2022-2028 (‘the CDP’) in relation to Objective F “To preserve and provide for open space with ancillary active recreational amenities”

contrary to the requirements of section 9(6)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016 (‘the 2016 Act’) which the Board is precluded from granting permission for and/or Condition 14 is void for uncertainty and/or the proposed development otherwise constitutes a material contravention of Objective F that could only have been granted once identified in the Statement of Material Contravention and once the Board had complied with the requirements of section 9(6)(c) of the 2016 Act.

GROUND 5: PRIVATE AMENITY SPACE – MATERIAL CONTRAVENTION

The impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.6 of the CDP in relation to private amenity space.

The Board erred in law in concluding that the proposed development did not materially contravene §12.3.6 of the CDP.

The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in granting permission without considering whether such material contravention could be justified by reference to the requirements of section 37(2)(b) of the 2000 Act and/or the decision was invalid as it was on foot of a planning application which failed to identify in the material contravention statement that the planning application materially contravened §12.3.6 of the CDP in breach of section 8(1)(a)(iv)(II) of the 2016 Act.

G5 CDP, GUIDELINES & STATUTORY PROVISIONS

8. CDP §12.3.6 requires that:

• “All proposed BTR accommodation must comply with SPPR715 and SPPR8 of the Apartment Design Guidelines 2020.”16

• All BTR applications must “clearly demonstrate compliance with the guidelines”.

• “All proposed units must provide for private open space in the form of a balcony, terrace, winter garden or roof garden. A reduction in the area of private open space serving each unit will only be considered in

SPPR stands for Specific Planning Policy Requirement as provided for in s.28(1C) PDA 2000 to the effect that s.28 guidelines “may contain specific

planning policy requirements with which planning authorities, regional assemblies and the Board shall, in the performance of their functions, comply.”

In case of conflict, SPPRs override development plan content.

16 Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities issued under Section 28 of the Planning and

Development Act, 2000 (as amended) December 2020. While there are later such guidelines, the parties agree that the 2020 version applies.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

instances where at least an additional 10% high quality, useable, communal and/or additional compensatory communal support facilities are provided.”

9. CDP §12.8.3.3.(ii) as to “Private Open Space for Apartment Developments” states that Table 12.11 below sets out minimum requirements in accordance with the Apartment Design Guidelines 2020 and

“[p]rivate amenity space for apartments shall accord with the requirements set out in Table 12.11” … “[e]very

apartment shall have private amenity space in the form of … balconies at upper levels”.

Type/No. of bedrooms Minimum m2 Studio 4 One 5 Two (3 persons) 6 Two (4 persons) 7 Three 9 Four + 12 CDP Table 12.11: Balconies / Winter Gardens: Minimum Private Open Space Standards for Apartment Developments.

Importantly, it will be seen from the foregoing that the CDP requirements are per unit – not aggregated as a proportion of the entire development – every apartment must have its own “private open space”.

10. CDP §12.8.3.3(ii) also acknowledges that a BTR scheme may avail “of lower private amenity space based on the nature of the use”.17

11. Further content of CDP §12.8.3.3(ii) describes exceptional instances in which a unit may have no individual private open space:

“In certain circumstances, apartments which have limited or no individual private open space – for example where it is proposed to sub-divide an existing building into apartments - communal and private open space requirements may be combined partially or otherwise) to provide for communal amenity areas.

In exceptional cases in ‘urban centres’, for reasons of maintenance of streetscape character, or the preservation of residential amenity of adjoining property, the Planning Authority may accept the provision of communal open space in lieu of private open space.

17 The full text of the paragraph reads “[w]here a Built to Rent scheme avails of lower private amenity space based on the nature of the use a condition

should be attached to any grant of permission to state that planning permission shall be sought for a change of tenure to another tenure model

following the period specified in the covenant.”

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

In exceptional cases, where the Planning Authority accepts the provision of private open space in the form of semi-private/communal space - the provision of at least ‘balconettes’ (with inward opening ‘French’ doors) and/or access to winter gardens, for access to the open air – will be required. This would only be accepted in developments where an existing building is converted for apartment use and the building could not support balcony structures (e.g. a Protected Structure).”

Clearly, the Proposed Development does not fall within these exceptions.

12. The Apartment Design Guidelines 2020 state:18 o “a policy requirement that private amenity space shall be provided in the form of gardens or patios/terraces for ground floor apartments and balconies at upper levels.”

o “The minimum required areas for private amenity space are set out in Appendix 1.”

o “A minimum depth of 1.5 metres is required for balconies, in one useable length to meet the minimum floor area requirement under these guidelines.” Appendix 1 tabulates “Minimum floor areas for private amenity space” in the same terms as CDP Table 12.11 set out above.

13. As to BTR development, SPPR8 of the Apartment Design Guidelines 2020 requires:

“(ii) Flexibility shall apply in relation to the provision of a proportion of the storage and private amenity space associated with individual units as set out in Appendix 1 and in relation to the provision of all of the communal amenity space as set out in Appendix 1, on the basis of the provision of alternative, compensatory communal support facilities and amenities within the development. This shall be at the discretion of the planning authority. In all cases the obligation will be on the project proposer to demonstrate the overall quality of the facilities provided and that residents will enjoy an enhanced overall standard of amenity”.

14. Section 9(3) of the 2016 Act defines an SPPR19 and provides that when deciding an SHD application the Board shall apply any relevant SPPR and do so instead of any differing provisions of the relevant development plan “to the extent that they so differ”.

15. Section 9(6) of the 2016 Act enables the Board to grant SHD permission “even where the proposed development, or a part of it, contravenes materially the development plan” other than as to zoning but s.9(3) permits it to do so only where it considers that, if s.37(2)(b) PDA 200020 were to apply, it would grant permission for the proposed development. S.37(2)(b) PDA 2000 effectively provides that the Board may

§3.35 et seq.

19 (c) In this subsection “specific planning policy requirements” means such policy requirements identified in guidelines issued by the Minister to

support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall

proper planning and sustainable development.

Planning and Development Act 2000 as amended.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

grant permission in material contravention of the Development Plan only where it considers that certain criteria are satisfied.21

G5 IRONBORN DESIGN STATEMENT

16. Ironborn’s Design Statement22 records that:

• 74 balconies have been removed from selected apartments for a variety of reasons:

o to generally improve daylighting effects and sunlight penetration to apartments in particular locations in the scheme;23 o to reduce potential overlooking to neighbouring houses in some locations; and o to reduce bulk and massing by removing sets of stacked balconies from selected facades, including where balcony stacks are close to each other.

• Apartments with omitted balconies switch to “Juliet” balcony types - a glazed guardrail panel externally to the main opening window section.

• Compensatory measures include resident amenity facilities and communal open space which are described.24

G5 FERNLEIGH’S SUBMISSIONS TO THE BOARD & INSPECTOR’S REPORT

17. Fernleigh’s expert planning submissions to the Board25 recited relevant CDP content and noted that Ironborn’s Design Statement recites that 74 balconies have been removed from apartments across the scheme. Fernleigh comments that a very large number of apartments will have no private open space area – which is unacceptable and non-compliant with the CDP and the Apartment Design Guidelines which require a given quantum of private open space per unit. Ironborn’s argument that the omitted balconies can be replaced by “Juliet” balconies26 is unacceptable under CDP §12.3.6 and the total loss of private open space to an apartment is not a “reduction” that can be mitigated by community facilities elsewhere. Fernleigh then explains why, in its view, Ironborn’s justifications for the removal of the balconies result from and confirm overdevelopment of the Site.

18. The Board’s Inspector reported27 that:

21 As, here, the Board did not invoke s.9(6) and s.37(2)(b), I need not set out the criteria.

22 pp9 & 69.

23 Drawings exhibited show that balconies at times cast shadows on windows below.

24 The list of Compensatory Measures includes “Improved Lighting Conditions In apartments where there is no overhanging balcony above improved

daylight conditions will be experienced.” This is not a compensatory measure as envisaged by the CPD or the guidelines – it is an intended benefit of

the omission.

25 Submissions 10 October 2022. §9.5.4.4 Balconies / private open spaces have been removed.

26 Consisting of the inclusion of a glazed guardrail panel externally to the main opening window section.

§11.5.15 et seq.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

• “Private amenity space has been omitted from 74 units (c.17%28) in an effort to improve daylight / sunlight standards and elevational treatment. The remaining majority of units (83%) comply with the required open space standards.”

• The Apartment Design Guidelines set out the normal minimum private open space requirements – by way of balconies of minimum depth of 1.5 metres at upper levels - and is consistent with the CDP.

• Nonetheless SPPR 8(ii) of the Apartment Design Guidelines states that “flexibility” shall apply as to the provision of “a proportion of the private amenity space associated with individual units on the basis of the provision of alternative, compensatory communal support facilities and amenities in the development.”

• The CDP also states that a reduction in the area of private open space serving each unit will only be considered in instances where at least an additional 10% high quality, useable, communal and/or additional compensatory communal support facilities are provided.

• The Planning Authority has not raised any significant objection in this regard, but some third-party submissions contend that the complete removal of private amenity space for individual units would materially contravene the CDP.

• “In my opinion, a reduction in private open space should not preclude its omission in some cases and therefore this would not materially contravene the CDP.”

• The compensatory facilities to be provided sufficed.

• Accordingly, I am satisfied that the private amenity space proposals can be accepted subject to the provision of alternative, compensatory communal support facilities and amenities.

G5 ARGUMENTS: XJS INTERPRETATION OF “REDUCTION”, CASELAW & DECISION

19. Fernleigh’s case is simple - the CDP, on an XJS29 interpretation as if by an intelligent informed layperson:

• Requires private open space on a per unit basis and in every unit.

• Permits reduction of the size of private open space in a unit but not its complete omission save in exceptional cases into which the Proposed Development does not fall.

• Omission of private open space in 74 units – 18% of the units – materially contravenes the CDP.

• The fact and quantum of omission suffices – one need not consider the quality of communal and recreational amenities asserted to be compensatory of such omission.

20. Though Fernleigh primarily argued on an XJS basis, Fernleigh calls in supplementary aid an old Australian case (1908) on statutory interpretation. In Eastern Extension30 a “full” statutory power in the Government of Tasmania to “reduce” charges for telegrams transmitted via the plaintiff’s submarine cable

In fact 17.53% - closer to 18%. Though nothing turns on the issue, Inspectors should know that it is proper to round up not down when the decimal

value exceeds 0.5.

29 Re XJS Investments Limited [1986] IR 750. See also Lanigan v Barry [2019] 1 IR 656; Dublin Cycling Campaign CLG [2020] IEHC 587; and Spencer Place

[2020] IECA 268.

Eastern Extension Australasia and China Telegraph Company Ltd v Commonwealth [1908] 6 CLR 647, [1908] HCA 59.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

between Tasmania and Australia was held not to include a power to reduce them to nothing or abolish them.31 Griffiths CJ said that the power to “reduce” does not:

“etymologically, include a power to reduce to nothing or abolish. I express no opinion on the question of how far reduction, not being abolition, could be carried. Apart from the guarantee32 indeed, the point would not be arguable. If one person agrees to render services for another at a specified rate of charge, with a power to that other to reduce the rate, it cannot be contended that the power may be exercised so as to require the services to be rendered gratuitously.”

Barton J said:

“What then is done when the Government in its exercise "reduces" the scale of charges? Primarily the reduction of a charge means its diminution. When we are offered goods at reduced prices we do not expect to get them for nothing, however cheap they may have been before the reduction. But then it is said that the power may be exercised by successive steps until next to nothing remains, so that when an infinitesimal sum is reached by way of residuum, the charges have been practically abolished. To this there is a plain answer. Assuming the successive exercises of the power, there must be something left, and when that ultimate something is reached, ex vi terminii there is neither a reduction to nothing nor an abolition. In truth, the power to reduce involves a direction to leave something, and therefore entire abolition is not an exercise of the power granted. After reduction, therefore, the rate is the residuum”.

He described the foregoing as the “primary meaning of the term to be construed”.

O'Connor J said that:

• The answer in the case “will depend upon the meaning to be given to the word ‘reduce’.”

• The Commonwealth argued that that in its ordinary meaning the power to "reduce" must involve the power to abolish, because, after reduction has been carried almost to the vanishing point there will still be power to reduce what remains until nothing is left.

• The word “reduce” in its ordinary meaning does not mean “abolish”.

• “It might be difficult to determine exactly how near to the point of extinction of rates the power of reduction might be lawfully carried in accordance with the agreement. But that question does not arise in the present case. Between reducing a scale of charges to the lowest appreciable amount and its total abolition there is a definite line of demarcation.”

21. As to that last observation of O’Connor J, in my view the Commission attempted a similar argument here – pushing the concept of reduction to absurdity or an infinitesimal or unusable residuum and pointing to the absence of a quantified lower absolute limit of balcony space. Like O’Connor J, I do not think the issue arises here. Merely on an obiter basis, I doubt the argument will prove a real problem in practice as it is difficult to see that a reduction to the absurdity of an unusably small balcony would, in any real planning or other sense, differ from the entire omission of a balcony. If nothing else, the irreducible residuum of a

31 By Order in Council they were "reduced to nothing and abolished”.

On which we need not here dwell.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

balcony is that at least one person must be able to get onto it. Indeed, an oddity of the Commission’s argument against absurdity is that, imagining progressive reduction in balcony size to absurdity (by which I mean non-utility), the Commission favours travelling on through the absurd zone to entire omission instead of the more logical course of avoiding the absurdity by stopping at its border and going no further. The answer to the reduction ad absurdum argument is that flexibility doesn't extend to the absurd, nor below it to omission.

22. The Commission counters Eastern Extension with the considerably more recent decision of the English Court of Appeal in Northern Engineering.33 In that case, Eastern Extension was considered but, in a different context, a different result ensued. The company decided to reduce its capital by repaying the capital paid up on those shares and accrued dividends to the preference shareholders in accordance with their rights on a winding up and cancelling their shares. It petitioned the High Court for confirmation of that

decision. Some preference shareholders opposed confirmation on the basis that the decision varied their rights without their consent. The question ultimately depended on whether, as the shareholders alleged, Article 7(b) of the company's articles of association, in providing that the rights attached to any class of shares shall be deemed to be varied by “the reduction of the capital paid up on those shares”, encompassed the decision in question such that their consent was required.34 It was common ground that a reduction of

capital, partial or total, did not constitute a variation of class rights, and that Article 7(B) sets out to deem it

to be a variation and so to require the shareholder’s consent. The company argued that “reduction” means diminution or lessening from one number, quantity or amount to a smaller number, quantity or amount. It does not include diminution or lessening to zero. That, it is said, is extinction, not reduction. The Court of Appeal held the decision to repay the entire capital on the shares was a reduction and the shareholders’ consent was required.

23. It is useful to distinguish Millet J’s analysis of the ordinary meaning of “reduction” from his analysis of its contextual meaning. As to its ordinary meaning, he said:

• In its ordinary meaning the word “reduction” connotes diminution and not extinction.

• The Oxford English Dictionary gives the relevant meaning of “reduce” as to lower, diminish or lessen to a smaller amount, extent etc, or to a single thing.

• Griffith CJ in Eastern Extension had said that the “words ‘shall have power to reduce’, do not etymologically include a power to reduce to nothing or abolish.” Millett J cited Bartone J as cited above and cited O’Conner J to the effect that the word in its ordinary meaning does not mean abolish.

• “I have no doubt that what was the primary and ordinary meaning of the word in Australia at the beginning of the present century is still its primary meaning in the United Kingdom as the century draws towards its end. We still speak correctly of an 'irreducible minimum', meaning an amount which cannot be reduced further but can only be eliminated altogether.”

33 Re Northern Engineering Industries plc [1994] 2 BCLC 704.

Millett LJ observed that “It is well established that, in the absence of an article which has the contrary effect:

(i) the cancellation of a particular class of shares and the return of the capital paid up thereon does not require the separate consent of the

holders of the shares of that class unless it involves a variation of the rights attaching to the shares; and

(ii) such cancellation and return of capital while the company is a going concern do not constitute a variation of the rights attaching to the

shares if the return of capital is made strictly in accordance with those rights on a winding up.”

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

24. Millett J allowed that contextual use of a word in a meaning other than is ordinary meaning may occur:

“But words take their meaning and effect from their surroundings. They are not always used in their ordinary or primary or, still less, their etymologically correct meaning. To speak of 'reducing' an amount to nothing rather than merely to 'vanishing point' may not be an etymologically correct use of the word, but it is a permissible one. What matters, however, is not what the word 'reduction'

means as a matter of etymology, or even ordinary language, but what it means in art 7(B) of the company's articles of association.”

25. Millett J held that two contexts, one general and one particular, pointed to the correct conclusion in the case before him.

• The first related to the mischief which Article 7(B) sought to remedy – which was that early repayment of capital (whether partial or total) to one class of shareholders by means of a reduction of capital is not a variation of their rights and does not need their consent and a context consisting of the right of the company, by s.135(1) of the Companies Act 1985 and by members’ special resolution, to reduce its share capital. In this context the word “reduction” must mean a reduction within, s.135(1) – which allowed a company to which it applied to reduce its share capital to nil – as frequently in fact occurred.

• The second context was provided by Article 7(B) which was intended to protect shareholders from the risk of capital reductions without their consent by deeming them to be variations of their rights – which the general law did not. Excluding complete repayments of capital would make a “nonsense” of that protection: “[i]t would protect the preference shareholders from a partial repayment which would leave them with something, however large and however small, but not from a complete repayment which would leave them with nothing.”

26. Millett J embarked on a contextual reasoning on the principle that the greater includes the less which I would hesitate to ascribe to the XJS interpreter and on the details of the articles of association which certainly do not analogise to the present context.

27. In modern times, all interpretation of text is contextual. The analysis in Eastern Extension was highly contextual - in an essentially contractual and commercial relationship in which consideration would be expected to pass both ways the result was unsurprising. If anything, the result in Northern Engineering was even more contextually determined. And neither decision binds me. Nonetheless, I do find both helpfully ad idem on the ordinary meaning of the words reduction, reduce and cognates. They do not include elimination. The observation that the power to reduce ordinarily involves a direction to leave something in place – a residuum – strikes home. To reduce something is not, ordinarily, to erase or abolish it or completely remove it: it is, as Barton J said, to diminish it. In fairness, counsel for the Commission all but agreed – as to specifically ordinary meaning.35

Transcript Day 2 p60.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

28. I am far from suggesting that the “XJS interpreter” ignores context. Undoubtedly and in all cases (s)he will consider the context. But it seems particularly apposite that the reasonable, intelligent, layperson interpreting a CDP, not as if a statute or a legal document, will start with the ordinary meaning of words and take at least some dislodging from it. Ordinary meaning is self-supporting precisely because it is the ordinary meaning. It will not suffice to dislodge it merely that context does not positively support or amplify the ordinary meaning. Absent an altering context36 the ordinary meaning supplies the actual meaning. Context, to have effect, must positively suggest another meaning. That is another reason why, for example, the Commission’s submission that there is absent from the CDP any quantified lower minimum absolute limit to which reduction of private open space may be reduced does not avail it.

29. In the present case, while a reduction to zero – no balcony for a unit - is a possible meaning of the concept of reduction in the CDP, it is not the ordinary or more likely meaning. Contextually, while it was by no means inevitable and other views may credibly be taken, it is entirely credible that the CDP would reflect a view that, in the interests of their well-being, each apartment-dweller should have access to at least some private open space, however small. On XJS interpretation as if by an intelligent informed layperson, I consider that there is nothing in the context here to positively wean the XJS interpreter from the ordinary meaning of the word “reduction”. That view is amplified in the context of a CDP which:

• Clearly starts from the strong proposition that: “All proposed units must provide for private open space”.

• In this respect is clearly motivated by the protection of the amenities of the occupants of each unit considered individually.

• Sets minimum dimensions for such spaces.

• Contemplates apartments with no individual private open space in exceptional circumstances within which the Proposed Development does not fall.

30. Likewise SPPR837 of the Apartment Design Guidelines 2020 as to BTR units, in permitting “flexibility” as to “a proportion of the … private amenity space associated with individual units” does not on XJS interpretation allow complete omission of private amenity space “associated with individual units”. Too

often, it seems, “flexibility” is interpreted as carte blanche to ignore or eviscerate a standard or disapply it.

Save perhaps exceptionally, it is not carte blanche to that effect - Ballyboden TTG.38 In a somewhat different

legal and factual context, an observation in similar vein was made in Fernleigh #1 – “flexibility in guidelines is

not carte blanche to degrade the norm set by guidelines” – though in that case the fear was “that the exception becomes the rule – or at least, something less than a true exception”. As was said in Stapleton,39 ordinary concepts through which the solemn promise to the community (including future apartment dwellers) constituted in a development plan is expressed are not infinitely elastic and the court is entitled to discern when the elastic has snapped. I consider that the ordinary intelligent informed layperson would consider that it has snapped here. And, in my view, there is no conflict between the CDP and SPPR8 in this regard.

36 Or some other factor such as a definition specific to the document.

37 Specific Planning Policy Requirement.

38 Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7.

Stapleton v ABP & Savona [2024] IEHC 3.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

31. Though not in my view needed, further support for the foregoing view is supplied by the acknowledgement in CDP §12.8.3.3(ii) that a BTR scheme may avail “of lower private amenity space based on the nature of the use”.40 Given that the CDP approaches private amenity space explicitly on a per unit basis it seems reasonable to advert to the use of the word “lower” as not including “no”.

32. As a fallback, the Commission also argued the materiality of any contravention of the CDP – citing its Inspector’s analysis of the proposed Communal Open Space, Facilities, and Amenities. I find that unconvincing. If the omission of balconies on 74 apartments is a contravention of a CDP clause designed, as it undoubtedly was, to protect the amenities of the occupants of each unit considered individually by ensuring each had private open space, I have no doubt that, whatever the communal or public compensatory amenities elsewhere, the contravention is material. I consider this conclusion obvious, and doubt it needs elaboration.

33. However, some elaboration may assist.

• I do not suggest that even one unit lacking a balcony would represent a material contravention in context.

• Nor do I suggest that the view taken in the CDP of the amenities proper to an apartment is inevitable – other CDPs and guidelines may take a different view.

• But the fact is that this CDP approaches the issue of balconies on a per unit basis and on the view, clearly, that the amenities of the occupants of each unit require a private open space by way of a balcony.41

• Nor do I consider that materiality is to be judged on the basis simply of the percentage the apartments without balconies represent of the total number of units in the Proposed Development. Though, if it were, I consider that 18% would suffice to be material.

• Considering the issue, as the CDP does, on a per unit basis, it strikes me the occupant of a unit without the amenity of balcony is unlikely to be consoled by the news that he is one of only a small, or indeed of a large, percentage of the units in the development to be thus disadvantaged.

• The fact is that the Proposed Development contemplates, as to absolute numbers, no less than 74 apartments and the occupants of each, considered discretely, without the balcony which the CDP considers to be required for the occupants’ well-being or, to put it another way, though the word is in truth less expressive of the matter at issue, their amenity. I have little difficulty in considering that a material contravention of this CDP.

34. On this view – on the ordinary meaning of the words of the CPD and SPPR8 - the Board here failed to acknowledge a material contravention of the CDP as to provision of private open spaces in 74 units. It had no power to permit the proposed development save via s.9(6) of the 2016 Act, which it did not invoke.

40 The full text of the paragraph reads “[w]here a Build to Rent scheme avails of lower private amenity space based on the nature of the use a condition

should be attached to any grant of permission to state that planning permission shall be sought for a change of tenure to another tenure model

following the period specified in the covenant.”

On the upper floors.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

35. Ground 5 succeeds and the Impugned Decision will be quashed accordingly.

36. Of course, as in all cases of certiorari for unacknowledged material contravention, the Commission will, on remittal (assuming remittal without so deciding) have opportunity to consider whether permission may issue despite the material contravention having regard to the scope of its statutory power to issue SHD permission in such circumstances.

GROUND 4: DAYLIGHT/SUNLIGHT – MATERIAL CONTRAVENTION & IRRELEVANT CONSIDERATION

The impugned decision is invalid in that it materially contravenes the requirements and/or objectives in relation to §12.3.4.2 of the CDP …42 which the Board is required to comply with under section 9(3) of the 2016 Act.

The Board erred in law in concluding that the proposed development did not materially contravene §12.3.4.2.

The Board acted ultra vires in breach of section 9(6)(c) of the 2016 Act in granting permission without considering whether such material contravention could be justified by reference to the requirements of section 37(2)(b) of the 2000 Act and/or took into account an irrelevant consideration/failed to take into account a relevant consideration.

37. At trial counsel for Fernleigh attempted to characterise this as a plea of inadequate reasons for the Impugned Decision. I ruled against him. Reasons pleas are stock in trade in judicial review. The court is entitled to expect that a reasons plea will somewhere include the word “reasons”. Pleadings must be read fairly but strictly and by reference to a standard of acceptable clarity. The court is not obliged to – or even entitled to – nor must the opposing parties read between the lines of a plea to discover, in invisible ink, what one may call “standard” pleas for which there is a well-established nomenclature.

G4 CDP, APPLICABLE STANDARDS, IRONBORN’S SUNLIGHT, DAYLIGHT & SHADOW ASSESSMENT, FERNLEIGH SUBMISSIONS TO THE BOARD & INSPECTOR’S REPORT

38. CDP §12.3.4.2 states:

42 The following words are omitted as Fernleigh abandoned its case in this regard: “and/or did not comply with the requirements of SPPR3 of the Urban

Development and Building Heights: Guidelines for Planning Authorities and/or Sustainable Urban Housing: Design Guidelines for New Apartments

(2020)”.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

“All habitable rooms within new residential units shall have access to appropriate levels of natural /daylight and ventilation. Development shall be guided by the principles of [the BRE Guide 201143] … and/or any updated, or subsequent guidance, in this regard.”

39. Counsel for Fernleigh agreed that CDP §12.3.4.2 sets a “have regard to” obligation as to the BRE Guide 2011 – a light burden in respect of which “no kind of compliance” by the decision-maker is required - Cork County Council v Minister for Housing44 and Jennings.45

40. I confess to finding it passing strange that a CPD could permit its own amendment by “updated, or subsequent guidance” to be issued by a standard-setting authority in the UK. Such an approach constitutes the CDP a hostage to fortune. Who is to know what changes of UK policy or approach such updated guidance may reflect or whether the outcome will suit conditions in the planning authority’s functional area? A CDP may only be varied by its elected members. I would query whether they may validly abdicate that power to a UK standard-setting authority – or, for that matter, any other body than the members themselves. However, as the point was not argued my observation is obiter.

41. The BRE Guide 2011 is explicitly intended to be read with, and is for use in applying, the British Standard Code of Practice for daylighting, BS 8206-2: 2008. The European Standard EN 17037: 2018 as to “Daylight in Buildings” was approved in July 2018. EU Regulation 1025/2012 on European standardisation, required its adoption by Member States. But it is important to understand that Recital 1 of that Regulation stated that “[t]he primary objective of standardisation is the definition of voluntary technical or quality specifications with which current or future products, production processes or services may comply”. The application of such standards in practice is in law voluntary – they have no free-standing coercive power. But in practice they act as benchmarks or yardsticks which stakeholders tend to adopt in various binding and non-binding ways – for example by incorporation in national regulations or the like. In any event, the UK in January 2019, on foot of EN 17037: 2018, revoked BS 8206-2: 2008 and replaced it with “BS EN 17037: 2018”. However, the British Standards Institution considered that EN 17037: 2018, which applied to all buildings, set standards which may not be achievable for dwellings. So it added “National Annex NA” which “provides the UK committee’s guidance on minimum daylight provision in all UK dwellings.” The equivalent Irish Standard, implementing EN 17037: 2018 is “IS EN 17037: 2018” - also issued in January 2019. It applies a single standard to all buildings. It adds no National Annex and no standards specific to dwellings. Thus EN 17037: 2018 and IS EN 17037: 2018 define natural lighting adequate to perform regular tasks, as 300 lux of natural light and a space in any building, including a dwelling, is deemed compliant if it achieves a minimum of 300 lux over 50% of the space for more than half the daylight hours in the year without artificial lighting. However National Annex NA applies lower target illuminance values for dwellings, derived from BS 8206‑2: 2008, as follows:

43 Site Layout Planning for Daylight and Sunlight, A guide to good practice (Building Research Establishment Report 2011) (2nd edition).

44 Cork County Council v Minister for Housing [2021] IEHC 683.

Jennings & O’Connor v An Bord Pleanála & Colbeam [2023] IEHC 14.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

Room46 Lux47 Bedroom 100 Living room 150 Kitchen 200

42. The BRE Guide was updated in 202248 - incorporating BS EN 17037:2018, including National Annex NA. In short, “BS EN 17037: 2018” and the BRE Guide 2022 apply less demanding natural lighting targets to dwellings than does IS EN 17037: 2018.

43. The Apartment Design Guidelines 202049 record that “[t]he provision of acceptable levels of natural light in new apartment developments is an important planning consideration as it contributes to the liveability and amenity enjoyed by apartment residents.” and “Planning authorities should have regard to quantitative performance approaches to daylight provision outlined in guides like the BRE Guide [2011 (2nd edition)] … or BS 8206-2: 2008 … when undertaken by development proposers which offer the capability to satisfy minimum standards of daylight provision.”50

44. The Height Guidelines 201851 also, at §3.2 stating a criterion for application of SPPR3 of the Height Guidelines 2018, require “appropriate and reasonable regard” to quantitative performance approaches to

daylight provision outlined in guides “like” “the BRE Guide [2011 (2nd edition)] … or BS 8206-2: 2008.” The

Commission correctly observes that the Proposed Development did not seek building height exceeding the CDP maximum, so SPPR3 of the Height Guidelines does not apply and compliance with §3.2 of the Height Guidelines is not required – regard suffices. As height issues are not at play here and as Fernleigh, correctly, accepts that the ordinary “have regard to” requirement applies, I need not further consider the Height Guidelines or the consideration of the meaning of “appropriate and reasonable regard” in Atlantic Diamond, Killegland and Jennings.52

45. Ironborn’s Sunlight, Daylight & Shadow Assessment53 noted that the BRE Guide itself states that:

“It is purely advisory and the numerical target values within it may be varied to meet the needs of the development and its location.

"The advice given here is not mandatory and the guide should not be seen as an instrument of planning policy; its aim is to help rather than constrain the designer. Although it gives numerical

46 Where one room in a UK dwelling serves more than a single purpose, the UK committee recommends that the target illuminance is that for the room

type with the highest value – for example, in a space that combines a living room and a kitchen the target illuminance is recommended to be 200 lx.

47 Over 50% of the space for more than half the daylight hours in the year without artificial lighting.

48 Site Layout Planning for Daylight and Sunlight: A Guide to Good Practice” BR209 (Version 3, 2022).

49 §§6.5 et seq.

Emphasis added.

51 Urban Development and Building Heights Guidelines for Planning Authorities December 2018.

52 Atlantic Diamond Ltd v An Bord Pleanála [2021] IEHC 322; Killegland Estates v Meath County Council & Giltinane [2022] IEHC 393; and Jennings &

O’Connor v An Bord Pleanála & Colbeam 2023 IEHC 14.

See Appendix 7, p82.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

guidelines, these should be interpreted flexibly since natural lighting is only one of many factors in site layout design."

46. Ironborn’s Sunlight, Daylight & Shadow Assessment states that:

• The NSAI54 adopted EN 17037:2018 directly and without amendment to become IS EN 17037: 2018.

There is no Irish National Annex such as the Annex NA found in BS/EN 17037: 2018. IS EN 17037: 2018 provides only a single target for rooms in new buildings and no specific targets for spaces for rooms in dwellings.

• Annex NA in BS/EN 17037: 2018 in supplying specific (reduced) targets for spaces for rooms in dwellings is more suitable to use in temperate climates where the median external diffuse illuminance is low. The authors concur with the UK Standards Authority that the EN 17037: 2018 targets may particularly not be achievable in dwellings and adopts its reasoning and its conclusions that different room types should be assigned different targets. With similar climates, light and receiving environments it is reasonable to adopt BS/EN 17037: 2018 and its Annex NA - which itself was derived from the now withdrawn BS 8206-2: 2008.

• Design in Ireland quite often follows the practice and precedent set in the UK.55

47. Ironborn’s Sunlight, Daylight & Shadow assessed the Proposed Development against the quantified targets in both BS EN 17037:2018/BRE Guide 2022 and IS EN 17037: 2018. The actual figures don’t matter given the specific pleas made: it suffices to assume that the Proposed Development passed as against the former, and failed against the latter. What does matter is that Ironborn’s Sunlight, Daylight & Shadow Assessment expert stated:

“It is our opinion that this concurs the UK committees’ position that the non-annex targets are too stringent for use for residential buildings and that (in the absence of an Irish National Annex) that the targets provided in the UK Annex NA are reasonable to apply to residential housing in this case.”

48. Fernleigh’s made submissions to the Board under the heading “[t]he proposals fail to meet minimum BRE Guidelines 2022 standards” .56 BRE 2022, of course, is based on BS/EN 17037: 2018, including the National Annex NA. Fernleigh’s submissions:

• Say that it “is pleased to see BRE 2022 applied in this case”. It says that daylight provision is now tested

through either of two tests, the second of which applies values of 200 lux for bedrooms, 150 lux for living rooms and 200 lx for kitchens – the same values Fernleigh now decries.

• Switch,57 without explanation, from BS/EN 17037: 2018 to the 300 lux standard set in EN 17037: 2018 and IS EN 17037: 2018 and assert58 failure by those standards - which failure Ironborn itself had stated.

Fernleigh states “[t]hese units are sited on a de facto greenfield site surrounded by no tall buildings. How are the results not better? The answer is overdevelopment.”

National Standards Authority of Ireland.

55 I record this observation for completeness rather than to lend it any weight.

56 §9.5.4.

57 §9.5.4.3.

Fig. 50: The minimum daylight standards under CEN European Daylight Standard (EN 17037).

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

49. In other words Fernleigh explicitly and repeatedly in its submissions to the Board, invoked and invited the Board to apply the very standards it now impugns as, in law, irrelevant considerations. However, the matter goes further, Appendix 1 to Fernleigh’s submissions is a letter from its solicitors, dated 10 October 2022. It also explicitly59 and repeatedly, invoked and invited the Board apply the very standards – “the BRE 2022 standard referring to BS EN 17037” - it now impugns as, in law, irrelevant considerations. It complains that “the proposed development has not been guided by the BRE 2022 Guidelines” to which “only

lip service is provided”. And as notably, neither document – the expert submission or the solicitor’s letter –

invoked IS EN 17037: 2018, which Fernleigh now proposes as not merely relevant but the only relevant standard to the exclusion of those it itself propounded in October 2022.

50. The Inspector60 noted the difference between IS/EN 17307 on the one hand and, on the other, the BRE Guide 2022 and BS/EN 17037: 2018 and that the 300 lux required by the former would be very difficult to achieve for domestic rooms in an urban environment. He noted that the UK National Annex to BS/EN 17037 recognises this and sets alternative targets. Given that difficulty and the similar climatic environments in the UK and Ireland, he considered that the application of the UK National Annex standards was reasonable and acceptable. The Inspector61 noted that the CDP states that developments should be “guided by the principles” of the BRE Guide, rather than any mandatory requirement for strict compliance.

G4 ARGUMENTS

51. Though its case was initially wider, Fernleigh’s correct acceptance at trial that only a “have regard to” obligation is imposed by CDP §12.3.4.2 led to essentially focus its argument to one that:

• The Commission erred in law in relying on an irrelevant consideration - the UK standard - and not the applicable Irish standard.

• The Inspector’s view that it would be difficult to comply with the Irish standard is irrelevant and misconceived as to what is the applicable standard.

• The Proposed Development constitutes a material contravention of CDP §12.3.4.2 as, when judged against the correct standard, the proposed development does not provide appropriate levels of natural/daylight.

52. The pith of Fernleigh’s case lies in its plea that:

“There is no warrant in the Apartment Guidelines, the CDP or the Urban Development Guidelines to adopt or follow the UK Guidelines rather than the Irish Guidelines. In circumstances where the National Standards Authority adopted EN 17037 to become IS/EN 17307 that represents the standard against which the proposed development must be assessed. The absence of a national

59 §134 et seq.

60 §11.7.18 & 19.

§11.7.35.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

annex62 represents a deliberate choice and there is no warrant for the replacement of Irish standards with UK standards simply because compliance with the latter is easier than compliance with the former. This is particularly the case where there is not an absence in terms of the threshold. The Irish standard identifies the threshold that must be obtained and the Board cannot, as the Inspector purported to, to simply apply extra-jurisdictional Guidelines because they feel like it (§11.7.3363)”.

53. The Commission argued that CDP §12.3.4.2 merely provides that development shall be “guided” by the BRE Guidelines. It uses no “intensifier” words so as to require compliance with them. As to the BRE Guidelines, the obligation is a “have regard to” one64 - it does not require implementation or compliance. The Commission also argues a materiality of contravention point.

G4 DECISION

54. I will not revisit here my concerns at the deployment of the BRE Guide in planning guidelines and CDPs. The salient issues here are Fernleigh’s correct acceptance that only a “have regard to” obligation is imposed by CDP §12.3.4.2 and that its assertion that regard to the UK National Annex to BS/EN 17037: 2018 implies unlawful disregard to the “applicable” IS EN 17037: 2018 is both a non-sequitur and incorrect in fact. It was not far from a chauvinistic argument against preference to the British over the Irish standard.

55. First, as demonstrated earlier, unless rendered compulsory by a statutory instrument or the like, the EN, the BS and the IS standards are voluntary – for adoption or non-adoption at the decision of those who are placed to so decide.

56. Second, as Fernleigh accepts, no more than a “have regard to” obligation applies and no kind of compliance is required. Save in particular contexts, decision-maker obliged to “have regard to” a factor bears a light burden, is free to give no weight to it and is judicially reviewable as to merit in that regard only for irrationality – Coyne.66 Assuming in Fernleigh’s favour and for the sake of argument a “have regard to” obligation as to IS EN 17037: 2018, the simple fact is that regard was had to it. Ironborn’s Sunlight, Daylight & Shadow Assessment explicitly applied it to the Proposed Development and explained its preference for applying the UK National Annex NA. The Inspector also explicitly considered IS EN 17037: 2018 and its 300 lux target and explained his preference for applying the UK National Annex NA.

57. Third, and contrary to Fernleigh’s plea, there is an explicit warrant in the CDP, the Apartment Design Guidelines and the Height Guidelines 2018 for regard to the BRE Guide 2011 and BS 8206-2: 2008 and

62 See below. This is a reference to the fact that the British Standard, in effecting EN 17037: 2018, added a “National Annex” setting standard specific to

dwellings and in that respect differing from EN 17037: 2018.

63 Of the Inspector’s Report.

64 As the Inspector noted at §11.7.35.

65 See Fernleigh v ABP & Ironborn [2023] IEHC 525.

Coyne v ABP, Ireland & EngineNode [2023] IEHC 412 §§21, 27.

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updates thereof. I cannot see that a later and voluntary Irish Standard displaces that warrant – even if regard to the Irish Standard is permissible.

58. Fourth, and on the same assumptions favourable to Fernleigh, to suggest that an obligation to “have regard to” one standard - IS EN 17037: 2018 - implies the irrelevance of another reputable standard on the same issue is a non-sequitur. Indeed as no kind of compliance is required either by the CDP or by the law generally, if regard to the voluntary standard IS EN 17037: 2018 results in a decision not to comply with it, it is entirely logical that the lacuna thus created may (though not must) be filled by another voluntary and reputable standard such as a British Standard. Put another way, any duty being merely of regard, the Commission had regard to both IS EN 17037: 2018 and BS/EN 17037: 2018 and was free to apply either – or, for that matter, neither.

59. Fifth, it cannot be doubted that the BRE Guide 2022, incorporating BS/EN 17037: 2018 and its UK National Annex is, within the meaning of:

• CDP §12.3.4, an “update” to the BRE Guide 2011, incorporating BS 8206-2: 2008, to which update regard must be had.

• The Apartment Design Guidelines 2020, “like” the BRE Guide 2011, incorporating BS 8206-2: 2008 to which like document regard must be had. Indeed, these observations are amplified by the fact, as to the content relevant here, the National Annex replicates the content of BS 8206-2: 2008.

60. Sixth, it should be remembered that CDP §12.3.4.2 was promulgated in April 2022 – after the promulgation of BS EN 17037:2018 and its Annex NA, IS EN 17037: 2018 – yet it still explicitly requires regard to the BRE Guide 2011 which incorporates BS 8206-2:2008 and says nothing explicit of BS EN 17037:2018 and its Annex NA, IS EN 17037: 2018 which had already been adopted.

61. Seventh, CDP §12.3.4.2, in explicitly requiring regard to the BRE Guide 2011 which incorporates BS 8206-2:2008, explicitly required regard to the targets in substance applied by Ironborn and the Inspector. That is because Annex NA of BS EN 17037:2018 (which they explicitly adopted) replicates the targets set in the BRE Guide 2011/BS 8206-2:2008.

62. Eighth, Fernleigh’s argument that the words “and/or” in CDP §12.3.4.267 required that the adoption of IS EN 17037: 2018 in turn required that the BRE Guide 2011/BS 8206-2:2008 be ignored as superseded was strained and I reject it. As a formula, “and/or” attempts to allow all disjunctive and conjunctive possibilities. Fowler68 describes “and/or” as an inelegance for which he blames lawyers and as meaning “X or Y or both”. I hold that, despite subsequent adoptions of BS EN 17037:2018 and its Annex NA, IS EN 17037:

67 “Development shall be guided by the principles of [the BRE Guide 2011] … and/or any updated, or subsequent guidance, in this regard.”

English Usage, 3rd edition, 1996.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

2018 and the BRE Guide 2022. CDP §12.3.4.2 explicitly permitted continuing regard to BRE Guide 2011/BS 8206-2:2008 and as its targets were the exact same as those on which the Inspector and the Board relied.

63. Nineth, I have commented above on Fernleigh’s volte face in these proceedings from the submissions – expert and legal – it made to the Board in October 2022 to the effect that the relevant standards were the BRE Guide 2022 and BS EN 17037: 2018. In this last respect, I refer to an FoIE case69 in which Costello J said:

275. The applicant made a submission on 10 November 2017, but it made no reference to crucial issues which were central to the appeal. It did not object to the SEA Environmental Report on the basis that it failed to assess the reasonable alternatives in a comparable manner to the preferred option, though that was a major plank of its case on appeal, and it did not assert that the NDP was required to be subject to AA and SEA on the grounds that it was an integral part of the NPF, which was the key argument advanced to this court to quash the NDP.

276. This approach was unfair to the respondents, at the very least, and inimical to good decision making. One of the objectives of public consultation is to permit the public to highlight defects in the process they believe have occurred before a final decision is taken so that any such defects may be corrected and the risk of inadvertently reaching an invalid decision thereby avoided. It is incumbent upon a party who chooses to participate in a consultative process (as on one who files objections or observations in a planning process) to raise any points at the earliest possible time in the process.

This is conducive to good administration and ought to reduce the number of legal challenges to administrative decisions. This court cannot endorse a practice where a point is raised for the first time in proceedings challenging a final decision which was not, but which could have been, raised before a decision was reached.

277. This is precisely what occurred in this case and it was not appropriate, even where the application for judicial review is brought within the time limits established in the Rules of the Superior Courts. If the applicant wished to raise either of these points it had ample opportunity to do so. The factual basis for the argument it advanced in these proceedings was clear from the SEA Environmental Report. It has never suggested that it was not in a position to argue these issues in its submission of November 2017, nor given any explanation why this was not done. A party may not reserve or withhold submissions which could and ought to be made during a public consultation prior to the adoption of a decision to the hearing of a challenge to the validity of the decision. Such conduct may be relevant to the exercise of the discretion of the court where an applicant succeeds in its argument but does not arise for consideration in these proceedings.”

In this regard, I accept also the Commission’s reliance on McGowan,70 in which Humphreys J said that: “[t]he applicants can’t be permitted to make one case to the board and to get certiorari based on an inconsistent

case to the court” and “[a] party can’t seriously be entitled to certiorari on the basis of a point where it makes

69 Friends of the Irish Environment CLG v The Government of Ireland [2021] IECA 317 §275 et seq.

70 McGowan v An Comisiúin Pleanála [2025] IEHC 405 §§140 & 160.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

a contrary point during the administrative process – even if the point was duly pleaded (which it isn’t here) and otherwise factually and legally sustainable (which it isn’t here either).”

64. Tenth, I do agree with Fernleigh that where an IS has been adopted, presumably for Irish conditions (though in fact merely the adoption, unamended for localisation, of the European Standard) it is in general terms surprising to find acceptance of a view that the BS is more suited than the IS to Ireland’s temperate climes. However, where use of such standards is voluntary, the CDP and guidelines expressly invoke the BS and the Commission’s duty is merely of regard, I do not see this observation, ultimately, as contributing to the legal analysis.

65. Fernleigh calls Atlantic Diamond71 in aid for its memorable observation that, there being no obligation to correct the developer’s homework, an objector is not obliged to point out omissions and defects in the developer’s paperwork before the administrative body and is entitled to rely on the administrative body to see to all of that, and if that is not done, the point can be raised for the first time in the court. This reasoning invokes, in effect, the autonomous duties of the Board. But here Fernleigh did not merely omit to make to the Board, when it clearly could have done so, the submissions it now makes to the court. It made directly contradictory – the very opposite – submissions and it did so both on the basis of planning expertise and by way of legal submission. It invited to Board to apply BRE Guide 2022 and BS EN 17037: 2018 and now complains that because the Board did what it asked, the decision is unlawful. In those circumstances (and leaving aside rules of stare decisis) the reasoning in FoIE and in McGowan prevails over that in Atlantic Diamond.

66. For these reasons, I reject Ground 4.

GROUND 8: DUAL ASPECT UNITS – MATERIAL CONTRAVENTION

The impugned decision is invalid as it constitutes a material contravention of §12.3.5.1 of the CDP in relation to dual aspect units for which the Board could only have granted permission once it had been identified in the Statement of Material Contravention and the Board satisfied itself that the requirements of section 37(2)(b) of the 2000 Act had been complied with and/or the decision is invalid as it was made on foot of a planning application which failed to identify in the material contravention statement that the planning application materially contravened §12.3.5.1 of the CDP in breach of section 8(1)(a)(iv)(II) of the 2016 Act.

67. The CDP72 addresses the requirement of dual aspect apartments as follows:

71 Atlantic Diamond Ltd v An Bord Pleanála [2021] IEHC 322 §19.

§12.3.5.1. Layout changed for clarity.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

“A dual aspect apartment is designed with openable windows on two or more walls, allowing for views in more than just one direction. The windows may be opposite one another, or adjacent around a corner. The use of windows, indents or kinks on single external elevations, in apartment units which are otherwise single aspect apartments, is not considered acceptable and/or sufficient to be considered dual aspect and these units, will be assessed as single aspect units.”

“… SPPR 4 of the [Apartment design Guidelines 2020]73, provides guidance with respect to the minimum number of dual aspect apartments that may be provided in any single apartment schemes.

In accordance with this guidance, DLR as a County is classified as a suburban or intermediate location and therefore: … There shall generally be a minimum of 50% dual aspect apartments in a single scheme.”

68. In the permitted development the number of dual aspect units is 213, including the 34 “projecting” units (see below), which equates to 50.4% of the 422 permitted units. Exclude those 34 units and the percentage drops to 42%. The inspector was satisfied that the 34 units were at least dual aspect and that the 50% requirement was met.74 The Commission’s “primary submission”75 is that it was entitled, in its evaluative judgement, to so conclude.

69. SPPR4 reduces the 50% to 33% in “more central and accessible urban locations, where it is necessary to achieve a quality design in response to the subject site characteristics and ensure good street frontage where appropriate in.”76 In the introductory text it is stated that “it is a policy requirement that apartment schemes deliver at least 33% of the units as dual aspect in more central and accessible and some intermediate locations, i.e. on sites near to city or town centres, close to high quality public transport or in SDZ areas, or where it is necessary to ensure good street frontage and subject to high quality design.” There was an argument whether SPPR4 must, reading the Guidelines as a whole, be read with §3.17 to the effect that SPPR4 applies the 33% standard also to “some intermediate locations”. There is undoubtedly poor drafting here – see the non-sentence in SPPR4 ending in “… appropriate in.” In Spencer Place,77 Collins J made it clear that it reasonable to expect that Guidelines, especially SPPRs, should be drafted with care and that the nature and scope of the requirements thereby imposed on planning authorities and ABP should be specified clearly. Viewing SPPRs as transferring policy making powers from planning authorities to the Minister and while Collins J was speaking of legislation, his rationale applies to SPPRs that transfers of planning competence from planning authorities to the Minister should be effected clearly and precisely and the courts should avoid giving them effect beyond what is clearly provided for. That is because, in the words

of Collins J, “[i]t is essential that the respective competencies of all of the actors involved – Minister, planning

authorities and ABP – should be clearly delineated. In other words – so it appears to me - where the Oireachtas legislates to transfer competence from planning authorities to the Minister, it should do so in clear terms and not by a sidewind.” It seems to me that I must assume that SPPR3 is clear and precise and so that overreaches CDPs by imposing the 33% standard only as to “more central and accessible urban locations” and not as to the “some intermediate locations” to which §3.17 refers. The omission of that

Sustainable Urban Housing: Design Standards for New Apartments, Guidelines for Planning Authorities (2020).

74 Inspector’s Report §11.5.11.

75 Transcript Day 2 p113.

76 Sic.

Spencer Place Development v Dublin City Council [2020] IECA 268, [2020] 10 ICLMD 96.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

phrase from SPPR3 must be presumed deliberate. §3.17 is no more than ordinary non-SPPR content of a guideline to which the ordinary obligation of regard applies.

70. That conclusion leads to an inquiry whether the Site is in “a central and accessible urban location” or an “intermediate location” within the meaning of the CDP, the Apartment Guidelines and SPPR3. On the facts of this case that is a difficult question. But I need not answer it. In my view, Ground 8 fails even if the dual aspect requirement is 50%.

71. The argument here turns on whether 34 apartments, whose living areas are to project out from the main elevations of the buildings in which they sit, are, as Fernleigh asserts (and asserted in its submission to the Commission78), mere bay windows with a single aspect contrary to CDP §12.3.5.1 or, as Ironborn asserted and the Inspector and the Commission agreed, are dual, or even triple, aspect apartments. This issue in reality turned on the drawings and in appreciable degree is a matter of impression.

72. My first (I must say, strong) impression, on seeing Ironborn’s drawings below, was that Fernleigh was correct and that only one elevation was relevant.

73. However, the Commission produced at trial the following of Ironborn elevation drawings (on which I have outlined the relevant content in red). These were not exhibited. The Commission undertook to exhibit them and has since trial done so. Ultimately, Fernleigh withdrew its objection to their admission in evidence but sought to maintain a pleading point.80 I held at trial against the pleading point on the basis that the Commission opposition paper is clear that they dispute the factual assertion that the apartments in question are not dual aspect.

78 Fernleigh Submission to the Commission §9.5.3. The use of bay window type designs as dual aspect is not accepted.

79 Ironborn’s Design Report p10.

Transcript Day 2 p92 et seq.

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Block H, South elevation.

Block H, North elevation.

74. I return to the CDP81 to the effect that “[t]he use of windows, indents or kinks on single external elevations, in apartment units which are otherwise single aspect apartments, is not considered acceptable”. It does not seem to me that the protrusions evident on the elevations above can be inevitably dismissed as mere “windows, indents or kinks”, or the like, in the western elevation. I might well not take the same view as did the Inspector and the Commission. But my view does not count as I cannot say they were not entitled to the view they took, as a matter of evaluative judgement, that the apartments in question were dual aspect within the meaning of the CPD.

75. Taking it that the Commission was entitled to regard those apartments as dual aspect, the 50% requirement is met, there is no material contravention of the CDP and Ground 8 must be dismissed.

§12.3.5.1.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

76. On this basis, having applied the higher, 50%, requirement in Fernleigh’s favour, I need not decide the character of the site location or whether the Commission properly pleaded the application of the lesser, 33%, requirement or whether, as the Commission argued, I should refuse certiorari on a discretionary basis.

77. However as to refusal of relief on a discretionary basis, I should say that I would be reluctant to conclude, as the Commission argued on the basis of Save The South Leinster Way82 and the Supreme Court

decision in Ballyboden TTG,83 that a respondent seeking actively to argue for the exercise of discretion need not plead the facts and the basis on which, it says, such a discretion should be exercised. While such pleas may not limit the scope of judicial discretion, I see no reason why a respondent seeking actively to argue such an issue should not be required to plead those discretionary points which it thinks weighty. I have difficulty seeing that the absence of provision for a pleading in reply in judicial review and the observation that an applicant can’t be faulted for not anticipating in his/her statement of grounds what discretionary points might be thought weighty by the respondent or by the court is a reason not to illuminate the darkness at least to the extent of a respondent’s intended argument as to discretion. Recently, in AAI Baneshane84 the view was expressed, again in reliance on Ballyboden TTG, that “insofar as the developer85 pleaded that the

specific grounds of opposition weren’t pleaded that doesn’t matter” as “relief is a matter for the court, so

even if a point isn’t pleaded by opposing parties the court can still consider it when deciding whether to grant

relief”. I confess that the resultant possibility of imbalance in pleading obligations – strict in judicial review –

as between applicants and respondents seems to me to require further consideration in the context, no doubt inter alia, of the extent to which judicial review is in reality adversarial and fairness in that context. Also relevant is the role of the court as independent arbiter in a process in which, as is clearly the law and as was said in Ballyboden: “[t]he High Court in granting relief sought does not do so as a matter of course. Instead the High Court must be satisfied that it is a lawful exercise of its supervisory jurisdiction based on the evidence and submissions made to it." The words “based on the evidence and submissions made to it" may prove important and the scope of evidence adduced and submissions made is generally in judicial review strictly circumscribed by the pleadings.

78. That said, there is probably no perfect solution – not least as issues raised by the court will prompt response by both sides. My real concern is not so much the well-established discretion of the court as to whether to grant relief, but that respondents should be permitted to keep their powder dry by not pleading acceptably clearly discretionary points they later actively pursue at trial.

82 Save The South Leinster Way v An Coimisiún Pleanála [2025] IEHC 541 §53(iv) & 99.

83 Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4.

84 AAI Baneshane v An Coimisiún Pleanála & Fingal County Council [2025] IEHC 641 §107.

The applicant for judicial review in that case.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

GROUND 1: ZONING FOR WORKS REQUIRED BY UISCE EIREANN - MATERIAL CONTRAVENTION

The Impugned Decision is invalid as it contravenes CDP Zoning Objective F “To preserve and provide for open space with ancillary active recreational amenities” contrary to of s.9(6)(b) of the 2016 Act and/or Condition 14 is void for uncertainty and/or the Proposed Development is otherwise in material contravention of Objective F that such that permission could only have been granted once that material contravention had been identified in the Statement of Material Contravention and once the Board had complied with the s.

9(6)(c) of the 2016 Act.86

G1 INTRODUCTION

79. The Site comprises two physically separated plots. The substantive residential development is proposed for the Main Site – which Ironborn owns. The second plot, some distance south of the first, is a Small Plot owned by DLRCC as part of a larger public open space area - Belarmine Park. DLRCC consented to its inclusion in the planning application. The Main Site is zoned “A” - for residential development. The Small Plot is zoned “F” – "[t]o preserve and provide for open space with ancillary active recreational amenities." That zoning allows that development of “Public Services” is “Open for Consideration”.87

80. The CDP defines “Public Services” as:88

“A building or part thereof, a roadway or land used for the provision of ‘Public Services’. ‘Public Services’ include all service installations necessarily required by electricity, gas, telephone, radio, telecommunications, television, data transmission, water, drainage and other statutory undertakers;

it includes public lavatories, public telephone boxes, bus shelters, bring centres, green waste composting facilities, etc.”

81. Of uses which are “Open for Consideration”, the CDP states:

“Uses shown as ‘Open for Consideration’ are uses which may be permitted where the Planning Authority is satisfied that the proposed development would be compatible with the overall policies and objectives for the zone, would not have undesirable effects, and would otherwise be consistent with the proper planning and sustainable development of the area.”

82. The figure below generally indicates the relevant layout – the Main Site and the Small Plot are outlined in red.

86 I have simplified and corrected errors in the wording of this ground. I am satisfied that, as reworded, it accurately states the ground.

87 CDP Table 13.1.9 Zoning Objective ‘F’. As to the zoning of the sites see Ironborn’s Planning Report §7.2.1.

CDP 13.2 Definition of Use Classes, pp318-319.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

83. The Planning Application, as is now invariable, envisaged separate storm/surface water and foul water drainage.89 As to this and what here follows, part is derived from Ironborn’s Drainage Design Report, its Water Framework Directive Assessment and its Hydrological & Hydrogeological Qualitative Risk Assessment (“HHQRA”) (including as to Current and Proposed Foul Water Drainage) – both submitted with its planning application.

84. Storm water generated by the Proposed Development will ultimately drain via an existing storm water network and is not controversial here.

85. Foul water, generated by at least part of the Proposed Development, will discharge initially to an existing sewer running south across the Main Site and already serving 140 upstream houses to the north.90 Ultimately, it will discharge to an Uisce Eireann Shanganagh-Bray WWTP. Running south off the Main Site, that existing foul line runs under (and presumably serving) the Griannan Fidh housing estate and to the Small Plot and on to, ultimately, the Uisce Eireann WWTP. Currently, there is a risk of flooding from the foul water system due to the current capacity of the local network. To reduce that risk, essentially, in the Small Plot the sewer will be intercepted by a foul storage tank to reduce the peak flow to the Uisce Eireann WWTP caused by surface water entering the foul system during extreme storms. The tank will provide additional capacity in

89 As to this and what here follows, part is derived from Ironborn’s Drainage Design Report, its Water Framework Directive Assessment and its

Hydrological & Hydrogeological Qualitative Risk Assessment (Current and Proposed Foul Water Drainage) – both submitted with its planning

application.

That existing sewer will be relocated to the perimeter of the Main Site.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

the wastewater network facilitating the Proposed Development and others in the area to avoid downstream flooding as a result of storm water inflow through urban development creep entering the foul system

86. As to the detention basin, the Inspector was satisfied that the detailed design of the foul sewer network will be required to comply with Irish Water requirements – which “include the need for an alarm system in the case of failure and remote monitoring of the pump station/storage tank.” He did “not consider that the use of a detention basin is appropriate from both a public health and amenity perspective” and recommended its omission and replacement by a suitable alternative.91

87. So, the planning application, as it related to the Small Plot – on the sewer system downstream of the exit of foul water from the Main Site – was for:92

• An underground 500m3 concrete foul overflow storage tank. It will be gravity fed.

• A foul water pumping station to pump out the tank to the sewer after the storm.

• An above-ground pumping station maintenance kiosk. While its dimensions are not yet precise, its general size is apparent: it will stand on a plinth of about 2.3m x 1.5m x 0.15m high and will itself be about 2m x 1.2m x 1.8m high.

• A detention basin at surface level to cater for any pump failure. This was described as follows: “[t]he area surrounding the tank will be landscaped in order to provide a localised temporary detention basin in case of the pumping system fail. Details are to be agreed with DLRCC.” In other words, the underground tank was to sit in the detention basin surrounding it at ground level, which basin would come into play if the pumps failed and the tank overflowed into the basin.

88. Permission was granted accordingly, save that Condition 14 included the following:

“The following requirements shall be … agreed in writing with the planning authority prior to commencement of development:

(a) The use of the localised temporary detention basin adjoining the underground foul storage tank is not permitted and alternative provisions shall be made in the event of pump failure, in accordance with Uisce Eireann Code of Practice for Wastewater Infrastructure (…..

Proposals shall clearly demonstrate how overflow from the foul tank shall be prevented from entering surface waters.”

89. For park users the only visible works will be the small kiosk - the rest will be under grass.

90. It is of some importance to know how the proposals for the Small Plot on DLRCC land came about. In the ordinary way one might have expected that foul water from the Proposed Development would simply discharge to the existing sewer running south across the Main Site93 and that would be the end of it as far as

91 Inspector’s Report §11.11.8&9.

92 See Ironborn’s Drainage Design Report drawing D1636 D1000 dated 26/3/2020.

Albeit to be relocated to the perimeter of the Main Site– see fn above.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

the developer was concerned. However, in the pre-connection inquiry stage Uisce Eireann94 confirmed to Ironborn that a “Wastewater Connection” to its sewers was “feasible subject to upgrades” and made known additional “Wastewater Discharge” requirements as follows:

“In order to accommodate the proposed connection at the Premises, upgrade works are required to increase the capacity of wastewater network. A storage tank (c. 500m3) to mitigate the impact of storm water in the network is required. The storage tank will be required to cater for future development in the area arising from modelling carried out of the potential future zoned development lands within the collection catchment over a 10 – 15 year time horizon.

These upgrade works are not currently on the Irish Water investment plan therefore, the applicant will be required to fund these upgrades.”

91. Notably, while Ironborn will pay for it, it seems that:95

• Irish Water will install the tank.

• The Proposed Development will not contribute to the potential stormwater overflow to be collected and stored by the foul tank since its surface water drainage is designed to cater for up to a 1-in-100 year rainfall event plus a 20% climate change uplift.

G1 INSPECTOR’S REPORT

92. The Board’s Inspector addressed this issue as follows:96

“The smaller site portion to the south of the Griannan Fidh estate is also zoned ‘Objective F’ and in the ownership of DLRCC. An underground wastewater storage tank, above ground detention area, reinstated landscaping, and a small above ground kiosk are proposed at this location. It is stated that the applicant has been requested by Irish Water to provide the tank at its own expense in order to address a concern about the capacity of the foul network and the risk of flooding downstream from the Aiken’s Village area generally caused by stormwater entering the foul system.

On the basis that the tank is required by Irish Water, the applicant contends that it is a ‘public service’… .97 I am satisfied that the proposed works come within the description of ‘public services’, which are ‘open to consideration’ within zoning objective ‘F’.

All the works proposed to provide the storage tank are underground with the exception of a small kiosk for maintenance and management purposes. On completion of the infrastructure works, the landscape is to be reinstated and reverted to use as public open space. … the Planning Authority refers to concerns as to whether these works might result in a diminution of recreational value which would be inconsistent with the ‘F’ zoning objective, although it does not state any conclusion on this

94 By letter dated 19 July 2022 in response to Ironborn’s pre-connection enquiry.

95 Hydrological & Hydrogeological Qualitative Risk Assessment (Current and Proposed Foul Water Drainage) p8.

96 §§11.3.11-14.

The Inspector cites the CDP definition set out above.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

matter. However, these concerns would appear to relate to the third-party submissions as the DLRCC Parks Department Report expresses satisfaction with the proposals subject to conditions.

In my opinion, the works are relatively minor in relation to the overall scale of the existing open space. The above ground works will have only limited visual or functional impacts and would be suitably screened by existing and proposed landscaping. Accordingly, I do not consider that the works would detract from the character or functionality of the overall open space area, and I am satisfied that the works would be compatible with the ‘F’ zoning objective and other relevant CDP objectives to provide and protect open space / green infrastructure.”

G1 FERNLEIGH’S CASE

93. Fernleigh pleads and submits that:

• Though Uisce Eireann required it and the tank may facilitate other future developments, it is not a public service. It is a private service to service private development that will be installed at the Ironborn’s cost. It was not otherwise in Uisce Eireann’s contemplation. It is therefore in material contravention of Objective F. Private drainage infrastructure, required only to connect the private development to the public system, is not compatible with that zoning - which permits only public services. So too the kiosk.

• The detention basin material contravenes Objective F. But as it was not permitted, the plea is unstateable. If I am wrong in that regard (for example, in that the alleged contravention was not identified in the material contravention statement), any error proved harmless and I cannot see that I could but exercise my discretion against relief. As was said in Residents of Coolkill:98

“As I understand Coolkill’s point, it is that, in this respect, the development proposed was in material contravention - they do not argue that the development permitted was in material contravention.

Even accepting, for argument’s sake, the premises of the plea, certiorari on material contravention grounds of a permission which the Applicant accepts is not in material contravention (in this respect)

would represent certiorari for a harmless error and an entirely disproportionate triumph of form over substance. As to the law on harmless error see Doyle.”99

I will consider that plea no further.

• Condition 14 is void for uncertainty, is not limited to points of detail and/or does not comply with s.

34(4) PDA 2000 Act when read with and/or ss.9(7) and 9(8) of the 2016 Act.100 There is no indication what, including structures, is to replace the detention basin. Furthermore, there is no indication, specifically or at all, that it is possible to replace the detention basin in accordance with Irish Water’s Code of Practice for Wastewater Infrastructure (July 2020, Rev 2). The Code of Practice indicates what

98 [2025] IEHC 265 §198.

99 [2025] IEHC 158 §45.

Sic.

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should replace the detention basin. This is particularly important as the site is only 15m from the Ballyogan Stream101 and where Ironborn acknowledged “that without the attenuation of the underground foul tank or in the event of pump/tank failure there is potential for a direct pathway between the proposed development and the Ballyogan stream”.102

94. Fernleigh submits that the infrastructure in question:

• Is characterised by Ironborn and the Commission as having been required by Uisce Eireann pursuant to s.53 of the Water Services Act 2007. S.53 is clearly irrelevant103 and I have seen no evidence of Ironborn’s or the Commission’s reliance on it. In submissions this point migrated via s.55104 – also irrelevant – to s.61. Unremarkably, s.61 prohibits unauthorised wastewater connections and authorises Uisce Eireann’s imposition of conditions on wastewater connection agreements. I confess that I do not see how it bears on the question before me – other than possibly s.61(6) – which was not pursued.

• Is designed to mitigate storm water surges from the proposed development causing flooding downstream.

• Will not be:

o A public service utility/infrastructure.

o Part of the public water network.

o Required/intended to be taken in charge.

G1 COMMISSION’S CASE

95. The Commission says:

• There is no material contravention of Objective F – the works are public services (on an XJS interpretation of the CDP definition) and so are open for consideration. The tank is ‘required’ by Uisce Éireann within that definition. No contravention or material contravention of Objective F arises as to the small overground kiosk for maintenance and management of the attention tank.105

• By Condition 14, as it is empowered to do by s.9(4) of the 2016 Act, the Commission lawfully modified the development proposal by refusing permission for the proposed localised detention basin at surface level to cater for pump failure. The permitted development is not in material contravention of CDP §13.1.4. The Applicant essentially contends that the Decision should be quashed because of something which the Commission did not permit (they contend that the proposed development was in material contravention, even though the permitted development, isn’t). That would be a disproportionate and

Inspector’s Report §13.5.3.

102 Inspector’s Report §13.5.8.

103 It relates to unauthorised connections to water supply.

104 It relates to connection to a water supply.

Inspector’s Report §11.3.14.

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improvident use of certiorari, would be to no discernible purpose and/or would amount to quashing for harmless error, in a manner contrary to settled law.

G1 DISCUSSION & DECISION

96. As to the assertion that the infrastructure will not be taken in charge, it is true that the Impugned Permission and the papers say nothing as to who will own the works once built, operate the pumps, pay for their operation or access and use the management facilities in the kiosk. However, while Ironborn will pay for it, the tank is to be built on public land – owned by DLRCC – and installed by Uisce Eireann. In accordance with land law generally and absent agreement to the contrary, it will be the property of DLRCC – not of Ironborn. DLRCC are free to make such arrangement as they wish with Uisce Eireann. The tank will, from the start, serve at least one other housing development (140 houses north of the Main Site) and likely a second (Griannan Fidh). Indeed, it seems particularly notable that the existing sewer to the Small Plot already exists and already serves one, and likely two, existing housing developments. Further, the works in question are not required to physically take the foul water of the Proposed Development off the Main Site – that sewer already exists.106 And, as has been seen, Ironborn’s HHQRA states that the Proposed Development will not in practice contribute to the potential stormwater overflow to be collected and stored by the foul tank.

97. There seems to me to be little doubt but that, within the notably broad CDP definition of public services, the infrastructure in question is “required by” a statutory drainage undertaker - Uisce Eireann. Further, close examination of Uisce Eireann’s requirement discloses that:

• The works are required by way of “upgrade works … to increase the capacity of wastewater network.” I take this reference to be to Uisce Eireann’s wastewater network.

• The storage tank will be required to cater also for future development of zoned lands in the area within the collection catchment over a 10 - 15 year time horizon. It will be sized accordingly. The implication clearly is that Uisce Eireann, not Ironborn, will control further connections to the sewer system which leads to the tank and so will, in effect, control connections to the tank.

• “These upgrade works are not currently on the Irish Water investment plan therefore, the applicant will be required to fund these upgrades.”

98. The last observation as to funding is revealing. It implies that the works are eligible for inclusion on the Irish Water investment plan as Irish Water works but, presumably due to prioritisation, have not made the plan. In turn, that eligibility suggest that they are intended to form part of the Irish Water estate/wastewater network.

99. Further, while the Permission likely would not have been granted without provision for the tank, it seems to me fair to say that it is an important function of Uisce Eireann, as a public service, to positively endeavour to provide wastewater connections to new developments otherwise considered desirable. A

That it will be moved does not, in my view, affect that point.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

failure to do would, at least in broad terms, represent a policy defeat. It is in that context that Uisce Eireann’s power to impose conditions on connection agreements must be considered. Ironborn’s funding and the construction of the tank may be a condition of the Permission but the purpose of the tank is the protection from storm water flooding of the Irish Water public wastewater network downstream of the tank. As counsel for Fernleigh accepted, the need for the tank does not arise by reason of the volume of foul water produced by the proposed development but will arise by reason of ingress of storm water overburdening the public sewers.107

100. Taking all these considerations into account, I hold that the tank is a public service within the CDP definition108 and is “Open for Consideration” within the applicable CDP Zoning Objective F. And if the tank, so too its ancillary management kiosk. Neither is in material contravention of the CDP.

101. Whether I agree with it or not (I am not to be taken as disagreeing) I cannot see that the Commission erred in law in considering the permitted works “compatible with the overall policies and objectives for the zone, would not have undesirable effects, and would otherwise be consistent with the proper planning and sustainable development of the area” as required by the CDP of uses open for consideration.

102. In this respect Fernleigh’s pointing to the alleged public health and amenity detriments of the omitted detention tank is in my view pointless – as would be relief granted on that account. I would, if needs

be in my discretion, refuse it. I do not see that Fernleigh’s citation of Redmond109 and Jennings110 assists it in

its argument that a condition cannot cure a material contravention by omitting the contravening element of the proposed development. In Redmond, the permitted development involved an unacknowledged material contravention – not so here. In any event, s.9(4) of the 2016 Act expressly empowers the Commission to grant permission for part only of a proposed development, or for a modified version of a proposed development, and to attach to a permission such conditions as the Commission considers appropriate. I also agree with the Commissions’ reliance on Walsh111 (noted in Jennings)112 that “any shortcomings in the developer’s material would only become a problem if they flow through into the decision-maker’s analysis” – which they didn’t here.

103. While the pleaded uncertainty of Condition 14 was not abandoned, Fernleigh’s submissions on Condition 14 were lacklustre and somewhat off the pleaded point – really no more than a sidewind. In written form they said merely that the alleged material contravention on which the public had allegedly been deprived of the opportunity of participation was “compounded by the fact that condition 14 does not specify an alternative but vaguely refers to the matter to be agreed and purports to delegate for subsequent agreement some solution to be agreed with Uisce Eireann. This is wholly inappropriate and means the public

107 Transcript Day 1 p151. I envisaged at that point that the ingress was due to IW’s operation of a combined system. I am now less sure of the precise

mechanism of storm water ingress, but that downstream flooding by reason of storm water ingress is the problem which the tank addresses is clear.

CDP 13.2 Definition of Use Classes, pp318-319.

109 Redmond v An Bord Pleanála [2020] IEHC 151.

110 Jennings v An Bord Pleanála [2023] IEHC 14.

111 [2022] IEHC 172 §48.

§419.

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are further deprived of an opportunity to either know or participate in the same.” Nor was the point developed orally. It has been said that “a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results” and “uncertainty of language rarely creates the necessary degree of invalidity to cause the courts to intervene” – see Shadowmill113 and Lord Denning in Fawcett.114 There was certainly nothing like a developed argument on the issue or a developed “Boland”115 attack on the validity of the condition. Condition 14 is adequately clear as the result to be achieved and as the Condition requires DLRCC’s agreement of it is

appropriate to have “faith and confidence in the planning authority's role” “which is to further the faithful,

true and core implementation of the permission” (Kenny116 and in Shadowmill117).

104. Finally, I should say that I am not persuaded by Fernleigh’s reliance on Heather Hill #1.118 In that case, in considering a local area plan land use zoning matrix and in deeming the bridges, roads and car parking in question to be ancillary to the proposed residential development and not “utilities infrastructure”.

Simons J explicitly contrasted “public utilities such as electricity, gas or waste water”. Here, there is no doubt

but that the works will form part of the wastewater system – and the public wastewater system at that. Also, Simons J described the bridges, roads and car parking as “ancillary to and intended to serve a specific residential development”. Here, the works will not be merely ancillary to the proposed development: they will serve multiple developments. Also, I consider “public services” to be a broader category than “utilities infrastructure”- though in truth the proposed works sit comfortably in either category.

105. As there is no material contravention of Objective F and as the challenge to Condition 14 has not been made out, Ground 1 will be dismissed.

GROUND 9: EFFECT ON WATERWAYS - NO NOTICE TO INLAND FISHERIES IRELAND

The impugned decision is invalid as no notice was given to statutory consultees pursuant to Article 295(h)(i) PDR 2001119 read with s.8(1)(b)(ii) of the 2016 Act as required in respect of a development that might have a significant effect on waterways.

G9 INTRODUCTION

106. As has been seen the Small Plot - site of the foul storage tank and pumping station - is on the northern bank of - 15m from - the Ballyogan Stream.120 The Commission did not request Ironborn to notify

113 Shadowmill v ABP & Lilacstone [2023] IEHC 157 §335.

114 Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, HL(E).

115 See Boland v An Bord Pleanála [1996] 3 IR 435 and later caselaw.

116 Kenny v An Bord Pleanála [2001] 1 IR 565.

117 Shadowmill v An Bord Pleanála & Lilacstone [2023] IEHC 157 §334.

118 Heather Hill Management Company CLG v An Bord Pleanála [2019] IEHC 450 – (Simons J, 21 June 2019).

119 Planning And Development Regulations 2001 as amended.

Inspector’s Report §13.5.3.

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Inland Fisheries Ireland (“IFI”) of its SHD planning application. Nor did Ironborn notify IFI. Fernleigh did not

submit to the Commission that IFI should have been or should be notified.

107. The substantive issue here is whether notice to IFI of Ironborn’s SHD planning application was obligatory on the basis that, at the Small Plot, foul water from foul storage tank might pollute the Ballyogan Stream. The risks posited are of pollution during the construction excavations or by reason of foul pump failure – in particular given the omission of the detention basin around the foul storage tank.

108. The AA Screening assessment screened out AA as to potential effect on marine European Sites121 - including by reason of the effect of the intervening WWTP or, in the event of accidental direct foul discharge to Ballyogan Stream, the attenuation and dilution capacity in the intervening and considerable stream and river network to the coast. That assessment has not been challenged. In reality therefore, this issue relates to Fernleigh’s posited risk of significant pollutant effect on the Ballyogan Stream itself by accidental direct foul discharge to the stream.

109. The HHQRA122 identifies potential sources of contamination “without taking account of any measures intended to avoid or reduce harmful effects of the proposed project (mitigation measures) i.e. a worst-case scenario.” As including, inter alia and as here relevant to the risks posited by Fernleigh:

• Run-off from soil excavation and removal during construction. But it is stated that the CEMP123 will deploy adequate mitigation measures.

• The 500m3 foul storage tank adjacent the Ballyogan Stream – in a worst case scenario, if the tank fails, foul water could overflow to the stream. But considering that it would occur during heavy, diluting, rainfall the “contribution of the Proposed Development to the potential discharged overflow from the tank is considered to be low (worst case of peak wastewater discharge of 14.092 l/s)”.

110. A detailed description of the highly complex WFD is impossible here.124 Suffice it to say that it, inter alia, sets objectives for, and requires assessment by reference to, the chemical and ecological status of surface water bodies. Ironborn’s WFD report125 includes the Ballyogan Stream in the hydrological environment studied – as a WFD waterbody it is grouped with the Carrickmines Stream into which it flows.

111. The WFD report notes that the proposed underground wastewater storage tank is adjacent the Ballyogan Stream on its north bank. It concludes that:

“there is no potential for adverse or minor temporary/ long-term or localised effects on the Ballyogan or Carrickmines surface water body. … the proposed development will not cause any significant

121 Rockabill to Dalkey Island SAC, Dalkey Islands SPA, Bray Head SAC.

§§3.1 & 3.4 & Table 3.1.

123 Construction Environmental Management Plan.

124 For some of the detail, see SWI, IFI, Sweetman & Ors v ALAB et al [2024] IEHC 421.

125 §1.1, Figure 1.1 Site Location Map with hydrological environment, §2, Table 2-1 WFD water bodies located within the study area, §3.1, §5.3 & Table

5.1 Pollutant Linkage Assessment (with mitigation).

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deterioration or change in water body status or prevent attainment, or potential to achieve, future good status or to meet [River Basin Management Plan] requirements and/or objectives…”.

It includes a table entry as follows:

Source Pathways Receptors Risk of Impact Mitigation Measures considered Operational Impacts (Summary)

Overflow from Direct pathway Hydrological No perceptible risk The area surrounding the underground to hydrological environment due to the tank will be landscaped in foul tank to environment (Ballyogan and implementation of order to provide a localised Ballyogan Carrickmines the mitigation and temporary detention basin Stream Streams) design measures to contain the receiving (14.092 l/s which includes a peak flow in case of the worst case detention basin in pumping system fail.127 scenario) case of the Details are to be agreed pumping system with DLRCC.

fail.126

112. It will be seen that, though not the only mitigation and design measure, the detention basin merits mention in this table. As I have said, the AA Screening is not especially relevant for reasons set out above. But it bears noting that in it the Inspector’s view that the omission of the detention basis does not alter the AA Screening determination seems based mostly on the fact that even though the assessment ignores the mitigation by storage, the wastewater system still does not result in significant hydrological effects. But the possible effects considered are on distant European sites and are unlikely by reason of dilution/attenuation en route to them. However, the AA Screening is of interest for present purposes in that the Inspector:

• Notes that Ironborn acknowledges that without the attenuation of the underground foul tank or in the event of pump/tank failure there is potential for a direct foul water pathway between the Proposed Development and the Ballyogan Stream.128

• Advises conditioning the detailed design of the foul sewer network to Irish Water requirements – which include remote pump monitoring and a pump failure alarm.129

• Highlights “that the likelihood of this detention basin being utilised is low”.130 In substance, this means that the risk of a pump/tank failure is low.

• Notes that the potential worst-case contribution (i.e. of foul water to the stream) is low (14.092 l/s).131

126 Sic.

Sic.

128 Inspector’s Report §13.5.2.

129 Inspector’s Report §11.1.8 – this observation is not from the AA Screening. It is from the planning assessment.

130 Inspector’s Report §13.5.11.

Inspector’s Report §13.5.2.

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113. As has been seen, Condition 14 of the Impugned Permission requires omission of the detention basin and written agreement with the planning authority, prior to commencement of development, of alternative provisions for pump failure in accordance with the Uisce Eireann Code of Practice for Wastewater Infrastructure. In that respect “[p]roposals shall clearly demonstrate how overflow from the foul tank shall be prevented from entering surface waters.” Accordingly, failing such clear demonstration, the proposed development cannot commence. Demonstration is, of course, a more demanding requirement than one of mere assertion.

G9 LEGISLATION & SOME COMMENTARY

114. S.8(1)(b)(ii) of the Act of 2016 requires an applicant for SHD planning permission to have sent a copy of the application and any EIAR132 and/or NIS133 to any authorities which the Minister may prescribe, with a notice stating that such authorities may make submissions or observations to the Commission on the implications of the proposed development for proper planning and sustainable development and/or likely effects on the environment or on a European site, if the proposed development is effected.

115. For the purposes of s.8(1)(b)(ii) of the Act of 2016, Article 295(h)(i) PDR 2001 prescribes, inter alia, Inland Fisheries Ireland (“IFI”) where the proposed SHD, as to a waterway “in respect of which it exercises

functions”, “might give rise to significant discharges of polluting matters or other materials to such waters or

be likely to cause serious water pollution or the danger of such pollution, or would involve the carrying out of works in, over, along or adjacent to the banks of such waters, or to any structure in, over or along the banks of such waters, which might materially affect the waters”.

116. It seems to me important to observe that:

• The word “might” is clearly precautionary and denotes a low threshold for notification of IFI. However, in my view, the word does not encompass merely theoretical or hypothetical risks. If such a highly precautionary exercise as AA Screening does not encompass merely theoretical or hypothetical risks, by analogy nor need IFI be notified of merely theoretical or hypothetical risks - though the word “merely”

bears some emphasis.

• One must also ask: risk of what? The remainder of the article has an effect somewhat counterbalancing the low threshold – what “might” be must be “significant discharges of polluting matters or other materials” or such as to represent at least a danger of “serious water pollution”.134

117. The foregoing is a useful but somewhat artificial analysis. Article 295(h)(i) PDR 2001 is best understood as a whole. Quantified risk is, of course, the product of the likelihood of an event and its seriousness if it occurs. At risk of some oversimplification and by way of overview, it seems to me that IFI need be notified only if, applying a precautionary approach, there is a real risk of environmentally significant

132 Environmental Impact Assessment Report.

133 Natura Impact Statement.

Emphasis added.

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pollution to a waterway as to which IFI exercises functions. No-one disputed that the Ballyogan Stream is such a waterway. The risk of environmentally significant pollution would be established or excluded, if only in hindsight (as notification precedes the planning application), by a valid EIA Screening of the project requiring EIA Screening, as the Proposed Development did.

118. Article 285(5) PDR 2001:

• Empowers the Commission, to “inform” the prospective applicant at the conclusion of the preapplication consultation of which authorities prescribed under Article 295 should, “in the opinion of” the Commission, be notified by the prospective applicant of the making of an application.

• Requires the prospective applicant to notify those authorities in accordance with s.8(1)(b) of the Act of 2016.

119. Clearly, by Article 285, the applicant for SHD permission must notify those authorities identified by the Commission. But, in my view, a difficult question could arise as to the relationship between these three provisions – which relationship was not really explored at the hearing: is Article 285 exhaustive of the notification obligation imposed by the combination of s.8(1)(b)(ii) and Article 295(h)(i) PDR 2001? Put another way, is the Commission the final arbiter of what prescribed authorities should be notified, on the basis of its “opinion” (a phenomenon difficult to challenge in judicial review) in light of an SHD proposal inchoate at pre-application consultation and from which the SHD planning application may appreciably differ? For example, completion of an EIAR and/or NIS may throw up new environmental issues to which the functions and expertise of additional prescribed authorities may be relevant. Also, s.8(1)(b)(ii) imposes the notification obligation on the intending developer and does so by reference to the Minister’s prescription of authorities to be notified: a prescription predicated on a factual assessment of the SHD proposal and its effects which assessment may remain inchoate and/or provisional in considerable degree at the end of the pre-application consultation. There is a similar process in SID135 matters but also an express residual power in the Board to later require notification of additional public bodies.136 The SHD process in this respect is notably different to ordinary planning applications – in which it is the planning authority which bears the duty to notify prescribed bodies.137 However, I consider that I need not resolve this issue.

120. Likewise, the parties did not trouble me with the anachronisticity of assessing the validity of the Commission’s not having required notification of the IFI in the hindsight of environmental information only later to hand. Nor was the possibility canvassed of the Commission’s later revising its view as to notifying the IFI in light of that information. Fernleigh asserted that there was no record of the Commission considering whether to notify IFI and forming an opinion that it need not be informed.138 The argument on both sides took the form of a more-or-less merits-based comparison of the environmental information later to hand with the statutory provisions as to notification.

135 Strategic Infrastructure Development – see Article 210(5) PDR 2001.

136 Article 210(6) PDR 2001.

137 S.13 PDA 2000.

Transcript Day 1 p143.

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G9 INSPECTOR’S REPORT

121. Counsel for Fernleigh emphasises the Inspector’s record that Ironborn acknowledged139 “that without the attenuation of the underground foul tank or in the event of pump/tank failure there is potential for a direct pathway between the proposed development and the Ballyogan stream”. The Commission responds that such potentials are to be identified but must be considered in light of the resulting conclusions as to any risk posed by such connections having regard to factors including proposed mitigation. As counsel for the Commission said: “[y]ou have to identify a hypothetical pathway but then you have to examine the likelihood of there being an effect.”140

122. Appendix 2 to his Report is the Inspector’s completed EIA Screening determination form. Inter alia, it records receipt of Ironborn’s WFD Assessment and HHQRA.

• Question 1.2 asks: “Will construction, operation, decommissioning, or demolition works cause physical changes to the locality (topography, land use, waterbodies)?”

o The answer given is that: “The works will be appropriately managed in accordance with a Construction Environmental Management Plan (CEMP) and a Construction & Demolition Waste Management Plan (CDWMP). The Water Framework Directive Assessment, Hydrological & Hydrogeological Qualitative Risk Assessment, and Flood Risk Assessment have satisfactorily demonstrated that there will be no significant effects on waterbodies.”

• Question 2.5 asks: “Are there any water resources including surface waters, for example: rivers, lakes/ponds, … which could be affected by the project?”

o The answer given is that: “The potential hydrological and hydrogeological connections have been acknowledged and assessed, and there is no potential for significant effects in terms of volume or water quality.”

123. The Inspector’s EIA Screening itself advised that “the surrounding water resources are not likely to be significantly affected.”141 He advised against any need for EIA142 and, as we have seen, the Commission concurred. In his AA Screening, the Inspector cites the conceptual site model (“CSM”) of the HHQRA, in identifying potential source-pathway-receptor pollution linkages, as:

• Considering all potential sources of contamination for the Ballyogan Stream – including the storage tank

- during the construction and operational stages.

• Ignoring mitigation and good practice construction design measures143 in order to provide a worst-case scenario.

Inspector’s Report §13.5.8

140 Transcript Day 2 p126.

141 Inspector’s Report §12.4.3.

142 Inspector’s Report §12.4.7.

Such as SuDS - Sustainable drainage systems used in managing storm water.

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124. The Inspector’s planning assessment considers ecology144 in light of Ironborn’s Ecological Impact Assessment and the HQQRA and concludes that there will be no significant effects thereon. He notes that the WFD Assessment concludes, as has been seen above “that there is no potential for adverse or minor temporary/long-term or localised effects on surface water bodies”.145

G9 FERNLEIGH’S CASE

125. Fernleigh pleads and submits that:

• The Small Plot - the site of the proposed attenuation tank/detention basin/the site of Condition 14 proposed development is only 15m from the Ballyogan Stream.

• The Proposed Development and/or whatever work are required as a result of Condition 14 will involve extensive excavations very close to that the Ballyogan Stream.

• Ironborn and the Commission accepted the potential for contaminants and pollution to enter the Ballyogan Stream in the event of, inter alia, pump failure (albeit identifying the possibility as very low due to the presence of the detention basin - now conditioned out).

• Accordingly Article 295(h)(i) and s.8(1)(b)(ii) of the 2016 Act required that Ironborn notify IFI of its SHD planning application and/or any ex ante decision that the proposed development would not have significant effects on the environment in the absence of that specialist consultative information was wrong in law.

• Also absent such consultation the Commission could not lawfully in EIA Screening, for want of the required expert opinion, have excluded, as it did, the possibility of significant effects on the environment and the need for an EIA.

• Also, the Commission had regard to an irrelevant consideration – that IFI had made no submission on an SHD application of which they had not been notified.

126. Fernleigh in addition pleads and submits that:

• Ironborn stated:

o “there could be a direct pathway in the event of failure of the underground overflow foul tank. In this case, the overflow would not be pumped/ collected by the public foul network and would discharge directly into the adjacent Ballyogan Stream.”146 o As to WFD147 analysis potential sources of pollution include, “[o]verflow from underground foul tank to Ballyogan Stream (14.092 l/s) worst Case scenario)”, as to which “Risk of Impact” is “[n]o perceptible risk due to the implementation of the mitigation and design measures which includes a detention basin in case of the pumping system fail. The area surrounding the tank will be landscaped in order to provide a localised temporary detention basin to contain the receiving peak flow in case of the pumping system fail. Details are to be agreed with DLRCC.”148

144 Inspector’s Report §11.12.

145 Inspector’s Report §13.5.3.

146 Hydrological & Hydrogeological Qualitative Risk Assessment §3.2(iii) Assessment of Pathways.

147 Water Framework Directive (2000/60EC).

Water Framework Directive Assessment P24. Table 5.1 Pollutant Linkage Assessment (with mitigation).

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• The Inspector acknowledged “that without the attenuation of the underground foul tank or in the event of pump/tank failure there is potential for a direct pathway between the proposed development and the Ballyogan stream”.149

• Ironborn’s deeming the risk imperceptible was premised on a detention basis which Condition 14 of the Impugned Permission excludes.

• Joyce Kemper150 provides the analogy: Allen J quashed the Commission’s decision for failure to seek the EPA’s151 observations on the likely impact of wastewater discharges from the proposed development.

• In Watchhouse Cross152 the planning authority’s failure to notify a statutory consultee was remedied by the Commission on appeal and pursuant to s.131 PDA 2000.153 The consultee had not participated in response. The Court held that, though the remedy was suboptimal, the challenge was technical only and so failed. That is not the position here – the failure has not been remedied, and the statutory obligation remains undischarged.

G9 COMMISSION’S CASE, DISCUSSION & DECISION

Commission’s Opinion

127. The Commission cites Lynch154 - the well-known authority that the Court’s review of an ‘opinion’ of a statutory decision-maker is limited to determining whether the opinion is held bona fide, is factually sustainable and is not unreasonable – whether the decision-maker “acted reasonably in accordance with the factual situation, as he saw it.”155 I accept that the burden of proof in that regard is on Fernleigh. The Commmission’s submission, of course, is predicated on the Commission having had an opinion which it may be regarded as bona fide holding. There is no direct evidence that the Commission considered or had any opinion whether IFI should be notified. However, it does seem to me that Article 295 PDR 2001 should be read as obliging the Commission to exhaustively inform intending SHD applicants of the identities of all prescribed consultees who, in its opinion, must be notified. That implies, first, an opinion in the Commission that it has informed the SHD applicant of all prescribed consultees who, in its opinion, must be notified and, second, an opinion in the Commission that no other prescribed consultees need be notified. Inferring, as I think proper, an opinion in the Commission at the end of the pre-planning consultation that the IFI need not be notified, there is no evidence or submission or any basis on which to conclude that the opinion was not bona fide held. Nor has any evidence or submission or basis been drawn to my attention on which to conclude that in forming such opinion the Commission did not act “reasonably in accordance with the factual situation, as [it] saw it.”

149 Inspector’s Report §13.5.3-8.

150 Joyce Kemper v An Bord Pleanála [2020] IEHC 601.

151 Environmental Protection Agency.

152 Watchhouse Cross Shopping Centre Ltd and Another v an Coimisiún Pleanála [2025] IEHC 520, [2025] 9 JIC 1101.

153 131.—Where the Board is of opinion that, in the particular circumstances of an appeal or referral, it is appropriate in the interests of justice to

request … (c) any other person or body, to make submissions or observations in relation to any matter which has arisen in relation to the appeal or

referral, the Board may, in its discretion, …. serve on any such person …. a notice under this section” requesting submissions or observations by that

person.

154 State (Lynch) v Cooney [1982] IR 337; See recently Mount Salus Residents v An Bord Pleanála, Minister for Housing, OPR & Smyth [2025] IEHC 14 and

cases cited therein.

155 The Commission also cited, for example, Waltham Abbey & Ors v An Bord Pleanála [2022] IESC 30 at §28 per Hogan J.; PL v The Clinical Director of St

Patrick’s University Hospital [2019] 2 IR 2; and Used Cars Importers Ireland Ltd v Minister for Finance [2020] IECA 298.

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128. However, I prefer not to decide this ground on this issue for reasons stated above. The factual situation as the Commission saw matters when it formed its opinion at the end of the pre-planning consultation was, as I have said, inchoate and provisional pending an actual SHD planning permission application. It seems to me that the integrity of the planning process, and perhaps especially of the EIA and AA processes, arguably require, if only as a matter of EU law, the Commission’s revisitation of its opinion in light of a choate and actual planning application, and in light of the particular statutory powers of the Commission in different types of planning process, and to ensure that the Commission has access to the necessary expertise to properly do EIA and AA. Further, decision of this case on this issue would seem to raise the difficult issues described above as to whether the Commission’s opinion exhausts the list of prescribed consultees whom it is, in the end, the intending developer’s obligation to notify. If the Commission’s list is non-exhaustive of the developer’s obligation to notify prescribed consultees (perhaps especially in light of the greater information to hand since the end of the pre-application consultation) finding in the Commission favour on the matter of its opinion would not suffice to decide whether the Impugned Decision is invalid for failure to notify the IFI. I prefer to leave these issues to a case in which they have been fully argued.

Ius Tertii

129. The Commission disputes Fernleigh’s standing to argue that IFI should have been notified. It says IFIs rights are a ius tertii. It cites:

• Eco Advocacy [Statkraft],156 Walsh.157 But neither was a case of the alleged ius tertii of a statutorily prescribed consultee. Nor was either of the cases cited in Statkraft: Cahill158 and Hellfire Massy.159

• RRWA.160 It rejected, as not borne out evidentially, a complaint that the Commission had not considered the views of the HSE. That seems to me to be the ratio of the decision.

o In any event, the complaint was not of failure to notify the HSE of the planning application, but was that the HSE should have been asked to comment on the developer's further material. That complaint was rejected as the EIA Directive does not require that process participants have opportunity to comment on submissions of other process participants. For that proposition, the RWWA cites the recent case of C-461/24.161 However, that case seems to me to be specific to the effect that Article 6(1) of the EIA Directive does not require that “the public concerned” be entitled to express its views on the opinions expressed by the “the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences” –

156 Eco Advocacy v An Bord Pleanála & Statkraft [2025] IEHC 15 §87(iii).

157 Walsh v ABP & Sinnott [2021] IEHC 523, [2021] 7 JIC 2209 §§31-36.

158 Cahill v Sutton [1980] IR 269, [1980] 7 JIC 0901 §283.

Hellfire Massy v An Bord Pleanála & Others [2021] IEHC 424 §54(i).

160 Rural Residents Wind Aware and Environmental Group v An Coimisiún Pleanála & White Hill Wind [2025] IEHC 600, [2025] 11 JIC 0603 (1/11/25)

§§71 & 78.

161 Judgment of 1 August 2025, Asociación Autonómica Ambiental e Cultural Petón do Lobo v Dirección Xeral de Planificación Enerxética e Recursos

Naturais, Eurus Desarrollos Renovables SLU, C-461/24, ECLI:EU:C:2025:620 §55.

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the opportunity of provision of whose opinions Member States must “ensure”. That was not the issue which had arisen in RWWA.

o I confess that I would prefer to leave to a case in which it is decisive the question whether the obligation imposed on Member States by Article 6(1), to ensure that the authorities likely to be concerned are given an opportunity to express their opinion on the information supplied by the developer, and on the request for development consent, is limited to opportunity to opine only on the initial information tendered by the developers and does not apply, for example, to a reply to a request for further information – or, as Article 5(3)(c) of the EIA Directive envisages, “supplementary information” supplied by the developer.

130. The judgment in RRWA did say that “[i]nsofar as the objection is that the HSE should have been asked to comment on the developer's further material, that is a ius tertii in the circumstances.” I infer that the ius tertii identified is that of the HSE. I am not entirely sure of the contextual meaning of the phrase “in the circumstances.” In any event, as I have identified the ratio above, this observation seems to me to be obiter.

131. I respectfully decline to decide this ground against Fernleigh on the basis that invocation of failure to

notify IFI is the impermissible invocation of a ius tertii – that of IFI to be notified. Indeed, as to other third

parties, the judgment in RRWA held, as I would agree, that “[t]he applicants can't credibly have a permission

quashed for failure to consider the personal rights and interests of third parties – that is far too much of a ius

tertii to be a plausible basis for certiorari.” The position of a statutory prescribed consultee is not one of

having “personal rights and interests”. While one can, perhaps, speak of such a consultee as having a “ius” to

be notified, the position, interest and role in law of such a consultee is quite different from that of a third party citizen, NGO or commercial company. While attended by very considerable discretion, the legal relationship of prescribed consultees to planning applications savours more of duty than of right and they have no partisan axe to grind. The reason such bodies are prescribed is invariably in virtue of either, and usually both, of their public functions (usually but not necessarily statutory functions) and their expertise. They are expected to assist the Commission in its decision-making by applying that expertise to the public interest in the planning application – at least as that public interest encompasses their functions.

132. Importantly, the interests of prescribed consultees and the interests they seek to protect, are public not private. While the Commission has a discretion as to which prescribed consultees must be notified and the prescribed consultee in question will have a discretion whether to make a submission or observation in a given planning application, it seems to me that the public, including applicants in judicial review, are at least as a matter of general principle entitled to expect the notification of the appropriate prescribed consultees and that the decision-making process will, as a result of such notification, have the benefit of the knowledge, expertise, submission and/or observation of the notified prescribed consultees. Put another way, and generally, the public are entitled to expect that the relevant public bodies will inform planning decisions. That is so as a matter of general principle but also, and more specifically, because it is well-established in law that members of the public need not themselves (though they may) deploy expert opinion in submissions or observations and are entitled to expect an expert and curious Commission to do so and to bespeak relevant expertise from those whose public function is to possess and deploy it.

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133. Further, a point specific to EIA can be made - though I think it illustrative of a wider point. Article 6(1) must be read with Recital 33 and Article 5(3)(b) of the EIA Directive to the effect that:

• Sufficient expertise, in the relevant field of the project concerned, is required for the purpose of the examination of an EIAR by the competent authorities in order to ensure that the information provided by the developer is complete and of a high level of quality.

• The competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the EIAR It appears to me that the prescription of statutory consultees, their notification in an appropriate case, their submissions and observations in such cases and the Commission’s regard to such submissions and observations in doing EIA are all part of the State’s compliance with Articles 5(3)(b) and 6(1) of the EIA Directive.

134. For these reasons and as I have said, I decline to decide this ground against Fernleigh on the basis that invocation of failure to notify IFI is the impermissible invocation of a ius tertii.

Other Standing/Similar Points

135. The Commission also argues, as to discretion to refuse relief, that:

• (i) Fernleigh could have but did not raise IFI’s non-participation during the planning process;

• (ii) IFI has made no complaint about not being notified or in relation to being deprived of the opportunity to make submissions on the planning application the making of which was publicly advertised;

• (iii) there is also no pleaded case or evidence that Fernleigh’s engagement in the planning application process was prejudiced or impaired by reason of the complaint advanced at Ground 9.

136. I reject the Commission’s arguments in these regards.

• First, duties as to notification of prescribed bodies are autonomous to developers and the Commission.

Indeed, they arise ever before public submissions and observations are made. The public need not correct their homework in this regard.

• Second, the brave submission that IFI has not complained of not being notified or heard ignores the fact that no one knows what IFI’s views are or even whether it knew of the planning application. Its premise, without which the submission does not arise, is that IFI ought to have been but was not notified – so the Commission’s argument that the non-notification of IFI was not unlawful is beside this point. The Commission’s proposition that Fernleigh speculates as to IFI’s lack of knowledge of the application and does not establish that IFI, though not notified, did not otherwise know or come to be aware of the making of the application, by virtue, for example, of the public advertisement of the

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

making of the application is also beside the point. The law has stipulated a distinct category of prescribed consultees, including IFI, and that they are to be explicitly notified where relevant. They, including IFI, are not obliged or even expected to monitor the thousands of public advertisements of planning applications made annually against the possibility that some may be of interest. They, including IFI, no doubt, have enough on its plate without that. It is, no doubt, for that very reason amongst others, that the obligation is not on IFI to monitor – the obligation is on the Commission to notify or ensure notification where appropriate. IFI is entitled to expect that the Commission will notify or ensure notification where appropriate. On the premise that the Commission had failed in its statutory duty in this regard, (a premise it does not accept but which is necessary to the relevance of this particular argument) it is the Commission, not Fernleigh which is speculating that IFI may, despite the Commission’s failure, have somehow otherwise known of the application and its content sufficiently to inform a decision whether and in what terms of make a submission or observation.

• Third, Fernleigh need not (though it may) plead or adduce evidence that its engagement in the planning application process was prejudiced or impaired by reason of non-notification of IFI. The issue is not effect on Fernleigh’s engagement in the process or on its private rights or interests: it is whether any public interest in IFI’s notification has been lawfully vindicated. In any event, we cannot know whether engagement in the planning application process was prejudiced or impaired as we do not know what, if anything, IFI would have submitted or observed in the process.

Kemper & Atlantic Diamond

137. I share with the Commission its inability to see what principle laid down in Atlantic Diamond162 avails Fernleigh as to Ground 9. I also agree that Fernleigh’s reliance on Kemper163 is misplaced. The permission impugned in Kemper was not quashed for failure to notify the EPA164 of the planning application. The Commission did notify the EPA of the application165 and requested its observations on the necessity for a wastewater discharge licence for the proposed WWTP. Certiorari issued in Kemper on a different basis – the Board asked the EPA the wrong question. That was the “nub” of the matter.166 Also, in the particular statutory scheme at issue,167 the Board was obliged as a matter of mandatory consultation to convey, but did not “convey to the EPA their assessment of the likely impact of the proposed development and the EPA is to make its observations on that assessment.”168 So In Kemper, what was required of the Board was not merely an opinion but a stipulated action.

162 Atlantic Diamond Ltd v An Bord Pleanála [2021] IEHC 322.

163 Joyce Kemper v An Bord Pleanála [2020] IEHC 601.

164 Environmental Protection Agency.

165 §177 reads, in part: “… by letter dated 29th November 2018 the Board wrote to the EPA inviting the EPA to make any observations it might have in

relation to the proposed development … An e-mail came in to the Board … a month after the deadline. … the Board wrote that the response could not

be accepted because it was out of time and renewed its request, setting a new deadline … Early on the following morning the EPA re-sent the response

it had previously sent.”

166 §§198 & 205.

167 Article 44 of the Waste Water Discharge (Authorisation) Regulations, 2007 as amended.

§203.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

Mandatory Obligations – Breach not de minimis

138. Fernleigh cite Southwood Park169 and Environmental Trust Ireland170 - essentially to the effect that breach of mandatory statutory obligations cannot (at least easily and absent proof by the administrative

decision-maker on whom the onus lies) be overlooked as de minimis. While I accept that as a general proposition, its premise is breach of the obligation – as to which the onus lies on Fernleigh.

Evidential Deficit

139. The Commission submits as its “basic point”171 that Fernleigh:

• Is effectively and impermissibly asking the Court to substitute for the Commission’s opinion Fernleigh’s post-Decision, ex post facto, non-expert, subjective and unsubstantiated opinion that IFI had to be notified.

• Falls far short of evidentially establishing that IFI had to be notified – that, in terms of Article 295 PDR 2001, the Proposed Development might cause “2. Significant discharges of polluting matters or other materials to such waters or be likely to cause serious water pollution or the danger of such pollution or

3. Would involve the carrying out of works in, over, along or adjacent to the banks of such waters or to any structure in, over or along the banks of such waters which might materially affect the waters."

• “just hasn't discharged the onus of proof.”172

140. For reasons indicated above I will not for present purposes hold Fernleigh to proof that the Commission’s opinion was invalid when formed. I will, as it were, allow in principle its impugning the Commission’s opinion on the basis of hindsight consisting in the planning application documents and the Inspector’s Report. Fernleigh’s difficulty is that, even with that allowance, there is no evidence that the Commission’s opinion, or for that matter Ironborn’s non-notification of IFI was in law incorrect. Fernleigh tenders no evidence of such errors, much less the expert evidence which would be required to upset the reasonableness of not notifying the IFI – even by reference to the standard set by Article 295(h)(i) PDR 2001.

141. Fernleigh relies entirely on what, I agree with the Commission, is an unduly selective pot-pourri of excerpts from the planning application documents and the Inspector’s Report. Fernleigh cites the bane and ignores the antidote. Ceteris paribus, an expert behaves entirely properly in, first, identifying a potential risk and, second, discounting it for good reason. That is what Ironborn’s experts did here and the Inspector and the Board accepted their analysis, as they were presumptively entitled to do. To displace that presumption on the basis that they lacked access to the expert views of IFI would require at least some evidence that the Proposed Development poses a real, rather than merely theoretical or hypothetical, risk of “serious water pollution” as arising either from the construction of the pumps and tank (for example, there is no evidence

169 Southwood Park v An Bord Pleanála 2019 IEHC 504.

170 Environmental Trust Ireland v An Bord Pleanála 2022 IEHC 540. Also Dalton v An Bord Pleanála [2020] IEHC 27.

171 Transcript Day 2 p115.

Transcript Day 2 p121.

Fernleigh RA v An Coimisiún Pleanála & Ironborn [2025] IEHC 655

that the CEMP is likely to be inadequate) or from their operation. There is no such evidence. Ground 9 is based on mere assertion. It will be dismissed on that account.

CONCLUSION

142. For the reasons set out above the Impugned Decision will be quashed on Ground 5 only – unacknowledged material contravention of the CDP as to private amenity space. All other grounds will be dismissed. I provisionally consider that the matter should be remitted to the Commission for re-decision. I will hear the parties as to costs and final orders on 8 December 2025.

David Holland 28/11/25