About this case:

• Citation:
  [2019] IEHC 504
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Rejecting An Bord Pleanála’s argument that the breach of regulations was de minimis and didn’t affect the validity of the decision to grant planning permission, Mr Justice Garrett Simons said the breach could not be characterised as “trivial, technical or insubstantial” and was fatal to the validity of the planning permission.

Challenge to planning permission

In the High Court, Southwood Park Residents Association sought to challenge a decision of An Bord Pleanála dated 13 February 2019, granting planning permission for a large scale residential development to Cairn Homes Properties Ltd.

Under the Residential Tenancies and Planning and Development (Housing) Act 2016, an application can be made directly to An Bord Pleanála in the case of a “strategic housing development”.

Pursuant to Article 301(3) of the Planning and Development Regulations 2001 (as amended): “The applicant shall make a copy of an application available for inspection on the Internet at a web address set up for the purpose for the period commencing on the date of making the application and expiring 8 weeks following the sending by the Board to the applicant of a copy of its decision on the application.”

The copies of the application documents on the relevant website must be identical to the application documents deposited with An Bord Pleanála.

Omitted document

Cairn Homes established the requisite website, however, “through inadvertence, one of the documents which had been submitted as part of the planning application… was not posted to the website. Instead, an earlier version of the document was posted online”.

The omitted document, received by An Bord Pleanála on 30 October 2018, is entitled “Cross Avenue, Blackrock, Co. Dublin, Bat Survey”. This report put forward detailed mitigation and monitoring measures based on bat survey results, and contained information relating to the potential impact of the development on various species of bat protected under EU law.

There were two bat surveys: one carried out in 2017 which had identified the need to carry out a further survey in the summer months, and which had been posted to the website; and an additional survey carried out in July 2018 which was lodged with An Bord Pleanála, but was not posted to the website.

Breach of requirements not trivial, technical or insubstantial

An Bord Pleanála conceded that there had been a breach of the requirements of the regulations but contended that this breach was de minimis and didn’t affect the validity of the decision to grant planning permission. Their principal argument was to the effect that, on comparing the 2017 and 2018 surveys, there was no significant difference between the two.

Stating that the regulations could not be clearer in their terms, Mr Justice Simons said that the failure to post the correct version of the document online represented a breach of the regulations. Mr Justice Simons said that An Bord Pleanála’s reliance on de minimis breaches case law was misplaced, and that the breach, in this case, could not be “characterised as trivial, technical or insubstantial”.

Mr Justice Simons said that the differences between the two bat surveys could not be discounted as insubstantial – the identification of appropriate mitigation measures was an important issue in the planning application, and An Bord Pleanála’s inspector had relied in this regard almost exclusively on the mitigation measures put forward by Cairn Homes.

Mr Justice Simons said “…such was the eagerness of the inspector to adopt the mitigation measures wholesale that she appears to have overlooked entirely the fact that certain of the mitigation measures were presented in the alternative, and, in one instance, it was expressly stated that “a better mitigation solution” than that identified might be required. None of this is engaged with by the inspector”.

Mr Justice Simons said that effective public participation required members of the public to be afforded the opportunity to make submissions on those mitigation measures, and that the fact that only the 2017 survey appeared on the website undermined the exercise. He said this was “especially so as the mitigation measures recommended in the 2017 version were, in some instances, more robust than those under the 2018 version”. 

In all the circumstances, Mr Justice Simons said it could not be said with certainty that the outcome of the development consent process, i.e. the application for planning permission, would have been the same even if the breach of Article 301(3) had not occurred. He said that if “…the revised mitigation measures been available online, this would have allowed members of the public to make submissions on the suitability or otherwise of those measures and this would have allowed An Bord Pleanála to make a better informed decision”.

As such, Mr Justice Simons made an order setting aside the decision to grant planning permission.

• by Seosamh Gráinséir for Irish Legal News