“Phasing Means Provision”: High Court holds that Local Area Plan phasing must be applied as written; “spirit and intent” and conditions cannot replace section 37(2)(b) where a material contravention arises

Introduction

In Wilson & Ors v An Bord Pleanála & Ors [2025] IEHC 523, the High Court (Farrell J) quashed a decision of An Bord Pleanála (the Board) granting Strategic Housing Development (SHD) permission for 219 residential units, a crèche, and ancillary works at Parknasillogue, Enniskerry, Co. Wicklow (ABP Ref. 312652-22). The central issue was whether the proposed development materially contravened the Bray Municipal District Local Area Plan 2018–2024 (the LAP) in respect of phasing, and, if so, whether the Board could lawfully grant permission without complying with the statutory material contravention pathway in section 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016 and section 37(2)(b) of the Planning and Development Act 2000.

The Applicants (local residents) argued that the Board had granted permission for a scheme that did not provide, phase by phase, the education, community and employment facilities expressly mandated by the LAP for Action Area Plan 2 (Parknasillogue). They contended the Board misinterpreted the LAP, failed to identify an obvious contravention, and attempted to rely on the “spirit and intent” of the LAP and a phasing condition that did not actually deliver the non-residential facilities. The Respondents and developer (Capami Ltd) resisted those arguments. Wicklow County Council addressed only distinct grounds concerning the validity of the Action Area Plan (AAP2) on SEA grounds, which ultimately did not require determination.

The judgment is a significant application and sharpening of the Supreme Court’s approach in Sherwin v An Bord Pleanála [2024] IESC 13 to plan interpretation and material contravention. It clarifies the legal status of non-statutory AAPs, the limits of “conditions” as a cure, and the Board’s autonomous duty to engage the material contravention route where the text of a statutory plan is not met.

Summary of the Judgment

• The LAP contains clear, binding phasing requirements for Parknasillogue: development “shall be delivered in phases such that adequate education, community and employment facilities are provided for each phase,” with the school site to be provided in Phase 1 with no more than 50% of residential units, and employment facilities by Phase 2 with no more than an additional 75% of the residential units (paras 39, 52).
• The proposed SHD did not include any school site or employment uses and therefore did not comply with the LAP’s textual phasing mandates (paras 57–58, 81–82).
• The Board concluded there was no material contravention by appealing to the “spirit and intent” of the LAP and by imposing Condition 4 (phasing), but that approach misinterpreted the LAP and/or was irrational (paras 46–48, 67–69).
• Condition 4 could not cure the contravention because it managed only the internal sequencing of the residential scheme and did not deliver the mandated non-residential facilities in tandem with each phase (paras 75–78).
• Non-statutory AAP2 could not dilute or displace the LAP’s binding requirements, and the proceeding was not a collateral challenge to AAP2 (paras 70–74).
• Letters indicating that other lands might be made available for a school or employment at some point did not satisfy the LAP’s requirement that facilities be provided in each phase (paras 80–82).
• The Board failed to identify the contravention at all, so arguments about whether any contravention was “material” did not arise; in any event, materiality was plain under the Roughan test (paras 83–89).
• Discretion to refuse relief did not arise: compliance with section 9(6) is an autonomous duty and does not depend on third-party submissions (para 90).
• Result: Order of certiorari quashing the permission. No need to determine remaining grounds (paras 91–96).

Analysis

Precedents cited and their influence

• Sherwin v An Bord Pleanála [2024] IESC 13, per Woulfe J:
  • Interpretation of development plans is “ultimately a matter for the courts” and misinterpretation is an error of law going to jurisdiction. Plans are read in their ordinary meaning as understood by the public and developers (para 21).
  • Decision-makers must engage with the specific provision allegedly contravened and determine explicitly whether the application would materially contravene the plan (para 23).
  Influence here: Farrell J applied Sherwin to hold that the Board’s reliance on “spirit and intent” without engaging the LAP’s text was a misconstruction or irrationality (paras 67–69).
• Redmond v An Bord Pleanála (No. 1) [2020] IEHC 151 and (No. 2) [2020] IEHC 322:
  • Reinforces courts’ supervisory role over plan interpretation and underscores that proper engagement with statutory plans is essential. Cited as contextual authority on plan interpretation (para 22).
• Churchfields Management Co v An Bord Pleanála [2025] IEHC 495:
  • Farrell J reiterated that misinterpretation of a plan is a jurisdictional error. The court referenced that same principle here (para 21).
• Roughan v Clare County Council (HC, Barron J, 18 Dec 1996), applied in Byrnes v Dublin City Council [2017] IEHC 19; Ballyboden v ABP [2022] IEHC 7; Jennings v ABP [2022] IEHC 14; Grafton Group plc v ABP [2023] IEHC 725:
  • The “materiality” of a contravention depends on the grounds on which local interests might reasonably oppose the development. A plan is an “environmental contract” with the public; unexpected alterations without plan-process consultation breach those rights (paras 87–88).
  Influence here: even if materiality had been in issue, the contravention would plainly be material given the phasing’s community-facing purpose and the scale of deviation (paras 86–89).

Legal reasoning

The court set out a disciplined four-step approach to material contravention (para 66):

1. Identify, by reference to the plan text, whether there is a contravention.
2. Ensure that interpretation is correct, rational, and lawful.
3. If a material contravention exists, invoke and satisfy the special material contravention pathway (section 9(6) SHD Act 2016 and section 37(2)(b) PDA 2000).
4. Ensure that the exercise of any such procedure is rational and lawful.

Applying those steps:

• Step 1 and 2 (contravention and interpretation):
  • The LAP text is unequivocal: phasing “shall” ensure adequate education, community, and employment facilities “for each phase,” with the school site in Phase 1 and employment by Phase 2 (paras 39, 52).
  • The scheme provided 219 units but none of the Phase 1 school or Phase 2 employment uses; a crèche alone could not satisfy the prescribed non-residential facilities (paras 57–58, 78).
  • The Board nevertheless concluded there was no material contravention, citing the “spirit and intent” of the LAP and attaching Condition 4 (paras 46–47, 61–62). That reasoning failed Sherwin’s requirement to anchor decisions in the plan’s text and to identify the specific contravention. It was a misinterpretation and thus a jurisdictional error; alternatively, it was irrational (paras 67–69).
• Step 3 (material contravention pathway):
  • Because the Board incorrectly decided there was no contravention, it never engaged section 9(6)(c) of the 2016 Act and section 37(2)(b) of the 2000 Act (paras 63–66, 67). The Inspector had expressly recognised a material contravention and advised that it might be justified under section 37(2)(b)(i) as development of strategic or national importance (paras 59, 12.11.18–23), but the Board did not adopt that route.
• Condition 4 cannot cure a contravention:
  • Condition 4 managed the internal sequencing of the residential build and the delivery of the crèche and roads but did not require the school site in Phase 1 nor employment in Phase 2 and did not ensure the provision of “adequate education, community and employment facilities” in each phase (paras 75–78).
  • A condition cannot convert a non-compliant scheme into a compliant one where the LAP’s text requires the delivery of other land uses in tandem. At best, it defers later phases; it does not deliver mandated facilities (paras 77–78).
• AAP2 cannot dilute the LAP:
  • The AAP is non-statutory; it cannot change binding LAP requirements. LAP remains the operative instrument for section 9(6)/section 37(2)(b) purposes (paras 70–74).
  • Thus, this was not a collateral challenge to AAP2; the court proceeded on the assumption that AAP2 was valid but subordinate (para 73).
• “Availability” letters do not equal “provision”:
  • Correspondence stating that lands would be made available to the Department of Education or the Council at some stage did not meet the LAP’s requirement to provide facilities “for each phase” (paras 80–82).
• Materiality and discretion:
  • The Board’s argument about the Applicants’ burden to prove materiality fell away because the Board never identified any contravention. Regardless, this contravention was plainly material under Roughan (paras 83–89).
  • Discretion to refuse relief: compliance with section 9(6) is an autonomous obligation; relief does not depend on whether a particular observer raised the point or on proof of personal prejudice (para 90).

Impact and significance

The judgment crystallises a number of practical rules for future SHD (and post-SHD) permissions and for development management generally:

• Text over “spirit and intent”: Decision-makers must engage with the plan’s actual words. Appeals to “spirit and intent” cannot override clear plan text (paras 46–49, 67–69).
• Hard-edged phasing: Where a LAP requires that non-residential facilities be delivered “for each phase,” a purely residential phase cannot be made compliant by a general phasing condition. The application must either:
  • Include and deliver those facilities in the relevant phase; or
  • Acknowledge a material contravention and satisfy section 9(6)(c)/section 37(2)(b) with cogent reasons.
• Non-statutory plans: AAPs and similar frameworks do not displace LAP requirements and cannot be used to dilute binding phasing or quantum limits (paras 70–74).
• Conditions as compliance tools: Conditions cannot cure a failure to include mandated uses where the plan stipulates their provision as part of phased delivery. Conditions that merely defer or manage sequencing are insufficient (paras 75–78).
• Material contravention pathway discipline: If a contravention is in play, the Board must:
  • Identify the specific contravention by engaging the plan text (Sherwin).
  • State whether it is material (Roughan et al.).
  • Explicitly justify a grant under section 37(2)(b) if applicable (and not zoning-related), giving adequate reasons.
• Evidence of “provision” versus “availability”: Letters of comfort indicating that lands may be available at some point are not a substitute for actual provision of facilities where plan text requires it contemporaneously with residential phases (paras 80–82).
• Litigation posture: Objectors need not have raised the exact point for the court to grant relief when the decision-maker fails an autonomous statutory duty to comply with section 9(6). However, public engagement remains relevant to materiality and remedies (para 90).

In practice, developers advancing schemes in “action areas” with integrated land-use objectives will need either to design genuinely mixed-use, phased proposals that deliver the adjoining education, community, and employment elements as demanded, or to shoulder the burden of the material contravention pathway with compelling strategic justifications. Local authorities and the Board should ensure case files record a precise, textual analysis of plan provisions and a reasoned conclusion on contravention/materiality before considering any cure under section 37(2)(b).

Complex concepts simplified

• Development Plan (CDP) and Local Area Plan (LAP):
  • Statutory plans adopted following public consultation and elected member approval. They set binding planning policies and objectives. LAPs provide detailed local zoning and objectives within the framework of the CDP.
• Action Area Plan (AAP):
  • A more detailed plan for a specific area within an LAP, often prepared by or for the planning authority. In this case, AAP2 was approved by Chief Executive’s Order, but it is non-statutory and cannot override the LAP’s binding provisions (paras 70–74).
• Strategic Housing Development (SHD):
  • A fast-track process (now superseded for new applications) allowing the Board to directly determine large-scale housing proposals. Even in SHD, the Board must apply section 9(6) of the 2016 Act in cases of material contravention of CDP/LAP policies (para 64).
• Material contravention:
  • A serious inconsistency between a proposal and a statutory plan. The Board may grant permission for such a contravention (other than zoning) only by applying section 37(2)(b) PDA 2000 (via section 9(6)(c) of the 2016 Act) and giving specified reasons (paras 63–66).
  • Materiality asks whether the divergence is significant in the eyes of the local community and would have been important at plan-making (Roughan test, paras 87–88).
• Section 37(2)(b) PDA 2000:
  • The statutory pathway permitting a grant of permission in the face of a material contravention of a development plan/LAP (other than zoning), based on specified criteria (e.g., strategic/national importance). The Board must explicitly address and justify this.
• Section 9(6) of the 2016 Act:
  • The SHD-specific provision incorporating the section 37(2)(b) pathway; the Board may grant despite a material contravention only where, if section 37(2)(b) applied, it would grant permission (para 64).
• Phasing:
  • Sequencing the delivery of a development so that housing is synchronised with physical and social infrastructure. Here, the LAP required non-residential facilities to be provided with each phase, making “phasing” a substantive, not merely administrative, requirement (paras 39–40).
• Certiorari:
  • A judicial review remedy quashing an unlawful decision. The court made an order of certiorari quashing the Board’s permission (paras 94–96).

Key elements of the factual matrix

• The site lies within AAP2 Parknasillogue; the LAP text caps the area at a maximum of 156 units and requires specified non-residential uses in defined phases (paras 35, 39).
• Capami sought 219 units, a crèche, and associated works. The Council’s Chief Executive recommended refusal on, inter alia, grounds of phasing non-compliance and density (paras 11, 55–56).
• The Board’s Inspector accepted a material contravention on phasing but suggested it could be justified under section 37(2)(b)(i) as strategically important (paras 57–59).
• The Board granted permission with Condition 4, stating in a note that compliance with Condition 4 kept the scheme within the “spirit and intent” of the phasing provisions and thus did not materially contravene the LAP (paras 46, 61–62).
• The High Court rejected that approach and quashed the permission (paras 67–69, 91–96).

Practical guidance distilled from the decision

• For planning authorities and the Board:
  • When phasing policies require non-residential uses in specific phases, ensure the decision explicitly engages those words. If the scheme omits them, identify the contravention and, if granting, deploy and reason the section 37(2)(b) pathway.
  • Avoid generic references to “spirit and intent.” Provide textual analysis, identify any contravention, and address materiality with reasons.
  • Do not rely on non-statutory AAPs to dilute LAP obligations. Record why any conditions imposed will actually deliver the required non-residential elements within the relevant phases.
• For developers:
  • In action areas with integrated objectives, align applications with the LAP’s hard-edged phasing. If you cannot deliver non-residential uses in tandem, prepare a robust material contravention case under section 37(2)(b), including strategic justifications and credible delivery mechanisms.
  • “Availability” letters are not a substitute for inclusion and delivery. Where third-party lands are needed (e.g., for a school), consider binding agreements or joint applications that make the provision real and phased.
• For objectors:
  • While relief does not depend on you having raised every point, detailed submissions identifying the precise plan text and explaining materiality can strengthen the record and the court’s ability to grant relief.

What the Court did not decide

Having quashed on Core Ground 2 (phasing/material contravention), the court did not need to determine the remaining domestic and EU law grounds, including arguments concerning EIA/derogation licences, AA, and SEA challenges to AAP2 (paras 15–17, 93–96). The court proceeded on the assumption that AAP2 was valid for the purposes of this ground, but emphasised its non-statutory status and subordination to the LAP (paras 70–74).

Conclusion

Wilson is a clear and consequential application of Sherwin. It reaffirms that:

• A decision-maker must interpret and apply the development plan/LAP by its text. Appeals to a plan’s “spirit” cannot substitute for the words adopted by elected members after public participation (paras 21, 67–69).
• Where the plan prescribes phasing that couples housing with specified non-residential facilities “for each phase,” a purely residential phase does not comply. Conditions that do not themselves secure delivery of those facilities cannot “cure” the omission (paras 75–78).
• Non-statutory plans (AAPs) are not a shield against the statutory plan’s controls (paras 70–74).
• If a material contravention is present, the Board must explicitly deploy the section 9(6)/section 37(2)(b) route with adequate reasons or refuse permission (paras 63–66).

The judgment strengthens the legal force of LAP phasing provisions as binding, operational constraints and underscores that the integrity of the plan-led system depends on faithful textual engagement and the disciplined use of the statutory material contravention procedure. It will likely shape how mixed-use and action-area proposals are conceived, documented, and determined, insisting that “phasing means provision,” not merely the sequencing of houses.