Class 33(c) “Laying Out and Use of Land” Encompasses Excavation for Sports Pitches; “No Charge for Admission” Targets Entry Fees (Not Hire/Use) and Limits “Urban Development” EIA Claims in Section 5 Declarations

1. Introduction

This High Court judicial review in Protect Kenilworth Square and Martin Joyce v Dublin City Council concerns a section 5 declaration under the Planning and Development Act 2000 (“PDA”) given by the respondent planning authority (Dublin City Council, “the Council”) on 22 August 2024. The declaration accepted that certain works proposed by the notice party (The Board of Management of Saint Mary’s College, “St Mary’s”) were exempted development.

The applicants are (i) an unincorporated residents’ association (Protect Kenilworth Square) and (ii) a resident (Martin Joyce). The dispute arises in the context of a broader redevelopment (“Project Kenilworth”), but the section 5 request focused on a defined subset: reconfiguration of pitches to form one full-size pitch with a 4G synthetic surface and associated drainage/sub-base works, plus 1.2m perimeter fencing.

Two issues dominated:

  • Exemption issue (Core Ground 1): whether these works can fall within Class 33(c) (sports/athletics) of Schedule 2, Part 1 of the Planning and Development Regulations 2001 (“PDRs”)—in particular, what “laying out and use of land” means and whether the “no charge” condition is satisfied.
  • EIA issue (Core Ground 4): whether the works are an “infrastructure project”—i.e., “urban development” under Schedule 5, Part 2, para. 10(b)(iv) PDRs—triggering EIA obligations (screening/reasons).

2. Summary of the Judgment

Mr Justice Nolan dismissed the application and refused certiorari. The Court held:

  • The section 5 declaration was intra vires. On a strict construction, the proposed 4G pitch works fell clearly and unambiguously within Class 33(c) because “development” and “works” (as defined by the PDA) include excavation and works under land. The phrase “laying out and use of land” is not limited to “two-dimensional” surface activity.
  • The Class 33(c) condition “where no charge is made for admission of the public to the land” concerns charging for entry/admission, not charging for use/hire by clubs or invited users. On the facts, it was not suggested that the public would be charged to enter to watch events.
  • The works were not “urban development” or an “infrastructure project” within Schedule 5 PDRs and therefore did not constitute an EIA project category; consequently, EIA screening obligations did not arise in the manner alleged, and repetition of the statutory test was sufficient given the clear inapplicability.

3. Analysis

3.1 Precedents Cited

(a) Dillion v Irish Cement Ltd [1986]11 JIC 2602

The applicants relied on the orthodox proposition (attributed in the judgment to Finlay C.J.) that exemptions must be construed strictly and an applicant for an exemption must bring themselves within it “clearly and unambiguously”. The Court accepted that strict approach (para. 36), but found it satisfied here: the statutory definitions of “development” and “works” broaden what “laying out” can entail.

(b) Heather Hill [2022] IEHC 146

Cited by the applicants to support a narrower, more literal reading of “laying out of land”, advanced as essentially surface-level arrangement. The Court rejected the attempt to confine Class 33(c) in that way, emphasising that Class 33(c) must be read through the PDA’s defined terms (paras. 38–39), and therefore can include excavation/sub-surface works.

(c) McGrath v McDermott [1988] I.R. 258

Relied upon by the Council for general interpretive method: statutes should be read as a whole to yield a “workable and coherent” interpretation (para. 25). This supported rejecting the applicants’ construction as unworkable because it would effectively “read in” an unexpressed limitation to Class 33(c).

(d) Narconon Trust Limited v. An Bord Pleanála [2021] IECA 307

Invoked by St Mary’s on the nature of section 5 mechanisms and how such determinations operate within the planning code (para. 30). The judgment aligns with the idea that section 5 is a definitional/threshold mechanism—what is “development” or “exempted development”—and not a surrogate merits-based planning permission process.

(e) Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407 and Eco Advocacy v An Bord Pleanála [2025] IEHC 15

These authorities were cited for the principle that administrative decisions should, where possible, be read as valid (para. 52). They assisted the Council’s response to the “precautionary basis” language in the planner’s report: the Court treated that discussion as not undermining the primary conclusion that the project was not within a Schedule 5 EIA class.

(f) Carvill v Dublin City Council [2025] IECA 84

This was central to Core Ground 4. The Court adopted Carvill for two connected propositions:

  • Where works do not comprise an EIA project category, alleged defects in screening/reasons may be beside the point (para. 52 referencing Carvill).
  • “Urban development” is not infinitely elastic; in Carvill traffic calming did not sit easily with the EU Commission’s guidance (para. 59), and here a 4G pitch likewise could not realistically be shoehorned into the infrastructure/urban development category. The Court cited Carvill as confirming that if it is not an infrastructural project, an EIA is not required (para. 60 referencing para. 254 of Carvill).

(g) Kavanagh v An Bord Pleanála [2020] IEHC 259

Quoted for an EU law limit-point: Member State obligations under the EIA Directive are limited to the classes of projects in the Annexes and do not extend beyond them (para. 58). This underpinned the Court’s reluctance to expand “urban development” to capture sports pitch works.

3.2 Legal Reasoning

(i) The role of the Court on judicial review of a section 5 declaration

The Court stressed the constrained JR posture: it is not for the court to decide whether works are exempted development “on the merits” but to test whether the declaration was made intra vires and according to law (paras. 18–19). This frames the judgment as one of legality/rationality rather than planning merits or amenity balancing.

(ii) Class 33(c): “laying out and use of land” is informed by PDA definitions

The applicants’ pivotal submission was that “laying out” is effectively surface arrangement and cannot include excavating ~430mm, importing materials, drainage layers, and heavy construction. The Court’s response is doctrinal: Class 33(c) exempts “development consisting of the laying out and use of land”, and “development” is a defined term. Under section 3(1) PDA, development includes works “in, on, over or under land”; and under section 2(1) PDA, “works” includes “construction” and “excavation” (paras. 38–39). Therefore:

  • “Laying out” for sports purposes can include sub-surface construction and excavation when that is what is involved in creating or reconfiguring a pitch.
  • The Court refused to “read in” a limitation that exempted works must be “minor or insignificant” (paras. 40–41). The absence of conditions/limitations in the second column of Class 33(c) mattered: the Court treated that as a legislative choice.

(iii) “No charge … for admission of the public to the land”: admission vs use

The applicants argued that because invited users/clubs might pay a fee, the “public” is being charged. The Court drew a bright textual line: “admission … to the land” means entry/access, not use/hire (para. 42). The Court accepted St Mary’s characterisation that the mischief is charging members of the public to enter to watch events (para. 42). On the facts, the materials did not suggest that an entry fee would be charged to the public.

(iv) Core Ground 4: no EIA because no relevant EIA project category

The applicants attempted to characterise the pitch works as “urban development” under Schedule 5, Part 2, para. 10(b)(iv) PDRs. The Court rejected this as a category error: the exemplars and structure of Schedule 5 show it targets large-scale infrastructural/urban projects (para. 57). The Court viewed it as linguistically and legally untenable to equate a 4G pitch with that class, especially in light of:

  • Kavanagh v An Bord Pleanála [2020] IEHC 259 (Directive obligations limited to Annex project classes); and
  • Carvill v Dublin City Council [2025] IECA 84 (caution against forcing ordinary local works into “urban development”).

On reasons, the Court held that, in context, repeating the statutory test was sufficient (para. 60): the non-applicability of the EIA category was self-evident on the face of the works and the Schedule.

3.3 Impact

  • Wider scope of Class 33(c) in practice: The decision will likely be relied upon to support section 5 outcomes where sports pitch works involve excavation, drainage/sub-base build-ups, and significant ground disturbance—provided the works remain properly characterised as “laying out and use of land” for sport and no other de-exempting provisions apply.
  • Admission vs usage fees: The judgment clarifies that Class 33(c)’s “no charge” criterion is aimed at charging the public to enter, not at fees for organised users (clubs, invited visitors). Future disputes may pivot to evidential detail: whether arrangements are, in substance, public entry charges by another name.
  • Constraining “urban development” arguments for EIA: Parties challenging local recreational works may find it harder to invoke EIA by analogising to “urban development” infrastructure categories, especially where the project does not resemble the Schedule 5 typology and thresholds.
  • Section 5 as a “low visibility” route remains legally robust: The Court acknowledged the limited public scrutiny inherent in section 5 (para. 18), but did not treat that as a ground to heighten substantive requirements beyond the statutory scheme. This underscores that reform (if desired) is legislative, not judicial.

4. Complex Concepts Simplified

  • Section 5 declaration: A planning authority’s formal determination of whether particular works are “development” and, if so, whether they are “exempted development”. It is not planning permission and does not entail the same public participation as a planning application.
  • Exempted development: A class of development that the Regulations say does not need planning permission, usually subject to stated conditions/limitations. If a proposal falls within the class, permission is not required unless another rule “de-exempts” it.
  • Strict construction of exemptions: Courts interpret exemptions narrowly; the person claiming the exemption must fit within it “clearly and unambiguously”. Strict does not mean the court can add extra restrictions not found in the text.
  • EIA / “urban development”: Environmental Impact Assessment duties arise for defined categories of projects (and thresholds). Not every development with environmental effects is an EIA project; it must fall into the Directive/Regulations’ project classes.
  • Intra vires / ultra vires: Acting within legal power (intra vires) or beyond it (ultra vires). Judicial review focuses on legality, not whether the court agrees with the planning outcome.

5. Conclusion

The High Court upheld Dublin City Council’s section 5 declaration. The key doctrinal contribution is the Court’s insistence that Class 33(c) must be read through the PDA’s definitions: “laying out and use of land” for sport can include excavation and sub-surface construction that forms part of creating the pitch. The Court also drew an important practical distinction: Class 33(c)’s “no charge” requirement is about charging the public for admission/entry, not about charging organised users for access to use the facility. Finally, by refusing to classify the works as “urban development” infrastructure, the judgment reinforces a bounded approach to EIA-triggering categories and aligns with the caution expressed in Carvill v Dublin City Council [2025] IECA 84 and the limits identified in Kavanagh v An Bord Pleanála [2020] IEHC 259.