Comprehensive Commentary on Sherwin v An Bord Pleanála [2023] IEHC 232

Introduction

The case Sherwin v An Bord Pleanála (Approved) ([2023] IEHC 232) was adjudicated by the High Court of Ireland on May 8, 2023. This judicial review stems from a decision by An Bord Pleanála (the Planning Authority) to approve a development under the Strategic Housing Development (SHD) procedure at the former Clonliffe College Seminary Campus. The applicant, Fionuala Sherwin, contested this decision, leading to the present judgment. The key issues revolved around the applicability of specific provisions of the Planning and Development Act 2000 concerning protected structures, the standard of judicial review applicable to planning decisions, and the obligations to provide reasons in planning authority decisions under the Planning and Development (Housing) and Residential Tenancies Act 2016.

Parties involved include:

Applicant: Fionuala Sherwin
Respondent: An Bord Pleanála
Notice Party: CWTC Multi Family ICAV

Summary of the Judgment

Justice Humphreys delivered the judgment, addressing the notice party's application for leave to appeal on three main questions related to the initial decision approving the development. The Court analyzed each question meticulously, ultimately refusing the leave to appeal. Key points from the judgment include:

Question 1: The Court reaffirmed that the Planning and Development Act 2000 clearly includes partial demolitions within its definition of structures, negating the notice party's argument that partial demolitions are exempt.
Question 2: Regarding the standard of judicial review, the Court maintained that the appropriate standard is one of irrationality, especially when the decision involves broad planning judgment.
Question 3: The Court held that the requirement to provide main reasons in planning decisions does not extend to disagreeing with recommendations in departmental reports, aligning with the provisions of the Planning and Development (Housing) and Residential Tenancies Act 2016.

Additionally, the Court considered procedural aspects, such as the non-involvement of An Bord Pleanála in seeking leave to appeal and the repeal of the SHD procedure legislation, which further influenced the decision to refuse the leave to appeal.

Analysis

Precedents Cited

Justice Humphreys referenced several precedents to contextualize his judgment:

Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231: Summarized the law on leave to appeal, emphasizing the necessity of systemic importance for questions to be certified.
Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9: Reinforced existing standards and approaches to leave to appeal applications.
Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99: Illustrated that even discretionary planning decisions could be deemed irrational under certain circumstances.
Wilkinson v. Dublin County Council [1991] ILRM 605: Another example where a discretionary planning decision was criticized as irrational, solidifying the principle that rationality remains paramount.
O'Brien v. Dun Laoghaire Rathdown County Council [2006] IEHC 177: Supported the view that certain legislative provisions should be interpreted consistently with prior case law.
Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38: Utilized metaphorically to discuss the focus of local authorities on main issues rather than minor objections.

These cases collectively underscored the judiciary's stance on standards of review and the importance of reasoned decision-making in planning authorities' judgments.

Legal Reasoning

Justice Humphreys employed a methodical approach to dissect each question posed by the notice party:

Question 1: The Court interpreted the Planning and Development Act 2000 to include partial demolitions under the definition of structures. Even minor or incidental demolitions fall within this scope unless exceptional circumstances justify them, as outlined in section 57(10).
Question 2: The Court affirmed that the standard of review for decisions involving broad planning judgments is 'irrationality.' This means that as long as the decision-maker's judgment falls within reasonable bounds, the decision will stand.
Question 3: The obligation to provide main reasons does not extend to disagreeing with departmental reports. The Court interpreted sections 8(5), 9, and 10(3) of the Planning and Development (Housing) and Residential Tenancies Act 2016 to mandate clear articulation of main reasons but not necessitate rebutting every recommendation.

Furthermore, the Court emphasized the importance of fact-specific analysis over generalized interpretations, particularly when dealing with the preservation of protected structures and the proportionality of development impacts.

Impact

The Judgment has several implications for future cases and the broader area of planning and development law:

Clarification on Partial Demolitions: By affirming that partial demolitions are covered under protected structures unless exceptional circumstances apply, the Court provides clearer guidance for developers and planning authorities alike.
Standard of Review: Reinforces the 'irrationality' standard in judicial reviews of planning decisions, ensuring that courts do not overstep in second-guessing the nuanced judgments of planning bodies.
Reasoning in Decisions: The delineation between main reasons and disagreements with departmental recommendations streamlines the requirements for planning authorities, potentially reducing litigation over the adequacy of provided reasons.
Legislative Repercussions: The repeal of the SHD procedure and the shift to local authority-led applications signify a structural change in the planning landscape, encouraging fresh applications under the current legal framework rather than revisiting outdated legislative provisions.

Collectively, these outcomes foster a more predictable and balanced environment for both developers and regulatory bodies, ensuring that preservation and development interests are judiciously managed.

Complex Concepts Simplified

Judicial Review

Judicial review is the process by which courts examine the legality of decisions or actions made by public bodies. In this case, the applicant sought to challenge the decision of the Planning Authority, prompting the Court to assess whether the decision adhered to the law and proper procedures.

Standard of Review: Irrationality

The 'standard of irrationality' means that courts will uphold a decision if it is within the range of reasonableness. They do not substitute their judgment for that of the decision-maker but ensure that the latter’s decision was not so unreasonable that no reasonable authority would have made it.

Protected Structures

Protected structures are buildings or parts of buildings that are legally protected due to their historical, architectural, or cultural significance. Any proposed demolition or alteration requires special consideration and must comply with specific legislative provisions to ensure preservation.

Exceptional Circumstances (s. 57(10))

Under section 57(10) of the Planning and Development Act 2000, even if a protected structure is to be partially demolished, permission may still be granted if there are exceptional circumstances that justify the alteration. This could involve significant benefits that outweigh minor detriments caused by the demolition.

Conclusion

The High Court's judgment in Sherwin v An Bord Pleanála reinforces the robustness of statutory frameworks governing protected structures and clarifies the boundaries within which planning authorities operate. By systematically addressing the notice party's questions and reaffirming established legal principles, the Court ensures that development projects align with both preservation goals and legislative mandates.

Key takeaways include:

Partial demolitions within protected structures are subject to the Planning and Development Act 2000 and require careful consideration under exceptional circumstances.
The standard of rationality in judicial review serves as a check against unreasonable decisions without impeding the necessary discretion of planning authorities.
Reasoning requirements in planning decisions focus on main issues, streamlining the decision-making process and reducing unnecessary litigation over minor disagreements.
Legislative changes, such as the repeal of the SHD procedure, necessitate adherence to current legal standards and encourage new applications under updated policies.

Overall, the judgment exemplifies the judiciary's role in balancing development with preservation, ensuring that planning decisions are both legally compliant and thoughtfully reasoned.