Each Phase Must Stand Alone: Project‑Splitting, “Accessible Locations” and Saving Conditions after AAI Baneshane Ltd v An Coimisiún Pleanála [2025] IEHC 641

1. Introduction

This commentary examines the judgment of Humphreys J in AAI Baneshane Ltd v An Coimisiún Pleanála [2025] IEHC 641, a planning and environment judicial review in the High Court of Ireland. The case concerns a challenge by a developer to An Coimisiún Pleanála’s decision refusing permission for a build‑to‑rent (“BTR”) apartment scheme (Phase 1) in Mulhuddart, Dublin 15.

The judgment is important for three inter‑locking reasons:

• It articulates, in unusually clear terms, the legal and practical risks of “project‑splitting” – where a unified development is broken into separate planning applications.
• It clarifies how planning decision‑makers may lawfully apply the 2024 Sustainable Residential Development and Compact Settlements Guidelines for Planning Authorities (“Compact Settlements Guidelines 2024”), particularly the notion of an “accessible location” and associated density ranges.
• It reinforces and applies a dense body of recent authority on judicial review standards, including the burden of proof, the law on reasons, the use of conditions, and the doctrine of harmless or non‑material error.

The commentary below follows the structure requested: it sets out the background, summarises the judgment, analyses the precedents and legal reasoning, explores the impact on future cases, simplifies key concepts and concludes with the broader significance of the decision.

2. Background to the Case

2.1 The Site and Proposed Development

The site lies at Canterbury Gate, Old Navan Road, Mulhuddart, Dublin 15, between the M3 motorway and the Old Navan Road. It is contiguous with an existing residential scheme (Canterbury Gate) and close to a mix of commercial and employment uses, with Tolka Valley Park to the north and Mulhuddart village and Blanchardstown nearby.

Phase 1 comprised a proposal for 99 BTR apartments in two blocks (A and B). Phase 2 (subject of parallel proceedings, AAI Baneshane II) involved a further 91 BTR apartments in Blocks C and D on adjacent lands under the same overall control.

2.2 Planning History and Project‑Splitting

• In 2021, the developer (then NME Capital Ltd) applied for a single Strategic Housing Development (SHD) scheme (similar in scale to Phases 1 and 2 combined). An Bord Pleanála refused that SHD on 2 March 2022.
• Following the SHD refusal, the developer chose to split the overall project into two conventional planning applications to Fingal County Council:
  • Phase 1: FW22A/0228 – 99 BTR units (7 October 2022).
  • Phase 2: FW22A/0237 – 91 BTR units (19 October 2022).
• Fingal County Council refused both applications in late November / early December 2022, citing prematurity pending clarification of the N3 Littlepace to M50 upgrade route among other matters.
• The developer appealed both refusals to An Coimisiún Pleanála (formerly An Bord Pleanála) in December 2022; the appeals were lodged under ABP‑315425‑22 (Phase 1) and ABP‑315450‑23 (Phase 2).

Crucially, the High Court opens with a pointed observation: a developer who splits an integrated project into multiple applications creates a problem that might not otherwise exist (para. 1). Each application:

• must stand alone as a proper, self‑contained development; yet
• where an overall project is evident, the decision‑maker must also be satisfied that the overall development makes planning sense.

Humphreys J distils this into a practical rule of law: the decision‑maker must assess a phase both on the assumption that the other phase is built, and on the assumption that it is not. That framing underpins later findings on layout and conditions.

2.3 The Appeal Process and New Guidelines

Key milestones in the appeals included:

• Council submissions to An Coimisiún Pleanála in January 2023 maintaining refusal.
• Site inspection by the Board’s inspector in January 2024.
• Inspector’s reports in February 2024 recommending that permission be granted for both Phases.
• Important intervening policy changes:
  • The adoption of the Fingal Development Plan 2023‑2029.
  • The coming into effect in January 2024 of the Compact Settlements Guidelines 2024, with new density ranges and an “accessible location” concept.
• Section 137 and s.131 Planning and Development Act 2000 correspondence in mid‑2024 inviting submissions on the new plan, the 2024 guidelines and – centrally – how Phase 1’s residential amenities would be met if Phase 2 were not built.
• Inspector’s addendum reports in October 2024, still recommending permission subject to conditions (including a condition tightly linking Phases 1 and 2).
• Board meeting on 4 November 2024 and formal orders refusing permission for both phases on 13 November 2024.

2.4 The Impugned Decision

For Phase 1, the Board refused permission for two main reasons (para. 56):

1. Density and layout:
   • The combined scheme (Phases 1 and 2) would yield a net density of 184 dwellings per hectare (dph), which it considered significantly in excess of the range which would generally be considered for such a site under the Compact Settlements Guidelines 2024.
   • Having regard to the site’s location in a City‑Suburban/Urban Extension area (Table 3.1 of the Guidelines) and its relative isolation from high frequency public transport, the Board concluded it was not in accordance with the density ranges which are open for consideration.
   • It also considered the Phase 1 proposal of itself to be a poor disposition of units on the overall site.
2. Amenities and build‑to‑rent standards:
   • Relying on the Sustainable Urban Housing: Design Standards for New Apartments Guidelines (December 2020, with 2023 updates), particularly SPPR 7 for BTR schemes, the Board held that Phase 1’s residential and recreational amenities were inadequate where key facilities were to be provided in Phase 2.
   • It rejected the inspector’s suggested condition requiring concurrent completion of Phases 1 and 2, and rejected the applicant’s proposal for “temporary” amenities during an uncertain interim period.

In an explicit departure from the inspector, the Board:

• accepted that the site fell within the City‑Suburban/Urban Extension category;
• acknowledged that densities up to 150 dph are open for consideration in accessible suburban/urban locations; but
• found that this site fails to meet this test, given the distance to existing or planned high frequency public transport services.

2.5 Grounds of Judicial Review

The applicant sought certiorari, remittal, declaratory relief and a protective costs declaration under s.50B of the Planning and Development Act 2000 and related instruments. The grounds were:

• Core Ground 1: The Board’s conclusion that the site was in “relative isolation” from high frequency public transport – and hence not suitable for higher density ranges – was irrational and ultra vires; furthermore, the Board misinterpreted or failed properly to have regard to the definition of accessible location in Table 3.8 of the 2024 Guidelines, contrary to s.34(2)(ia) PDA 2000.
• Core Ground 2: The Board failed to give adequate reasons for disagreeing with the inspector’s conclusion that the site was an “accessible location”.
• Core Ground 3: The Board failed to explain the basis for its conclusion that Phase 1’s layout was a poor disposition of units on the overall site, contrary to s.34(10)(b) and constitutional fairness, especially as the inspector had endorsed the layout.
• Core Ground 4: The Board erred in law in refusing to impose the inspector’s recommended condition linking Phases 1 and 2 (including non‑occupation of Phase 1 units until Phase 2 was completed) so as to secure compliance with SPPR 7 on BTR amenities; alternatively, it failed to give adequate reasons for deeming such a condition “inappropriate”.

No EU law grounds were pursued (EU Law Core Grounds: N/A).

3. Summary of the Judgment

Humphreys J dismissed the proceedings in their entirety and refused certiorari. In brief:

• Core Ground 1:
  • No misinterpretation of the 2024 Guidelines was established; the definition of “accessible location” is indicative and subject to local assessment, giving the Board a margin of evaluation.
  • The Board’s conclusion that the site was in “relative isolation from high frequency public transport” was rationally open on the evidence, including the developer’s own Traffic and Transport Assessment (TTA).
• Core Ground 2:
  • Even if there were some deficiency in reasons about accessibility, any such error was non‑material, because the applicant’s own data could reasonably support the Board’s non‑accessible finding.
• Core Ground 3:
  • The phrase the proposed development of itself constitutes a poor disposition of units on the overall site was interpreted as meaning that Phase 1, taken alone, poorly used the overall landholding if Phase 2 was not delivered.
  • Read sensibly, the reasons met the legal standard.
• Core Ground 4:
  • The Board had power under s.34(4)(a)(i) PDA 2000 (and as illustrated in Parolen v Drogheda Corporation) to impose a cross‑phasing condition, but no duty to do so.
  • There is no obligation on a planning authority or the Board to “save” a defective scheme by imaginative conditions; declining to impose the inspector’s condition was within the Board’s planning judgment.
  • The Board’s concerns (uncertainty about “temporary” amenities and Phase 2 delivery) and its reference to SPPR 7 sufficed as reasons.

The judgment is accompanied by an extensive restatement of general principles: judicial review is concerned with legality not merits; the applicant bears the onus of proof; reasons must convey the main reasons on the main issues; the decision is assessed on the material before the decision‑maker; there is a doctrine of harmless error; and planning conditions are discretionary tools, not a safety net the Board is obliged to deploy.

4. Detailed Analysis

4.1 Judicial Review Framework and Precedents

The judgment devotes a large section to summarising and integrating prior case‑law into a coherent framework for reviewing planning decisions. Key strands are distilled below.

4.1.1 Legality, Not Merits

Humphreys J reiterates that judicial review scrutinises the legality of administrative decisions, not their correctness on the merits. The court does not re‑decide the planning appeal:

• Sweeney v Fahy [2014] IESC 50: Clarke J emphasised that judicial review is not an appeal on the merits.
• The State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642: Finlay C.J. framed the standard of “unreasonableness”/irrationality (no reasonable decision‑maker could so decide).
• Meadows v Minister for Justice [2010] 2 I.R. 701: confirmed proportionality as an intensity‑of‑review tool, but within the legality/merits divide.
• R (Cart) v Upper Tribunal [2011] UKSC 28: Lady Hale cautioned against recasting factual disagreements as points of law.

Within planning, evaluative questions such as appropriate density, layout and application of guidelines are, absent other error, scrutinised on an irrationality standard, endorsed more recently in:

• Sherwin v An Bord Pleanála [2024] IESC 13
• Graymount House Action Group v An Bord Pleanála [2024] IEHC 327

4.1.2 Reading Decisions Sensibly, Not Hyper‑technically

The court cautions against “micro‑analysis” and “semantic querulousness” in attacking decisions. Authorities include:

• O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39 – decisions must be read in light of their broad issues or “broad gist”.
• G.T. v Minister for Justice [2007] IEHC 287 – avoid parsing word‑for‑word seeking infelicities.
• M.R. (Bangladesh) v International Protection Appeals Tribunal [2020] IEHC 41 – read decisions as a whole and, where possible, in a manner that upholds validity.
• O’Sullivan v HSE [2023] IESC 11 – warning against “legalistic over‑parsing”.

This interpretive stance is central to how Humphreys J deals with:

• the Board’s short phrase on poor disposition of units; and
• the alleged omission of reasons in relation to the “accessible location” issue.

4.1.3 Onus of Proof and Presumption of Validity

The judgment firmly re‑states that the burden of proof lies on the applicant in judicial review, save in narrow and well‑defined exceptions:

• Meadows – Denham J: the burden rests with the applicant to show unlawfulness.
• Comhaltas Ceoltóirí Éireann (Finlay P, 1977) and Campus Oil (No. 2) [1983] I.R. 88 – presumption of validity of administrative decisions.
• Moran v An Bord Pleanála [2025] IEHC 510 – Farrell J emphasising the same principle.

An applicant alleging no material to support a conclusion – as AAI Baneshane did regarding public transport access – must demonstrate that claim, usually by:

• showing a patent flaw on the face of the material; or
• producing expert evidence demonstrating that reasonable doubt or irrationality should have arisen.

Mere assertion, or non‑expert opinion on technical matters (described memorably as “ultracrepidarianism”), does not suffice: see Joyce Kemper v An Bord Pleanála [2020] IEHC 601 and Massey v An Bord Pleanála (No. 2) [2025] IEHC 206.

4.1.4 The Law on Reasons

The duty to give reasons is framed in terms of providing the main reasons on the main issues:

• Connelly v An Bord Pleanála [2018] IESC 31 – Clarke C.J.: main reasons on the main issues, reasons can be found in the inspector’s report as well as the decision.
• O’Keefe and Faulkner v Minister for Industry and Commerce (1996) – “broad gist” standard.
• Rawson v Minister for Defence [2012] IESC 26 – reasoned but not discursive rulings.

Key refinements reiterated here include:

• No requirement to give reasons for the reasons.
• No obligation to provide issue‑by‑issue responses to submissions.
• Reasons can be implicit, and can be read together with other documents (especially the inspector’s report).
• No need to state reasons for rejecting a legally incorrect submission or for not departing from an established policy absent a significant change in circumstances.

These principles inform the court’s rejection of Core Grounds 2, 3 and 4.

4.1.5 Material Before the Decision‑Maker

The court emphasises that the legality of a decision is judged through the lens of the evidence and submissions before the decision‑maker at the time:

• Subsequent evidence or new arguments – including new interpretations of technical terms such as “peak hour” – cannot generally be used to undermine a decision, absent specific exceptions.
• If an applicant not only fails to raise an issue before the decision‑maker but takes a contrary stance, that is a serious obstacle to relying on that issue in judicial review (cf. Clifford v An Bord Pleanála [2021] IEHC 459).

This is critical in AAI Baneshane: the developer’s own TTA described a bus stop “approximately” 500m away and bus frequencies significantly less frequent than every 10 minutes, which undercut its later portrayal of the site as comfortably within the “accessible location” definition.

4.1.6 Planning Conditions and the Limits of “Saving” a Scheme

While planning bodies can shape development through conditions (including, in principle, cross‑phasing or cross‑permission conditions), there is:

• no duty to impose conditions in order to “rescue” a poor proposal (see Farrell J in Moran v An Bord Pleanála [2025] IEHC 510, applied here); and
• conditions must be workable, enforceable and within the scope of the consent (cf. McGowan v An Coimisiún Pleanála [2025] IEHC 405).

Humphreys J confirms that it is legitimate for the Board to simply refuse permission where the scheme, as applied for, fails to comply with key guidelines or SPPRs, rather than re‑design it by condition.

4.1.7 Harmless or Non‑Material Error

A major part of the judgment is devoted to what is now a well‑settled doctrine: courts need not quash for errors that would not have affected the outcome. Key authorities:

• CJEU Altrip, C‑72/12 – some “defects” in environmental assessment may be harmless if they could not have influenced the decision.
• Carrownagowan Concern Group v An Bord Pleanála [2025] IESCDET 9 – the Supreme Court endorses the harmless error doctrine in Irish law.
• Massey v An Bord Pleanála [2025] IESCDET 126 – confirms that standard principles of harmless error apply and that not every Habitats Directive or EIA defect justifies certiorari.
• UK cases such as Walton v Scottish Ministers [2012] UKSC 44 and R (Champion) v North Norfolk DC [2015] UKSC 52, and High Court authorities like Heather Hill Management Co [2022] IEHC 146.

Humphreys J adopts a practical formulation: the court asks whether it can exclude a reasonable possibility that the error would have made a difference to the outcome, having regard to all the material (including developer evidence in court). If so, it is harmless.

He underscores that this is not an illegitimate substitution of the court’s planning judgment, but a necessary component of a rational judicial review system that does not quash for trivialities.

4.1.8 Ballyboden Tidy Towns and the Court’s Role

A recurring reference is to Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4. Among other things, that decision:

• confirmed a developer’s ability to defend a permission on judicial review even if the planning authority or Board does not appear or does not defend the decision on a particular point; and
• reinforces that the remedy (including whether to quash) lies within the court’s discretion, not at the parties’ disposal.

Humphreys J describes Ballyboden as “a gift that keeps on giving”: in AAI Baneshane it underpins his willingness to consider harmless error and broader reasoning even where certain points were not front‑and‑centre in the pleadings.

4.2 Core Ground 1 – “Accessible Location” and Density

4.2.1 The Compact Settlements Guidelines 2024

The 2024 Guidelines are central. Two tables are especially relevant:

• Table 3.1 – City‑Suburban/Urban Extension (Dublin & Cork)
  • For suburban and urban extension areas in Dublin and Cork:
    • residential densities in the range 40 dph to 80 dph (net) shall generally be applied; and
    • densities of up to 150 dph (net) shall be open for consideration at “accessible” suburban/urban extension locations (as defined in Table 3.8).
• Table 3.8 – “Accessible Location”
  • Defines an Accessible Location as:

    Lands within 500 metres (i.e. up to 5‑6 minute walk) of existing or planned high frequency (i.e. 10 minute peak hour frequency) urban bus services.

  • The text prefaces Table 3.8 with an important caveat:

    The characteristics detailed in Table 3.8 are not exhaustive and a local assessment will be required.

Furthermore, section 3.4.1 emphasises that density ranges must be considered and refined based on proximity and accessibility to services and public transport, and that densities above the stated ranges are merely “open for consideration” at accessible locations.

Everyone agreed that the site fell within the “City‑Suburban/Urban Extension” category in Table 3.1. The core dispute was whether it also satisfied the definition of an “accessible location”, thereby allowing densities “up to 150 dph” to be considered and potentially justified even above that range.

4.2.2 The Developer’s Evidence on Public Transport

Two key developer documents are examined:

1. Traffic and Transport Assessment (TTA) – September 2022 (pre‑Guidelines):
   • Described a Dublin Bus stop for routes 38, 38A and 38B on Damastown Road as being approximately 500m from the site, with a 7‑minute walking time.
   • Described another stop for routes 220, 236A and 238 on the Old Navan Road, ~900m away (11‑minute walk).
   • Set out overall daily service numbers and peak period capacities, with peak morning (06:00‑10:00) figures showing 10 buses on the 38/38A routes – roughly one bus every 24 minutes.
2. Hughes Planning Report – June 2024 (post‑Guidelines):
   • Stated that the site is an “Accessible Location” within Table 3.8 because it is located 500m from Bus Stop 7382 on Damastown Road, served by routes 38, 38A and 38B operating at 10‑minute frequencies.
   • Highlighted planned improvements under BusConnects.

The inspector accepted the Hughes analysis, treating the site as an accessible suburban location and reasoning that densities up to 150 dph were open for consideration and could be exceeded in light of the site characteristics and BTR unit mix (para. 79).

4.2.3 The Board’s Density and Accessibility Findings

The Board:

• Calculated the combined density of Phases 1 and 2 as 184 dph (net).
• Found that this was “significantly in excess” of the range generally applicable for such a site under the Guidelines.
• Explicitly accepted that:

  densities of up to 150 dwellings per hectare (net) shall be open for consideration at “accessible” suburban/urban locations, it is considered that the subject site fails to meet this test, given the distance to existing or planned high frequency public transport services.

• Described the site as in relative isolation from high frequency public transport.

Thus, the Board’s reasoning proceeded on the basis that:

• the site is in a suburban/urban extension area where 40‑80 dph generally applies;
• densities above that (up to 150 dph) could in principle be justified, but only at accessible locations; and
• this site was not an accessible location under Table 3.8 when assessed in its actual context.

4.2.4 Alleged Misinterpretation of “Accessible Location”

The applicant advanced a detailed argument that the Board had misconstrued Table 3.8, particularly the phrase 10 minute peak hour frequency. In a post‑draft‑judgment letter, the developer asserted that:

• “peak hour” should be read as “the peak hour” – i.e. only the single busiest hour in the peak period; and
• it was therefore sufficient if there was one hour in which buses came every 10 minutes, even if outside that hour frequencies fell below this level.

Humphreys J rejected this line of attack for several reasons:

1. Pleading deficiency: This specific misconstruction (treating “peak hour” as a single hour) was not pleaded in Core Ground 1. It could not be retro‑fitted via correspondence after the draft judgment.
2. Textual accuracy: The developer’s letter inaccurately inserted the word “the” into the definition – describing the Guidelines as referring to the peak hour when they in fact say simply 10 minute peak hour frequency. Singular words often include plural meanings as a matter of interpretation, and no industry definition to the contrary was put before the Board.
3. Inconsistency with the developer’s own TTA: The TTA presented the peak period as four hours (e.g. 06:00‑10:00) and calculated overall frequencies. It did not isolate a single 60‑minute window with 10‑minute headways. It depicted a pattern more consistent with 20‑24 minute intervals.
4. Lack of evidential basis: The applicant did not identify any specific single hour during which the relevant buses actually ran at 10‑minute headways, nor did it adduce expert evidence interpreting “peak hour” as a term of art with a special meaning contrary to the ordinary planning understanding.

Critically, the Guidelines also emphasise that the accessibility characteristics in Table 3.8 are not exhaustive and require a local assessment. This undercuts any attempt to treat the 500m/10‑minute benchmarks as rigid, mechanistic legal thresholds. Rather, they are indicative criteria informing a broader evaluative planning judgment.

On that basis, the court held that no misinterpretation of the Guidelines was established. The Board’s application of the “accessible location” definition fell squarely within the evaluative space that the Guidelines themselves describe.

4.2.5 Alleged Irrationality

Falling back from misinterpretation, the applicant argued that the Board’s finding of relative isolation from high frequency public transport was irrational, because – it said – no evidence before the Board could rationally support that conclusion.

Humphreys J rejected this, emphasising:

• The developer carries the burden of proving that there was no material on which the Board could rationally so conclude. That is a demanding threshold.
• The Board was entitled to rely on, and to interpret critically, the developer’s own TTA, which:
  • described the nearest stop as approximately 500m away (rather than clearly within 500m); and
  • documented morning peak service frequencies well below one bus every 10 minutes.
• The developer’s later Hughes report asserting 10‑minute frequencies did not compel acceptance of the “accessible location” label, particularly where it was not reconciled with the earlier TTA data.
• The Guidelines confer a margin of evaluation: they do not oblige the Board to treat borderline factual positions as satisfying the definition, nor to treat “approximate” 500m distances as compliance.

The court also notes that the applicant tried to rely, in argument, on timetable data that was merely “publicly available” at the time, but not put before the Board. Given the principle that judicial review is conducted on the record before the decision‑maker (save narrow exceptions), such reliance was not persuasive.

In sum, there was clearly some material capable of supporting the Board’s non‑accessible finding; the applicant did not displace the presumption of validity. The irrationality ground therefore failed.

4.3 Core Grounds 2 and 3 – Reasons on Accessibility and Layout

4.3.1 Reasons on Accessibility (Core Ground 2)

Core Ground 2 argued that the Board failed to explain adequately why it disagreed with the inspector’s view that the site was an “accessible location”. The court responded in two stages:

1. Sufficiency of Reasons:
   • The Board expressly stated that the site fails to meet the accessible location definition given the distance to existing or planned high frequency public transport services.
   • Given the information in the TTA and the indicative nature of the 500m/10‑minute criteria, this signposted the core basis for disagreement with the inspector.
2. Harmlessness:
   • Even if one entertained the argument that the Board should have been more explicit about its reading of the TTA or its interpretation of the 500m/10‑minute test, any omission was non‑material.
   • The developer’s own data could rationally support the Board’s conclusion. On that footing, a fuller explanation would not have changed the outcome.

Thus, even on a “reasons” analysis premised on a departure from the inspector (where a more explicit statement can be called for), no basis for certiorari arose.

4.3.2 Reasons on Layout – “Poor Disposition of Units” (Core Ground 3)

Core Ground 3 challenged the Board’s statement that:

it is considered that the proposed development of itself constitutes a poor disposition of units on the overall site.

The inspector had approved the layout, so the applicant contended that the Board:

• failed to explain the basis of its contrary conclusion; and
• used vague references to plan provisions and guidelines without identifying the specific policies breached.

The Board’s position, as clarified in submissions and accepted by the court, was that:

• The inspector had assessed the layout of Phases 1 and 2 together, on the assumption that the entire scheme would be built.
• The Board, however, was concerned with Phase 1 “of itself” – i.e. what happens to the overall site if, as turned out, Phases 1 and 2 are pursued as separate applications and Phase 2 may never be built.
• On that hypothesis, building only Blocks A and B would constitute a poor use of, or poor disposition across, the total landholding.

Humphreys J interprets the Board’s reason accordingly (para. 111), noting that reads sensibly and coherently in light of the project‑splitting context flagged at the very outset of the judgment. Applying the “read in the round” principle:

• This is a logically distinct issue from the one the inspector addressed – the inspector did not squarely consider Phase 1 as a stand‑alone scenario.
• Therefore, there was no triggered duty to give augmented reasons for “disagreeing” with the inspector: the Board was addressing a different question.

On that footing, Core Ground 3 failed. The short phrase “poor disposition” was sufficient once properly understood in context; the court declined to require an elaborate textual explanation where the underlying concern (project‑splitting and partial implementation) was both apparent and entirely legitimate.

4.4 Core Ground 4 – The Refusal to Impose a Phasing Condition

4.4.1 The Inspector’s Proposed Condition and SPPR 7

The inspector recognised that Phase 1, standing alone, did not appear to deliver adequate communal and recreational amenities to satisfy SPPR 7 of the Apartment Guidelines for BTR schemes. He therefore recommended a condition that:

• required Phase 1 and Phase 2 to be developed and completed concurrently; and
• prevented occupation of the Phase 1 units until Blocks C and D in Phase 2 were completed, ensuring delivery of shared BTR amenities.

The developer relied heavily on this, arguing that s.34(4)(a)(i) PDA 2000 empowered the Board to impose such a condition, and – implicitly – that it ought to have done so in order to comply with SPPR 7.

4.4.2 The Board’s Refusal and the Court’s Approach

The Board declined to adopt this condition. It reasoned that:

• Phases 1 and 2 were being pursued as separate applications and that it was not appropriate to tie them by condition in the way suggested.
• The applicant’s alternative proposal for “temporary” amenities in Phase 1 was unsatisfactory, given uncertainty about:
  • the duration of the temporary period; and
  • the timing and certainty of Phase 2’s delivery.

Humphreys J accepts that s.34(4)(a)(i) and cases like Parolen v Drogheda Corporation [2003] IEHC 8 confirm that the Board can impose conditions relating to the timing, phasing and interaction of developments, including across related sites. However:

• There is no corresponding duty to impose any particular condition.
• A developer has no entitlement to insist that the Board remodel the proposed scheme by conditions to cure deficiencies, even when such conditions are technically intra vires.

That proposition is consistent with Farrell J’s observation in Moran v An Bord Pleanála that the Board is not under an obligation to help applicants ... by reconfiguring their projects.

On reasons, the court notes that:

• The inspector’s condition was premised on an acknowledged non‑compliance with SPPR 7 in Phase 1 alone – it was an exception‑enabling device.
• The Board’s decision not to make an exception did not trigger a duty to provide “reasons for the reasons”; it was enough to:
  • identify the applicable Apartment Guidelines and SPPR 7;
  • note reliance on facilities in a separate concurrent application; and
  • state its concern about temporary amenities and phasing uncertainty.

Accordingly, there was no breach of s.34(4)(a)(i) or s.34(10)(b), nor any irrationality. The law recognises the power to link phases by condition, but leaves its exercise to planning judgment.

4.5 The Project‑Splitting Principle

Perhaps the most practically significant aspect of the judgment is the articulation of a clear planning law consequence of “project‑splitting”:

Splitting the project means that the decision‑taker has to be satisfied with the project both on the assumption that the other part of the project is built, and also on the assumption that it is not built. (para. 1)

This leads to several corollaries:

• Each phase must stand alone as a fully acceptable development in terms of density, amenities, layout and compliance with SPPRs and Section 28 guidelines.
• At the same time, the decision‑maker must form a view on the overall project, particularly where amenities or design coherence straddle phases.
• Using conditions to “staple together” multiple applications is a matter of discretion, not obligation – and may be unattractive where:
  • applications are deliberately split to avoid SHD or other regimes; or
  • there is uncertainty about the second phase ever being built.

This principle underpins:

• the finding that Phase 1, of itself, represented a poor disposition of units; and
• the rejection of the inspector’s phasing condition as an inappropriate way to cure SPPR 7 non‑compliance in Phase 1.

From a doctrinal perspective, the judgment embeds project‑splitting risk squarely within the framework of planning judgment and the limits of judicial review. From a practical perspective, it is a clear warning to developers that strategic splitting, especially motivated by the desire to avoid SHD or other special regimes, may backfire.

4.6 The Draft Judgment Procedure and Counsel’s Submissions

Though not central to the planning law outcome, the judgment also contains a substantial discussion of the draft judgment circulation procedure and its proper use. Humphreys J:

• recalls that draft judgments are circulated to allow parties to identify typographical, factual or legal errors, or to request clarification on specific issues; they are not invitations to re‑argue the case.
• emphasises that drafts are not public documents and directs parties not to disseminate them beyond the purposes of the litigation (referencing Attorney General v Crosland (No. 2) [2021] UKSC 58).
• gently but clearly criticises the tone of the developer’s response, which accused the court of adopting evidence by submission and urged correction of “legal and/or factual errors” allegedly imported from counsel’s submissions. He finds those characterisations unwarranted but nonetheless endeavours to address the substance of the concerns.

While largely procedural, this section reinforces a theme seen elsewhere in the judgment: judicial review is not a game of procedural point‑scoring; it should be conducted with “immediate dispatch, discipline and focus”, and with respect for the limited function of the courts in reviewing, not re‑deciding, administrative choices.

5. Impact and Significance

5.1 For Developers and Planning Applicants

The judgment has several concrete implications:

1. Project‑splitting is risky: Developers who split coherent projects into multiple applications – particularly to avoid SHD thresholds or other streamlined regimes – must expect:
   • each phase to be tested for full compliance in isolation; and
   • scrutiny of the overall integrity of the masterplan, including its density and amenity distribution.
2. Evidence must be consistent and robust: Transport and amenity assessments lodged with the planning authority will be treated as primary evidence against which later litigation narratives are judged. Descriptions like “approximately 500m” and documented service intervals of 20‑25 minutes can undermine later claims of effortless compliance with a 500m/10‑minute definition.
3. Section 28 Guidelines are not rigid algorithms: While guidelines such as the Compact Settlements Guidelines 2024 are important, and must be “had regard to” under s.28 PDA 2000, they leave room for planning judgment. Developers cannot insist that meeting a literal formula (or appearing close to it) compels permission.
4. No right to “saving” conditions: There is no entitlement to have a non‑compliant phase rescued by sophisticated phasing or occupancy conditions. If a phase, taken alone, fails to meet SPPR 7 or other core standards, the Board may simply refuse permission.

5.2 For Planning Authorities and An Coimisiún Pleanála

For decision‑makers, the judgment is reassuring and directive:

• It confirms their discretion to:
  • treat “accessible location” definitions as indicative, subject to local context and factual nuance;
  • assess project‑split applications both on the assumption that other phases proceed and that they do not; and
  • decline to impose complex phasing conditions to patch up schemes whose phases are individually deficient.
• It reaffirms that short, focused reasons often suffice, especially where:
  • the inspector’s report has already set out the planning context in detail; and
  • the Board’s decision makes clear its key evaluative judgments (e.g. non‑accessible location, poor stand‑alone layout, inadequate BTR amenities).
• At the same time, it gently encourages clear articulation where the Board diverges materially from an inspector on a central issue, though it stops short of imposing a rigid formula.

5.3 For Litigators in Planning Judicial Review

The judgment consolidates several trends in Irish planning JR:

• High threshold for intervention: Applicants must be ready to:
  • marshal the planning record carefully;
  • pinpoint legal errors (e.g. misinterpretation of guidelines) rather than re‑arguing the planning merits; and
  • support factual or technical criticisms with appropriate expert evidence.
• Harmless error is alive and well: Practitioners must consider, even where an error is found, whether it could realistically have changed the outcome. Where developer evidence in court reinforces the robustness of the original decision, quashing may be inappropriate.
• Consistency of stance matters: Positions taken before the Board (e.g. about distances and service frequencies) constrain what can be plausibly argued later in court. Attempting to recast the factual narrative without acknowledging prior submissions is fraught.
• Draft judgment engagement should be careful and targeted: Parties should use that opportunity to correct clear errors and raise necessary clarifications, not to re‑litigate or accuse the court of adopting counsel’s submissions wholesale.

6. Complex Concepts Simplified

6.1 “Accessible Location” under the 2024 Guidelines

In plain terms, under the Compact Settlements Guidelines 2024:

• An “accessible location” is a site:
  • within about a 5–6 minute walk (up to 500m) of a bus stop; and
  • served at peak times by buses arriving roughly every 10 minutes.
• However, this is not a mathematical rule. The Guidelines themselves say these characteristics are not exhaustive and that a local assessment is required. A site that is borderline – say, “approximately 500m” away or with fluctuating headways – may reasonably be viewed as falling short.

6.2 Section 28 Guidelines vs SPPRs

There is an important difference between:

• Section 28 Guidelines (like the Compact Settlements Guidelines 2024 and the Apartment Guidelines generally):
  • Planning decision‑makers must “have regard to” them.
  • They can justify departures – where properly reasoned – but such departures may be legally scrutinised.
• Specific Planning Policy Requirements (SPPRs):
  • These are binding directives (e.g. SPPR 7 and SPPR 8 of the Apartment Guidelines).
  • Development that does not comply with an SPPR should ordinarily be refused unless a valid and lawful basis for divergence exists (and such divergence is rare given their mandatory character).

AAI Baneshane illustrates that even where a scheme might be arguable under Section 28 text (e.g. density ranges), non‑compliance with SPPR 7 in a BTR context is a hard legal obstacle, not a mere guideline tension.

6.3 Judicial Review vs Planning Appeal

A planning appeal (to the Board) revisits the merits of a council decision; the Board effectively stands in the council’s shoes and may substitute its own planning view.

A judicial review challenges only the lawfulness of the Board’s (or authority’s) decision. The court asks:

• Was the law correctly applied?
• Were relevant considerations taken into account, and irrelevant ones disregarded?
• Was the decision within the bounds of rationality?
• Were adequate reasons given?

The court does not ask whether it would have made a different planning decision itself.

6.4 Harmless Error

Harmless error means:

• Even if an authority made a technical mistake (for example, a minor error in its reasons or a flawed step in an assessment), the court will not automatically quash the decision.
• The court looks at all the material and asks whether there is a reasonable possibility that, without the error, the outcome would have been different.
• If not, the error is “harmless” or “non‑material” and the permission or refusal stands.

In AAI Baneshane, any arguable weakness in the Board’s explanation of why the site was not “accessible” was treated as harmless once the court concluded that the developer’s own TTA data could reasonably support the Board’s conclusion.

6.5 Planning Conditions and Phasing

Planning conditions are legal requirements attached to permissions, regulating how and when development is carried out. A “phasing condition” might, for example:

• prevent occupation of one part of a scheme until another part (e.g. communal facilities) is completed; or
• require a set of related permissions to be built concurrently.

In law:

• The Board can impose such conditions where they are necessary, proportionate, enforceable and within its statutory powers.
• But it is not obliged to do so to make an otherwise unacceptable proposal acceptable.
• If the underlying application is substantially flawed (e.g. inadequate amenities in a BTR phase), the Board can simply refuse rather than attempt an elaborate conditional fix.

7. Conclusion

AAI Baneshane Ltd v An Coimisiún Pleanála [2025] IEHC 641 is a rich, highly structured judgment that both applies and sharpens existing principles of Irish planning and judicial review law.

Substantively, it:

• Affirms the Board’s discretion to assess whether a site is truly an “accessible location” under the 2024 Compact Settlements Guidelines, treating the 500m/10‑minute criteria as indicative rather than rigid.
• Upholds a refusal of a high‑density BTR scheme where:
  • the combined density significantly exceeds guideline ranges;
  • public transport accessibility is borderline at best; and
  • core BTR amenities for Phase 1 depend on a separate, uncertain Phase 2.
• Clarifies that each phase of a split project must stand on its own planning merits, and that project‑splitting invites scrutiny of both stand‑alone and holistic outcomes.
• Confirms that there is no legal right to have poor schemes salvaged by ingenious planning conditions, and that refusal may be the lawful and appropriate response.

Procedurally and doctrinally, the case:

• Reinforces the presumption of validity and the burden of proof on judicial review applicants.
• Applies the harmless error doctrine in a planning context, emphasising that courts will not quash for errors that make no real difference.
• Insists on a contextual, non‑hyper‑technical reading of planning decisions and reasons.
• Demonstrates the continuing influence of Ballyboden Tidy Towns on the court’s role in crafting appropriate remedies.

For future litigation, AAI Baneshane stands as a cautionary decision: high‑density, project‑split BTR schemes that lean heavily on optimistic interpretations of accessibility and conditional amenity delivery are vulnerable to refusal, and such refusals will be difficult to overturn on judicial review. Planning practitioners, developers and decision‑makers alike will need to factor this judgment into how they design, assess and challenge complex phased developments under the 2024 policy framework.