Introduction

The case of Kimmage Dublin Residents Alliance CLG v An Bord Pleanála & Ors ([2024] IEHC 261) represents a significant development in Irish planning law. The dispute centers around a planning permission granted by An Bord Pleanála for a large residential development in Terenure, Dublin. The Applicant, Kimmage Dublin Residents Alliance CLG, challenged the permission on multiple grounds, particularly focusing on the height of the proposed buildings and the adequacy of public transport capacity to support the new development.

Key issues in this case include:

• Material contravention of the Dublin City Development Plan regarding building height.
• Application and justification of the Urban Development and Building Height Guidelines 2018, specifically SPPR3.
• Assessment of public transport capacity in relation to the proposed development.

The High Court's judgment delivered by Ms. Justice Emily Farrell has set a new precedent regarding the scrutiny required for public transport capacity assessments when granting planning permissions that contravene existing development plans.

Summary of the Judgment

An Bord Pleanála granted permission for the construction of 208 apartments in Terenure, Dublin, exceeding the maximum height stipulated in the Dublin City Development Plan 2016-2022. The Applicant contested this decision, arguing that the Board failed to adequately assess the capacity of public transport to accommodate the increased demand resulting from the development.

The High Court ruled in favor of the Applicant, quashing the Board's decision. The court found that An Bord Pleanála did not sufficiently demonstrate that the existing public transport infrastructure could handle the additional 71 residents reliant on bus services. This inadequacy undermined the Board's reliance on SPPR3 of the Urban Development and Building Height Guidelines 2018 to justify the material contravention of the Development Plan.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped the interpretation of planning permissions and public transport capacity:

• Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors [2024] IESC 4: Established that notice parties can defend judicial reviews without meeting a threshold.
• O'Neill v. An Bord Pleanála [2020] IEHC 356: Emphasized that SPPR3’s application requires demonstrable public transport capacity.
• Mulloy v. An Bord Pleanála & Knockrabo Investments DAC [2024] IEHC 86: Highlighted the practical assessment needed for public transport capacity.
• Jennings v. An Bord Pleanála [2023] IEHC 14: Underlined the necessity of proving public transport needs for proposed developments.
• Fernleigh v. An Bord Pleanála [2023] IEHC 525: Clarified that proximity to public transport does not automatically satisfy capacity requirements.
• Ballyboden I [2022] IEHC 7: Differentiated between theoretical and practical public transport capacity.
• Stapleton v. An Bord Pleanála [2024] IEHC 3: Addressed the adequacy of reasons provided by decision-makers.
• Ballyboden V [2024] IEHC 66: Reinforced the need for comprehensive public transport capacity assessments.

Legal Reasoning

The court's legal reasoning focused on the requirements for applying SPPR3, which allows for material contraventions of development plans under specific conditions. Key points include:

• SPPR3 Application: For SPPR3 to justify a contravention, the planning authority must demonstrate that the site is well-served by public transport, encompassing both frequency and capacity.
• Frequency vs. Capacity: The court emphasized that frequency of bus services does not equate to capacity. Capacity assessments must consider how full buses typically are and the ability to accommodate additional passengers without displacing existing users.
• Adequacy of Reasons: The Board failed to provide adequate reasoning for dismissing concerns about public transport capacity. Simply listing bus routes and their frequency was insufficient without demonstrating actual availability for the additional residents.
• Severance of Reasons: The Board's reliance on SPPR3 was intertwined with references to national policies (NPO 13 and 35), making it impossible to sever the invalid reason from the valid one, thereby rendering the entire decision invalid.

Impact

This judgment has several significant implications for future planning decisions in Ireland:

• Stricter Public Transport Assessments: Planning authorities must now provide a more thorough and practical assessment of public transport capacity when considering material contraventions, moving beyond theoretical capabilities.
• Enhanced Scrutiny of SPPR3: The application of SPPR3 will be subject to closer judicial scrutiny, ensuring that all aspects of public transport adequacy are thoroughly evaluated.
• Developer Responsibilities: Developers will need to present comprehensive evidence regarding the capacity of public transport to support their projects, including data on bus occupancy and competitive passenger demand.
• Judicial Review Processes: The judgment reinforces the role of the judiciary in holding planning authorities accountable for adequately addressing key concerns raised by applicants and the public.

Complex Concepts Simplified

Material Contravention

A material contravention occurs when a development does not comply with specific provisions of the development plan, such as height restrictions. To permit such contraventions, certain conditions must be met, ensuring that the development still aligns with broader planning objectives.

Urban Development and Building Height Guidelines 2018 (SPPR3)

SPPR3 (Specific Planning Policy Requirement 3) is part of the Urban Development and Building Height Guidelines 2018. It provides a framework allowing planning authorities to approve developments that exceed height limitations in the development plan, provided that:

• The development meets specific criteria outlined in Section 3.2 of the Guidelines.
• The planning authority concurs with the applicant's assessment, considering national and strategic policies.

Section 3.2 of the Building Height Guidelines

Section 3.2 outlines criteria that must be satisfied for a development to be considered for SPPR3. These include:

• High capacity and frequent public transport services.
• Good connectivity to other modes of transport.
• Compliance with national policies aimed at urban growth and housing delivery.

Conclusion

The High Court's decision in Kimmage Dublin Residents Alliance CLG v An Bord Pleanála & Ors underscores the critical importance of thoroughly assessing public transport capacity when seeking material contraventions of development plans. The judgment reinforces that mere frequency of public transport services is insufficient; detailed evidence of actual capacity and the ability to accommodate additional passengers is essential.

This ruling serves as a precedent, emphasizing that planning authorities must provide clear, comprehensive reasons when approving developments that deviate from established plans. Developers are now required to present substantial evidence regarding the infrastructure's ability to support their projects, thereby ensuring that new developments do not exacerbate existing transportation challenges.

In the broader legal context, this judgment enhances the accountability of planning authorities and protects community interests by ensuring that developments are sustainable and supported by adequate public services. Future cases involving material contraventions will likely reference this decision, shaping the landscape of Irish planning law to prioritize practical assessments and transparent reasoning.