Introduction

This commentary examines the High Court judgment in Protect East Meath Ltd v An Bord Pleanála [2025] IEHC 276, delivered by Ms Justice Emily Farrell on 19 May 2025. The case arose under the Strategic Housing Development (SHD) regime of the Planning and Development (Housing) and Residential Tenancies Act 2016 (“the 2016 Act”). Rockmill Ltd sought permission from An Bord Pleanála for 201 apartments on a 1.74 hectare site in Drogheda, County Meath. Between the date the application was lodged (5 August 2021) and the date the Board determined it (23 November 2021), the Meath County Development Plan 2021–2027 (“the 2021 Plan”) came into effect, replacing the 2013–2019 Plan then in force. High-profile issues arose as to whether the Board properly applied the newly effective Plan, how it dealt with material contraventions under section 9(6) of the 2016 Act, and whether it mis-interpreted key development-plan requirements in relation to car parking, accessible parking, electric-vehicle ducting and wiring, and cycle spaces.

Two principal judicial review grounds succeeded: (1) the Board granted permission in material contravention of the 2021 Plan on car-parking and accessible-parking provisions without invoking section 9(6), and (2) it failed to interpret and apply the Plan correctly, relying improperly on draft provisions. The Court quashed the Board’s decision as invalid. This commentary outlines the background, summarises the decision, analyses the legal reasoning, reviews key precedents, simplifies complex concepts, and highlights the judgment’s broader impact.

Summary of the Judgment

Ms Justice Farrell held that An Bord Pleanála’s grant of permission (ABP-311028-21) was invalid because:

• The Board mis-calculated the baseline number of car parking spaces required by Table 11.2 of the 2021 Plan (erroneously relying on draft figures), then exercised its flexibility to reduce below an incorrect baseline;
• The Board failed to address that the 201 apartments, with only 6 accessible spaces, contravened the 5% minimum accessible-parking requirement (9 spaces) in the 2021 Plan, and did not invoke section 9(6) to justify that contravention;
• Although the Board imposed a condition on electric-vehicle provision and cycle parking to bring the development “as authorised” into compliance, it had no power to grant permission “as proposed” that materially contravened the Plan in those respects without applying the legal tests in section 37(2)(b) of the Planning and Development Act 2000 (“2000 Act”); and
• The SHD application had not given the public an opportunity to comment on material contraventions of the Plan in force at the time of decision, frustrating effective public participation.

Given these errors, the permission was quashed. The Court did not decide whether a condition can cure a material contravention of the Plan (as to EV ducting or cycle parking) since the two successful grounds sufficed to invalidate the decision.

Analysis

Precedents Cited

The judgment engages with a rich body of case law on development plans, material contraventions and SHD procedures:

• Crofton v An Bord Pleanála [2024] IESC 12: Supreme Court held that an SHD decision must apply the plan in force when it issues its decision.
• Ebonwood Ltd v Meath County Council [2004] 3 IR 34: Local authorities cannot consider draft plans; only adopted plans form the “environmental contract.”
• Attorney General (McGarry) v Sligo County Council [1991] 1 IR 99: Development plan as “environmental contract” between council and public.
• Christian v Dublin City Council [2012] 2 IR 506 & Element Power Ltd v An Bord Pleanála [2017] IEHC 550: Reinforce environmental-contract status of plans.
• Ballyboden v An Bord Pleanála [2022] IEHC 7: Departure from plan must comply with mandatory test in section 37(2)(b) of the 2000 Act.
• Sherwin v An Bord Pleanála [2024] IESC 13: Interpretation of plan is a matter of law; courts apply “XJS” method; review of material contravention involves two stages (correct interpretation and application to facts).
• Roughan v Clare County Council (1997 WJSC-HC 2213) & Redmond v An Bord Pleanála [2020] IEHC 151: Outline test for material contravention, focusing on substance and potential local opposition.
• Ryan v Clare County Council [2009] IEHC 115: Objections inform materiality but do not establish contravention.
• Millbourne Residents Assn v An Bord Pleanála [2024] IEHC 31: On remittal after plan change—Board’s powers under 2000 Act vs SHD regime.

Legal Reasoning

The Court’s reasoning unfolds around three pillars:

1. Obligation to apply the plan in force: Under Crofton, an SHD decision must look to the plan effective on decision date. Here, the 2021 Plan took effect on 3 November 2021, before the Board’s 23 November decision.
2. Material contravention test and section 9(6): The Board may grant permission in material contravention only if, had section 37(2)(b) of the 2000 Act applied, it would grant permission. This is a mandatory gateway for non-zoning contraventions in SHD cases. The Board did not engage that test for car or accessible parking contraventions.
3. Correct interpretation of plan provisions: Applying “XJS” (In re XJS Investments Ltd [1986] IR 750), the Court held the Board mis-interpreted the 2021 Plan’s parking standards:
   • Baseline car parking is 2 spaces/unit + 1 visitor space/4 units (452 spaces for 201 units), subject to a limited “caveat” referencing the Apartment Guidelines only where immediate adjacency to a rail station or peripheral/un-accessible urban location arises. The Board mis-computed 402 spaces by using a draft plan, then reduced from the wrong baseline.
   • Accessible parking must be 5% of total spaces (9.05 → 9 spaces), with no board discretion to reduce except de minimis. Six accessible spaces contravene 2021 Plan.

Because the Board neither invoked section 9(6) nor applied the material-contravention gateway for these breaches, and because its interpretation was flawed, the permission was ultra vires and invalid.

Impact on Future Cases and Planning Law

This decision carries several lessons:

• Strict compliance with section 9(6): SHD applicants and An Bord Pleanála must identify and justify material contraventions under section 37(2)(b) if the plan in force at decision date is breached.
• Timing risks in SHD process: Where a new plan emerges while an SHD application is live, the risk of later contravention is real. Applicants must consider delay and may need to await plan adoption or re-engage the pre-application stage (though statute is silent on that). The public’s right to meaningful submissions on the applicable plan must be safeguarded.
• Reinforced environmental-contract principle: Authorities and An Bord Pleanála cannot depart from plan provisions without clear statutory authority and must apply the exact wording and structure of the adopted plan, not drafts.
• Guidance for drafting conditions: Conditions cannot be used as back-door cures for material contraventions unless section 9(6) is satisfied. Points-of-detail conditions (e.g. parking management) cannot override mandatory plan minima.

Complex Concepts Simplified

• Strategic Housing Development (SHD): A fast-track planning route where large residential projects apply directly to An Bord Pleanála instead of the local authority.
• Environmental Contract: Development plans form a “contract” between the public and council, setting predictable rules; they must be followed strictly.
• Material Contravention: A proposed development “materially contravenes” a plan when it departs significantly from mandatory provisions, such that local interests would reasonably oppose it. The question turns on substance, location, and plan objectives.
• Section 9(6) of the 2016 Act: In SHD applications, the Board may grant permission in material contravention of a non-zoning plan only if, had section 37(2)(b) of the 2000 Act applied, permission would be granted.
• XJS Interpretation: Development plans are construed in ordinary public language, not like technical statutes; the plan’s text and structure guide interpretation.
• De Minimis Principle: Minor breaches may be “too trivial” to count as material contraventions; e.g. rounding 9.05 to 9 accessible spaces.

Conclusion

The Protect East Meath judgment reforges the obligation of An Bord Pleanála in SHD cases to:

1. Apply the development plan in force at decision date, not drafts or dis-applied provisions.
2. Correctly interpret mandatory plan standards (parking, accessibility, etc.) by reading tables and guidance notes holistically.
3. Engage section 9(6) and the section 37(2)(b) criteria when granting permission in material contravention of a plan, even for non-zoning breaches.
4. Ensure that public notice and material contravention statements address the plan applicable at decision date so the public can meaningfully participate.

By quashing the SHD permission, the High Court emphasized that speed and streamlined procedures cannot eclipse the rule of law in planning. Future large-scale housing applications must anticipate plan changes, prepare comprehensive material-contravention statements, and ensure that any departure from statutory plan provisions satisfies the stringent legal tests. The judgment thus strengthens plan stability, public participation, and disciplined decision-making under the SHD regime.