Fernleigh Residents Association & Anor v An Bord Pleanála & Ors ([2023] IEHC 525): Reinforcing SPPR3 Compliance in Strategic Housing Developments

Introduction

The case of Fernleigh Residents Association & Anor v An Bord Pleanála & Ors ([2023] IEHC 525) presents a significant judicial review concerning the granting of planning permission for a Strategic Housing Development (SHD) in Stepaside, Dublin. The applicants, representing local residents, contested the High Court's decision to uphold the Planning Board’s permission for building 445 units, citing multiple material contraventions of the existing Development Plan, particularly regarding building height, daylight provision, and public transport capacity. This commentary delves into the Court's comprehensive analysis, the precedents it relied upon, and the broader implications for future planning applications under the Planning and Development (Housing) and Residential Tenancies Act 2016.

Summary of the Judgment

Mr. Justice David Holland quashed the planning permission granted by An Bord Pleanála, deeming it invalid due to the Planning Board's failure to adequately demonstrate compliance with specific criteria outlined in the Height Guidelines 2018, particularly under §3.2 pertaining to daylight provision and public transport capacity. The Court highlighted that the applicant did not sufficiently establish that the development was of "strategic or national importance" as required by §37(2)(b) PDA 2000, nor did it properly address the material contraventions related to building height and open space provision. Consequently, the permission was found to be granted in material contravention of the Development Plan, undermining principles of proper planning and sustainable development.

Analysis

Precedents Cited

The judgment extensively referenced various precedents to underpin its reasoning:

• M.E.O. v U.O. (Nigeria) [2018] IEHC 782: Emphasized the presumption of validity in administrative decisions unless demonstrably flawed.
• Jennings v An Bord Pleanála & Ors [2023] IEHC 14: Highlighted the necessity for precise identification and justification of any departures from statutory planning criteria.
• Balz v An Bord Pleanála [2019] IESC 90: Reinforced that decision-makers must provide clear, cogent reasons addressing significant submissions to maintain public trust.
• Krikke v Barranafaddock Sustainable Electricity Ltd [2022] IESC 41: Asserted that genuine ambiguity in administrative decisions should be interpreted in favor of validity.
• Four Districts Woodland Habitat Group v An Bord Pleanála [2021] IEHC 648: Demonstrated the importance of detailed scrutiny in assessing public transport capacity related to planning applications.

These cases collectively underscore the judiciary's stance on ensuring administrative bodies adhere strictly to statutory criteria and provide transparent, justifiable reasoning in their decisions.

Legal Reasoning

The Court's reasoning centered on the Planning Board’s inadequate demonstration of compliance with §3.2 of the Height Guidelines 2018, which mandates ensuring sufficient daylight in residential units and adequate public transport capacity. Key points include:

• Daylight Provision: The Planning Board failed to accurately assess and report on the Average Daylight Factor (ADF) in living/ kitchen/dining (LKD) areas. By adopting an erroneous 1.5% standard instead of the mandated 2% ADF, the Board did not fulfill its obligation to demonstrate compliance with daylighting criteria.
• Public Transport Capacity: The Board inadequately addressed the actual capacity of the nearby Luas (light rail) system to serve the proposed development. Relying solely on proximity without empirical evidence of the system's capacity and peak-hour performance led to an unjustified affirmation of sufficient public transport service.
• Compatibility with Existing Permissions: The Court found that the new planning permission conflicted with an existing partially-built development (Permission D10A/0440), which imposed a condition for complete adherence to the development plan. The Board's oversight in reconciling these permissions resulted in the new permission being unlawfully granted.

Furthermore, the Court criticized the Planning Board’s reliance on a definitional interpretation of "high capacity" public transport as articulated in the National Transport Authority's (NTA) Transport Strategy 2016, deeming it insufficient for satisfying the specific site-based criteria required for Material Contraventions.

Impact

This judgment reinforces the necessity for meticulous compliance with statutory planning criteria, especially under Performance-Based Planning Policies like SPPR3. Its implications are multifaceted:

• Enhanced Scrutiny: Planning authorities must rigorously assess and substantiate compliance with environmental and infrastructural criteria, ensuring that all aspects of a development, including brightness and transportation, meet or exceed mandated standards.
• Transparency and Accountability: The decision underscores the importance of clear, cogent reasoning in planning decisions. Authorities are compelled to provide comprehensive justifications, especially when overriding development plans, to uphold public trust and facilitate judicial review.
• Clarification of SPPR3 Application: By highlighting failures in demonstrating "strategic or national importance," the judgment delineates the boundaries of SPPR3's applicability, ensuring it is not misused to bypass essential planning norms.
• Precedential Value: Future SHD applications will likely be scrutinized more intensely for compliance with daylighting and public transport capacity, setting a high bar for developers to meet comprehensive environmental and infrastructural standards.

In essence, the judgment acts as a deterrent against lax adherence to planning guidelines and champions a culture of thorough, evidence-based decision-making within planning authorities.

Complex Concepts Simplified

Strategic Housing Development (SHD): A type of housing project recognized under the Planning and Development Act 2000, designed to address national housing shortages by permitting higher densities and larger developments than typically allowed.

Material Contravention: A significant breach of the Development Plan's provisions, such as exceeding height restrictions or inadequate provision of open spaces and amenities.

SPPR3 (Specific Planning Policy Requirement 3): Guidelines that allow planning authorities to grant permissions that materially contravene the Development Plan, provided certain criteria related to strategic importance, performance standards, and precedent cases are satisfactorily met.

Average Daylight Factor (ADF): A measure of natural daylight in a room, expressed as a percentage of the outdoor illuminance received at the window. Higher ADF values indicate greater daylight availability, enhancing the living conditions within residential units.

Judicial Review: A legal process where courts examine the lawfulness of decisions or actions made by public bodies, ensuring they comply with established statutes and principles of fairness.

Conclusion

The Fernleigh Residents Association & Anor v An Bord Pleanála & Ors judgment serves as a pivotal reinforcement of the Planning Board’s obligations under the Height Guidelines 2018 and the broader Planning and Development Act 2000. By meticulously dissecting the Planning Board’s failures in demonstrating compliance with daylight provision and public transport capacity, the Court has unequivocally stressed the imperatives of evidence-based, transparent, and lawful decision-making in planning permissions. This ruling not only invalidates the contested permission but also sets a rigorous standard for future Strategic Housing Developments, ensuring that they align with national planning objectives and environmental sustainability. Developers and planning authorities alike must heed this precedent, recognizing that overlooking or inadequately addressing statutory criteria invites judicial intervention and undermines the integrity of the planning system.