Flexibility and Rigor in Irish SHD Law: Material Contravention, Pre-Application Consultation and EIA Screening

Flexibility and Rigor in Irish SHD Law: Material Contravention, Pre-Application Consultation and EIA Screening

Introduction

The High Court’s decision in Concerned Residents of Coolkill, Sandyford Downs and Lamb’s Brook & Anor v An Bord Pleanála ([2025] IEHC 265) arises from a Strategic Housing Development (“SHD”) application by Midsal Homes Limited for 116 apartments on a 0.92 ha urban fringe site in Dublin 18. The applicants, local residents, challenged the Board’s permission on seven grounds. Mr Justice Holland delivered judgment on 19 May 2025 dismissing each challenge in full.

Summary of the Judgment

Mr Justice Holland analyzed:

  • Material contravention of density rules and classification as an “Intermediate Urban Location”;
  • Failure to assess and make provision for climate change impacts as required by the County Development Plan (“CDP”);
  • Alleged breach of childcare-provision standards;
  • Compliance with separation-distance requirements;
  • A bedroom-size challenge under Apartment Guidelines;
  • Alleged defect in pre-application consultation when the scheme switched from “build-to-rent” to “build-to-sell”;
  • and adequacy of Environmental Impact Assessment (“EIA”) screening, especially as to rock excavation.

On each point the Court held that either the CDP and Guidelines allow expert planning judgment (reviewable only for irrationality), or the alleged contraventions were not material, or the challenge was unsupported by evidence. The Board’s decision was therefore upheld.

Analysis

1. Material Contravention and Density (Ground 1)

  • CDP §12.3.3.2 and the 2020 Apartment Guidelines describe “Central,” “Intermediate” and “Peripheral” urban locations by way of examples and expressly allow local assessment of other factors. Those criteria are not hard-edged definitions but directional indicators for density policy.
  • The Inspector carried out a site inspection, reviewed public transport access, and found the site broadly within the “Intermediate” category. That evaluative judgment—consistent with Murphy v ABP and Graymount—is immune from judicial second-guessing unless irrational.
  • No material contravention arose and the Board’s reasons were adequate. Ground 1 fails.

2. Climate Change Assessment (Ground 2)

  • CDP §12.9.6 requires SHD applications over 50 units to include an assessment of climate-change impacts on the development and provision for them in drainage, waste and energy design.
  • By analogy with the Supreme Court’s Waltham Abbey decision on EIA screening, compliance must be presented in a public-friendly format—but need not be a single standalone document. The Site’s Flood Risk Assessment and Engineering Services Report incorporated a 20% climate-change allowance in the SuDS design, supplemented by the Sustainability Report (energy efficiency and NZEB standard) and Waste Management Plans.
  • No evidence of deficient assessment or design emerged, and any contravention was immaterial. Ground 2 fails.

3. Childcare Provision (Ground 3)

  • CDP Objective PHP6 and the 2001 Childcare Guidelines prescribe a “benchmark” of one facility per 75 units, modifiable by local population mix and existing provision—guidelines that are themselves non-prescriptive and hypertrophied.
  • Midsal’s KPMG Childcare Demand Assessment used local census data, adjusted conservatively, and surveyed existing and planned places to show that demand could be absorbed off-site. The Inspector’s review of this qualitative and quantitative evidence was rational and accompanied by adequate reasons.
  • Ground 3 relies on a merits dispute, not a legal error. It fails.

4. Separation Distances (Ground 4)

  • CDP §12.3.5.2 sets “circa 22 m” between opposing windows as a general yardstick but builds in flexibility—“In certain instances … reduced separation distances may be acceptable” subject to spacing, orientation and a daylight study. That is an evaluative standard, not a rigid rule.
  • Small deviations between some blocks (down to 15.8 m and 16.4 m) involved only “secondary” windows and were accompanied by a daylight/sunlight analysis. No real privacy or amenity breach was shown. The Inspector’s reasons, and the Board’s conditions, sufficed. Ground 4 fails.

5. Bedroom Dimensions (Ground 5)

  • CDP §12.3.4.2 incorporates the Apartment Guidelines’ minimum room sizes, with a 5% variation clause in Appendix 1. The precise scope of that variation was arguably ambiguous—but any bedroom shortfall (16% of rooms under by an average of 2.5%) was de minimis.
  • Even assuming the variation did not apply to bedrooms, the shortfalls were immaterial. Ground 5 fails.

6. Pre-Application Consultation (Ground 6)

  • SHD law requires a pre-application consultation under ss. 5–6 of the 2016 Act, but does not freeze the proposal in amber. The Board’s Opinion that the draft scheme was a reasonable basis for application does not oblige the final application to match every detail. The Applicant switched from “Build To Rent” to “Build To Sell” apartments, but the 2022 Apartment Guidelines had removed the requirement to treat BTR as a separate planning class.
  • The changes were foreseeable, marginal in substance, and posed no prejudice. The Board’s acceptance of the SHD application was not irrational. Ground 6 fails.

7. EIA Screening (Ground 7)

  • The EIA Directive and PDR 2001 Articles 299B–C require screening for projects below the 500-unit threshold. Screening must “rule out all reasonable scientific doubt” of significant environmental effects on available evidence—but not by exhaustive investigation beyond what is reasonably required of the developer.
  • Here, the Board had Geological Survey maps showing shallow granite, groundwater vulnerability data, a draft CEMP promising noise/dust/vibration controls, a noise impact report, and the RWMP acknowledging excavation volumes and disposal routes. The Inspector acknowledged rock–breaking noise but considered it short-term, manageable by accepted best practice and Boland-style conditions requiring a detailed Noise Management Plan and working-hours limits. That rational, evidence-based decision is immune from challenge absent evidence of an irrational risk. Ground 7 fails.

Complex Concepts Simplified

  • Material Contravention: Not every breach of a plan matters. A “material” breach is when a clear, mandatory plan rule is broken in a way that affects local policy goals. Courts won’t strike it down unless the decision was irrational.
  • Precautionary Principle in EIA Screening: You must only refer a project to full EIA if real, objective evidence shows a risk of significant harm. Mere theoretical fears won’t do; you need solid, reasonably available data.
  • Evaluative Judgments in Planning: Density, childcare, building separation and other standards often require trade-offs and discretion. Ministers set quantitative guideposts but empower local experts to balance competing needs for housing, transport, open space and environmental safety.

Conclusion

The High Court’s Coolkill decision underscores that Irish SHD law strikes a balance between plan certainty and planning flexibility. Development Plan rules supply directional standards—often fragmented by guideline incorporation—but allow local evaluative judgment, subject to review only for irrationality. Procedural steps like pre-application consultation and EIA screening must be properly observed, yet do not rigidly bind every detail of evolving proposals. In a housing crisis, courts will not lightly undo decisions that, on the record and reasoned judgment of expert bodies, comply with planning policy and environmental safeguards.

Case Details

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