Introduction

Heather Hill Management Company CLG challenged the decision of An Bord Pleanála to grant planning permission to Burkeway Homes Limited for a strategic housing development in Bearna, County Galway. The proposed development included 121 residential units on a 5.3-hectare site that encompassed flood-prone areas along the Trusky East Stream.

The key issues revolved around whether the planning permission complied with the Planning and Development Act 2000 and associated regulations, particularly concerning flood risk management. Heather Hill contended that the development posed significant flood risks and lacked necessary consents and title ownership over parts of the land, rendering the planning permission invalid.

Summary of the Judgment

Justice Holland delivered the judgment on March 16, 2022, dismissing Heather Hill's application to quash the planning permission. The Court found that:

• Burkeway Homes had obtained the necessary consents to validate the planning application.
• The criteria set out in the Bearna Plan and the Flood Guidelines 2009 were appropriately applied by the Board.
• The allegations regarding the inadequacy of the Environmental Impact Assessment (EIA) and Appropriate Assessment (AA) were unfounded.
• There was no material contravention of the Development Plan in relation to flood risk management.
• The Board acted within its legal and expert discretion, ensuring that flood risks were adequately assessed and mitigated.

Consequently, the High Court upheld the validity of the planning permission granted to Burkeway Homes.

Analysis

Precedents Cited

• Heather Hill #1 ([2019] IEHC 450): The earlier judicial review where Simons J. quashed planning permission for a similar development based on material contravention of the Bearna Plan’s flood risk management objectives.
• Walsh v An Bord Pleanála & Sinnott: Clarified the interpretation of planning application consent requirements under the Planning and Development Regulations.
• Case C-127/02 Waddenzee v Land Nordrhein-Westfalen: Emphasized that preventive measures under EU directives cannot be based on hypothetical risks but must be grounded in verified data.
• Sweetman & Ireland v An Bord Pleanála ([2013] ECR I-8166): Defined the standards for Appropriate Assessment under the Habitats Directive, requiring competent authorities to conduct thorough evaluations to eliminate reasonable scientific doubt about potential impacts on European sites.

Legal Reasoning

The Court's decision hinged on the proper application of the Flood Guidelines 2009 within the Bearna Plan’s development framework. Key aspects of the legal reasoning included:

• Compliance with Flood Guidelines: The Board adequately applied the sequential approach mandated by the Flood Guidelines, which includes avoidance, substitution, and mitigation of flood risks.
• Burden of Proof: Heather Hill bore the burden of proving that the planning permission was invalid due to flood risks, consents issues, and incomplete assessments. The Court found insufficient evidence to support these claims.
• Expertise of the Board: The Court defers to the Board’s expertise in evaluating complex environmental assessments, reaffirming that judicial review is not an appeal on the merits but a check on legal validity.
• Adequacy of Assessments: The EIA and AA conducted were deemed thorough, with appropriate mitigation measures that align with both national and EU environmental directives.

Impact

This judgment reinforces the authority of planning boards in conducting and relying upon expert environmental assessments. It sets a precedent that:

• Planning permissions will stand if backed by comprehensive and regulation-compliant environmental assessments.
• Applicants challenging planning decisions must present substantial and credible evidence to overturn expert assessments.
• Development plans that incorporate EU directives and national regulations correctly are upheld, even when previous similar cases resulted in decisions against the developer.

Future cases involving flood risk management in planning applications will likely follow the standards upheld in this judgment, emphasizing the necessity of comprehensive assessments and adherence to established guidelines.

Complex Concepts Simplified

Sequential Approach

A methodology mandated by flood risk management guidelines, requiring planners to first avoid development in high-risk flood zones, substitute with less vulnerable land uses if avoidance isn't feasible, and only then consider potential mitigations if both avoidance and substitution are impossible.

Appropriate Assessment (AA)

A process under the Habitats Directive where competent authorities must evaluate the potential significant effects of a project on designated European sites, ensuring that no reasonable scientific doubt exists regarding the absence of adverse impacts.

Figurative Flood Zones A, B, and C

• Flood Zone A: High probability of flooding (>1% annual risk). Development here is generally inappropriate and should be avoided or only considered under exceptional circumstances.
• Flood Zone B: Moderate probability of flooding (0.1% - 1% annual risk). Development is discouraged and requires careful assessment and justification.
• Flood Zone C: Low probability of flooding (<0.1% annual risk). This area is generally deemed safe for development with standard risk assessments.

Conclusion

The High Court's judgment in Heather Hill Management Co. Ltd. v An Bord Pleanála & Ors underscores the critical balance between development and environmental stewardship. It reaffirms the robustness of environmental assessments when properly conducted and highlights the high threshold that applicants must meet to challenge expert planning decisions.

For developers, this case emphasizes the importance of adhering strictly to environmental guidelines and securing all necessary consents to ensure the validity of planning applications. For environmental advocates, it underscores the necessity of providing substantial and credible evidence when opposing developments on environmental grounds.

Overall, the judgment serves as a vital reference point for future disputes concerning planning permissions and environmental impact assessments, particularly in areas prone to flooding and other environmental risks.