Introduction

The case of Suaimhneas Ltd v. Kerry County Council (Approved) ([2021] IEHC 451) addresses significant issues surrounding the retention planning permission within the framework of Irish planning legislation. The dispute primarily revolves around the interpretation and application of section 34(12) of the Planning and Development Act 2000 (as amended) (PDA 2000), particularly in situations where unauthorised development has been undertaken.

The parties involved include Suaimhneas Limited ("the Objecting Party") and Kerry County Council ("the Planning Authority"), with Emer O’Sullivan ("the Developer") also playing a pivotal role as the notice party. The crux of the case lies in whether the Planning Authority acted unlawfully by seeking further information regarding a retention planning permission application instead of outright rejecting it and necessitating a return to the developer.

Summary of the Judgment

Mr. Justice Garrett Simons, delivering the judgment on 9 July 2021, concluded that Kerry County Council misapplied section 34(12) of the PDA 2000. The judgment clarified that the term "the development concerned" refers to the development as it was envisaged at the time the unauthorised works commenced, not as it stands in any subsequent revised proposals. Consequently, the Planning Authority erred in its screening process by considering the current iteration of the development rather than the original scope, which inherently required an appropriate assessment under the Habitats Directive. The High Court granted the application for judicial review, effectively nullifying the Planning Authority's jurisdiction to determine the 2019 planning application and setting aside the request for further information.

Analysis

Precedents Cited

The judgment extensively references both national and European Union (EU) precedents to underpin its interpretation of the PDA 2000. Notably, the decision of An Bord Pleanála in the 2016 planning application (PL08.248783) played a critical role, where the Board refused planning permission based on potential significant effects on the Kenmare River Special Area of Conservation (SAC), thereby necessitating an appropriate assessment under the Habitats Directive.

Additionally, the Court of Justice of the European Union's rulings in cases such as Case C-127/02, Waddenzee and Case C-323/17, People Over Wind were instrumental. These cases established that the threshold for requiring an appropriate assessment is based on the probability or risk of significant effects, aligned with the precautionary principle inherent in EU environmental directives.

Legal Reasoning

The High Court's legal reasoning centered on a meticulous interpretation of section 34(12) of the PDA 2000. It was determined that the "development concerned" must be assessed based on its original scope at the commencement of unauthorised works, not any later modifications proposed by the developer. The Planning Authority erroneously conflated the specific screening criteria under section 34(12) with the general screening requirements of section 177U, leading to a flawed screening process.

Furthermore, the judgment emphasized that allowing developers to revise their plans post-unauthorised development to circumvent necessary environmental assessments undermines the very objectives of the Habitats Directive. Such an approach would inadvertently permit the regularization of environmentally detrimental projects without proper due diligence, contravening both national and EU legislative intent.

The Court reaffirmed that adherence to EU directives is paramount, ensuring that national laws are interpreted in a manner that fulfills these supranational obligations. By doing so, the judgment ensures that environmental protections are robustly maintained against attempts to sidestep legal requirements.

Impact

This judgment has profound implications for future retention planning permission applications in Ireland. It sets a clear precedent that the original scope of unauthorised development is paramount in determining the necessity of environmental assessments, irrespective of subsequent revisions. Planning Authorities are now bound to adhere strictly to the interpretation that "the development concerned" refers to the initial development parameters.

Moreover, the decision reinforces the supremacy of EU environmental directives in shaping national planning laws. Developers can no longer exploit procedural loopholes to bypass essential environmental assessments, thereby enhancing the protective framework for designated conservation sites.

For practitioners and stakeholders in Irish planning law, this judgment underscores the necessity for meticulous compliance with both national legislation and EU directives. It also highlights the judiciary's role in upholding environmental standards and ensuring that Planning Authorities act within their lawful remit.

Complex Concepts Simplified

Retention Planning Permission

Retention Planning Permission allows developers to seek approval for development works that have already been carried out without the requisite planning consent, provided certain conditions are met. Importantly, it typically involves regularizing unauthorised developments without the need for full compliance measures that would have been required had the planning application been made beforehand.

Appropriate Assessment

An Appropriate Assessment is a detailed evaluation required under the Habitats Directive to determine whether a proposed development is likely to have significant effects on a European Site, such as a Special Area of Conservation (SAC). If significant effects are anticipated, measures must be implemented to mitigate these impacts, or the development cannot proceed.

Section 34(12) of the PDA 2000

This section of the Planning and Development Act 2000 stipulates the conditions under which a Planning Authority must refuse to consider a retention planning permission application. Specifically, it mandates refusal if the unauthorised development would have necessitated an environmental impact assessment or an appropriate assessment had the developer sought planning permission before commencing the works.

The Precautionary Principle

Embedded within EU environmental law, the precautionary principle mandates that lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the context of planning, this means that potential environmental impacts must be carefully assessed and mitigated even in the face of uncertainty.

Conclusion

The High Court's decision in Suaimhneas Ltd v. Kerry County Council serves as a pivotal clarification in the realm of Irish planning law, particularly concerning the interpretation of retention planning permissions under section 34(12) of the PDA 2000. By steadfastly aligning national legislation with EU directives, the judgment ensures that environmental protections are not undermined by procedural oversights or opportunistic revisions post-development commencement.

Key takeaways from this judgment include the unequivocal definition of "the development concerned" as referencing the original unauthorised works and the imperative for Planning Authorities to conduct their screening exercises based on this original scope. Additionally, the ruling emphasizes the judiciary's role in enforcing adherence to both national and EU environmental standards, thereby reinforcing the integrity of the planning permission process.

Moving forward, developers and planning authorities must exercise due diligence in seeking and granting planning permissions, fully accounting for original development intents and the necessary environmental assessments. This judgment not only fortifies the protective mechanisms around European Sites but also exemplifies the judiciary's commitment to upholding legislative and environmental mandates.