Mandatory ACA Character-Assessment and Reasoned Consideration for Demolition of Heritage Features in Part XAB Consents

Case: D'Alton v An Coimisiun Pleanala (Approved) [2026] IEHC 414
Court: High Court of Ireland (Planning & Environment)
Judge: Humphreys J.
Date: 26 June 2026

1. Introduction

This judicial review concerned An Coimisiún Pleanála’s approval under Part XAB, s. 177AE of the Planning and Development Act 2000 (“the 2000 Act”) of a local authority greenway upgrade at Passage West, Co. Cork. The contested element was the proposed demolition (and replacement/realignment) of a historic railway wall within the Passage West Architectural Conservation Area (“ACA”), together with an original stile embedded in the wall that had been expressly treated by the former town council as a heritage feature (heritage trail and signage).

The applicants (local residents/community participants) argued that the Commission’s decision failed to carry out the legally required level of heritage assessment and reasoning for demolition within an ACA, failed to engage with ministerial guidelines under s. 28, and failed to address the impact of the demolition on the setting of an adjacent protected structure (a water tower on the Record of Protected Structures). The Commission and the local authority defended the approval as a planning judgment open to the expert decision-maker, and argued that several non-heritage grounds were misconceived or immaterial.

Key issues

  • Whether the Commission complied with s. 82(2) of the 2000 Act (taking into account the “material effect (if any)” on ACA character).
  • Whether the Commission unlawfully failed to comply with a mandatory development plan objective requiring an ACA “character assessment” for public realm works (Objective HE 16-18(h)).
  • Whether there was a legally adequate engagement with the s. 28 ministerial guidance (Architectural Heritage Protection: Guidelines for Planning Authorities, 2011) where irreversible demolition was a main issue.
  • Whether the Commission failed to consider the demolition’s effect on the setting/composition of a nearby protected structure (including “symmetry” of the setting).
  • Scope of relief: whether any quashing could be partial (severance), and whether s. 50A(9) could be used to facilitate a designed transition if only part of the approval were quashed.

The judgment foregrounded the 2011 Guidelines’ emphasis on granular scrutiny: “it is vitally important that proposals for works to protected structures, and within [architectural conservation areas], be examined at a detailed level” (para. 7.2.1).

2. Summary of the Judgment

The High Court held that several non-heritage grounds failed (no Local Area Plan existed; non-statutory plans were not mandatory considerations; general “have regard to the development plan” obligations do not require narrative discussion of large numbers of objectives; traffic/parking reasons were legally adequate; alleged documentation defects were not, in themselves, a basis for certiorari absent fundamental compromise of the process).

However, the Court found the Commission’s heritage analysis legally deficient. In substance:

  • The stile—identified by the former town council as a heritage feature—was to be demolished without any express consideration or reasons.
  • The Commission/Inspector did not engage in the required way with the development plan’s mandatory objective requiring a character assessment for public realm works in an ACA (Objective HE 16-18(h)).
  • The Commission’s reliance on the fact that parts of the wall had previously been modified did not logically justify demolition of the remaining original wall, nor did it amount to a reasoned consideration of alternatives.
  • The Commission failed to address the obvious setting/composition issue arising from removing the wall on one side of a protected water tower where the wall existed on both sides (loss of symmetry), i.e. impact on the protected structure’s setting.
  • While the Court rejected the applicants’ “curtilage” argument (it had not been raised in the process and was not shown to have been obvious to a reasonable decision-maker), that did not cure the failure to consider setting impacts.

The Court ordered certiorari in part (the precise severance to be agreed/directed following further submissions). The Court contemplated an amendment under s. 50A(9) to facilitate a designed transition at any severance point, and preserved the possibility of remittal of any quashed portion if requested.

Costs/expenses were awarded to the applicants against the Commission; there was no order as to costs for or against the notice party (the local authority).

3. Analysis

3.1 Legal framework applied

(a) Part XAB consent and “proper planning and sustainable development”

The consent was granted under s. 177AE (Part XAB) rather than under s. 34. The Court nonetheless treated the Commission’s obligation to assess “proper planning and sustainable development” as requiring legally adequate consideration of the relevant statutory planning framework and, critically here, the statutory heritage regime for ACAs and protected structures.

(b) Architectural Conservation Areas: ss. 81 and 82

Section 81 requires development plans to include an objective to preserve the character of an ACA (special architectural/historical/cultural interest, etc.). Section 82(2) then imposes a decision-making duty: where permission is sought for land in an ACA, the decision-maker “shall take into account the material effect (if any)” on ACA character.

The Court treated the wall/stile demolition as the kind of irreversible intervention that cannot be dealt with by a generalised statement that the works will not adversely affect heritage, particularly where the feature was specifically identified by local heritage signage/trail and where a development plan objective mandated a character assessment.

(c) Development plan Objective HE 16-18(h): “shall undertake a character assessment”

A central move in the Court’s reasoning was to treat Objective HE 16-18(h) as creating an explicit, mandatory step for “all projects which involve works within the public realm of an ACA”: they “shall undertake a character assessment… which will inform a sensitive and appropriate approach…”. The absence of any such assessment (or equivalent) was a concrete legal deficit, not a mere disagreement with planning merits.

(d) Ministerial guidelines under s. 28: “have regard to” as meaningful engagement on the main issue

Although s. 28 guidelines are not an inflexible code, the Court held that where demolition of long-standing heritage fabric within an ACA is a main issue, the decision-maker must do more than make an incidental reference (here, the only meaningful reference was in a bridge-related condition that did not address the wall/stile demolition).

The judgment relied especially on the Guidelines’ insistence on detailed examination within ACAs (para. 7.2.1) and the demolition prompts in paras. 3.10.2–3.10.3 (justification, impacts on composition/setting, and alternatives).

(e) Protected structures and “setting”

The applicants’ attempt to characterise the wall as part of the protected structure’s “curtilage” failed procedurally and factually in the Court’s view. But the Court still found an unmet requirement to consider the effect of removing the wall on one side of the water tower (a protected structure) where the wall existed on both sides, thereby affecting its setting/composition (“symmetry”).

3.2 Precedents cited and how they shaped the result

(a) Composite reasons and the reasons standard

  • Connelly v An Bord Pleanála [2021] 2 I.R. 752: Cited for the principle that the decision and inspector’s report may be read as a composite reasoning document. This supported the respondents’ general stance on reasons, but did not save the decision where the inspector’s report itself omitted any express engagement with the stile demolition and mandatory ACA character-assessment requirements.
  • Ventaway Ltd v An Coimisiún Pleanála [2025] IEHC 406, Killegland Estates Ltd v Meath County Council [2023] IESC 39, and Connelly v An Bord Pleanála [2018] IESC 31; [2018] 2 IRLM 453: relied upon for the “main reasons on the main issues” approach. The Court accepted that standard was met on traffic/parking, but held the heritage demolition was itself a main issue requiring express treatment.

(b) Presumption that stated considerations were considered

  • Rana v Minister for Justice [2024] IESC 46 and GK v Minister for Justice [2002] 2 IR 418: used to reject broad “failure to have regard” arguments where the decision-maker expressly stated it had regard to the development plan. The Court distinguished that general position from contexts where the law/policy makes specific engagement indispensable (here: demolition in an ACA, a mandatory character assessment objective, and the s. 28 guidelines’ demolition/alternatives prompts).

(c) Non-statutory plans as non-mandatory considerations

  • Keogh v An Coimisiún Pleanála [2026] IEHC 339: supported dismissal of the complaint that the Commission was legally obliged to consider non-statutory local plans. The Court treated these as optional considerations: their absence did not ground certiorari.

(d) Adequacy of information and irrationality review

  • Heather Hill v An Bord Pleanála [2022] IEHC 146 and Coyne v An Bord Pleanála [2023] IEHC 412: cited on the Commission’s entitlement to assess adequacy of information, reviewable on irrationality. This helped defeat the documentation-deficiency ground as a standalone basis for quashing. The Court nonetheless held that any informational shortcomings mattered insofar as they manifested in the Commission’s final heritage reasoning failures.

(e) New points not raised in the process

  • North Great George's Street Preservation Society v An Bord Pleanála [2023] IEHC 241, Friends of the Irish Environment CLG v An Coimisiún Pleanála [2026] IEHC 205, and Friends of the Irish Environment CLG v The Government of Ireland [2021] IECA 317: supported the Court’s refusal to grant relief on the “curtilage” point, which had not been raised in submissions and was not shown to be obvious to a reasonable autonomous decision-maker.

(f) Plan-text engagement in specific contexts

  • Sherwin v. An Bord Pleanála [2024] IESC 13: although concerned with material contravention, it was applied by analogy to emphasise that when a specific development plan provision is legally pivotal, decision-makers must focus on that text. Here, Objective HE 16-18(h) (the “shall” character assessment requirement) demanded more than generic heritage conclusions.

(g) Inspector’s assessment imputed to the decision-maker

  • Shadowmill Limited v An Bord Pleanála [2023] IEHC 157: cited for the proposition that the inspector’s assessment is imputed to the Commission. That assisted attribution of the heritage reasoning deficits to the Commission where it adopted the inspector’s approach.

(h) Burden-shifting once a legal non-compliance is shown

  • H.A. v. Minister for Justice [2022] IECA 166: deployed to answer the “no expert evidence” defence; once non-compliance with a mandatory step is shown (here, the required character assessment), the respondents cannot simply rest on absence of expert evidence from challengers to maintain the same outcome would inevitably have followed.

(i) Harmless error, materiality, and discretion

  • Monaghan U.D.C. v Alf-a-Bet [1980] I.L.R.M. 64, Carrownagowan [2025] IESCDET 9, Massey [2025] IESCDET 126, Save the South Leinster Way [2025] IEHC 541, Doyle (No.1) [2026] IEHC 156: cited for the proposition that not every error yields certiorari. The Court held the heritage failures were not “technical” or “harmless”: demolition is irreversible, and conditioning cannot cure demolition.
  • Reid (No. 7) [2024] IEHC 27, G. v. DPP [1994] 1 I.R. 374, O'Connell v. Behan [2021] IECA 186: referenced on discretion. The Court refused to withhold relief because the shortcomings went to the legality of authorising demolition in an ACA, not to peripheral procedure.
  • Save Cork City Community Association CLG v. An Bord Pleanála [2022] IESC 52: invoked by the local authority to argue against quashing for “technical” error; the Court distinguished that rationale given the substantive nature of the heritage omissions.

(j) Ancillary procedural authorities (draft judgments)

The judgment also discussed draft-judgment confidentiality and process, citing Attorney General v. Crosland (No. 2) [2021] UKSC 58 and other UK authorities. These citations are procedurally significant but do not drive the planning/heritage holding.

3.3 The Court’s legal reasoning on the heritage failures (why this was not “merits”)

The respondents’ core defence was that the inspector saw the wall, described its condition (much of it lowered and concrete-capped), and reached an evaluative conclusion that replacement would not significantly affect ACA character.

The Court rejected the characterisation of the challenge as merely merits-based for four connected reasons:

  1. A discrete heritage feature (the stile) was ignored. A feature explicitly identified by local heritage trail signage could not be demolished without express consideration and reasons. The omission was not about “weight”; it was absence of reasoning on a main issue.
  2. The mandatory character assessment was missing. Objective HE 16-18(h) required that “all projects” involving public realm works in an ACA “shall undertake a character assessment”. No such assessment (or equivalent) existed, undermining the statutory s. 82(2) duty to take account of material effects on ACA character.
  3. Non-sequitur reasoning about prior alteration. The inspector’s logic treated alteration of part of the wall as effectively negating the heritage value of the remaining original fabric. The Court held that does not logically follow: modification of “part A” does not justify demolition of “part B”, especially where “B” is substantial and visually coherent.
  4. Setting/composition of the protected structure was not addressed. Removing the wall on one side of the water tower (where the wall exists on both sides) obviously affects setting by removing symmetry. The Commission did not address this as a protected-structure setting impact.

3.4 Remedy: partial certiorari, severance, and s. 50A(9)

Rather than quash the entire approval for a beneficial active-travel project, the Court moved towards a proportionate remedy: quashing only the unlawful portion (“in part only”) and permitting submissions on where the severance line should fall. The Court also contemplated use of s. 50A(9) of the 2000 Act to enable an amended permission to provide a designed transition between any retained and quashed segments.

This aspect of the judgment is practically important: it signals that in planning JRs where an unlawfulness is localised (here, an ACA demolition element), the Court may shape relief to preserve lawful parts—without treating that as “harmless error”, but rather as proportionate vindication of the legality of heritage decision-making.

4. Complex Concepts Simplified

  • Architectural Conservation Area (ACA): a place designated in a development plan as having special character worth preserving (s. 81). Development in an ACA requires attention to impacts on that character (s. 82).
  • “Character assessment” (in this case): a plan-mandated study to identify what gives the ACA its special character and to inform sensitive design/material choices. Here it was expressed as mandatory (“shall”) for public realm projects in an ACA (Objective HE 16-18(h)).
  • Section 28 guidelines (“have regard to”): decision-makers are not bound to follow every line, but must genuinely consider relevant guidance where it bears on the main issues—especially demolition and alternatives in heritage contexts.
  • Protected structure “setting”: heritage protection is not limited to physical alteration of the protected structure; nearby works can unlawfully harm how it is experienced (views, composition, relationship to adjoining historic fabric).
  • Curtilage: land/structures intimately associated with a protected structure may be treated as part of it. Here, the argument failed because it was not raised in time and was not shown to be obvious; but the setting impact still required consideration.
  • Certiorari (quashing): the court nullifies an unlawful administrative decision. The Court indicated it could quash only the unlawful part (“severance”).
  • “Main reasons on the main issues”: decision-makers need not answer every submission point-by-point; but they must give clear reasons on the issues that truly matter to legality and outcome (here, demolition of identified heritage features in an ACA).

5. Impact and Significance

The decision underscores that heritage demolition within an ACA is not safely handled by broad assurances that impacts are insignificant—particularly where:

  • a development plan imposes a mandatory preparatory step (a character assessment);
  • ministerial guidance specifically flags demolition, alternatives, and composition/setting as key considerations; and
  • a distinct, locally recognised heritage feature (even if not itself statutorily listed) is proposed to be destroyed.

For future Part XAB (s. 177AE) applications by local authorities, the judgment is likely to drive:

  • more rigorous, feature-specific heritage inventories in application materials (including “small” elements like walls, stiles, and boundary features);
  • explicit ACA character assessments where the development plan requires them;
  • clearer reasoning on demolition and alternatives (not merely on replacement design); and
  • greater attention to protected-structure setting impacts, even where the protected structure lies just outside the red line.

Remedially, the judgment also illustrates a structured approach to proportionality in planning JR: quashing may be confined to the defective segment, with judicial openness to s. 50A(9) adjustments to avoid impractical design discontinuities—while still treating unlawful heritage demolition as a serious (non-technical) defect.

6. Conclusion

D'Alton v An Coimisiun Pleanala (Approved) [2026] IEHC 414 establishes, in a concrete and operational way, that where an ACA public-realm project entails demolition of identified heritage fabric, legality requires more than general heritage conclusions: the decision-maker must comply with mandatory plan requirements (here, a character assessment), meaningfully engage with the s. 28 heritage guidelines on demolition and alternatives, and give express reasons on distinct heritage features and protected-structure setting impacts. The Court’s willingness to quash only the defective portion, while contemplating s. 50A(9) modification, provides a practical template for proportionate relief in heritage-sensitive infrastructure cases.