Introduction

Walsh v An Bord Pleanála & Anor ([2022] IEHC 172) is a significant High Court of Ireland case that delves into the complexities of planning permissions, procedural fairness, and material contraventions within urban development projects. The case revolves around a housing development at St. Clare's Park, Harold's Cross Road, Dublin, which has undergone multiple planning permissions and judicial reviews due to concerns raised by Paul Walsh, the applicant residing adjacent to the development.

The primary issues in this case include the failure to implement agreed-upon settlement terms related to tree planting, concerns about privacy and overlooking due to the development's height, and procedural irregularities in the strategic housing development (SHD) permission process. The parties involved are Paul Walsh (Applicant), An Bord Pleanála, Ireland, the Attorney General (Respondents), and St. Clare's GP3 Limited (Notice Party).

Summary of the Judgment

Justice Humphreys delivered the judgment on April 1, 2022, addressing the third judicial review in a series concerning the St. Clare's Park development. The court scrutinized the procedural fairness of the SHD permission granted by An Bord Pleanála (the Board) and identified substantive errors in the legal analysis regarding material contraventions of building height standards.

The Applicant contested the Board's decision to grant permission despite alleged non-compliance with the Building Height Guidelines, specifically concerning the Average Daylight Factor (ADF). The Board's inspector had incorrectly applied a 1.5% ADF threshold proposed by the developer instead of the statutory 2% required by the guidelines. This misapplication led to a superficial compliance figure of 97.3%, which failed to accurately reflect the development's adherence to legal standards.

The court found that the Board did not clearly identify the extent of non-compliance with the ADF standard, leading to an erroneous decision. Consequently, Justice Humphreys quashed the Board's decision and ordered a certiorari to rectify the procedural and substantive flaws in the original permission granted.

Analysis

Precedents Cited

The judgment references several key precedents that influenced the Court's decision:

• Doorly v. Corrigan [2022] IECA 6: Highlighting the Council's authority to refuse future permissions in cases of substantial unauthorized development.
• Eco Advocacy CLG v. An Bord Pleanála (No. 1) [2021] IEHC 265: Emphasizing the importance of environmental protection in planning decisions.
• O'Neill v. Applebe [2014] IESC 31: Underscoring that procedural errors are not exclusive to one party.
• Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230: Affirming the admissibility of additional evidence in judicial reviews under specific circumstances.
• Conway v. An Bord Pleanála [2022] IEHC 136: Addressing the implications of inadequate material provided by developers in planning applications.

These precedents collectively reinforce the necessity for transparency, adherence to legal standards, and fair procedural conduct in planning permission processes.

Legal Reasoning

The Court's legal reasoning centered on two main areas: procedural fairness and material contravention of planning standards.

• Procedural Fairness: The Applicant argued that the Board failed to provide adequate notice and time to respond to additional materials submitted by the developer. However, the Court held that while the process could be improved, the Applicant did have opportunities to respond within the given timeframe. The Court emphasized that the minimum legal requirements for fairness were met, and the Applicant did not sufficiently demonstrate that longer notice would have altered the outcome.
• Material Contravention: The crux of the decision lay in the incorrect application of the Average Daylight Factor (ADF). The Inspector had used a 1.5% standard proposed by the developer instead of the statutory 2% mandated by the Building Height Guidelines. This miscalculation led to an inaccurate assessment of compliance, undermining the validity of the Board's decision.

The Court concluded that the Board's failure to clearly identify and properly apply the 2% ADF standard constituted a significant legal error, warranting the quashing of the decision.

Impact

This judgment has profound implications for future planning permission cases in Ireland, particularly those involving strategic housing developments. It underscores the critical importance of:

• Adhering strictly to statutory guidelines and standards, especially concerning material criteria such as ADF.
• Ensuring transparency and clarity in identifying compliance and non-compliance with planning standards.
• Maintaining procedural fairness, although the Court may not intervene unless there is clear evidence of unfairness.

Developers and planning authorities must meticulously follow legislative requirements and provide clear, evidence-based justifications for their decisions to avoid similar judicial interventions.

Complex Concepts Simplified

To aid comprehension, the judgment involves several complex legal concepts:

• Material Contravention: This refers to a significant breach of planning standards or conditions set out in planning permissions. In this case, the incorrect ADF calculation constituted a material contravention.
• Average Daylight Factor (ADF): A measure of the amount of natural light received in a building. The statutory requirement was a minimum of 2%, which ensures adequate daylighting for occupied spaces.
• Strategic Housing Development (SHD) Process: A streamlined procedure for granting planning permissions for large-scale housing projects to meet housing demand efficiently.
• Certiorari: A court order requiring a public authority to deliver its record in a case so that it can be reviewed for legal errors. Here, it was used to nullify the Board's flawed decision.
• Judicial Review: A process where courts oversee the legality of decisions or actions made by public bodies, ensuring they comply with the law and principles of fairness.

Conclusion

The Walsh v An Bord Pleanala & Anor judgment serves as a pivotal reminder of the necessity for meticulous adherence to legal standards and procedural fairness in planning permission processes. By highlighting the consequences of failing to accurately apply statutory guidelines, particularly in material aspects like the Average Daylight Factor, the Court reinforces the integrity of the planning system.

This case emphasizes that while procedural improvements are valuable, the cornerstone remains the accurate and transparent application of the law. Developers and planning authorities must ensure that all aspects of their applications and decisions are thoroughly vetted against statutory requirements to prevent judicial interventions that can delay or nullify development projects.

Ultimately, the judgment underscores the Court's role in upholding legal standards and ensuring that planning decisions contribute positively to urban development without compromising on quality, safety, and environmental considerations.