Obligation to Provide Public Open Space or Financial Contribution in Lieu in Planning Appeals

Introduction

Eglington Residents Association & Anor v An Bord Pleanála & Ors ([2025] IEHC 209) was decided by the High Court of Ireland on 15 April 2025 under Record No. 2022/806 JR. The applicants, a residents’ association and a local homeowner, challenged An Bord Pleanála’s grant of planning permission to Red Rock Donnybrook Ltd (“the Notice Party”) for a 10-storey mixed-use development at a Dublin 4 site. Dublin City Council had refused the original 12-storey application under section 34 of the Planning and Development Act 2000, citing excessive height, mass, parking shortfall and potential prejudice to public transport infrastructure. On appeal under section 37, ABP granted permission subject to modified plans and conditions. The residents raised six core grounds of judicial review:

1. Unilateral amendment of the proposed development in the appeal (jurisdictional ultra vires);
2. Reliance on irrelevant statutory provisions (SPPR1 and SPPR3 of the Building Height Guidelines);
3. Flood risk assessment;
4. Public open space requirement;
5. Failure to make the appeal file available for inspection (section 146(5));
6. Validity of the decision not to require an environmental impact assessment.

Two preliminary objections arose over scope of grounds and non-notification before the Board. Ms Justice Emily Farrell heard the case in early 2025.

Summary of the Judgment

The Court dismissed Core Ground 1, upholding ABP’s jurisdiction to grant permission subject to conditions that modified the original proposal. On Core Ground 5, the Court found the Board had mis-interpreted and failed to apply a mandatory policy in the Dublin City Development Plan requiring 10% of a residential site to be reserved as public open space or, where appropriate, a financial contribution in lieu. Because ABP neither imposed a contribution nor consciously considered disapplying the policy, its grant of permission was unlawful. The Court quashed the permission under certiorari and refused to amend it under section 146A (no power to add new conditions not actually decided by the Board). On Core Ground 6, the Court declared that ABP breached section 146(5) by failing to make all appeal-stage documents available for inspection within three days, and granted a declaratory remedy to mark judicial disapproval. Grounds 3, 4 and 7 were not decided in light of the Core 5 outcome.

Analysis

Precedents Cited

• Shadowmill Ltd v An Bord Pleanála [2003] IEHC 196: Recognised an implied power to grant part-only of a proposed development and to impose conditions subtracting floors or reducing unit numbers. The Court followed Holland J.’s reasoning that omissions are less objectionable if public consultation on the original proposal occurred.
• Illium Properties Ltd v Dublin City Council [2004] IEHC 327: Held a planning authority may not use requests for further information as a device to alter applications beyond consultation parameters. The judgment informed the limits of section 127(4) documentation requirements on appeal.
• Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P & CR 233: English authority on whether amendments on appeal alter the substance of the application and deprive third parties of consultation.
• Coyne v An Bord Pleanála [2023] IEHC 412: Confirmed that unilateral amendments proposed by a developer in response to a third-party appeal fall within ABP’s power to impose conditions modifying a scheme.
• Domestic case law on judicial review scope and pleadings (Reid v ABP [2021] IEHC 230; Casey v ABP [2021] IESC 42; Concerned Residents of Treascon & Clondoolsk v ABP [2024] IESC 28; Eco Advocacy v ABP [2023] IEHC 713): Defined the need for issues to be raised with clarity and when jurisdictional points may be raised for the first time on review.
• Development plan interpretation (McGarry v Sligo County Council [1991] 1 IR 99; Byrne v Fingal County Council [2001] 4 IR 565; In re XJS Investments Ltd [1986] IR 750; Sherwin v ABP [2024] IESC 13; Jennings v ABP [2023] IEHC 14): Established the “environmental contract” rationale and the test for construing plan policies in a straightforward manner for developers and the public.
• Public open space jurisprudence (Roughan v Clare County Council, unrep. High Court, 18 Dec 1996; Pembroke Road Association v ABP [2021] IEHC 403; Kerins v ABP [2021] IEHC 369 and [2023] IEHC 280): Clarified when a section 48 financial contribution in lieu is lawful and what amounts to a material contravention of open space policies.
• Reasons and decision-making (Connelly v ABP [2018] IESC 31; Balz v ABP [2019] IESC 90; Killegland Estates v Meath County Council [2022] IEHC 393; Rana v Minister for Justice [2024] IESC 46): Underpinned the obligation to give adequate reasons when departing from Inspector’s reports or plan policies.

Legal Reasoning

Core Ground 1: Unilateral Amendment of Proposed Development

The Court applied section 37(1) and (5) of the 2000 Act and section 127(4)(a) of the 2001 Regulations, holding that nothing in statute barred a first-party appellant from submitting revised or alternative plans with its appeal, absent prejudice to public participation. Article 73 of the Regulations allows ABP to request modifications; the statutory silence on unsolicited amendments does not amount to prohibition. Shadowmill and Coyne confirm ABP’s broad power to impose conditions reducing floors, stepping back masses, or omitting car parking. The appeal remained against the 12-storey application; the 10-storey alternative was an “offer” to be disapplied by condition if required. Public notice requirements were satisfied, and no jurisdictional error arose.

Core Ground 5: Public Open Space Requirement

Section 16.10.3 of the Dublin City Development Plan mandates that “in new residential developments, 10% of the site area shall be reserved as public open space,” but “may” allow a financial contribution in lieu where off-site provision is “more appropriate” (e.g. site constraints or local park strategy). Section 16.3.4 similarly requires such space on “all zoned lands” or else a financial contribution “shall” be imposed. Policy GI113 echoes this obligation. The Court applied the XJS approach, construing plan language in its ordinary sense for all stakeholders. Contrary to ABP’s submission, the word “may” modifies only the choice of on-site versus off-site provision, not the binary requirement that either public open space or a monetary equivalent must be provided. The Board neither imposed a section 48 contribution nor expressly considered disapplying the policy—its silence in the decision and reliance on an incorrect interpretation of “may” rebut the presumption that the policy was lawfully applied. A contravention of a mandatory plan policy without proper material contravention procedures or conscious departure rendered the grant unlawful. Section 146A could not rescue the error, as it allows only clerical/technical corrections or facilitation of having actually decided matters, not insertion of new conditions never deliberated by the Board.

Core Ground 6: Failure to Publish File (Section 146(5))

ABP admitted that due to an administrative system dividing appeal-stage documents between a folder and a separate box, it did not make all materials available for inspection within three days of its decision, in breach of section 146(5). No prejudice was shown, but the Court granted declaratory relief to mark judicial disapproval and to clarify ABP’s statutory obligation, noting that the statute’s prompt-inspection requirement protects public participation and transparency.

Impact

This judgment clarifies two key principles in Irish planning law:

• Amendments at Appeal Stage: First-party appellants may submit revised or alternative plans unsolicited, and ABP retains full power to impose conditions modifying schemes—consistent with public participation safeguards and existing “omission” jurisprudence (Shadowmill, Coyne).
• Mandatory Open Space Compliance: Development plans mandating public open space cannot be bypassed by silent or erroneous interpretation. Planning authorities and ABP must either secure on-site provision (10%) or impose a financial contribution in lieu after consciously applying—or consciously departing from—the policy. Failure to do so invalidates permission.

Future appeals will require explicit reference to open space policies in decisions and transparent reasoning where departures occur. Developers must tender either designating on-site open space or proposing section 48 contributions in their appeals.

Complex Concepts Simplified

• Section 34 vs Section 37: Section 34 governs initial planning authority decisions; section 37 governs appeals to ABP, treating appeals “as if … made to the Board in the first instance.”
• Material Contravention: A significant departure from a mandatory development-plan policy (e.g. public open space) that must follow special procedures or justify departure in reasons.
• Omission Conditions: Conditions may lawfully remove parts of a proposed development (floors, blocks, parking), provided the public had notice and the core proposal was consulted on.
• Section 146(5) Inspection Rule: ABP must make its entire appeal file available for public inspection at its premises within three working days of its decision to ensure transparency.

Conclusion

Eglington Residents Association v An Bord Pleanála establishes that while ABP’s broad discretion allows it to modify approved schemes via conditions—even when amendments originate from the developer’s appeal documents—it must still faithfully apply mandatory development-plan policies. In particular, a firm rule now stands: residential developments must either reserve 10% of their site as public open space or, if off-site provision is more appropriate, impose a financial contribution in lieu. Silent disregard of such a policy invalidates permission. The decision also underscores ABP’s duty of procedural transparency under section 146(5). Together, these clarifications reinforce both the flexibility and the statutory rigour of Irish planning appeals.