Introduction

The case of Leech & Anor v An Bord Pleanála & Ors ([2024] IEHC 599) presents a pivotal moment in Irish planning law, particularly concerning the protection of visual amenities within designated urban areas. The applicants, Paul Leech and Frank McDonald, challenged the decision of An Bord Pleanála (ABP) to grant permission for a strategic housing development (SHD) in the Heuston South Quarter of Dublin. Central to this dispute was the concept of the "cone of vision" (CoV) from the Royal Hospital Kilmainham (RHK) and whether the proposed development adversely affected this protected view as stipulated in the Dublin City Development Plan 2016-2022.

Summary of the Judgment

Justice Emily Farrell delivered the judgment on November 12, 2024, quashing the permission granted by ABP on the grounds that it was granted in material contravention of the Development Plan. The High Court found that ABP failed to properly invoke section 9(6) of the Planning and Development (Housing) and Residential Tenancies Act, 2016, which is mandatory when a proposed development materially contravenes the development plan, excluding zoning issues.

The development in question comprised five residential blocks, several of which fell within the CoV of the RHK. Despite multiple submissions from third parties highlighting the adverse visual impact, ABP granted permission without adequately addressing the material contravention related to the CoV. The High Court held that any adverse impact on the CoV constitutes a material contravention requiring adherence to specific procedural safeguards, which ABP neglected, rendering its decision unlawful.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that shaped the court's reasoning:

• Byrne v. Fingal County Council [2001] IEHC 141: Established that development plans are binding environmental contracts, emphasizing the planning authority's duty to adhere strictly to the published plan.
• Attorney General (McGarry) v. Sligo County Council [1989]: Reinforced the notion that development plans are representations of public intent and must be followed transparently.
• Sherwin v. An Bord Pleanála [2024] IESC 13: Highlighted the necessity for planning authorities to address material contraventions explicitly to avoid breaches of section 9(6).
• Eco Advocacy v. An Bord Pleanála (No. 4) [2023] IEHC 713: Discussed the clarity required in pleadings for judicial reviews, emphasizing that sufficient particularity must be provided.

Legal Reasoning

The core legal issue revolved around whether ABP appropriately handled a material contravention pertaining to the CoV. According to section 9(6) of the 2016 Act, ABP must invoke this provision when a development materially contravenes the development plan, except in cases solely involving zoning issues.

Justice Farrell determined that the CoV's protection under Guiding Principle 8 of SDRA 7 was explicit: "Any new developments within this 'cone' shall not adversely affect this view." Given that part of the proposed development fell within the CoV and adversely affected the protected view, ABP was obligated to apply section 9(6). However, ABP granted permission without undertaking the necessary procedural steps, thereby exceeding its jurisdiction.

The judgment underscored that an adverse effect on the CoV is a material contravention, mandating strict adherence to procedural safeguards. The failure to do so constitutes a breach of the Act, rendering ABP's decision unlawful.

Impact

This judgment sets a significant precedent in Irish planning law, particularly in the enforcement of development plans' visual protection clauses. Key impacts include:

• Strict Enforcement: Planning authorities must rigorously assess and adhere to material contraventions, especially concerning protected views.
• Procedural Compliance: Failure to invoke necessary legal provisions when opposing material contraventions can lead to judicial invalidation of planning permissions.
• Protection of Cultural Heritage: Enhanced safeguarding of historically and culturally significant sites through stringent planning assessments.
• Guidance for Future Developments: Developers need to account for visual and environmental impacts more meticulously in their planning applications.

Complex Concepts Simplified

Cone of Vision (CoV)

The "Cone of Vision" refers to designated view corridors extending from significant landmarks, such as the Royal Hospital Kilmainham, ensuring that new developments do not obstruct or negatively alter these protected views.

Material Contravention

A "material contravention" occurs when a proposed development significantly deviates from the established development plan, affecting key policies or protected aspects such as visual amenities or heritage sites.

Section 9(6) of the 2016 Act

This section mandates that the planning authority must follow specific procedures when approving developments that materially contravene the development plan, ensuring that exceptions are legally justified and properly documented.

Strategic Housing Development (SHD)

SHD refers to large-scale residential projects intended to address housing needs within strategic zones, governed by specific legislative frameworks to balance development with planning objectives.

Conclusion

The High Court's decision in Leech & Anor v An Bord Pleanála & Ors underscores the judiciary's role in enforcing compliance with development plans, particularly in safeguarding visual and cultural heritage. By invalidating ABP's decision due to procedural lapses in addressing material contraventions, the court reinforces the imperative for planning authorities to meticulously adhere to legislative requirements. This judgment not only bolsters the protection of significant visual corridors like the CoV but also serves as a clarion call for developers and planning bodies to prioritize transparency, compliance, and the preservation of Ireland's architectural and cultural legacy in future developments.