Introduction

The case of Kerins & Anor v An Bord Pleanála & Ors ([2023] IEHC 280) presents a significant legal discourse on the obligations surrounding public open space provisions within residential developments under the Dublin City Development Plan. The applicants, Sinead Kerins and Mark Stedman, challenged the decision of An Bord Pleanála (the national planning authority of Ireland) to approve a development without providing the requisite public open space as mandated by the Development Plan.

Central to this case are the interpretations of Sections 16.3 and 16.10 of the Development Plan, which outline the requirements and exceptions for public open space in new residential schemes. The applicants argue that the approval of their development without the designated open space contravenes both domestic law and European Convention on Human Rights.

Summary of the Judgment

Delivered by Humphreys J. on May 25, 2023, the High Court reviewed the series of prior judgments pertaining to this case. Initially, the court dismissed the applicants' claims on domestic law grounds. Subsequent clarifications and a formal order for reference to the Court of Justice of the European Union (CJEU) ensued, culminating in a dismissal of proceedings based on the CJEU's findings.

In this latest judgment, the court focused on the applicants' motion for leave to appeal and their request for costs. The key outcome was the granting of leave to appeal based on rephrased and certified questions that delve deeper into the interpretation of the Development Plan's provisions regarding public open space. However, the court declined to grant costs to the applicants, adhering to the default rules governing costs in planning law.

Analysis

Precedents Cited

The judgment references multiple precedents that shape the current legal landscape:

• Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231
• Monkstown Road Residents' Association v. An Bord Pleanála [2023] IEHC 9
• Veolia Water UK Plc v. Fingal County Council [2006] IEHC 240
• Marshall v. Kildare County Council [2023] IEHC 73

These cases collectively emphasize the stringent standards required for appealing planning decisions and the circumscribed circumstances under which costs may be awarded to a losing party.

Legal Reasoning

The crux of the High Court's reasoning centers on whether the applicants' challenge to the development approval raised plausible arguments that merit appellate scrutiny. The court meticulously examined the Development Plan's provisions:

• Section 16.3 mandates the provision of public open space within all zoned lands, specifying percentages based on zoning categories.
• Section 16.10 provides exceptions allowing financial contributions in lieu of on-site open space under specific conditions, such as site size or appropriateness.

The court identified potential conflicts between these sections, particularly whether the financial contribution exception was appropriately applied to waiving the 20% open space requirement for the Strategic Development and Regeneration Area (SDRA) No. 12. The applicants contended that the planning authority overstepped by relying on future-phase developments to satisfy open space obligations, thereby undermining the statutory requirements.

Consequently, the court reformulated the questions to focus on:

• The validity of the financial contribution exception as applied to multiple sections of the Development Plan.
• Whether conflicting objectives within the Development Plan justified deviating from open space requirements.
• The appropriateness of relying on a non-binding Masterplan to circumvent immediate open space provisions.
• The sufficiency of the planning authority's measures to ensure overall compliance with open space requirements.

By certifying these questions, the High Court acknowledged the need for appellate review to address uncertainties in interpreting the Development Plan's provisions.

Impact

This judgment underscores the judiciary's role in ensuring that planning authorities adhere strictly to statutory mandates, especially concerning public amenities like open space. By granting leave to appeal on the certified questions, the High Court opens the door for a more nuanced examination of how exceptions to planning provisions are applied. This could lead to:

• Clarification of the boundaries and applicability of financial contribution exceptions.
• Strengthened safeguards ensuring that public open space requirements are not undermined by future commitments.
• Guidance for planning authorities on interpreting and balancing conflicting provisions within development plans.

Ultimately, the decision may reinforce the integrity of urban planning frameworks, ensuring that essential community amenities are preserved amidst development pressures.

Complex Concepts Simplified

Public Open Space Requirements

The Development Plan mandates that new residential developments must allocate a certain percentage of their land for public open spaces, such as parks or recreational areas. These spaces are crucial for community well-being, environmental sustainability, and urban biodiversity.

Financial Contribution in Lieu

Under specific conditions, developers may opt to provide financial contributions instead of allocating land for open spaces on-site. This is permissible if the site is deemed too small or unsuitable to offer functional public spaces. These contributions are typically invested in creating or enhancing public amenities elsewhere in the vicinity.

Strategic Development and Regeneration Area (SDRA)

An SDRA is a designated zone within a city plan aimed at fostering comprehensive development and rejuvenation. For SDRA No. 12, the Development Plan specifies a 20% requirement for public open space, reflecting its strategic importance for community integration and recreational needs.

Conclusion

The High Court's decision to grant leave to appeal in Kerins & Anor v An Bord Pleanála & Ors marks a pivotal moment in Irish planning law. It highlights the judiciary's commitment to upholding statutory provisions that safeguard public interests, particularly in urban development. By addressing the nuances in the Development Plan's open space requirements and their exceptions, the court ensures that future developments balance growth with the preservation of essential community amenities.

Moving forward, this case serves as a critical reference for both developers and planning authorities, emphasizing the need for meticulous adherence to planning mandates and the importance of transparent, justifiable decision-making processes in urban development.