Student Accommodation Outside Part V; Strict SPPR3 Daylight Compliance and Correct Use of Institutional-Lands Policy: Jennings & O’Connor v An Bord Pleanála [2023] IEHC 14

Introduction

This judicial review challenge centred on a Strategic Housing Development (SHD) permission granted by An Bord Pleanála (ABP) to Colbeam Ltd for 698 student bedspaces at Our Lady’s Grove, Goatstown, Dublin 14. The campus lands carry an Institutional Lands designation and a site-specific objective “to protect and preserve trees and woodlands” under the Dún Laoghaire–Rathdown County Development Plan 2016–2022. The proposal comprised eight blocks (3–7 storeys) on a 2.12 ha site and extensive open space/amenity areas.

The Applicants, local residents in “The Grove”, challenged ABP’s permission across 10 pleaded grounds (with others abandoned or adjourned), including: material contravention of open space and Institutional Lands policies; density and height justification; Part V obligations; daylight/sunlight compliance under SPPR3; adequacy of public transport capacity; “strategic” justification under s.37(2)(b)(i) PDA 2000; tree protection; adequacy of the material contravention statement; and lawfulness of the EIA preliminary examination (especially regarding bats/birds).

The case stands at the intersection of (i) the correct legal treatment of Development Plan objectives (especially for Institutional Lands), (ii) how national/regional policy can justify material contravention, (iii) the binding force and method of compliance with SPPR3 on daylight, and (iv) whether Part V statutory obligations apply to off-campus student accommodation.

Summary of the Judgment

Holland J quashed the permission on four core grounds:

• Open character (Institutional Lands): ABP misinterpreted the Development Plan by assessing “open character” by reference to post-plan changes (fencing/ownership/enclosure) rather than as designated at plan adoption; Redmond v ABP bound the Board to recognise the lands as open lands contributing to campus open character. (Ground 2(b)).
• Density justification under s.37(2)(b)(iii): ABP misinterpreted national and regional policy: it invoked NPF and RPOs to justify density contravention on Institutional Lands, but those policies, read correctly with the Urban Residential Guidelines 2009 §5.10 (still current and complementary), do not allow a departure from the Plan approach; Board’s “have regard to” obligation required correct interpretation; the reliance was misconceived. Permission quashed. (Ground 2(c)).
• Daylight/ SPPR3 (2018 Height Guidelines): The developer’s daylight study wrongly omitted kitchens from ADF analysis of combined living/kitchen/dining (LKD) rooms and defaulted to 1.5% instead of the required 2% ADF for combined spaces. ABP failed to critically interrogate this deficiency and to ensure compliance with §3.2 criteria (“appropriate and reasonable regard” to BRE/BS) before invoking SPPR3. (Ground 5).
• Trees/Condition: Although the Court deferred to planning judgment on the necessity of tree removal, it held that the Development Plan requires that loss be “implemented by condition” to secure commensurate planting/replacement. The imposed condition merely required compliance with the submitted plan unless changes were sought—insufficient to guarantee a final agreed commensurate planting scheme. This was a material contravention, unaddressed by s.37(2)(b), and the permission was quashed on this discrete basis. (Ground 8).

Other important holdings:

• Part V: Student accommodation is not a “house” for s.96 PDA 2000; therefore statutory Part V obligations did not apply to this SHD. (Ground 3 failed).
• Height/Applicability of SPPR3 vs SPPR4: The site is in an inner suburban urban location; SPPR3 applies; the Court held “urban” includes suburban (reinforced by Census usage and guidelines’ structure). (Ground 4 failed).
• “Strategic importance” under s.37(2)(b)(i): The Board’s reason—that the scheme is SHD and linked to Rebuilding Ireland—was inadequate; SHD status does not automatically equal “strategic importance” for s.37(2)(b)(i). However, because the other s.37(2)(b) reasons were sufficient and separable, the invalid reason was excised and did not of itself warrant quashing. (Ground 7 partly succeeds but no quash).
• EIA preliminary examination: The Court did not quash on EIA; while expressing obiter guidance on taking mitigation into account and on Namur-Est (derogation licences and EIA), it declined relief given mootness/discretion (trees already felled and no suggested practical remediation for bats/birds). (Ground 10 failed on remedy).
• Material Contravention Statement: It is acceptable for a developer to identify “possible” material contraventions and justify them while maintaining its view that none exists; the key is that the public is alerted and can engage—here they were. (Ground 9 failed).

Detailed Analysis

A. Standard of review for planning judgment v. questions of law

The judgment contains an extensive, careful synthesis of rationality review. Two themes emerge:

• Interpretation of planning instruments (Development Plans, guidelines, SPPRs) is a question of law for the court, to be determined “full‑bloodedly,” not simply for irrationality. A decision-maker cannot “have regard to” a policy it has misunderstood (Tesco v Dundee; Redmond).
• Application of a correctly interpreted plan that affords flexibility (e.g., aesthetic or multi-factorial policies) is an exercise of planning judgment attracting O’Keeffe deference (review for irrationality only). Where the plan is prescriptive/quantified, the court’s review is more intensive.

Holland J reconciles Keegan/O’Keeffe and the later case-law (Meadows, NM, AAA, Holohan) and the EU “thorough review” requirements: he applies a single, flexible standard, while preserving deference to technical planning judgment, but insisting on legal correctness in interpretation and proper reasoning for decisions that invoke policy overrides (e.g., s.37(2)(b)).

B. Institutional Lands: “open character” must be assessed by the Plan’s designation, not post-plan facts

The Board unlawfully assessed “open character” as if the lands currently lacked such character due to sale, hoarding, and compound use. The Court held (following Redmond v ABP on the very same lands) that:

• “Open lands” and “open character” were designated at the time of Plan adoption; subsequent changes cannot rewrite the designation or undercut its objectives.
• The Institutional Lands policy applies to the entire campus (the unit of analysis), not just the application site; post-plan development of part of the campus (e.g., The Grove) heightens, not diminishes, the importance of retaining open character elsewhere.
• Accordingly, the Board failed to correctly interpret and “have regard to” the Development Plan; Ground 2(b) succeeded and contributed to quashing.

C. Density justification: correct use of national/regional policy under s.37(2)(b)(iii)

ABP relied on NPF objectives and RSES RPOs to justify a material contravention on density. The Court held that was a misinterpretation:

• The Urban Residential Guidelines 2009 §5.10 on Institutional Lands remain current and are expressly complementary to the NPF and Height Guidelines 2018; they require average net densities of 35–50 dph with increased densities concentrated in selected parts (say up to ~70 dph) to retain open character across the landholding.
• Development Plan Policy RES5 reflected those 2009 Guidelines; they do not justify higher overall average densities across Institutional Lands simply by invoking national policy.
• Even under a “have regard to” obligation, the Board must first correctly understand the policy; here it did not; thus s.37(2)(b)(iii) was misapplied and the permission was quashed on this ground.

This holding strengthens the obligation to align any s.37(2)(b)(iii) justification with the precise, still-operative national policy for Institutional Lands (2009 Guidelines), rather than relying on general NPF/RPO language about higher densities.

D. SPPR3 v SPPR4 and the “urban includes suburban” conclusion

A threshold argument was whether the lands were “urban” (SPPR3) or “greenfield/edge of city” (SPPR4). The Court held:

• Suburbs are part of the urban area, consistent with the Height Guidelines (which apply across urban areas) and Census usage; Goatstown is within the inner suburbs, not a greenfield edge-of-city site.
• Accordingly, SPPR3 applied; SPPR4 is reserved for greenfield or edge-of-town locations outside city and inner suburbs.

E. Daylight and SPPR3: the Court tightens compliance expectations

Relying on Atlantic Diamond and Walsh, the Court invalidated ABP’s application of SPPR3 because the §3.2 criteria were not satisfied:

• §3.2 requires “appropriate and reasonable regard” to the BRE Guide (BR 209) and the Daylighting Code (BS 8206-2); this is more than a light “have regard” and effectively mandates compliance or explicit justification for any departure.
• Where rooms are used for combined purposes (LKD), the higher ADF (2%) applies; the developer’s study excluded kitchens entirely and applied 1.5% to living spaces alone; kitchens were not assessed and the failure to evaluate the quantifiable extent of non-compliance was not rectified by ABP.
• ABP failed to conduct the required critical interrogation of the applicant’s daylight analysis; the “100% compliance” claim was not credible on its face given omitted kitchens.
• Result: ABP could not lawfully invoke SPPR3; permission quashed on this ground.

Key practical message: Decision-makers must show their workings. They should insist on:

• Assessment of combined LKD rooms at 2% ADF, or a clear, quantified rationale for any compliant alternative approach.
• Clear identification and extent of non-compliance, and a balancing exercise per §3.2 if standards are not fully met.

F. Part V does not apply to off‑campus student accommodation

This is a major legal clarification. The Court held that the statutory Part V obligation (s.96 PDA 2000) is confined to “houses”; student accommodation—even if “residential” in a broader sense—does not come within the definition of “house” for s.96. Key strands of reasoning:

• “House” in s.2 PDA 2000 is centred on “dwelling”; while that definition extends beyond literal “houses” (to apartments/flats, and buildings designed for multiple dwellings), the Court concluded student accommodation—particularly the 2016 Act’s category of 200+ bedspace schemes—was distinguished by the Oireachtas from “houses” for Part V purposes.
• The 2016 Act consistently distinguishes “houses” from “student accommodation units” (and “bed spaces”), including in SHD definitions, pre-application information, and public notice provisions—supporting the inference that the Oireachtas did not intend Part V to apply to student accommodation.
• The Court had regard to differing legislative purposes: while Rebuilding Ireland/SHD aims at boosting housing supply (and easing pressure on the private rental market), Part V pursues mixed tenure/social integration in housing developments—a rationale of limited purchase when applied to student-specific blocks.

As a result, while the Development Plan had an “off-campus student accommodation Part V” objective, any such contravention can be addressed via s.37(2)(b); but there is no separate, mandatory statutory Part V requirement for student accommodation under s.96 PDA 2000.

G. Trees: how “commensurate planting” must be secured

The Court accepted ABP’s planning judgment (deferentially) that removal of a number of trees could be permissible where balanced against other objectives, provided the Development Plan’s requirement for “commensurate planting of replacement trees and other plant material” is implemented by condition. Here, Condition 12 obliged compliance with the submitted landscaping plan “unless otherwise agreed,” leaving it to the developer alone to seek changes. That was insufficient:

• The Plan contemplates that the final landscaping/planting scheme be a matter for agreement with the planning authority to ensure equivalence (in a broad, practical, multifactorial sense—ecological value, screening, species, age/size, location).
• Because the condition did not secure this agreed outcome, there was a material contravention on this narrow point and—unjustified under s.37(2)(b)—the permission was quashed.

Takeaway: When Development Plans stipulate that mitigation of tree loss must be “implemented by condition,” a robust “prior agreement” condition is required. A passive “as submitted unless changed” clause is inadequate.

H. “Strategic importance” is not automatic for SHDs; excision of an invalid reason

The Court reaffirmed Clonres/Conway: the s.37(2)(b)(i) concept of “strategic or national importance” requires case-specific reasons; mere SHD status and general references to Rebuilding Ireland are insufficient. ABP’s reason was invalid, but it was discrete and severable from the other s.37(2)(b) reasons (height/density/Part V justification), each of which—as reasons—asserted their own sufficiency. Thus, the invalid “strategic importance” reason was excised without quashing.

I. EIA preliminary examination, mitigation and Namur‑Est

The Court declined to quash on EIA, but offered helpful obiter guidance:

• Preliminary Examination is a lighter-touch pre-screening reserved for obvious “no real likelihood of significant effects” cases; it should take account of Schedule 7/Annex III criteria and record brief but adequate reasoning.
• Mitigation may be considered at the preliminary stage where its nature, availability, and effectiveness are plainly established (analogous to the approach in Gillespie for EIA screening)—consistent with the 2014 amendments and Annex III’s reference to the “possibility of effectively reducing the impact.”
• Derogation licences (for bats/birds) should not be assumed to neutralise significance; in light of Namur‑Est (CJEU), the environmental effects of carrying out a derogation must be part of the EIA consideration (the Irish practice and timing of licence applications may need careful coordination with EIA in future).

Given mootness/discretion (tree removal already undertaken; no evidence of bat mortality; no practical remediation suggested), the Court refused relief, but its obiter will guide future preliminary examinations and EIA screenings where strictly protected species are in play.

J. Material Contravention Statement: conditional framing is permissible

The developer’s statement identified possible contraventions and advanced s.37(2)(b) justifications while expressing the view that some items were not contraventions. The Court held that this is acceptable: the legislative purpose is to alert the public to potential contraventions and the case for justification, so they can respond. Here, the notices did so; no prejudice arose.

Precedents cited and how they shaped the decision

• Keegan; O’Keeffe; Meadows; AAA; NM; Holohan; FIE; CHASE; Carroll; Stanley; Burke: Framework for proportionality/irrationality and deference to expert tribunals. The Court applies a single flexible standard, preserves O’Keeffe deference for technical planning judgments, and insists on legal correctness for interpretation questions.
• Redmond v ABP (2020): Decisive on Institutional Lands designation across the whole campus; “open lands” designation assessed at plan adoption; informs the quash on open character.
• Heather Hill; Ballyboden; Spencer Place: Interpretation of Development Plans and SPPRs on XJS principles; SPPRs must be drafted/interpreted clearly when overriding plan policies; informs SPPR3 applicability and density reasoning.
• Atlantic Diamond; Walsh: SPPR3’s §3.2 “appropriate and reasonable regard” imposes rigorous daylight standards and reason-giving; kitchens in combined LKD must be counted; failure to quantify departures is fatal; underpins the quash on daylight.
• Clonres/Conway: “Strategic importance” for s.37(2)(b)(i) is not automatic for SHDs; informs excision of invalid reasons here.
• Gillespie (EWCA); Eco Advocacy; MRRA: Taking mitigation into account at screening; adapted here for preliminary examination and informing the obiter on mitigation and Namur‑Est.
• Doorly (CoA): On S.160 injunctions and remedial planting, relevant to mootness and discretion in the trees context.

Impact and practical implications

• Part V: A clear High Court holding that s.96 PDA 2000 does not apply to student accommodation SHDs. Development Plans may still adopt objectives on student accommodation “Part V”, but those are policy-level and must be justified under s.37(2)(b) if contravened; they are not statutory imperatives.
• Institutional Lands decisions: Decision-makers must assess “open character” by reference to designation at plan adoption, not post-plan changes in ownership or fencing; the campus is the unit of analysis; later incremental developments heighten the burden on remaining lands to maintain open character.
• Density contraventions: When relying on s.37(2)(b)(iii), ABP must show that national/regional policy truly supports departure from Plan policy—here, the 2009 Guidelines were aligned with the Plan and could not justify a higher general density; “have regard to” is not a rubber stamp.
• SPPR3 compliance: Expect a stricter insistence on ADF method for LKD rooms; kitchens cannot be omitted; departures must be clearly identified and quantified; ABP must scrutinise technical daylight submissions, not adopt them.
• Trees and conditions: Where a plan requires “commensurate planting” to be implemented by condition, the condition must require a prior agreed final scheme with the planning authority—an “as submitted unless changed” clause is insufficient.
• “Strategic importance” reasons: Board must give case-specific reasons under s.37(2)(b)(i); SHD status does not make that reason automatic; invalid reasons can be excised if truly separate and the other reasons suffice.
• EIA preliminary examinations: While mitigation can be considered, it must be plainly established and effective; where strictly protected species are present, preliminary examinations and screening should squarely address the effects and, per Namur‑Est, not assume derogations neutralise significance.

Complex concepts simplified

1) Material contravention

A permission that departs from the Development Plan in a material way can only be granted by ABP if justified under s.37(2)(b) PDA 2000 (for SHDs via s.9(6) of the 2016 Act). The Court:

• Decides the meaning of Plan provisions (law),
• Defers to ABP on judgments applying flexible policies (irrationality standard),
• Decides materiality by the well-known test (would there be real and substantial grounds for opposition).

2) SPPR3 and daylight

To rely on SPPR3 (and thereby override Plan height controls), §3.2 requires the applicant to demonstrate compliance with qualitative and quantitative criteria, including daylight. “Appropriate and reasonable regard” to BRE/BS means:

• Use ADF thresholds correctly (2% for combined LKD),
• Identify and quantify any departures,
• Provide a compensatory design rationale and balancing if departures remain,
• Decision-maker must actively verify the analysis.

3) “Have regard to” vs “comply with”

• “Have regard to” is usually light, but where SPPRs incorporate criteria (as §3.2 for SPPR3), those criteria become mandatory gateways to using the SPPR override.
• For s.37(2)(b)(iii), ABP must correctly understand the guidelines/policies and lawfully rely on them; misinterpretation will vitiate the decision.

4) EIA preliminary examination

This is a pre-screening tool. If, based on nature/size/location (and having regard to Schedule 7/Annex III), there is no real likelihood of significant environmental effects, no EIA (and no formal screening) is needed. Mitigation may be considered if plainly effective—but where strictly protected species are at stake, careful reasoning (and where appropriate, screening/EIA) is often prudent.

5) “Commensurate planting”

This does not demand literal one-for-one like-for-like, but broadly equivalent value in context (ecological function, screening, species mix, size/age/location), to be secured by condition that requires the planning authority’s agreement on the final scheme.

Conclusion

Jennings & O’Connor v ABP delivers several consequential clarifications:

• Part V: Student accommodation is not subject to s.96 Part V obligations.
• Institutional Lands: “Open character” must be assessed per the Plan (as adopted), not post‑Plan alterations; Redmond binds; ABP must analyse at campus level.
• Density justification: NPF/RPOs cannot be used to sidestep correctly interpreted, still-current national policy (2009 Guidelines) and Plan policy for Institutional Lands.
• SPPR3 daylight: §3.2 criteria are real gates; LKD rooms require 2% ADF or a rigorous, quantified alternative case; ABP must interrogate daylight studies.
• Trees/conditions: The Plan’s “implemented by condition” requirement has bite: a binding, prior-agreement condition is necessary to lawfully address commensurate planting.
• “Strategic importance”: The label is not automatic for SHDs; reasons must be case-specific, though invalid reasons can be excised if other reasons suffice.
• EIA preliminary examination: It remains a valid tool, but mitigation must be plainly effective, and protected species issues must be addressed in light of Namur‑Est.

For planning authorities, ABP, and practitioners, the judgment both refines doctrinal lines (interpretation vs application; when deference yields) and raises the practical bar for daylight analysis under SPPR3 and for conditioning tree replacement. For student accommodation providers, its confirmation that s.96 Part V does not apply is a significant statutory construction outcome. For Institutional Lands, the decision underscores fidelity to the Plan’s purpose—retaining open character across the entire holding—even where ownership, access or partial developments have shifted the factual landscape.