“Reduction Is Not Abolition”: Private Amenity Space, Daylight Standards and Statutory Consultees in Fernleigh RA v An Coimisiún Pleanála

“Reduction Is Not Abolition”: Private Amenity Space, Daylight Standards and Statutory Consultees in Fernleigh Residents Association CLG v An Coimisiún Pleanála [2025] IEHC 655

1. Introduction

This judgment of Holland J in Fernleigh Residents Association CLG v An Coimisiún Pleanála & Ironborn Real Estate Ltd [2025] IEHC 655 concerns a Strategic Housing Development (“SHD”) permission for a large Build-to-Rent (“BTR”) apartment scheme at Aiken’s Village, Stepaside, Dublin 18.

The case sits at the intersection of several recurring themes of recent Irish planning litigation:

  • the meaning and legal effect of development plan standards (here, private amenity space, dual-aspect, zoning and daylight/sunlight);
  • the force of Ministerial guidelines and SPPRs, particularly in relation to daylight standards and apartment design;
  • the treatment of off-site foul infrastructure on public open space; and
  • the obligations to notify prescribed bodies, specifically Inland Fisheries Ireland (IFI).

The scheme in issue followed a previous SHD permission for the same lands which had been quashed in Fernleigh #1 (Fernleigh RA & Cassidy v An Bord Pleanála [2023] IEHC 525) on grounds related to daylight/sunlight, open space and transport capacity. The developer, Ironborn, submitted a new SHD application to the (now renamed) An Coimisiún Pleanála (“the Commission”), with changes including:

  • removal of a floor from one block (Block F);
  • omission of 74 balconies; and
  • increased window sizes to improve daylight performance.

The Commission’s Inspector recommended permission with conditions, including omission of one block, resulting in 422 BTR units. The Commission granted permission and screened out both EIA and AA. Fernleigh brought judicial review on several grounds. At hearing, only five “core grounds” remained live:

  1. Ground 5 – Private amenity space (material contravention of CDP balcony standards);
  2. Ground 4 – Daylight/sunlight (alleged material contravention and reliance on wrong standards);
  3. Ground 8 – Dual aspect (alleged material contravention of dual-aspect policy);
  4. Ground 1 – Zoning (Objective F) and foul infrastructure (alleged material contravention and uncertain condition); and
  5. Ground 9 – Inland Fisheries Ireland (failure to notify a prescribed consultee).

The judgment is important for several reasons. Above all, it lays down a clear principle that, in this development plan context, a “reduction” in private amenity space cannot be interpreted to permit complete omission of balconies from a significant tranche of units except in narrowly specified exceptional circumstances. This leads to the quashing of the SHD permission. It also provides significant guidance on:

  • how “have regard to” obligations operate in relation to competing daylight standards (Irish, European and UK);
  • the proper use of “flexibility” under SPPR8 for BTR schemes;
  • the status of developer-funded off-site foul tanks on public open space as “public services” under zoning Objective F; and
  • the role and standing of statutory consultees (like IFI) in SHD procedures, and the evidential burden on challengers alleging unlawful failure to notify.

2. Summary of the Judgment

2.1 Outcome

The Court:

  • Quashed the SHD permission on Ground 5 only – an unacknowledged material contravention of the County Development Plan (CDP) requirements on private amenity space (balconies) for apartments.
  • Dismissed all other grounds:
    • Ground 4 – daylight/sunlight;
    • Ground 8 – dual aspect units;
    • Ground 1 – zoning and foul infrastructure; and
    • Ground 9 – failure to notify Inland Fisheries Ireland.

Holland J provisionally indicated that the matter should be remitted to the Commission for a fresh decision, leaving it open to the Commission, on remittal, to consider granting permission notwithstanding the material contravention under s.9(6) of the 2016 Act and s.37(2)(b) PDA 2000.

2.2 Core legal holdings

Key legal principles emerging include:

  • “Reduction” of private amenity space (CDP §12.3.6 and SPPR8) does not extend to complete abolition of balconies for units other than in narrow, specified exceptions (e.g., certain conversions in urban centres). Omission of balconies from 74 apartments (approx. 18%) was a material contravention of the CDP.
  • Materiality is assessed per unit and in the context of the CDP’s purpose to protect the amenity of each apartment. The omission of balconies from 74 units is plainly material, even if the scheme overall includes many units with balconies and substantial communal amenity.
  • “Have regard to” obligations (CDP §12.3.4.2; Apartment Guidelines; Height Guidelines) are light obligations: the decision-maker must consider but is not required to comply with any specific standard such as IS EN 17037:2018.
  • There is no legal bar to a planning authority having regard to and applying UK standards (BS EN 17037:2018 + National Annex NA / BRE 2022) on daylight, even where an Irish Standard (IS EN 17037:2018) exists, provided the relevant instruments require only that regard be had, not strict compliance.
  • Where an objector has explicitly invited the Board to apply certain standards at administrative stage (here, BRE 2022 / BS EN 17037) and then takes a contrary position in court, that volte face undermines the challenge, applying the logic of FoIE and McGowan.
  • On dual aspect, whether certain projecting units are dual aspect is a matter of evaluative judgment. The Court will not substitute its view where the Board’s conclusion is reasonably open. On the text of SPPR4, the 33% standard applies only to “central and accessible urban locations”; the omission of “some intermediate locations” from the SPPR is treated as deliberate.
  • A developer-funded foul storage tank and associated kiosk on F-zoned public open space can be a “public service” within the CDP’s wide definition where:
    • it is required by Uisce Éireann as network upgrades;
    • serves a wider catchment and future development; and
    • is installed on public land and forms part of the public wastewater network.
  • A condition (Condition 14) lawfully removed a proposed detention basin and required alternative provisions, in line with Uisce Éireann’s Code of Practice, to prevent overflow to surface waters. The condition was not void for uncertainty.
  • On IFI notification, the Court held that:
    • prescribed consultees like IFI serve the public interest and are not merely ius tertii holders of private rights;
    • but Fernleigh failed to adduce any expert evidence demonstrating a real risk of “serious water pollution” which would have mandated IFI notification; and
    • selective reliance on worst-case paths without engaging with mitigation and risk reduction was insufficient.

3. Precedents and Authorities Cited

3.1 XJS interpretation of development plans

Holland J applies the well-established “XJS” interpretative approach, derived from Re XJS Investments Ltd [1986] IR 750 and later endorsed in Lanigan v Barry [2019] 1 IR 656, Dublin Cycling Campaign [2020] IEHC 587 and Spencer Place [2020] IECA 268. Under this approach:

  • a development plan is read as it would be by an “intelligent informed layperson”;
  • it is not construed as a statute or contract; and
  • context is relevant, but ordinary meaning of words is the starting point and will prevail unless the context positively displaces it.

This is central to the Court’s analysis of the term “reduction” in CDP §12.3.6 and of “dual aspect” in §12.3.5.1.

3.2 Eastern Extension and Northern Engineering – the meaning of “reduce”

A distinctive feature of this judgment is the deployment of two non-Irish authorities on the meaning of “reduce”:

  • Eastern Extension Australasia & China Telegraph Co Ltd v Commonwealth [1908] 6 CLR 647 (HCA) (“Eastern Extension”), and
  • Re Northern Engineering Industries plc [1994] 2 BCLC 704 (CA) (“Northern Engineering”).

In Eastern Extension, High Court of Australia judges emphasised that:

“the power to ‘reduce’ does not… include a power to reduce to nothing or abolish” (Griffith CJ), and that “the power to reduce involves a direction to leave something” (Barton J).

In Northern Engineering, Millett J accepted that the ordinary meaning of ‘reduce’ is diminution, not extinction, but held that in the context of that company’s Articles and Companies Act powers, “reduction” of capital could lawfully include cancellation of shares (i.e. reduction to zero).

Holland J distils these authorities as being ad idem on the ordinary meaning of reduction: it does not naturally include elimination. Whether a broader meaning is adopted depends on context. In the CDP context, he finds no contextual support for reading “reduction” as including complete removal of balconies.

3.3 Ballyboden TTG, Fernleigh #1 and Stapleton – “flexibility” and the breaking point of standards

  • Ballyboden Tidy Towns Group v An Bord Pleanála & Shannon Homes [2022] IEHC 7 and the subsequent Supreme Court decision [2024] IESC 4 are invoked for the proposition that “flexibility” provisions in guidelines are not carte blanche to disregard or dismantle standards.
  • In Fernleigh #1 [2023] IEHC 525, Holland J had already cautioned that flexibility must not allow “the exception [to] become the rule or at least, something less than a true exception” and that “flexibility in guidelines is not carte blanche to degrade the norm”.
  • In Stapleton v ABP & Savona [2024] IEHC 3, Holland J observed that the “elastic” language of development plans is “not infinitely elastic” and that the court can discern when “the elastic has snapped”. He applies that metaphor here to SPPR8 flexibility and the omission of balconies.

3.4 “Have regard to” obligations – Cork County Council, Jennings, Coyne and Atlantic Diamond

The Court’s treatment of daylight standards is grounded in prior authority on “have regard to”:

  • Cork County Council v Minister for Housing [2021] IEHC 683 and Jennings & O’Connor v ABP & Colbeam [2023] IEHC 14 confirm that a “have regard to” obligation:
    • imposes a light burden;
    • requires consideration, not compliance; and
    • permits a decision-maker to give the factor little or no weight, reviewable only on irrationality.
  • Coyne v ABP, Ireland & EngineNode [2023] IEHC 412 is cited for the proposition that the decision-maker, having had regard, is free to depart from guidelines unless their status is more binding.
  • Atlantic Diamond v ABP [2021] IEHC 322 is referred to and distinguished: that case emphasised that objectors are not obliged to “correct the developer’s homework”; here, Fernleigh did more than stay silent – it argued the opposite case at administrative stage.

3.5 Participation, volte face and fairness – FoIE and McGowan

Two modern cases are central to the Court’s critique of Fernleigh’s change of position on daylight standards:

  • Friends of the Irish Environment CLG v Government [2021] IECA 317, where Costello J held that a party who participates in consultation is expected to raise points at the earliest possible time and cannot withhold arguments to deploy them only in court afterwards.
  • McGowan v An Coimisiún Pleanála [2025] IEHC 405, where Humphreys J held that applicants cannot:
    “make one case to the board and get certiorari based on an inconsistent case to the court”.

Holland J adopts that approach: Fernleigh’s October 2022 submissions had welcomed the use of BRE 2022 / BS EN 17037, yet its judicial review arguments attacked the very use of those standards as legally irrelevant.

3.6 Spencer Place – clarity and limits of SPPRs

On dual aspect, the Court draws on Spencer Place Development v Dublin City Council [2020] IECA 268, where Collins J emphasised that:

  • SPPRs transfer planning competence from elected members to the Minister;
  • such transfers must be effected clearly and precisely; and
  • courts should avoid extending SPPRs beyond what they clearly provide.

Applying that to SPPR4, Holland J holds that the 33% dual-aspect minimum applies only to “central and accessible urban locations” as stated in the SPPR, not to the broader phrase “some intermediate locations” appearing only in the non-SPPR text.

3.7 Public services on F-zoned lands – Heather Hill, Shadowmill, Redmond, Jennings

  • Heather Hill Management Co CLG v ABP [2019] IEHC 450 is distinguished. There, roads and car parks were regarded as ancillary to a specific development, not as “utilities infrastructure”. In Fernleigh, the foul tank serves multiple developments and forms part of the wastewater network, so it is quite different.
  • Shadowmill v ABP & Lilacstone [2023] IEHC 157 and Fawcett Properties v Buckingham CC [1961] AC 636 are cited to underline that a planning condition is void for uncertainty only where it can be given no sensible meaning. Condition 14 in this case met that threshold of clarity.
  • Redmond v ABP [2020] IEHC 151 and Jennings are relied upon by Fernleigh, but Holland J finds them inapposite: here, there was ultimately no material contravention, and s.9(4) of the 2016 Act explicitly empowers the Commission to modify a proposal (as it did by removing the detention basin).

3.8 Statutory consultees and ius tertii – RRWA, Statkraft, Hellfire Massy

On Ground 9, the Court engages with:

  • Rural Residents Wind Aware & Environmental Group v An Coimisiún Pleanála [2025] IEHC 600 (“RRWA”), where Humphreys J dismissed a complaint about failure to re-consult the HSE on further material but suggested (obiter) that demanding such consultation could be a ius tertii.
  • Eco Advocacy v ABP & Statkraft [2025] IEHC 15, Walsh v ABP & Sinnott [2021] IEHC 523, Cahill v Sutton [1980] IR 269 and Hellfire Massy v ABP [2021] IEHC 424 are discussed in relation to standing and third-party rights.

Holland J draws a clear distinction: prescribed consultees like IFI do not hold mere private “personal rights and interests”; they have public functions and expertise. He stops short of dismissing the ground on ius tertii grounds, but ultimately finds an evidential deficit – there was no expert evidence showing that the thresholds in Article 295(h)(i) PDR 2001 were met.

4. Detailed Legal Analysis by Ground

4.1 Ground 5 – Private Amenity Space and Material Contravention

4.1.1 The regulatory framework

Three layers of regulation were central:

  1. Dún Laoghaire–Rathdown CDP 2022–2028
    • §12.3.6 requires that:
      • all BTR accommodation must comply with SPPR7 and SPPR8 of the Apartment Guidelines 2020;
      • all BTR applications must “clearly demonstrate compliance”; and
      • “All proposed units must provide for private open space in the form of a balcony, terrace, winter garden or roof garden.”
    • It then states:
      “A reduction in the area of private open space serving each unit will only be considered in instances where at least an additional 10% high quality, useable, communal and/or additional compensatory communal support facilities are provided.”
    • §12.8.3.3(ii) requires that “every apartment shall have private amenity space” (with minimum areas in Table 12.11) and recognises that BTR schemes may have “lower private amenity space” but also articulates narrow “exceptional” cases where units may have no private open space (e.g. sub-division of existing buildings, protected structures in urban centres, etc.).
  2. Apartment Design Guidelines 2020 (Section 28 Guidelines)
    • Set minimum balcony sizes identical to Table 12.11.
    • SPPR8 (ii) provides:
      “Flexibility shall apply in relation to the provision of a proportion of the storage and private amenity space associated with individual units… on the basis of the provision of alternative, compensatory communal support facilities and amenities… In all cases the obligation will be on the project proposer to demonstrate the overall quality of the facilities provided and that residents will enjoy an enhanced overall standard of amenity.”
  3. Statutory framework
    • Under s.9(3) of the 2016 Act the Board must apply any SPPR and do so “instead of” conflicting CDP provisions.
    • s.9(6) of the 2016 Act allows the Board to grant permission that materially contravenes the development plan (other than zoning) only where the conditions of s.37(2)(b) PDA 2000 would be met. This requires the contravention to be acknowledged and justified.

4.1.2 The facts

Ironborn’s design deliberately:

  • omitted 74 balconies from apartments (about 17.5% of the 422 permitted units);
  • substituted “Juliet” balconies (glass guards to full-height windows); and
  • claimed compensatory communal facilities and amenity spaces.

The Inspector accepted that:

  • 17–18% of units would have no private amenity space at all;
  • the majority (circa 83%) met the CDP standards;
  • SPPR8 allowed “flexibility”; and
  • the CDP “reduction” clause did not preclude omission in some cases.

The Inspector concluded there was no material contravention, and the Commission granted permission without invoking s.9(6) PDA 2016 / s.37(2)(b) PDA 2000.

4.1.3 The applicant’s case and the “reduction” debate

Fernleigh argued, on an XJS reading of the CDP:

  • the plan clearly requires private open space per unit – “all proposed units must provide for private open space”;
  • the wording allows only reduction in area of that space (not total loss);
  • the exceptional circumstances where units may have no private amenity space do not apply to this development; and
  • omitting balconies on 74 units is a material contravention, regardless of the quality of communal spaces.

Fernleigh relied on Eastern Extension to argue that “reduction” does not include abolition. The Commission relied on Northern Engineering to show that in some contexts “reduction” may extend to total elimination.

4.1.4 Holland J’s reasoning

(a) The ordinary meaning of “reduction”

Holland J accepts that both Eastern Extension and Northern Engineering converge on a key point:

  • in ordinary language, “to reduce” means “to diminish”, not “to abolish”;
  • a power “to reduce” generally implies leaving a residuum.

He holds that the XJS interpreter:

  • begins from ordinary meaning;
  • requires positive contextual indication to depart from it; and
  • finds no such indication in this CDP to widen “reduction” to complete omission of balconies.

(b) Contextual analysis of the CDP and SPPR8

Several contextual features reinforce the ordinary meaning:

  • The plan starts from a strong proposition:
    “All proposed units must provide for private open space…”
  • It sets minimum balcony dimensions per unit.
  • It expressly recognises exceptional cases where units may have no private space (e.g. conversions, protected structures in urban centres), none of which apply here.
  • It acknowledges that BTR schemes may have “lower private amenity space” but does not suggest “no private amenity space”.

On SPPR8, Holland J accepts that it allows “flexibility” in relation to:

  • the proportion of private amenity space associated with individual units, and
  • communal amenity space, in exchange for compensatory facilities.

However, applying his earlier warning in Fernleigh #1 and Ballyboden TTG, he holds that:

“Flexibility doesn’t extend to the absurd, nor below it to omission.”

In other words, flexibility is not carte blanche to strip private amenity spaces from large numbers of units in a new-build scheme that does not fall within the CDP’s exceptional categories.

(c) No conflict between CDP and SPPR8

Holland J concludes that:

  • there is no conflict between CDP §12.3.6 and SPPR8;
  • on an XJS reading, neither allows wholesale omission of private amenity from a non-exceptional set of new apartments; and
  • the Inspector’s view that a “reduction” could include complete omission stretches the language past breaking point.

(d) Materiality of contravention

On materiality, the Court:

  • rejects the idea that the quality of communal facilities can “cure” the contravention at the level of private open space;
  • emphasises that the CDP protects the amenity of each unit individually – there is little comfort to a resident without a balcony that only 18% of residents share that fate; and
  • finds that omitting balconies from 74 units is plainly material in absolute and relative terms.

(e) Consequence: lack of power to grant permission

Because:

  • the decision involved a material contravention of the CDP;
  • this was not acknowledged in the material contravention statement (s.8(1)(a)(iv) 2016 Act); and
  • the Commission did not invoke the s.9(6) / s.37(2)(b) route,

the Commission had no power to grant the permission as it did. Ground 5 therefore succeeded and the decision was quashed.

4.1.5 Impact of Ground 5 holding

This is the most significant doctrinal development in the case. Its implications include:

  • For planning authorities and the Commission: where a CDP and guidelines stipulate per-unit private amenity requirements, “reduction” must be read as reduction in quantum, not elimination, unless the plan clearly says otherwise. Omission of private open space from new-build units, in non-exceptional circumstances, will almost invariably be a material contravention.
  • For developers: BTR schemes cannot rely on “flexibility” in SPPR8 and generous communal facilities to justify zero private amenity to whole groups of units on a greenfield site. If they propose such a departure, it must be:
    • clearly identified as a material contravention in their statement; and
    • positively justified under s.37(2)(b) PDA 2000.
  • For communities/objectors: the decision reinforces that per-unit standards in development plans are legally meaningful. A numerical “shortfall” even in a minority of units can be a basis to challenge if not properly acknowledged and justified as a material contravention.

4.2 Ground 4 – Daylight/Sunlight, Standards and “Have Regard To”

4.2.1 The standards landscape

The Court navigates a complex web of daylight standards:

  • BRE Guide 2011 and BS 8206‑2:2008 (originally UK-specific; advisory and flexible, aimed at good practice).
  • EN 17037:2018 “Daylight in Buildings” (European standard), implemented as:
    • IS EN 17037:2018 in Ireland – no national annex, applies one target: 300 lux over 50% of the space for half the daylight hours for all building types, including dwellings.
    • BS EN 17037:2018 + National Annex NA in the UK – adds lower, dwelling-specific targets (e.g. 100lx bedrooms, 150lx living rooms, 200lx kitchens) derived from BS 8206‑2:2008.
  • BRE Guide 2022 – an update to BRE 2011 which incorporates BS EN 17037:2018 and the National Annex.

Relevant policy instruments:

  • CDP §12.3.4.2: requires all habitable rooms to have “appropriate levels of natural daylight” and states that development “shall be guided by the principles of the BRE Guide 2011 and/or any updated, or subsequent guidance”.
  • Apartment Guidelines 2020 (§6.5+): say planning authorities “should have regard to” BRE 2011 and BS 8206‑2:2008 (or similar) when assessing daylight provision.
  • Height Guidelines 2018 (§3.2): in the specific context of increased building heights, call for “appropriate and reasonable regard” to those same documents.

4.2.2 The applicant’s volte face

Ironborn’s daylight report:

  • applied both IS EN 17037:2018 (300lx) and BS EN 17037:2018 + Annex NA (reduced values for dwellings);
  • concluded the development failed the Irish 300lx thresholds but met the UK Annex targets; and
  • argued, based on identical climate and practice, that the UK Annex standards were more realistic for Irish dwellings.

Fernleigh’s expert planning submissions to the Commission:

  • expressly stated it was “pleased to see BRE 2022 applied”;
  • outlined the UK Annex illuminance targets (100/150/200lx) and used them as baselines for criticism;
  • then switched to highlighting the scheme’s failure against the EN 17037 / IS EN 17037 300lx threshold as evidence of overdevelopment.

Notably, neither Fernleigh’s planning consultant nor its solicitors’ detailed appended submissions:

  • argued that IS EN 17037 was the only lawful standard to be used; or
  • objected to the application of BRE 2022 / BS EN 17037.

In judicial review, however, Fernleigh’s central contention became that:

  • only IS EN 17037:2018 is the “applicable Irish standard” since it was adopted by NSAI; and
  • the Board acted unlawfully by applying the UK standards in Annex NA, effectively substituting them for the Irish standard.

4.2.3 “Have regard to” and voluntary standards

Holland J’s analysis rests on three building blocks:

  1. Voluntary nature of standards – absent transposition by regulation, EN, BS and IS standards are voluntary benchmarks, with no direct coercive force. Authorities and developers may adopt them or prefer one to another.
  2. “Have regard to” is a light obligation – as accepted by Fernleigh, CDP §12.3.4.2 (and the guidelines) impose only a “have regard to” obligation; they do not require compliance with any particular daylight standard. A decision-maker can consider a standard, then reasonably depart from it.
  3. Breadth of instruments requiring regard to BRE/BS standards – even after EN 17037 and IS EN 17037 were adopted, the:
    • CDP (adopted April 2022) still expressly demands regard to BRE 2011 / BS 8206‑2:2008 and “updated” guidance; and
    • Apartment and Height Guidelines similarly direct regard to BRE 2011 and BS 8206‑2:2008 or similar.

Crucially, Annex NA to BS EN 17037:2018 replicates the dwelling illuminance targets in BRE 2011 / BS 8206‑2:2008. Therefore, when the Inspector and the Commission applied the UK Annex NA targets, they were in substance applying the very targets that the CDP and Guidelines explicitly told them to consider.

4.2.4 Response to Fernleigh’s arguments

(a) No displacement of BRE/BS by IS EN 17037

The Court rejects the proposition that adoption of IS EN 17037:2018 “displaces” or makes irrelevant BRE 2011 / BS 8206‑2:2008 or BRE 2022:

  • the CDP and Guidelines expressly continue to require regard to them;
  • “and/or” in CDP §12.3.4.2 is interpreted in a conventional way (“X or Y or both”), not as implying that later standards retroactively expunge earlier ones; and
  • having regard to a new Irish standard does not logically preclude also having regard to a UK or European standard and then making a choice.

(b) Regard was in fact had to both standards

Assuming (in Fernleigh’s favour) that the Commission had to “have regard” to IS EN 17037:2018, the Court notes:

  • Ironborn’s report explicitly assessed the scheme against the Irish 300lx target and recorded the failure;
  • the Inspector explicitly considered IS EN 17037:2018 and acknowledged that a 300lx threshold is “very difficult to achieve for domestic rooms in an urban environment”;
  • the Inspector then reasonably preferred the UK Annex NA thresholds as better aligned with dwelling design and climate constraints.

That satisfies the “have regard to” obligation. There is no legal requirement that the standard actually chosen match the Irish one, particularly where all instruments frame them as guides, not binding rules.

(c) Volte face and fairness

Holland J gives considerable weight to Fernleigh’s inconsistent stance:

  • before the Commission it had urged application of BRE 2022 / BS EN 17037 and criticised the scheme by those standards;
  • only in court did it argue that using those very standards was unlawful.

Applying FoIE and McGowan, the Court refuses to endorse a process where points that “could and ought” to have been made during the administrative process are reserved for judicial review, particularly where the party positively argued the opposite at administrative stage.

4.2.5 No material contravention and no error of law

Since:

  • the obligation was merely to be “guided by” / “have regard to”;
  • the Commission did so in relation to both IS EN 17037 and BRE/BS standards; and
  • it is lawfully open to the Commission to prefer one voluntary standard over another,

Holland J dismisses Ground 4. There was no material contravention of §12.3.4.2 and no unlawful reliance on UK standards.

4.2.6 Impact

Practical consequences include:

  • Decision-makers may continue to use BRE/BS-based standards in daylight assessment, even alongside or instead of IS EN 17037, provided they:
    • acknowledge the relevant standards;
    • give them rational consideration; and
    • explain why a particular standard is preferred.
  • Objectors who wish to challenge the choice of standard must raise that challenge at the administrative stage and should not assume courts will permit a tactical reversal of position later.

4.3 Ground 8 – Dual Aspect Units

4.3.1 Policy background

CDP §12.3.5.1 provides:

  • Definition: “A dual aspect apartment is designed with openable windows on two or more walls, allowing for views in more than just one direction.”
  • Anti-evasion clause:
    “The use of windows, indents or kinks on single external elevations… is not considered acceptable and/or sufficient to be considered dual aspect and these units will be assessed as single aspect.”
  • Standard: In DLR, classified as a “suburban or intermediate location”, “there shall generally be a minimum of 50% dual aspect apartments in a single scheme”, reflecting SPPR4 of the Apartment Guidelines 2020.

SPPR4 allows a reduced minimum (33%) “in more central and accessible urban locations, where it is necessary to achieve a quality design…” The non-SPPR text of the guidelines also refers to “some intermediate locations”, leading to debate about its scope.

4.3.2 The disputed “projecting” units

In the permitted scheme:

  • 213 units were classified by the developer as dual-aspect, including 34 “projecting” units where the living space projects outwards from the main façade.
  • If these 34 are counted as dual aspect, dual aspect provision is 50.4% (meeting the 50% threshold).
  • If they are treated as single aspect (mere bay windows), dual aspect drops to 42%.

Fernleigh had argued to the Commission, and again in court, that these were functionally bay windows on a single elevation, falling foul of the CDP’s anti-evasion clause.

4.3.3 The Court’s evaluative deference

Initially, Holland J records his own “strong” first impression from the design report drawings that Fernleigh’s characterisation looked plausible. However, the Commission produced further elevation drawings (since exhibited) which showed more clearly the projecting forms.

Returning to the CDP wording and the drawings, Holland J concludes that:

  • the protrusions cannot be “inevitably dismissed” as mere “windows, indents or kinks”;
  • the Inspector and Commission were entitled, as a matter of evaluative judgment, to consider them dual-aspect (or even triple-aspect) units; and
  • the Court will not substitute its own view where the Board’s classification is reasonably open on the evidence.

On that basis, the 50% threshold was met and no material contravention occurred. Ground 8 was dismissed.

4.3.4 SPPR4 and “some intermediate locations”

Although not necessary for the result, Holland J addresses the drafting of SPPR4:

  • SPPR4 itself explicitly applies the reduced 33% minimum only to “more central and accessible urban locations”.
  • The preceding guideline text (§3.17) refers also to “some intermediate locations”.

Applying Spencer Place, he holds that SPPRs must be read strictly:

  • they transfer competence from elected members to the Minister;
  • courts should not read extra categories (e.g. “some intermediate locations”) into SPPRs that the text does not clearly include; and
  • the omission of that phrase from the operative SPPR4 is presumed deliberate.

Thus, the 33% dual-aspect standard applies only in central and accessible urban locations, not automatically in intermediate suburban locations like the Aiken’s Village site.

4.4 Ground 1 – Zoning, Public Open Space and Foul Infrastructure

4.4.1 The zoning issue

The development involved two physically separate land parcels:

  • Main Site (owned by Ironborn, zoned “A” – residential) – carrying the actual apartment blocks.
  • Small Plot (within Belarmine Park, owned by DLRCC, zoned “F” – “To preserve and provide for open space with ancillary active recreational amenities”) – location of the required foul infrastructure.

Under Zoning Objective F, “Public Services” are uses “Open for Consideration”, defined in CDP §13.2 as:

“A building or part thereof, a roadway or land used for the provision of ‘Public Services’. ‘Public Services’ include all service installations necessarily required by electricity, gas, telephone, radio, telecommunications, television, data transmission, water, drainage and other statutory undertakers…”

“Open for Consideration” uses may be permitted where they are:

  • compatible with overall policies and objectives;
  • do not have undesirable effects; and
  • are consistent with proper planning and sustainable development.

4.4.2 The foul storage tank and Condition 14

On the Small Plot, Uisce Éireann required, as a condition of foul connection:

  • an underground 500m³ foul storage tank, sized to cater not only for the proposed development but for:
    • existing upstream housing (approx. 140 houses);
    • the Griannan Fidh estate; and
    • future zoned development in the catchment over 10–15 years;
  • a pumping station and a small above-ground maintenance kiosk; and
  • a detention basin at surface level, landscaping the area around the tank to store overflow in case of pump failure.

The Inspector accepted that:

  • the works were “relatively minor” in the context of the park;
  • the open space use would largely be restored; and
  • the tank was required by Irish Water to mitigate existing network risks.

He recommended granting permission but did not favour the detention basin for public health and amenity reasons. The Commission agreed, and Condition 14:

  • prohibited use of the localised detention basin;
  • required alternative pump-failure measures consistent with Uisce Éireann’s Wastewater Infrastructure Code; and
  • required that proposals “clearly demonstrate how overflow from the foul tank shall be prevented from entering surface waters.”

4.4.3 Is the infrastructure a “public service”?

Fernleigh contended that:

  • the infrastructure was essentially a private connection for a private development;
  • because it was developer-funded and not clearly to be taken in charge, it was not a “public service”; and
  • it therefore materially contravened Objective F.

Holland J rejects this analysis. Key points:

  • Though funded by Ironborn, the tank is:
    • sited on public land (DLRCC),
    • installed in effect by Uisce Éireann as a network upgrade, and
    • intended to serve existing and future development in the wider catchment.
  • The existing foul sewer already runs under Griannan Fidh and the Small Plot, serving upstream houses. The tank will help manage stormwater ingress and prevent downstream flooding in Irish Water’s network, not just treat outflow from the new scheme.
  • Uisce Éireann’s correspondence describes the works as required upgrade works to its wastewater network, eligible (in principle) for inclusion in its investment plan (though not currently funded, hence developer-funded).

On that basis, the Court holds:

  • the tank and kiosk fall comfortably within the broad CDP definition of “Public Services”, as “service installations necessarily required by… drainage and other statutory undertakers”;
  • hence their use on Objective F lands is “Open for Consideration” and, in the Inspector’s evaluation, compatible with the zoning objective; and
  • no material contravention of Objective F arises from those works.

4.4.4 Condition 14 and alleged uncertainty

Fernleigh also argued that Condition 14 was void for uncertainty and unlawfully delegated unresolved essentials to later agreement. The Court was unimpressed:

  • the condition is clear about the result to be achieved:
    • no detention basin; and
    • no overflow from the tank to surface waters, as demonstrated to the planning authority’s satisfaction in line with Uisce Éireann’s Code;
  • it lawfully uses a standard form of deferral: agreeing detailed design with the planning authority before commencement;
  • case law (such as Shadowmill, Fawcett, Kenny) indicates that only conditions with no ascertainable meaning are invalid for uncertainty; and
  • no fully developed “Boland attack” was advanced.

Thus, Condition 14 stood. As there was no material contravention of Objective F, Ground 1 failed.

4.4.5 Impact

The decision has clear implications:

  • Developer-funded off-site foul infrastructure on public open space can be lawful under “public services” zoning, provided:
    • it is required by the statutory undertaker as part of the public network; and
    • it serves a wider catchment, not just the developer’s site.
  • Planning authorities can legitimately use conditions (under s.9(4) 2016 Act) to delete problematic elements (like detention basins) and require alternative technical solutions, without generating invalidity through uncertainty, so long as the core parameters are clear.

4.5 Ground 9 – Inland Fisheries Ireland and Notification Duties

4.5.1 Legal framework

Under s.8(1)(b)(ii) of the 2016 Act:

  • an SHD applicant must send copies of the application and any EIAR/NIS to certain authorities prescribed by the Minister, which may make submissions on planning, environmental and European site effects.

Article 295(h)(i) PDR 2001 prescribes IFI where the proposed SHD:

  • concerns a waterway under IFI functions, and
  • the development:
    • “might give rise to significant discharges of polluting matters or other materials to such waters or be likely to cause serious water pollution or the danger of such pollution”; or
    • “would involve… works… adjacent to the banks of such waters… which might materially affect the waters.”

Article 285(5) PDR 2001 requires the Commission, at pre-application consultation stage, to inform the prospective applicant which prescribed authorities (under Article 295) should, in its opinion, be notified. The intending developer must then notify those bodies when making the SHD application.

4.5.2 Risk pathway and mitigation

The Small Plot is about 15m from the Ballyogan Stream. Ironborn’s HHQRA, WFD Assessment and the Inspector’s reports:

  • identify a potential “source–pathway–receptor” link:
    • source: overflow from the foul tank; or contaminated run-off from excavations;
    • pathway: direct discharge via ground surface or drains;
    • receptor: Ballyogan Stream / Carrickmines Stream.
  • acknowledge that in the event of pump/tank failure, there is a potential direct pathway to the stream;
  • note that the worst-case contribution from the proposed development is low (14.092 l/s), given other network flows and dilution during heavy rainfall;
  • emphasise that construction impacts will be controlled via a CEMP;
  • conclude, in WFD terms, that there is no potential for significant deterioration in the waterbody status or failure to achieve WFD objectives.

Condition 14 adds a further layer: the project cannot commence until alternative measures are agreed that prevent any overflow to surface waters (i.e. Ballyogan Stream).

4.5.3 Standing and ius tertii

The Commission argued that only IFI could complain of non-notification, describing Fernleigh’s complaint as a ius tertii. Holland J declines to dismiss the ground on that basis and draws important distinctions:

  • Prescribed consultees like IFI:
    • are not simply private rightsholders;
    • have public duties and expertise; and
    • are part of the architecture through which the State satisfies EU law obligations (e.g. EIA Directive Article 5(3)(b), 6(1)).
  • The public is entitled to expect that:
    • relevant prescribed consultees will be notified where appropriate; and
    • their expert input will inform planning decisions.

However, he notes that:

  • here, there was no direct evidence that IFI knew of the application or took any view; and
  • Fernleigh did not raise IFI’s non-participation before the Commission, though it could have.

4.5.4 The evidential deficit

Holland J identifies a central problem for Fernleigh: absence of expert evidence showing that the legal threshold in Article 295(h)(i) was met.

The standard focuses on whether the development:

  • might cause significant discharges of pollutants or “danger of serious water pollution”.

Given:

  • the expert WFD and HHQRA analyses concluding no significant effects;
  • the EIA screening finding that surrounding water resources were not likely to be significantly affected;
  • the additional protection in Condition 14 requiring no overflow to surface waters;

the Court holds that:

  • it is lawful for the Commission to conclude there is no real, more than hypothetical, risk of serious water pollution from the scheme as permitted;
  • Fernleigh’s reliance on isolated acknowledgements of potential pathways without engaging with the mitigation and final risk evaluation is selective and insufficient; and
  • without contrary expert evidence, the Court cannot find that Article 295(h)(i) threshold was crossed, nor that failure to notify IFI was unlawful.

Ground 9 is therefore dismissed on the basis of failure of proof.

4.5.5 Impact

This part of the judgment:

  • leaves open some systemic questions about:
    • the interplay between Article 285 (pre-app identification of consultees) and Article 295 (statutory prescription); and
    • whether the Commission must revisit its opinion on consultees at application stage; but
  • confirms that challengers alleging unlawful failure to notify a prescribed consultee must:
    • go beyond speculation,
    • engage with the full technical record, and
    • provide expert evidence if they wish to show the statutory thresholds for notification were met.

5. Complex Concepts Explained

5.1 Strategic Housing Development (SHD) framework

The SHD process under the Planning and Development (Housing) and Residential Tenancies Act 2016 created a fast-track route to the national planning appeals board (now An Coimisiún Pleanála) for:

  • large-scale residential schemes (100+ units), including BTR; and
  • student accommodation above a certain scale.

Key features:

  • single-stage decision by the Commission;
  • mandatory pre-application consultations;
  • prescribed timelines; and
  • special powers to grant permission in material contravention of the development plan (s.9(6)).

5.2 Material contravention and s.37(2)(b)

A development “materially contravenes” a development plan where it departs from a policy or objective in a way that is not trivial or de minimis. Under s.37(2)(b) PDA 2000 (as applied via s.9(6) 2016 Act):

  • the Board may still grant permission despite a material contravention, but only where specific criteria are met (e.g. national/trans-regional policy, overriding strategic objectives, etc.); and
  • the material contravention must be explicitly identified in the application’s material contravention statement.

If a material contravention exists and that special procedure is not invoked, the Board lacks jurisdiction to grant permission – as occurred here in relation to private amenity space.

5.3 “Have regard to” vs “comply with”

A recurring distinction:

  • “Have regard to” – requires the authority to consider a factor (e.g. a guideline or standard) in the decision-making process. It does not require the authority to:
    • apply it rigidly;
    • achieve compliance; or
    • choose it over other legitimate benchmarks.
  • “Comply with” – much stricter, requiring conformity unless exceptional circumstances justify departure.

In this case, most references to daylight standards were in “have regard to” terms, which significantly constrained Fernleigh’s arguments that the Commission had to adopt IS EN 17037.

5.4 SPPRs (Specific Planning Policy Requirements)

SPPRs are special provisions within Ministerial guidelines (issued under s.28 PDA 2000) which:

  • the Board and planning authorities must comply with, even where they conflict with a development plan;
  • effectively displace inconsistent plan policies and bind decision-makers.

In this case:

  • SPPR8 allowed flexibility in BTR schemes on private amenity and storage;
  • SPPR4 set dual-aspect minima;
  • s.9(3) of the 2016 Act required the Commission to apply relevant SPPRs “instead of” differing plan provisions but did not relieve it of the need to respect CDP content where no conflict existed.

5.5 Ius tertii

Ius tertii refers to a situation where a litigant attempts to assert the rights or interests of a third party (a “third person”) rather than:

  • their own rights or interests; or
  • public law norms directly affecting them.

Courts are cautious about allowing challenges based solely on the alleged infringement of someone else’s rights (e.g. a neighbour’s personal rights, a company’s property rights). However, as this judgment emphasises, prescribed statutory consultees like IFI are different: their role is rooted in public law, not private entitlement, and their involvement affects the quality of the decision-making process itself.

5.6 Public services vs private connections

The judgment draws a practical line between:

  • Private connections – pipes, pumps or other works serving only one development and not forming part of a wider network upgrade.
  • Public services – infrastructure required by statutory undertakers to enhance, secure or expand the public network, serving multiple developments or the wider area.

Even if the initial capital cost is borne by a developer, infrastructure can be a “public service” if in function and future ownership/use it is part of the public system – as with Uisce Éireann’s foul storage tank here.

6. Overall Significance and Conclusion

Fernleigh RA v An Coimisiún Pleanála [2025] IEHC 655 is a significant addition to Irish planning jurisprudence, particularly on SHD/BTR schemes. Its most enduring contribution is to articulate, with some precision, a basic but powerful principle:

Within the framework of this CDP and SPPR8, “reduction” of private amenity space does not mean abolition. The promise that every apartment will have private open space cannot be rewritten by “flexibility” into a regime where a substantial minority have none.

The case underscores that per-unit amenity standards in development plans are not decorative; they are enforceable benchmarks. When a large BTR scheme proposes to deviate from them, the departure must be:

  • honestly identified as a material contravention; and
  • robustly justified under the statutory contravention mechanisms.

Beyond balconies, the judgment clarifies that:

  • Daylight standards from different jurisdictions may co-exist; decision-makers may lawfully choose UK-based benchmarks where obligations are of the “have regard to” type, so long as they actually consider the full suite of relevant standards.
  • Objectors cannot credibly seek certiorari on a basis flatly inconsistent with positions they took, or failed to take, before the Commission.
  • Developer-funded network upgrades on public open space may legitimately count as “public services” in zoning terms, avoiding automatic conflicts with open space objectives.
  • Failure to notify a prescribed consultee will not ground quashing in the absence of concrete evidence that the statutory threshold for notification was met and that a real (not hypothetical) risk of serious environmental effect exists.

In combination with Fernleigh #1, Stapleton, Spencer Place, Ballyboden TTG and McGowan, this decision contributes to a coherent body of law emphasising:

  • faithful adherence to the democratic content of development plans;
  • strict but context-sensitive reading of Ministerial SPPRs;
  • fair, transparent, and expert-informed decision-making processes; and
  • a realistic but disciplined approach to flexibility in planning standards.

For future SHD and BTR proposals, particularly in high-growth suburban counties, this judgment will sharpen the focus on:

  • the integrity of private amenity provision;
  • the credibility of daylight and amenity trade-offs; and
  • the need to front-load, in material contravention statements and submissions, any substantial departures from plan standards.

    • The Commission now faces, on remittal, the task of deciding whether to:

    • require the scheme to be redesigned to restore private amenity to all units; or
    • explicitly invoke its power to grant SHD permission in material contravention, explaining why the public interest justifies permitting a development in which 74 apartments would lack private open space in a county whose CDP promises such space to every unit.

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