Kenny v. An Bord Pleanala (No. 1)

Factual and Procedural Background

The case concerns a challenge to a planning permission granted by An Bord Pleanala (the Board) for a development subject to certain conditions. The Applicant contends that Condition No. 8 constitutes an unlawful delegation of the Board’s decision-making power to a planning authority, rendering the permission ultra vires. Additional grounds of challenge include alleged deficiencies regarding the boiler house facilities, the adequacy of the Environmental Impact Statement (EIS), and the demolition of a gate lodge claimed to be a protected structure under the Local Government (Planning and Development) Act 1999. The procedural context involves an application for leave to seek judicial review of the Board’s decision, with detailed consideration of the statutory threshold for such leave under Section 82(3A) of the Planning Act 1963 as amended.

Legal Issues Presented

1. Whether Condition No. 8 of the planning permission constitutes an unlawful delegation of the Board’s statutory power, thus rendering the condition ultra vires.
2. Whether the plans and information submitted regarding the boiler house facilities comply with planning regulations and EU Directive 85/337/EEC, and whether any inadequacy amounts to a breach affecting the validity of the Board's decision.
3. Whether the Environmental Impact Statement (EIS) provided is adequate and compliant with relevant legislation and directives.
4. Whether the demolition of the gate lodge, alleged to be a protected structure under the Local Government (Planning and Development) Act 1999, was lawful given the timing and applicability of that legislation.
5. Whether the Applicant has demonstrated substantial grounds to justify leave to apply for judicial review under the statutory threshold.

Arguments of the Parties

Applicant's Arguments

• Condition No. 8 unlawfully delegates the Board’s decision-making power to the planning authority, allowing the developer and planning authority excessive discretion over the final development details without public scrutiny.
• The submitted plans lack sufficient detail regarding the boiler house facilities, and contradictory information was presented during the oral hearing, including a shift from a centralised to a decentralised boiler system without proper evaluation.
• The EIS contains profound defects in several chapters, leading to non-compliance with EU Directive 85/337/EEC and Irish implementing legislation.
• The gate lodge is a protected structure under the 1999 Act, and its demolition should not have been permitted absent exceptional circumstances.
• The Applicant contends that these grounds justify judicial review of the Board’s decision.

Respondent's Arguments

• The Board’s imposition of Condition No. 8 is lawful and within its powers, providing necessary flexibility and allowing technical matters to be agreed with the planning authority without exceeding statutory limits.
• The planning permission clearly defines the development as per revised plans, and Condition No. 8 does not permit the developer to act at large or make unspecified changes.
• The alleged deficiencies regarding the boiler house were adequately addressed during the oral hearing, and the EIS was sufficient to satisfy statutory requirements.
• The gate lodge is not protected under the relevant development plan, and the 1999 Act did not apply retrospectively to the planning process commenced prior to its operation date.
• The Applicant has not demonstrated substantial grounds to meet the statutory threshold for judicial review.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the statutory framework and the high threshold required for leave to apply for judicial review under Section 82(3A) of the Planning Act 1963, emphasizing the need for substantial, weighty, and non-trivial grounds. It reviewed relevant case law to clarify that the grounds must be more than arguable and must demonstrate real substance.

Regarding Condition No. 8, the Court analyzed the nature of the condition in light of the Board’s power to impose conditions requiring agreement with planning authorities. It applied principles from the Boland case, affirming that such conditions are lawful if they provide flexibility for technical or detailed matters without abdicating the Board’s statutory role. The Court found that Condition No. 8 did not leave the developer “at large” nor did it render the development unknown, as the permission was clearly defined by revised plans. The condition was seen as a mechanism to resolve discrepancies and ambiguities identified by the Planning Inspector, not as an unlawful delegation of power.

On the boiler house issue and the EIS adequacy, the Court noted some confusion but found that the matter was sufficiently addressed during the oral hearing and through the documentation. The Court rejected the claim of regulatory breach due to the Applicant’s failure to specify precise violations and found that the statutory requirements for environmental assessment were met. The Court declined to engage in overly detailed scrutiny of technical matters better suited to the planning authorities.

Regarding the gate lodge, the Court considered the timing of the 1999 Act and its non-retrospective application. Since the planning process commenced before the Act’s operative date, the Court held that the Act could not apply retrospectively to invalidate the permission. It relied on established principles of statutory construction and constitutional protections against retrospective legislation. Precedents were examined and found not supportive of the Applicant’s position.

Overall, the Court concluded that the Applicant had not met the statutory threshold of substantial grounds on any of the proposed bases, and leave to apply for judicial review was refused.

Holding and Implications

The Court REFUSED LEAVE to apply for judicial review of the Board’s decision granting planning permission subject to Condition No. 8 and other challenged aspects.

The direct effect is that the planning permission, including Condition No. 8 and the associated development, remains valid and enforceable. No new precedent was established beyond reaffirming the application of existing principles regarding the Board’s power to impose conditions, the statutory threshold for judicial review, and the non-retrospective application of planning legislation.