Highlands Residents Association & Anor v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The proceedings concern a judicial review of a decision made by the first named respondent ("the Board") on 29 January 2020 to grant planning permission to the first named notice party ("Trailford") for a strategic housing development on lands on the outskirts of Drogheda, County Louth. The decision was made under the Planning and Development (Housing) and Residential Tenancies Act, 2016 ("the 2016 Act"), which provides a fast-track planning procedure for strategic housing developments. The proposed development includes 509 houses, 152 apartments, a crèche, a shop, and a café.

The applicants are the Highlands Residents Association ("HRA"), an unincorporated association of residents living adjacent to the development site, and Protect East Meath Limited, a not-for-profit company focused on environmental protections in East Meath. They challenge the Board's decision on multiple grounds including alleged contravention of zoning objectives in the Meath County Development Plan 2013-2019, failures in environmental and habitats assessments, and the handling of protected species such as bats.

Legal Issues Presented

1. Whether the Board was precluded from granting planning permission due to a material contravention of zoning objectives under s. 9(6)(b) of the 2016 Act.
2. Whether the Board’s provisions allowing permission despite material contraventions in matters other than zoning are inconsistent with the Strategic Environmental Assessment Directive (Directive 2001/42/EC).
3. Whether the Board lawfully conducted the screening exercise under the Habitats Directive, specifically regarding ex situ effects on surrounding Natura 2000 sites.
4. Whether the Board erred by taking mitigation measures into account at the screening stage, contrary to established case law.
5. Whether the Board’s assessment of impacts on bats complied with the Habitats Directive and EIA Directive requirements.
6. Whether Irish law adequately transposes EU protections for bats under the Habitats Directive.
7. Whether the legality of a derogation licence issued under the Habitats Regulations is consistent with the Habitats Directive.

Arguments of the Parties

Applicants' Arguments

• The Board was barred from granting permission because the proposed development materially contravened zoning objectives of the Meath County Development Plan 2013-2019, specifically the designation "Residential Phase II (Post 2019)" which precluded residential development during the Plan's lifetime.
• The Board’s power to grant permission despite material contraventions in non-zoning matters conflicts with the Strategic Environmental Assessment Directive, though this issue was deferred unless other grounds failed.
• The Board failed to lawfully exclude significant effects on Natura 2000 sites at the screening stage due to lack of adequate bird surveys, particularly regarding ex situ effects on avi-fauna.
• The Board erred by considering mitigation measures at the screening stage, contrary to CJEU precedent in People Over Wind.
• The bat surveys were inadequate, lacking detail on transect surveys and hedgerow assessments, and failed to comply with NPWS Bat Mitigation Guidelines. The Board wrongly characterized disturbance to bats as incidental, which is inconsistent with the Habitats Directive.
• Irish law does not provide strict protection for bats as required by EU law, indicating inadequate transposition.
• The derogation licence regime under the Habitats Regulations is unlawful insofar as it permits licences after development consent.

Respondents' Arguments

• The applicants lacked standing to raise the zoning issue as it was not argued before the Board, and the Board had jurisdiction to grant permission.
• Mitigation measures relied upon by the developer are standard construction techniques required regardless of any Natura 2000 sites and thus not mitigation measures under the Habitats Directive.
• The inspector and Board had sufficient information, including habitat surveys and site inspections, to conclude no significant effects on Natura 2000 sites at the screening stage.
• The bat surveys, including emergence and transect surveys, were sufficient and complied with relevant standards. The Board emphasized that planning permission does not negate the requirement for derogation licences under the Habitats Regulations.
• The derogation licence process is separate and unaffected by the grant of planning permission.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the applicants' standing to challenge the zoning issue, concluding that the Highlands Residents Association had sufficient interest to proceed despite not raising this issue before the Board, based on proximity to the development site and relevant case law on standing.

On the zoning issue, the court undertook an objective and holistic construction of the Meath County Development Plan 2013-2019 and its Variation No. 2. It found that the designation "Residential Phase II (Post 2019)" effectively suspended residential use of the lands during the Plan’s lifetime. Thus, the lands were not zoned for residential use at the time of the Board's decision, precluding the grant of permission under s. 9(6)(b) of the 2016 Act.

The court rejected the Board’s argument that the designation related only to an order of priority rather than zoning, emphasizing the legislative context and the Plan’s express language prohibiting residential development "within the life" of the Plan.

Regarding the Habitats Directive screening, the court found that the Board’s screening exercise failed to apply "best scientific knowledge" as required by s. 177U of the Planning and Development Act 2000. In particular, the absence of detailed bird surveys, especially at high tide when ex situ use of the lands by protected bird species is most likely, was a significant lacuna. The Board’s conclusion that the site did not provide ex situ habitats was erroneous given scientific evidence that some species use adjacent agricultural lands.

The court also found that the Board erred by taking mitigation measures into account at the screening stage, contrary to the CJEU’s ruling in People Over Wind. The inspector’s reliance on standard construction drainage measures to exclude significant effects was held to be legally impermissible because one of the purposes of those measures was to avoid harm to protected sites, and there was a hydrological connection between the development site and Natura 2000 sites.

On bats, the court found that the surveys and assessments were adequate and that the Board correctly recognized that any interference with bats would require a derogation licence under the 2011 Habitats Regulations. The Board’s conclusion that any killing or disturbance would be incidental and regulated under the licensing regime was upheld. The court declined to consider the broader challenge to Irish transposition of EU bat protection law as the applicants succeeded on other grounds.

Given the findings on zoning and the screening exercise, the court did not consider it necessary to address other issues raised by the applicants.

Holding and Implications

The court GRANTED AN ORDER OF CERTIORARI quashing the Board’s decision dated 29 January 2020 granting planning permission for the proposed development by Trailford.

Additionally, the court granted declarations that:

• The Board erred in granting permission in contravention of the zoning designation "Residential Phase II (Post 2019)".
• The Board unlawfully screened out significant impacts on avi-fauna qualifying interests regarding ex situ impacts on the Boyne Estuary SPA.
• The Board erred in its stage 1 screening by impermissibly taking mitigation measures into account, breaching the Habitats Directive.

The court directed the parties to attempt agreement on the precise terms of orders and costs within fourteen days, with further directions to follow if no agreement is reached.

No new precedent was established beyond the application of existing legal principles to the facts of this case. The decision directly affects the parties by invalidating the planning permission granted.