Clonres CLG v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

This case concerns a contentious housing development on institutional lands formerly part of a college site in a major city. The lands are zoned under a development plan for institutional and community use (Z15 zoning), which includes provisions to protect existing community uses such as sports grounds. The site is adjacent to a protected historic structure and a large park, which is also relevant for environmental and heritage considerations.

The development proposal involved multiple applications and decisions by the planning board, with four board decisions and ten sets of legal proceedings to date. The initial application for over 500 dwellings was granted but subsequently quashed by the High Court and remitted to the board. Following remittal, the board refused permission, which was again quashed by the court. A revised application was granted permission in early 2020, but judicial review proceedings led to a further remittal on the basis of inadequate environmental assessment. The board then granted permission for an increased number of dwellings under the strategic housing development (SHD) procedure in August 2020, which is the decision under current challenge.

Separate proceedings sought to designate the five pitches on the site as a Special Protection Area (SPA), but those proceedings were dismissed on a procedural ground and are currently under appeal.

Legal Issues Presented

1. Whether the planning board failed to give adequate reasons for how it handled the remitted application following the quashing of the earlier decision.
2. Whether the lands qualify as “zoned for residential use” under the Planning and Development (Housing) and Residential Tenancies Act 2016, thus permitting the SHD procedure.
3. Whether the planning board misinterpreted the development plan zoning objective Z15, particularly concerning the protection of existing institutional and community uses.
4. The appropriate interpretative approach to planning documents, specifically the meaning of “use” in the development plan and the applicability of the Interpretation Act 2005.
5. Whether the board properly applied the Specific Planning Policy Requirements (SPPR), especially SPPR 3 relating to building heights and environmental considerations.
6. Whether the board erred in relying on the development being of “strategic or national importance” under section 37(2)(b)(i) of the Planning and Development Act 2000 as a basis for material contravention.
7. Whether reliance on SPPR 1 of the 2018 guidelines was lawful as a basis for permitting material contravention of the development plan.

Arguments of the Parties

Applicant's Arguments

• The board failed to provide adequate reasons explaining how it dealt with the remitted file, undermining transparency and procedural fairness.
• The lands, though zoned Z15 for institutional and community use, are in fact “open for consideration” for residential development, qualifying for SHD procedures.
• The board and its inspector misinterpreted the zoning by treating the cessation of the previous community use (due to sale of the lands) as negating the zoning protection, ignoring the possibility of future community use.
• The term “use” in the development plan should be interpreted in accordance with the parent statute and relevant caselaw, not limited to the de facto existing use on the ground.
• The board failed to properly consider mandatory environmental criteria under SPPR 3, specifically the impact on bird flight lines and collision risks, and did not adequately engage with scientific evidence relied upon by the inspector.
• The board erroneously treated the development as being of “strategic or national importance”, lacking sufficient basis and reasons for this conclusion.
• Reliance on SPPR 1 as a basis for permitting material contravention of the development plan was unlawful, as SPPR 1 relates to development plans and not material contravention.
• Advocated for a refined approach to interpreting planning documents that recognizes the informed nature of the audience, including professional advisers, and applies statutory interpretation principles consistently.

Respondents' and Notice Party's Arguments

• The board appointed a new inspector who properly considered the remitted application de novo, and there is no evidence of pre-judgment or procedural unfairness.
• Submission that the “reasonably intelligent person without legal or planning expertise” standard applies to interpreting planning documents, rejecting the applicant’s broader interpretative approach.
• Argued that a lay interpreter would not be expected to consult caselaw to determine the meaning of “use” in the development plan, thus opposing the applicant’s reliance on statutory interpretation principles.
• Maintained that the planning board’s discretion and approach to environmental and planning guidelines should not be subject to rigid formalism or “box-ticking”.
• Defended the board’s application of SPPR and material contravention provisions, including reliance on the development’s strategic housing designation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the procedural history and substantive issues surrounding the zoning and planning permissions for the housing development on institutional lands. It found no merit in the applicant’s complaint that the board failed to give adequate reasons on how it handled the remitted application, noting the appointment of a new inspector who properly considered the issues de novo.

On the key zoning issue, the court held that the board and inspector erred in their interpretation of the Z15 zoning objective. The board wrongly considered the cessation of the previous community use due to sale of the lands as negating the zoning’s protective aims. The court emphasized that the zoning protects existing institutional and community uses, including future uses, and that a change in ownership does not extinguish these protections.

The court undertook a detailed analysis of the interpretative approach to planning documents, concluding that the traditional Irish doctrine treating planning documents as addressed to a reasonably intelligent person without legal or town planning expertise is outdated and overly restrictive. Instead, planning documents should be read in the same way as other statutory instruments, recognizing that addressees typically have considerable expertise and familiarity with the relevant legal and planning context. The court endorsed the application of the Interpretation Act 2005, which requires terms in statutory instruments to have the same meaning as in the parent enactment.

Regarding environmental and policy compliance, the court found that the board failed to properly apply SPPR 3 of the 2018 guidelines, which mandates consideration of impacts on flight lines and collision risks for birds in proximity to sensitive areas. The board did not adequately engage with scientific evidence relied upon by the inspector, leading to a lack of proper reasons for its conclusion.

The court also rejected the board’s reliance on the development being of “strategic or national importance” as a basis for material contravention, finding no sufficient basis or reasons for this conclusion. The court held that the strategic housing development designation refers to scale rather than national importance and that the board failed to distinguish or explain this properly.

Finally, the court found that reliance on SPPR 1 of the 2018 guidelines as a basis for permitting material contravention was erroneous, as SPPR 1 relates to development plans and not to material contravention decisions.

On these grounds, the court concluded the board’s decision was invalid and should be quashed.

Holding and Implications

The court granted orders of certiorari quashing the planning board’s August 2020 decision granting permission for the housing development.

The direct effect is that the planning permission granted under the strategic housing development procedure is nullified, requiring reconsideration or fresh decision-making by the board consistent with the court’s findings. No new legal precedent beyond the interpretation of planning documents and zoning objectives was established, but the judgment provides important clarifications on the interpretation of statutory planning documents, the application of the Interpretation Act 2005, and the mandatory nature of certain planning policy requirements. The decision underscores the necessity for planning authorities to provide clear reasons, properly apply environmental and planning guidelines, and interpret zoning objectives in a manner consistent with statutory context and legal principles.