Manley Construction LTD v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicant ("Company A") owns a 5.6-hectare site ("the Site") located at The Spires, The Commons, Navan Road, Duleek, County Meath. The Site lies approximately 750 meters west of Duleek town centre. Company A applied for Strategic Housing Development ("SHD") planning permission to build 142 residential units (82 houses and 60 apartments) on the Site. The Respondent ("the Board") refused this application by Order dated 29 March 2021 (the "Impugned Decision"), pursuant to the Planning and Development (Housing) and Residential Tenancies Act, 2016 ("the 2016 Act"). The 2016 Act provides a fast-track planning permission procedure for substantial housing developments through direct application to the Board.

The relevant Development Plan was the Meath County Development Plan 2013-2019 (the "2013 Development Plan"), which had its duration extended to remain current at the date of the Impugned Decision. The Board refused permission on the basis that granting permission would materially contravene the Development Plan in relation to the zoning of the land, specifically because the Site was zoned as 'A2' New Residential Phase II lands identified in Variation Number 2 of the County Development Plan as not available for residential development within the life of the Development Plan.

Company A sought to quash the Board's decision, arguing that the Board erred in applying a precedent case decided in a different context and that the precedent was wrongly decided. The Board defended its decision relying on the precedent.

Legal Issues Presented

1. Whether the Board was correct to apply the precedent case to conclude that the Site was not available for residential development within the life of the Development Plan, thereby precluding permission under section 9(6)(b) of the 2016 Act.
2. Whether the phrase "Residential Phase II (Post 2019) not available for residential development within the life of the Development Plan" constitutes a zoning objective within the meaning of section 9(6)(b).
3. Whether the Board's pre-application consultation opinion and estoppel arguments prevent it from relying on section 9(6)(b) to refuse permission.
4. Whether the Board failed to consider Environmental Impact Assessment (EIA) and Appropriate Assessment (AA) obligations adequately.
5. Whether the extension of the 2013 Development Plan beyond 2019 affects the interpretation of the zoning and phasing provisions.

Arguments of the Parties

Appellant's Arguments

• The precedent case relied upon by the Board was decided in a different context and is distinguishable.
• Alternatively, the precedent was wrongly decided and should not be followed.
• The Site was zoned A2 residential and the qualification "not available for residential development within the life of this Development Plan" is not a zoning restriction under section 9(6)(b), so the Board should have considered the application on its merits, including the possibility of permission in material contravention under other statutory provisions.
• The context of the Duleek Written Statement differs from that of the Drogheda Southern Environs Local Area Plan, such that the phrase means something different in each.
• The failure to release Phase I lands for housing creates a housing shortfall that justifies releasing Phase II lands like the Site.
• The planning application post-dated 2019, so the phasing restriction should be disregarded, leaving only residential zoning.
• The Board’s pre-application consultation opinion confirmed a reasonable basis for the SHD application and should estop the Board from relying on section 9(6)(b) to refuse permission.
• The Board’s decision deprived Company A of the benefit of residential zoning, interfering with constitutional property rights.
• The Board failed to properly consider EIA and AA obligations.

Respondent's Arguments

• The Board correctly applied the precedent case, which governs the interpretation of the phasing and zoning provisions in question.
• The phrase "Residential Phase II (Post 2019) not available for residential development within the life of the Development Plan" constitutes a zoning objective that precludes permission under section 9(6)(b).
• The Board’s pre-application consultation opinion did not finally determine the zoning issue and does not estop the Board from determining it at the application stage.
• Section 9(6)(b) of the 2016 Act prohibits the grant of permission in material contravention of a development plan in relation to zoning, and no estoppel can override this statutory prohibition.
• The Board did not deprive Company A of zoning but interpreted the zoning status as set out in Variation #2 and the Duleek Written Statement, which have not been challenged.
• The absence of explicit EIA and AA consideration in the refusal decision is not fatal because the Board was statutorily precluded from granting permission and EIA/AA are about environmental effects of projects that do not proceed.
• The extension of the 2013 Development Plan beyond 2019 does not automatically resume residential zoning of Phase II lands without due statutory process.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming the legal framework under section 9(6)(b) of the 2016 Act, which prohibits the Board from granting permission where the proposed development materially contravenes the development plan or local area plan in relation to the zoning of the land. The Board’s Impugned Decision refused permission on this basis, relying on the designation of the Site as Phase II residential land, "not available for residential development within the life of the Development Plan" according to Variation #2 of the Meath County Development Plan 2013-2019.

The court examined the Development Plan, Variation #2, the Duleek Written Statement, and the Drogheda Southern Environs Local Area Plan, noting that both the Duleek and Drogheda documents were adopted under the same Variation and shared a common core strategy and purpose: to address an excess of residentially zoned land through a phased release of lands for development.

The court gave significant weight to the reasoning in the precedent case Highlands Residents, where the High Court interpreted the identical phasing language in the Drogheda Southern Environs LAP as constituting a zoning objective that precluded residential development within the life of the Development Plan. The court found that the phasing restriction was integral to the zoning objective and not a mere sequencing or administrative matter.

Company A’s arguments that the phasing language in the Duleek Written Statement should be interpreted differently, or that the planning application post-dated the Plan's expiry in 2019, were rejected. The court reasoned that the Development Plan’s extension did not automatically alter the zoning status or phasing provisions and that any change would require formal statutory procedures. The court emphasized the importance of certainty, coherence, and the proper planning and sustainable development principles underpinning the Development Plan.

The court also rejected the estoppel argument based on the Board’s pre-application consultation opinion, holding that statutory prohibitions under section 9(6)(b) cannot be overridden by estoppel and that pre-application opinions do not finally determine issues or bind the Board in the final decision-making process.

Regarding Environmental Impact Assessment and Appropriate Assessment, the court found no requirement to perform these assessments where the Board was statutorily precluded from granting permission, as no development would proceed to have environmental effects.

Overall, the court concluded that the Board correctly applied the law and the precedent in refusing permission, and that Company A’s challenges to the Board’s interpretation and application of the Development Plan provisions were unfounded.

Holding and Implications

The court DISMISSED the application for judicial review brought by Company A.

The direct effect of this decision is that the Board's refusal of planning permission for the proposed development on the Site is upheld. The court confirmed that the phasing provisions in the Development Plan, as interpreted in the precedent case, constitute zoning objectives that preclude residential development on Phase II lands within the life of the Plan. No broader legal precedent beyond the application of existing principles was established, and the decision reinforces the statutory importance of zoning objectives and the limits of the Board's discretion under section 9(6)(b) of the 2016 Act.