Walsh v An Bord Pleanala & Anor (Approved)

Factual and Procedural Background

The case concerns a housing development at St. Clare's Park, Harold's Cross Road in Dublin 6W, which has undergone eight planning permissions and three judicial reviews. The Applicant resides adjacent to the development and has raised concerns about privacy and overlooking of his property due to the development's impact. A previous judicial review was settled on terms requiring tree planting to protect the Applicant's privacy, but these terms were not fulfilled as the subsidiary developer company was dissolved by its parent company before implementation.

The current dispute involves a hybrid planning permission process, with earlier permissions granted under the normal planning process and a recent application for an additional height increase made under the Strategic Housing Development (SHD) process. The Applicant challenges the latest planning permission granted by the Board, which was subject to a judicial review. The developer did not participate in the proceedings. Procedural history includes pre-application consultations, submissions by the Applicant, site inspections, an oral hearing, and a decision by the Board to grant permission on 15th February 2021.

The Applicant filed the third judicial review seeking certiorari of the Board’s decision. Procedural irregularities were noted concerning the limitation of the oral hearing agenda and communication failures by the Board. The Applicant withdrew certain grounds and the participation of the State was limited by consent. The case proceeded on domestic law grounds.

Legal Issues Presented

1. Whether the Applicant was afforded fair procedures in the consideration of additional material submitted by the developer shortly before and during the oral hearing.
2. Whether there was an error on the face of the record concerning the Board’s failure to expressly consider certain statutory provisions relating to material contravention of the development plan.
3. Whether the Board erred in its daylight and sunlight analysis, specifically regarding compliance with development management criteria and the Building Height Guidelines.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the procedural fairness of the Board’s handling of additional material submitted shortly before and during the oral hearing. While the timing and limited opportunity to respond were acknowledged as less than ideal, the court held that the Applicant had a sufficient opportunity to make submissions, including a concise but pointed submission questioning the developer’s daylight analysis. The court emphasized that the absence of a more detailed affidavit from the Applicant did not preclude demonstrating procedural unfairness, but found no actual unfairness had occurred warranting relief.

Regarding the alleged error on the face of the record, the court found that although the Board did not explicitly reference all relevant statutory provisions (specifically s. 9 of the 2016 Act), there was no failure to consider the applicable legislation. The omission was characterized as a narrative omission rather than a substantive error of law, and no legal requirement currently compels administrative decision-makers to expressly cite every legislative provision.

On the substantive issue of daylight and sunlight analysis, the court identified a critical error in the Board’s assessment. The inspector accepted a developer-proposed daylight standard of 1.5% Average Daylight Factor (ADF) rather than the required 2% standard set out in the Building Height Guidelines. This led to a flawed conclusion that 97.3% of the development complied with standards. The court held that the Board failed to "clearly identify" the extent of non-compliance with the correct standard, which is essential for a proper planning evaluation. This amounted to an error of law that vitiated the decision, as the Board did not properly apply the required guidelines and standards.

Holding and Implications

The court granted an order of certiorari quashing the Board’s decision dated 15th February 2021 under reference number ABP-308533-20. The matter was remitted for reconsideration in accordance with the court’s findings.

The direct effect is that the planning permission granted under the challenged decision is set aside, requiring the Board to reconsider the application with proper adherence to procedural fairness and correct application of daylight and sunlight standards. No new precedent was established beyond clarifying the necessity of applying the correct daylight standards and clearly identifying non-compliance in planning decisions.