Monkstown Road Residents’ Association & Ors v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The Applicants, a local residents association and local residents, sought to quash the decision of the First Respondent Board made on 25 August 2020 granting planning permission to the First Notice Party for a strategic housing development ("SHD") on a site of approximately 3.66 hectares at a location identified as Dalguise House, Monkstown Road, Monkstown, Blackrock, County Dublin. The site lies within the functional area of the second Notice Party as planning authority.

Dalguise House is a large 19th-century two-storey over basement residence designated as a protected structure. The site includes the house, its walled garden, stable blocks, paddock, lawns, avenues, and other features. The site is zoned "A" in the relevant Development Plan, which aims to protect and/or improve residential amenity and permits residential development in principle.

The planning application sought permission for 290 residential units comprising houses and apartments, a creche, and refurbishment and relocation of existing glasshouses within the site. The proposed apartment blocks varied in height, with the highest block reaching nine storeys. The resultant residential density was approximately 82 units per hectare.

The Board granted permission subject to conditions, including mitigation measures for ecological concerns and architectural conservation. The permission authorizes a material contravention of the Development Plan's Building Height Strategy, permitting building heights exceeding the plan's limits by up to six storeys, relying on specific planning policy requirements ("SPPRs") in the 2018 Height Guidelines.

The Applicants challenged the decision by judicial review on multiple grounds, including alleged failures in environmental impact assessment screening, appropriate assessment screening under the Habitats Directive, adequacy of reasons, interpretation of protected structure curtilage, and the Board's application of SPPRs related to building height and material contravention. The State Respondents and Irish Water did not participate in the trial, and certain reliefs against them were deferred or struck out.

Legal Issues Presented

1. Whether the Board erred in screening out Environmental Impact Assessment ("EIA") contrary to Articles 2 and 3 of the EIA Directive and failed to provide adequate reasons for that screening decision.
2. Whether the Board erred in screening out Appropriate Assessment ("AA") contrary to Article 6 of the Habitats Directive, particularly in relation to the capacity of the Ringsend Waste Water Treatment Plant ("WwTP") and in-combination effects of discharges.
3. Whether the Board failed to adequately consider and identify the curtilage of the protected structure Dalguise House and the significance of its impact in EIA screening and planning assessment.
4. Whether the Board misapplied the specific planning policy requirements (SPPR1 and SPPR3) of the 2018 Height Guidelines in authorizing a material contravention of the Development Plan.
5. Whether the Board's adoption of a "precautionary approach" in its material contravention reasoning was lawful or constituted prejudgment bias.
6. Whether the Board failed to properly apply the Bathing Water Directive in considering the effects of storm water overflows on the Seapoint bathing area.
7. Whether the Board had sufficient scientific expertise and conducted adequate independent scientific review for the purposes of Article 12 of the Habitats Directive.

Arguments of the Parties

Applicants' Arguments

• The Board failed to provide adequate reasons for its decision, particularly in relation to EIA screening and the identification and protection of the curtilage of the protected structure.
• The EIA screening report adopted by the Board inadequately described the environmental effects and blurred the question of significance by using ambiguous terms such as "slight" and "moderate" without clarifying their significance.
• The Board failed to properly identify the curtilage of Dalguise House as part of the protected structure and did not consider the gardens' protected status in EIA screening.
• The Board erroneously relied on SPPR1 of the 2018 Height Guidelines to justify permission in material contravention of the Development Plan, despite SPPR1 applying only to adoption or variation of development plans, not to individual planning decisions.
• The Board failed to apply the broad principles of Section 3.1 of the Height Guidelines and did not consider whether the planning authority could meet housing targets within existing height restrictions.
• The Board's adoption of a "precautionary approach" to material contravention was improper, defensive, and indicative of prejudgment bias.
• The Board erred in screening out Appropriate Assessment, failing to consider the overloaded status of Ringsend WwTP and the in-combination effects of discharges from the proposed development with other developments.
• The Board relied improperly on an Irish Water letter of no objection that did not address treatment capacity, thereby failing to assess compliance with the Urban Waste Water Treatment Directive.
• The Board failed to consider the Bathing Water Directive, particularly the risk of increased overflows from the West Pier Pumping Station leading to bathing water quality deterioration at Seapoint.
• The bird surveys submitted were inadequate, not made available for public inspection, and scientifically insufficient to support screening decisions.
• The Board lacked sufficient scientific expertise to properly evaluate the proposal under Article 12 of the Habitats Directive and failed to conduct an independent scientific review.

Respondents' and Notice Parties' Arguments

• The Board's decision generally adopted the Inspector's comprehensive report and recommendations, which included detailed consideration of environmental and planning issues.
• The Board had the requisite expertise to perform its functions and was not obliged to obtain independent scientific assistance.
• The EIA screening report complied with applicable guidelines and adequately addressed significance of effects, including cultural heritage and ecological impacts.
• The identification of the curtilage and the effect of the development on the protected structure and its setting were properly considered, including by reference to the Architectural Heritage Impact Assessment and Development Plan policies.
• The Board was entitled and obliged to apply SPPR1 and SPPR3 of the 2018 Height Guidelines pursuant to Section 9(3) of the 2016 Act, regardless of whether the Development Plan was varied accordingly.
• The Board properly assessed the density gradient in accordance with the Sustainable Residential Development Guidelines 2009 and the proximity of the site to public transport nodes.
• The Board and the Inspector properly screened out AA, relying on expert reports, the HHQRA, and the anticipated upgrades to Ringsend WwTP, which would maintain or improve water quality in Dublin Bay.
• Irish Water's Statement of Design Acceptance related to internal infrastructure design and was not indicative of treatment capacity; the Board did not rely on it improperly.
• The Board considered the Bathing Water Directive matters, and the proposed development would not exacerbate storm water overflow issues at the West Pier Pumping Station, with foul and stormwater drainage systems separated within the site.
• The bird surveys and ecological assessments were appropriate and sufficient for screening purposes, and the Board was entitled to assess their adequacy based on the information before it.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began with the established principle that decisions of the Board enjoy a presumption of validity, which the Applicants bear the burden to rebut by demonstrating illegality, irrationality, or failure to comply with statutory obligations.

On adequacy of reasons, the Court held that the Board's adoption of the Inspector's report generally sufficed to meet the obligation to state reasons, except where the Board explicitly diverged from the Inspector. The Board's decision to grant permission "generally in accordance with the Inspector's recommendation" was deemed sufficient to impute adoption of the Inspector's reasoning.

Regarding the protected structure and its curtilage, the Court analyzed statutory provisions and case law defining protected structures to include their curtilage, which encompasses grounds, gardens, and ancillary structures intimately associated with the main building. The Court found that although the Board and Inspector did not explicitly identify the gardens as curtilage, the extensive consideration of the site's features, objections, and heritage assessments demonstrated that the Board was aware of and considered the curtilage as part of the protected structure. The Applicants failed to rebut the presumption that the Board complied with its obligations in this respect.

On EIA screening, the Court scrutinized the methodology and reasoning of the EIA Screening Report, noting it adopted definitions of significance from draft EPA guidelines that included ambiguous intermediate categories ("slight" and "moderate") without clarifying their significance. The Board found an absence of significant environmental sensitivities on a site that was largely a protected structure with acknowledged irreversible alterations. The Court found this inconsistent and that the Board failed to provide adequate reasons for its conclusion that EIA was unnecessary, particularly regarding cultural heritage impacts. The Court indicated that remittal for proper EIA screening might be necessary.

Regarding the Board's reliance on SPPR1 and SPPR3 of the 2018 Height Guidelines, the Court found that the Board explicitly applied SPPR1 pursuant to its obligation under Section 9(3) of the 2016 Act. However, the Court followed binding precedent in Clonres that SPPR1 applies only to adoption or variation of development plans and cannot justify material contravention permissions. Therefore, the Board erred in relying on SPPR1 to justify the material contravention. The Court rejected challenges to the Board's application of SPPR3, including the density gradient issue, finding the Board properly considered relevant policies and evidence.

The Court rejected the Applicant's challenge to the Board's adoption of a "precautionary approach" in material contravention reasoning, finding that the Board explicitly found a material contravention and did not act on irrelevant considerations or prejudgment bias.

On Appropriate Assessment screening, the Court found the Board erred in concluding that Ringsend WwTP had remaining treatment capacity, acknowledging the plant was overloaded and non-compliant with effluent standards. Nonetheless, the Board and Inspector relied on expert reports, including a Hydrological and Hydrogeological Qualitative Risk Assessment and the 2018 Ringsend WwTP upgrade EIAR, concluding that the additional foul water discharge from the proposed development represented a very small proportion of the overall licensed discharge and would not significantly affect water quality or European sites. The Court found no evidence before the Board to challenge that conclusion and rejected the Applicant's arguments regarding in-combination effects and reliance on Irish Water's letter of no objection.

Regarding the Bathing Water Directive, the Court found that the Board and Inspector considered the issue of storm water overflows from the West Pier Pumping Station and their impact on the Seapoint bathing area. The proposed development would not increase storm water flows to the pumping station due to separation of foul and stormwater drainage within the site. The existing overflow issues were not attributable to the proposed development, and expert evidence indicated that bathing water quality remained excellent. The Court rejected the Applicant's challenge on this ground.

On the adequacy of bird surveys and ecological assessments, the Court found that while the raw survey data was not before the Board, the Board received summary information sufficient for EIA screening purposes. The Court emphasized that adequacy of information for screening is a matter for the Board's expert judgment and rejected the Applicant's attempt to rely on evidence not before the Board. The Court also rejected the Applicant's argument concerning the impact of the loss of the site on a wider biodiversity network, except allowing the possibility of further argument regarding bats.

The Court found the Applicant's plea that the Board lacked sufficient scientific expertise was insufficiently pleaded and unargued and therefore rejected.

Holding and Implications

The Court's final decision was to QUASH the Impugned Permission on the following grounds:

• The Board erred in adopting an EIA Screening Report that did not adequately describe environmental effects and failed to provide adequate reasons for concluding that EIA was not required, particularly regarding cultural heritage impacts.
• The Board failed to give adequate reasons for its EIA Screening decision as to the insignificance of effect on cultural and architectural heritage associated with the protected structure and its curtilage.
• The Board erroneously relied on SPPR1 of the 2018 Height Guidelines to justify permission in material contravention of the Development Plan, contrary to binding precedent.

The Court rejected all other grounds of challenge, including those relating to AA screening, Bathing Water Directive compliance, adequacy of bird surveys, scientific expertise, and procedural fairness.

The direct effect of this decision is that the planning permission granted under the impugned order is set aside. The matter may be remitted to the Board for reconsideration, including proper EIA screening and compliance with applicable legal and policy requirements. No new precedent beyond application of existing case law was established.