Sherwin v An Bord Pleanala (Approved)

Factual and Procedural Background

The Notice Party/Appellant sought permission from the Respondent Agency under the Strategic Housing Development (SHD) procedure to construct a large “build-to-rent” scheme of 1,592 apartments on the grounds of a former seminary in The City. Five on-site buildings are listed as protected structures, and an adjoining eighteenth-century building (“The Building”) just outside the development boundary is also protected.

The Respondent Agency granted permission on 4 November 2021. The Applicant challenged that decision by judicial review. Judge Humphreys of the High Court quashed the permission, holding—inter alia—that:

• the Agency failed to apply section 57(10) of the Planning and Development Act 2000 to proposed demolitions affecting protected structures;
• the permission materially contravened the Development Plan’s heritage and basement policies without lawful justification; and
• the Agency’s decision lacked adequate reasoning.

The High Court refused leave to appeal to the Court of Appeal. The Notice Party/Appellant then obtained leave from the Supreme Court. The present judgment, delivered by Judge Woulfe for a five-judge panel, determines that appeal.

Legal Issues Presented

1. Whether section 57(10)(b) of the 2000 Act requires “exceptional circumstances” for the demolition of any part of a protected structure, or only for total/substantial demolition.
2. Whether the High Court applied the correct standard of judicial review when deciding that the development materially contravened the Development Plan (heritage height/scale policy CHC2 and basement policy 16.10.15).
3. Whether the Respondent Agency gave legally adequate reasons for disregarding the City Council Conservation Officer’s objections on height, scale, curtilage impact and basement excavation.

Arguments of the Parties

Notice Party/Appellant's Arguments

• Section 57(10)(b) applies only to total or substantial demolition; applying it to minor or partial works renders other statutory provisions meaningless and frustrates adaptive re-use of heritage buildings.
• Policy CHC2 and policy 16.10.15 confer wide planning discretion; the High Court impermissibly substituted its own view for the Agency’s expert judgment.
• The Agency’s reasons were sufficient when read with the Inspector’s report.

Respondent Agency's Arguments

• The High Court’s five-step test for section 57(10) wrongly extends the “exceptional circumstances” hurdle to every minor removal within a protected structure.
• Determining whether a proposal “relates to and complements” a protected structure is an exercise of planning judgment reviewable only for irrationality.
• The Inspector addressed heritage and basement issues adequately; any remaining concerns could be managed by conditions.

Applicant's Arguments

• The statutory definition of “structure” “includes any part of a structure” and therefore section 57(10)(b) is triggered by demolition of even small elements.
• The Agency never applied policy CHC2 or basement policy 16.10.15; alternatively, any implicit application was irrational.
• The Agency failed to grapple with the Conservation Officer’s detailed objections, breaching its duty to give intelligible reasons.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1 – Interpretation of section 57(10)(b): The Court held that “protected structure” in section 57(10)(b) refers to the whole structure, not every component. Contextual clues—such as recurring statutory references to “structure or part of structure” when that broader meaning is intended—required a narrower reading here. A graduated protection scheme already exists: minor works are controlled by sections 4(1)(h) and 57(1); only wholesale demolition triggers the “exceptional circumstances” bar.

Issue 2 – Material Contravention & Standard of Review: Drawing on Judge Holland’s spectrum approach, the Court agreed that review intensity turns on how much discretion the Development Plan affords. Before that question even arises, however, the decision-maker must actually determine whether a material contravention exists. Here, the Inspector and Board never applied policy CHC2 or basement policy 16.10.15 to the facts. Their failure to engage with those provisions rendered the permission unlawful irrespective of the review standard.

Issue 3 – Adequacy of Reasons: Applying Connelly, the Court found the Agency’s reasoning deficient. The Inspector disregarded the Conservation Officer’s detailed warnings about (a) Block D1’s excessive height and curtilage impact and (b) the basement’s destruction of mature landscaping. Vague assurances that impacts were acceptable, or could be managed by a “method statement,” did not explain why the statutory policies—aimed precisely at those harms—were set aside.

Holding and Implications

HOLDING: Appeal DISMISSED; High Court order quashing the planning permission is AFFIRMED.

Immediate Effect: The Respondent Agency’s grant of permission is void. Any future application must re-assess partial demolition under section 57, explicitly address heritage and basement policies, and supply cogent reasons.

Broader Implications: The judgment clarifies that (i) the “exceptional circumstances” test applies only to total demolition of protected structures, and (ii) planning authorities must expressly engage with Development Plan heritage policies; failure to do so will invalidate permissions. Although no new precedent was created on the standard of review, the Court endorsed a nuanced, spectrum-based approach.