Graymount House Action Group & Ors v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

This application concerns a challenge to a grant of planning permission made by the first respondent in respect of a development at Dungriffin Road, Howth, County Dublin. The permitted development involved demolition of an existing house, known as Graymount House, and construction of a four-storey block of 32 apartments on a 0.48 hectare site.

A decision confirming an intention to grant permission was made by the second respondent on 7 September 2021. The applicants appealed to the first respondent, who granted planning permission on 21 October 2022. The applicants sought leave to proceed by judicial review challenging these decisions. After amendments and adjournments, leave to proceed was granted on 20 March 2023, including liberty to seek reliefs against the third to fifth respondents (the State respondents).

Legal Issues Presented

1. Whether the applicants were entitled to challenge the decision of the second respondent given the subsequent decision of the first respondent.
2. Whether the first respondent failed to properly consider traffic hazards arising from the development.
3. Whether the development constituted a material contravention of the development plan in terms of density, settlement strategy, demolition of a historic building, provision of public open space, and removal of trees.
4. Whether the first respondent and the Board complied with obligations under Directive 2011/92/EU concerning environmental impact assessment (EIA), including consideration of biodiversity and cumulative traffic effects.
5. Whether the State respondents failed to provide practical information as required by Article 11(5) of Directive 2011/92/EU regarding access to judicial review procedures.

Arguments of the Parties

Applicants' Arguments

• The first respondent failed to adequately consider the traffic hazard posed by the development due to inadequate footpaths at either end of Dungriffin Road.
• The development exceeded the density permitted under the Final County Council Development Plan 2017-2023 and contravened the settlement strategy without following correct procedures.
• The demolition of Graymount House was permitted without proper regard to development plan objectives protecting historic buildings.
• The permission failed to secure public access rights to the public open space provided.
• The removal of a substantial number of trees was permitted in contravention of the development plan without adequate reasons.
• The first respondent failed to properly apply the EIA Directive, particularly regarding bats and cumulative traffic effects.
• The State respondents failed to provide practical information enabling the applicants to understand the limitations on challenging planning authority decisions once an appeal to the Board had been made.

Respondents' Arguments

• The applicants were not entitled to challenge the second respondent’s decision after the Board had made its decision, as the planning authority’s decision was annulled by operation of law.
• The traffic impact was negligible based on uncontroverted expert evidence, and the development plan did not specifically address footpaths.
• The density permitted was within a reasonable margin of discretion afforded by the guidelines, and the 2020 guidelines did not repeal the 2009 guidelines but were to be read together.
• The settlement strategy figures were not exceeded as the relevant variation post-dated earlier permissions.
• The demolition of Graymount House was appropriately considered, with the building found to be of limited historic or architectural significance.
• Public open space provision was adequate and secured by conditions in the planning permission; securing public access is a matter for later agreement and implementation.
• The removal of trees was reasonable, with the majority retained and no tree preservation orders affected.
• The Board’s preliminary examination under the EIA Directive was sufficient, with no likelihood of significant environmental effects identified, including on bats and traffic.
• The State respondents provided adequate practical information through statutory provisions, guidance leaflets, and rules of court, fulfilling obligations under the Directive.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the applicants could challenge the second respondent’s decision after the Board’s decision. It held that by operation of statute, the Board’s decision annulled the planning authority’s decision from the date it was made, rendering the planning authority’s decision a nullity and not subject to challenge. The applicants were out of time to challenge the planning authority’s decision, and no exception applied.

Regarding the State respondents, the court found the applicants’ claim that the State failed to provide practical information under Article 11(5) of Directive 2011/92/EU was insufficiently pleaded and without merit. The court held that statutory provisions, guidance leaflets, and rules of court constituted adequate practical information. The applicants’ request for complex legal advice went beyond the scope of "practical information."

On the substantive grounds against the first respondent, the court examined each in turn:

• Traffic Hazard: The court accepted uncontroverted expert evidence that traffic generated by the development would be negligible. The development plan did not address footpaths specifically. The Board’s reliance on the Inspector’s report was reasonable, and the issue involved planning judgment.
• Density: The court found no error in the Inspector’s and Board’s consideration of density. The 2020 Guidelines did not repeal the 2009 Guidelines but were to be read together. The development’s density was within a reasonable margin of discretion.
• Settlement Strategy: The court accepted that the relevant figures in the development plan were not exceeded due to the timing of permissions and variations.
• Demolition of Historic Building: Graymount House was not a protected structure and was found to be in poor condition. The objectives in the development plan were aspirational, allowing planning judgment. The Inspector’s consideration was adequate.
• Public Open Space: The court found that adequate public open space was provided and secured by conditions. The right of public access could be secured subsequently through various legal mechanisms. The applicants confused planning permission with implementation.
• Removal of Trees: The removal of 34 trees was permissible given the arboricultural assessment and landscape plans. The development plan’s objectives on trees were aspirational, involving planning judgment. No contrary expert evidence was presented.
• Environmental Impact Assessment: The Board’s preliminary examination complied with the EIA Directive. The bat survey showed no roosting bats on site and negligible impact on foraging. The cumulative traffic impact was negligible and did not affect distant traffic congestion. The reasoning, while brief, was adequate given the evidence.

Overall, the court found that the Board and Inspector exercised proper planning judgment, gave adequate reasons, and acted within their statutory discretion. None of the grounds justified setting aside the Board’s decision.

Holding and Implications

The court’s final decision was as follows:

• The application for relief against the first respondent is REFUSED.
• The application for relief against the second respondent is DISMISSED as misconceived and out of time.
• The application for relief against the third, fourth, and fifth respondents (the State respondents) is REFUSED.

The direct effect is that the planning permission granted by the first respondent stands. No new legal precedent was established. The decision clarifies the limits on challenging planning authority decisions after a Board decision and affirms the application of planning judgment and statutory discretion in development plan interpretation and EIA screening. The matter was set down for final orders and submissions on costs.