Leech & Anor v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

An application was made to the planning authority for permission for a strategic housing development (SHD) comprising five blocks ranging from 3 to 18 storeys, located at a site within a designated Strategic Development and Regeneration Area (SDRA 7) in an urban area zoned with Zone Objective Z5. The site is adjacent to a protected structure, the Royal Hospital Kilmainham (RHK), noted for its international significance. The proposed development included 399 residential units, ancillary amenities, retail space, and associated infrastructure works.

The application was submitted directly to the Board under the Planning and Development (Housing) and Residential Tenancies Act, 2016, which restricts the Board from requesting additional information post-application. Multiple third-party submissions were made, including concerns from heritage and planning bodies.

The Board's Inspector recommended permission subject to conditions, including height reductions and omission of an architectural feature, to protect the RHK and visual amenities. The Board granted permission with conditions but did not accept all Inspector recommendations, notably declining to reduce the height of one block as suggested.

The Applicants, both qualified architects with expertise in architecture and urban planning, challenged the Board's decision by seeking judicial review, raising multiple grounds including alleged material contravention of the development plan, particularly concerning the "cone of vision" protecting important views from the RHK.

Leave to apply for judicial review was granted, and the matter proceeded with cross-examination of key witnesses. The court was tasked with determining whether the Board acted lawfully in granting permission, especially regarding material contravention and planning jurisdiction.

Legal Issues Presented

1. Whether the Board had jurisdiction to accept and determine the SHD application given the zoning of the site as Zone Z5, which is primarily mixed use and not exclusively residential.
2. Whether the issue of the "cone of vision" was adequately pleaded in the Applicants’ Statement of Grounds to ground relief.
3. Whether the proposed development materially contravened the development plan by adversely affecting the protected "cone of vision" view associated with the Royal Hospital Kilmainham.
4. Whether the Board lawfully exercised its discretion and complied with statutory procedures, including section 9(6) of the 2016 Act, when granting permission despite any material contravention.
5. Whether the conditions imposed by the Board, particularly those requiring agreement on points of detail between the developer and planning authority, were lawful and consistent with principles of public participation and European law.

Arguments of the Parties

Applicants' Arguments

• The Board lacked jurisdiction to determine the SHD application because the zoning objective Z5 does not primarily provide for residential use.
• The Board unlawfully granted permission despite the proposed development materially contravening the development plan by adversely impacting the cone of vision protecting views from the Royal Hospital Kilmainham.
• The issue of material contravention concerning the cone of vision was sufficiently pleaded in the Statement of Grounds, despite some alleged lack of particularity.
• The Board failed to invoke the statutory material contravention procedure under section 9(6) of the 2016 Act when granting permission despite adverse impacts on the cone of vision.
• The conditions imposed, especially those requiring agreement on details post-decision, breached European law due to lack of public participation and inadequate scope for environmental impact and habitats assessment.

Respondents' and Developer's Arguments

• The zoning of the site as mixed use (Z5) includes residential use, and therefore the Board had jurisdiction to accept and determine the SHD application.
• The Applicants’ pleadings on the cone of vision and material contravention were insufficiently particularised and unclear, thus not properly before the Court.
• The Board properly assessed the impact on the cone of vision and found that while there was a marginal adverse impact, it was not sufficient to warrant refusal of permission.
• Development within the cone of vision is not prohibited by the development plan; the plan only precludes developments that adversely affect the view.
• The Board’s imposition of conditions requiring agreement on points of detail was lawful and consistent with established case law and did not require public participation.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the jurisdictional issue, concluding that the mixed-use zoning (Z5) includes residential use and thus falls within the definition of strategic housing development under the 2016 Act. The Applicants’ argument that the zoning must be primarily residential was rejected.

On the adequacy of pleadings, the Court found that despite the complexity and breadth of the Statement of Grounds, the issue of material contravention concerning the cone of vision was pleaded with sufficient clarity and particularity to put the Respondents and the Developer on notice.

The Court then examined the material contravention issue. It acknowledged the binding nature of the development plan as an environmental contract and the importance of protecting views and landmarks, specifically the cone of vision protecting the setting of the Royal Hospital Kilmainham.

The Court observed that the Board and Inspector found that the development would have an adverse effect on the cone of vision, albeit a marginal or not significant enough effect to warrant refusal. The development was partly within the cone of vision, and the Board did not dispute this.

Guiding Principle 8 of the development plan explicitly prohibits any new developments within the cone of vision that adversely affect the view. The Court held that any adverse effect within the cone of vision amounts to a material contravention of the development plan.

The Board failed to invoke the material contravention procedure under section 9(6) of the 2016 Act, which is mandatory when permission is granted despite such contravention. By granting permission without this procedure, the Board acted unlawfully.

The Court also considered the lawfulness of conditions requiring agreement on points of detail between the developer and planning authority. It found that the nature of these matters was limited to technical details, consistent with established case law, and did not require public participation. Therefore, the conditions were lawful.

The Court declined to decide on alleged breaches of European law related to public participation and environmental assessments, as the primary ground of unlawfulness was sufficient to dispose of the case.

Holding and Implications

The Court granted an order of certiorari quashing the grant of permission dated 31 March 2022 relating to the SHD application.

The direct effect is that the planning permission granted by the Board is invalidated due to failure to comply with statutory material contravention procedures concerning the adverse impact on the protected cone of vision. No new precedent was established beyond affirming the requirement that the Board must invoke section 9(6) of the 2016 Act when granting permission in material contravention of the development plan.