Eglington Residents Association & Anor v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The Notice Party applied to Dublin City Council for planning permission to redevelop a site at the junction of Donnybrook Road and Brookvale Road, Dublin 4, currently occupied by a service station. The proposal involved demolishing the existing service station and constructing a 12-story mixed-use block with 84 Build to Rent apartments, a café/restaurant, a retail unit, and associated works. Dublin City Council refused permission in April 2021, citing excessive height and mass, insufficient car parking, and potential prejudice to future public transport infrastructure.

The Notice Party appealed the refusal to An Bord Pleanála, submitting revised reports and drawings proposing a 10-storey alternative. The Inspector recommended refusal based on non-compliance with height guidelines and concerns of overdevelopment and negative visual impact. However, in August 2022, the Board granted permission for a 10-storey mixed-use development with 67 apartments and associated works.

The Applicants were granted leave to seek judicial review of the Board's decision. Several grounds were advanced, including issues related to unilateral amendment of plans, reliance on irrelevant considerations, flood risk assessment, public open space requirements, failure to make the file available for inspection, and the validity of the decision not to require an Environmental Impact Assessment (EIA).

Legal Issues Presented

1. Whether the Board had jurisdiction to grant permission based on modified plans submitted during the appeal, which differed from the original application refused by the planning authority.
2. Whether the Board erred in failing to impose a financial contribution in lieu of public open space or consider if the development materially contravened the City Development Plan regarding public open space.
3. Whether the Board failed to comply with statutory obligations by not making all documents related to the appeal available for inspection within the required timeframe.

Arguments of the Parties

Applicants' Arguments

• The Board lacked jurisdiction to consider the appeal as it included a modified development (reduced from 12 to 10 storeys) not subject to the original public participation process before the planning authority.
• The unilateral submission of modified plans by the Notice Party deprived the public of the opportunity to make submissions on the new proposal.
• The Board failed to impose a condition requiring a financial contribution in lieu of public open space, contrary to the City Development Plan requirements, rendering the permission invalid.
• The Board did not properly interpret or apply the public open space policy in the Development Plan.
• The Board failed to make all appeal documents available for inspection within three days of its decision, breaching section 146(5) of the Planning and Development Act 2000.

Notice Party and Board's Arguments

• Only one application was made to the planning authority for the 12-storey development; the appeal included modifications proposed as alternatives to address reasons for refusal.
• The Board has jurisdiction to consider modifications proposed during appeal, and the submission of revised plans is permissible under the statutory scheme.
• The public had sufficient opportunity to participate and make observations on the modified plans submitted with the appeal.
• Condition 24 imposed by the Board is a general development contribution and not intended as a financial contribution in lieu of public open space.
• The Board accepted that it failed to comply with section 146(5) due to an administrative error but contended this was not a systemic issue and that the file was made available as soon as the error was discovered.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230	Failure to raise jurisdictional issues before the Board does not expand the Board's jurisdiction; public concerned may raise such issues in judicial review.	The court accepted that jurisdictional issues not raised before the Board could be raised in judicial review, provided the pleadings were clear.
Casey v. An Bord Pleanála [2021] IESC 42	Pleadings set the parameters for issues to be determined in judicial review.	The court emphasized the need for clarity in pleadings to fix the issues in dispute.
Concerned Residents of Treascon & Clondoolsk v. An Bord Pleanála [2024] IESC 28	Parties must identify legal frailties before seeking leave for judicial review; leave is permission to pursue specific grounds.	The court applied this principle to assess whether grounds were within the parameters of the case.
South-West Regional Shopping Centre v An Bord Pleanála [2016] IEHC 84	The Board cannot have jurisdiction if the initial planning application is invalid.	The court distinguished this case, finding the appeal did not amount to a new application.
Sweetman v. An Bord Pleanála [2021] IEHC 390	Applications must specify plans and particulars with sufficient certainty; overly variable designs are invalid.	The court found the appeal here involved an alternative with clear parameters, unlike the variable design in Sweetman.
Shadowmill (Unreported, High Court, 2010)	The Board may grant permission for part of a development sought; omission of part is less likely objectionable.	The court relied on Shadowmill to find the Board's conditional reduction of height was permissible.
Bernard Wheatcroft Limited v. Secretary of State for the Environment (1982) 43 P & CR 233	Whether amendments alter the substance of the application and deprive public of consultation opportunity.	The court applied this to assess if the modified plans were substantially different from the original application.
Dietacaron Ltd v An Bord Pleanála [2005] 1 ILRM 32	Dialogue and public participation are essential in planning processes involving modifications.	The court held that public participation rights must be protected when modifications are proposed.
Coyne v An Bord Pleanála [2023] IEHC 412	The Board can grant permission for modified developments proposed by developers during appeals.	The court followed Coyne to reject arguments against the Board considering modifications proposed by the developer.
Kerins v. An Bord Pleanála [2023] IEHC 280	Interpretation of Development Plan provisions related to public open space and financial contributions.	The court relied on Kerins to analyze the requirements for public open space and financial contributions.
Roughan v. Clare County Council (unreported, 1996)	Material contravention of development plan policies requires careful consideration.	The court applied Roughan in assessing whether the Board's decision involved material contravention.
Redmond v. An Bord Pleanála [2020] IEHC 151	The Board's discretion is broad but it must have regard to the development plan.	The court emphasized the Board's obligation to consider the development plan in decision-making.
Attorney General (McGarry) v. Sligo County Council [1991] 1 IR 99	Development plan as a binding environmental contract between council and community.	The court cited this to underline the importance of adherence to development plans.
Byrne v. Fingal County Council [2001] 4 IR 565	Planning authorities must discharge functions strictly according to the development plan.	The court reinforced the binding nature of development plans on planning authorities.
Sherwin v. An Bord Pleanála [2024] IESC 13	Development plans must be interpreted holistically and reasonably, not overly technically.	The court applied this principle to interpret the public open space provisions.
Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403	Financial contribution in lieu of public open space may be required and conditions must be valid.	The court compared the present case to Pembroke Road, noting differences in condition validity.
Killegland Estates v. Meath County Council [2022] IEHC 393; [2023] IESC 39	Decision makers should provide clear reasons to avoid confusion about relevant considerations.	The court applied this to the Board's failure to explain its approach to public open space policy.
Rana v. Minister for Justice [2024] IESC 46	Importance of clear and concise reasons from decision makers for transparency and rule of law.	The court noted the absence of clear reasoning in the Board's decision regarding public open space.
Save Cork City Community Association CLG v. An Bord Pleanála [2021] IEHC 509	Declaratory relief may be granted to mark systemic non-compliance with statutory obligations.	The court considered whether the Board's failure to make documents available warranted declaratory relief.
Recorded Artists Actors Performers Limited v. Phonographic Performance (Ireland) Limited & Ors [2022] IECA 8	Declaratory relief is a discretionary remedy granted when legal arguments are upheld.	The court granted declaratory relief to address the Board's failure to comply with document availability requirements.
Clifford & Sweetman v. An Bord Pleanála (No. 3) [2022] IEHC 474	Prejudice is not necessary for declaratory relief to clarify the law and ensure proper administration.	The court affirmed the appropriateness of declaratory relief despite absence of demonstrated prejudice.

Court's Reasoning and Analysis

The court examined whether the Board had jurisdiction to grant permission based on modified plans submitted during the appeal. It found that the appeal was against the refusal of the original 12-storey development and that the inclusion of a 10-storey alternative did not amount to a new application. The statutory scheme permits the Board to consider modifications proposed by the developer during appeal and to impose conditions modifying the development, provided there is no fundamental change or prejudice. The court rejected the Applicants' contention that the unilateral submission of modified plans deprived the public of participation rights, noting that the public had an opportunity to observe and comment on the modifications.

Regarding public open space, the court held that the City Development Plan requires 10% of the site area to be reserved as public open space or, where appropriate, a financial contribution in lieu. The Board failed to impose such a financial contribution and did not properly consider or interpret the relevant policy. The absence of any analysis or explicit decision on this policy in the Board's decision rebutted the presumption that it was considered. The Board’s interpretation, which allowed dispensing with both public open space and financial contribution, was found to be incorrect and unlawful.

The court acknowledged that the Board had jurisdiction to grant permission despite material contravention of the development plan but emphasized that such departure must be conscious and deliberate with reasons provided. The failure to address the public open space policy properly invalidated the decision.

On the issue of document availability, the court found that the Board breached section 146(5) by failing to make all documents related to the appeal available for inspection within three days of the decision due to an administrative error involving separation of files and boxes. Although the Board located the missing documents later and communicated with the Applicants, the breach was established. The court considered the Board’s system weak and not shown to have been changed to prevent recurrence.

The court considered the appropriateness of declaratory relief to mark the Board's failure, noting that while no prejudice was demonstrated, such relief serves to clarify legal obligations and promote proper administration. The court found no basis to excuse the breach or to deny relief on grounds of lack of prejudice.

Holding and Implications

The court granted an order of certiorari quashing the Board's Order dated 10 August 2022 that granted planning permission to the Notice Party subject to conditions. It also granted a declaration regarding the Board's failure to comply with section 146(5) of the Planning and Development Act 2000 by not making all documents available for inspection within the statutory timeframe.

The direct effect of this decision is to invalidate the permission granted by the Board for the proposed development. The Board must reconsider the appeal with proper regard to the public open space policy and the requirement for a financial contribution in lieu or public open space provision. The decision underscores the necessity for the Board to correctly interpret and apply development plan policies and to comply strictly with procedural obligations relating to public access to documents. No new precedent beyond the application of existing principles was established.