Ventaway Ltd v An Comisiuin Pleanala (Approved)

Factual and Procedural Background

The Applicant applied for planning permission to demolish existing buildings and construct a 24-storey mixed-use building on a site bounded by City Quay, Moss Street, and Gloucester Street South in Dublin. Previous high-rise developments nearby had been permitted, including an 88-metre tower at Tara Street and an 82.5-metre residential tower at Apollo House. The Applicant submitted the application to Dublin City Council in August 2022, which refused permission in October 2022 based on planning and heritage concerns, notably the adverse impact on the Custom House and its environs.

The Applicant appealed to the planning board, which appointed an inspector who recommended granting permission subject to conditions. The board, however, refused permission in May 2024, disagreeing with the inspector on key issues including visual impact, cluster integration, and compliance with development plan criteria.

Judicial review proceedings were initiated by the Applicant in June 2024. Leave to apply for judicial review was granted in July 2024. The matter was heard in May 2025, with judgment reserved and a draft judgment circulated to the parties in July 2025. By operation of law, the planning board was replaced by the commission during the proceedings. Subsequently, the council granted permission for a reduced 14-storey alternative development in June 2025.

Legal Issues Presented

1. Whether the Board erred in law or fact in concluding that the proposed development site was located within the 'Dublin Historic Core' as defined in the Dublin City Development Plan 2022-2028, and whether adequate reasons were provided for this conclusion and for disagreeing with the inspector.
2. Whether the Board provided adequate reasons for finding that the proposed development did not meet the performance criteria in Tables 3 and 4 of Appendix 3 to the Development Plan, and whether it correctly interpreted those criteria.
3. Whether the Board erred in refusing permission based on the limited amount of cultural space and public realm upgrades, contrary to the inspector's findings and the Development Plan's objective CUO25.
4. Whether the Board failed to carry out an Environmental Impact Assessment (EIA) in accordance with statutory and EU law requirements despite the application being accompanied by an Environmental Impact Assessment Report (EIAR).
5. Whether the Board failed to properly consider or engage with the criteria under section 3.2 of the Urban Development and Building Height Guidelines 2018, including compliance with Specific Planning Policy Requirement (SPPR) 3A.
6. Whether the Board adequately considered the performance criteria set out in the Development Plan and whether the expertise of Board members was sufficient for assessing visual and landscape impact.
7. Whether the Board erred in its interpretation of the Strategic Development Regeneration Area 6 (SDRA 6) provisions, particularly regarding the envisaged building height and the site's designation as a local landmark.

Arguments of the Parties

Applicant's Arguments

• The Board materially erred in law and fact by incorrectly locating the proposed development within the historic city core, without adequate reasons or reference to relevant Development Plan maps and definitions.
• The Board failed to provide adequate reasons for rejecting the inspector's detailed analysis and recommendations, particularly regarding the cluster formation, public realm enhancements, and visual impact assessments.
• The Board misinterpreted and failed to properly apply the performance criteria in Tables 3 and 4 of Appendix 3, including the criteria for landmark tall buildings and enhanced height, density, and scale.
• The refusal was irrational, particularly given the Board's reliance on limited cultural space and public realm upgrades despite the proposal exceeding Development Plan objectives.
• The Board failed to carry out a required Environmental Impact Assessment, breaching section 172 of the Planning and Development Act 2000, the 2001 Regulations, and the EU EIA Directive, as it did not adopt or conduct its own EIA contrary to the inspector’s report.
• The Board did not engage with or provide reasons on the 2018 Urban Development and Building Height Guidelines, including SPPR 3A, despite the inspector’s extensive analysis and recommendation to grant permission on that basis.
• The Board's decision was tainted by the lack of expertise of two of its members in assessing landscape and visual impacts.
• The Board misinterpreted the SDRA 6 provisions by applying a 5 to 8 storey limit where the site was designated for a locally higher building, and failed to properly assess the proposal against relevant performance criteria.

Respondent's Arguments

• The Board’s reference to the site being within the historic core was a matter of legal interpretation and/or fact, supported by Development Plan policies and maps, and did not require detailed reasons.
• The Board’s main and substantive reasoning focused on the significant negative impact on the Custom House and environs, a conclusion shared by the planning authority and the Office of Public Works (OPW), which was not challenged by the Applicant.
• The Board adequately considered the performance criteria in the Development Plan, and its evaluative judgment on cluster formation, public realm, and visual impact was reasonable and supported by evidence including the planner’s report and OPW submissions.
• The Board was not obliged to provide a discursive or point-by-point response to the inspector’s report or submissions, and it lawfully exercised its planning judgment in reaching a different conclusion.
• The Board complied with its statutory obligations regarding expertise, as it had access to necessary expertise, and the Applicant failed to prove a lack of such expertise.
• The Board was entitled to refuse permission without conducting a new EIA where the refusal was based on non-EIA reasons, and there is no legal requirement to carry out an EIA prior to refusal.
• The Board’s decision was consistent with the Development Plan and the Urban Development and Building Height Guidelines, which informed the plan, and it was not required to separately consider the 2018 guidelines or SPPR 3A where it found non-compliance with the plan.
• The Board’s interpretation of SDRA 6 and its application of performance criteria was correct and supported by the evidence and planning policy.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court emphasized the central importance of providing main reasons on main issues in judicial review of planning decisions, particularly where the decision-maker diverges from the inspector on decisive points. The Court found that the Board’s failure to engage with or provide reasons addressing the inspector’s detailed analysis of the 2018 Urban Development and Building Height Guidelines, including SPPR 3A, was a critical deficiency. The guidelines, which the inspector relied upon to recommend permission, were not even mentioned by the Board, which is a failure to give reasons on a main issue.

Regarding the interpretation of the 'historic core,' the Court determined that the Board’s finding that the site was within the historic core was a matter of legal interpretation supported by Development Plan maps (notably the 1840 municipal boundary) and policies. This did not require detailed evaluative reasons. The Board’s reliance on the planning authority’s reasoning was accepted, but the Court noted the need for coherence in reasons when adopting such views.

The Court accepted that issues such as cluster formation, public realm enhancements, and visual impacts are evaluative judgments subject to a margin of discretion. The Board’s reasons, though not extensive, met the minimum standard for such evaluative matters. The Board’s conclusion that the development would stand apart as an overly assertive solo building and that planning gain to the community was insufficient was a valid evaluative judgment.

On the Environmental Impact Assessment (EIA), the Court held that the Board was statutorily obliged to carry out an EIA before making its decision, regardless of whether the decision was to grant or refuse permission. The inspector conducted an EIA supporting permission, but the Board did not carry out or adopt an EIA supporting refusal. The absence of a Board-conducted or adopted EIA with a reasoned conclusion rendered the decision invalid. The Court rejected the Board’s argument that no EIA was required when refusing permission for non-EIA reasons, finding this contrary to the clear statutory language and purpose.

The Court also addressed the allegation that some Board members lacked expertise in landscape and visual impact assessment, concluding that as long as the Board had access to sufficient expertise, individual members’ lack of expertise was not determinative. The Applicant failed to discharge the burden of proof on this point.

Finally, the Court found no material error in the Board’s interpretation of the Strategic Development Regeneration Area 6 provisions or its application of performance criteria, rejecting the Applicant’s contention that the Board unlawfully precluded permission based on cluster considerations.

Holding and Implications

The Court made the following orders:

• An order amending the court records to reflect the substitution of the commission for the board.
• An order of certiorari quashing the Board’s decision dated 7 May 2024 refusing planning permission for the 24-storey mixed-use development.
• An order remitting the application to the commission to be determined in accordance with law.
• The order for costs was limited to those relating to the successful grounds and was to be perfected forthwith unless otherwise applied for by parties.

The direct consequence of this decision is that the Board’s refusal is declared invalid and the matter must be reconsidered by the commission with proper engagement of the 2018 guidelines and a lawful EIA process. No new legal precedent was established beyond the application of settled principles concerning reasons, EIA obligations, and evaluative discretion in planning decisions.