Summary of Judgment

Factual and Procedural Background

The Applicants, an unincorporated association of local residents and an individual resident ("Applicants"), sought judicial review of a Section 5 declaration issued by the planning authority ("Company A") on 22 August 2024. Company A had declared that certain proposed works by the Notice Party ("Company B") in a Victorian garden square used as sports facilities were exempted development under Class 33(c), Schedule 2, Part 1 of the Planning and Development Regulations ("PDRs"). The proposed works form part of a wider project ("Project Kenilworth") and include replacing grass pitches with two full-size pitches (one 4G and floodlit), a new pavilion, entrances and a car park; the Section 5 declaration concerned reconfiguring two smaller pitches into one all-weather 4G pitch with 1.2 m perimeter fencing. The Applicants advanced two principal grounds: (1) the works are not within the claimed Section 5 exemption (Core Ground 1) and (2) the works constitute an "infrastructure" or "urban development" project requiring Environmental Impact Assessment (Core Ground 4). Judge Nolan delivered the judgment dismissing the application.

Legal Issues Presented

1. Whether the proposed works fall within the Class 33(c) exemption (development consisting of the laying out and use of land for athletics or sports where no charge is made for admission of the public to the land).
2. Whether the proposed works constitute an "infrastructure project" or "urban development" for the purposes of EIA (Schedule 5, Part 2, Section 10(b)(iv) of the PDRs) such that an EIA screening or EIA was required.

Arguments of the Parties

Applicants' Arguments (Attorney Flynn)

• The scale and nature of the works (major excavations, import/export of substantial materials, construction of a 4G pitch with drainage and foundations) are not minor and thus cannot be exempted; Class 33 should be strictly construed and read to exclude such works.
• Class 33 should be interpreted as limited to essentially two-dimensional or minor surface works; substantial excavation is inconsistent with "laying out of lands" (relying on Heather Hill).
• The Council erred in concluding there would be no charge for public admission: the facility will be available to invited third parties for a fee, which the Applicants say amounts to charging the public and defeats the exemption.
• The Council failed to undertake lawful EIA screening and did not have adequate objective information (project description, duration, waste volumes, biodiversity impacts, drainage/flood risk) to exclude the need for EIA, breaching Article 4(4)/(5)(b) of the EIA Directive and related statutory provision.

Company A's Response (Attorney Dodd)

• While exemptions must be strictly construed, they must also be given effect; Class 33 is not limited to trivial works and should be interpreted in the context of the PDA and statutory definitions of "development" and "works".
• Definitions in the PDA include works "in, on, over or under land" and "works" includes excavation, so the proposed subterranean and construction works can fall within the Class 33 description.
• The Class 33 restriction concerns charging for admission to the land, not charging for use of facilities; Company A accepted the applicant's documentation that no charge will be made for public admission.
• On EIA, the works do not fall within Schedule 5 infrastructure categories; procedural discussion in the planning report was precautionary and any substantive EIA issues are irrelevant if the works are not an EIA project.

Company B's Response (Attorney Fitzsimons)

• Section 5 declarations are for planning authorities to determine; Company B submitted that laying an artificial surface is development consisting of laying out and use of land for sports and fits within Class 33(c).
• Class 33 contains no limitation requiring works to be "minor or insignificant"; where limitations are needed they are set out in the regulations and are absent here.
• The application documentation made clear that members of the public would not be charged for admission to observe matches; hiring the facility to clubs does not equate to charging the public for admission.
• The proposed works do not amount to an "infrastructure project" as defined in Schedule 5 and thus do not require EIA information under Article 4(4) of the EIA Directive.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded by reference to the statutory definitions and the proper canons of interpretation. It began by accepting that the PDRs must be strictly construed but emphasised that strict construction does not nullify the effect of an exemption where the regulation, read in context of the Planning and Development Act ("PDA"), plainly applies.

Applying Section 3(1) and Section 2(1) of the PDA, which define "development" to include the carrying out of works "in, on, over or under land" and "works" to include excavation and construction, the court concluded that the phrase "the laying out and use of land" in Class 33(c) must be read in that statutory context. Accordingly, subterranean or excavation works associated with laying an all-weather 4G pitch can fall within the concept of "laying out".

The court rejected the Applicants' submission that Class 33 should be confined to minor or two-dimensional works, finding no textual limitation to that effect in the class and that the proper interpretative approach required reading the PDRs consistently with the Act as a whole.

On the condition "where no charge is made for admission of the public to the land", the court interpreted the restriction as concerned with admission (access) rather than with charges for hiring or use of facilities. Accepting Company B's representation that no charge would be made for public admission to watch matches, the court held the condition was met.

Regarding EIA, the court analysed Schedule 5, Part 2, Section 10(b)(iv) and concluded that the infrastructure/urban development categories are aimed at substantial developments exceeding specified area thresholds. The proposed pitch and associated works bear no realistic resemblance to the sorts of major infrastructural projects envisaged by the PDRs or the Directive. Relying on authorities addressing the limited scope of the Directive and previous EIA jurisprudence, the court held that an EIA was not required and that any precautionary commentary in the planning report did not render the decision unlawful.

Overall the court found the planning authority's conclusions were open to it on the material before it and were not irrational or ultra vires.

Holding and Implications

APPLICATION DISMISSED

Holding: The court dismissed the Applicants' judicial review challenge and upheld the Section 5 declaration of Company A that the specified works by Company B are exempted development under Class 33(c) of the PDRs; no EIA was required.

Implications: The direct effect is that Company A's Section 5 declaration stands and the Applicants' challenge fails. The court did not purport to establish a novel principle of law; its decision applies the statutory definitions and existing authorities to the facts and does not set out a new precedent beyond those applications.