Waltham Abbey RA v An Bord Pleanála & Ors [2022] IESC 30

On 10 May 2021 the High Court (Humphreys J) delivered judgment in Waltham Abbey Residents Association v. An Bord Pleanála[1] ("Waltham Abbey") where an Order of certiorari was granted in respect of the decision of An Bord Pleanála ("the Board") to grant planning permission for a strategic housing development ("SHD") comprising the construction of 123 apartments and associated development at Old Fort Road, Ballincollig, Co. Cork.This decision was quashed because the High Court determined that there was a failure to comply with the requirements of Article 299B(1)(b)(ii)(II)(C) of the Planning and Development Regulations 2001 (as amended) ("the 2001 Regulations").

Article 299B(i)(b)(ii)(II)(c) ("Article 299B") places an obligation on the Board to satisfy itself that the applicant for permission has provided a statement “indicating how the available results of other relevant assessments of the effects on the environment carried out pursuant to legislation other than the EIA directive have been taken into account” (“the Statement”).

The High Court held in Waltham Abbey that in order to comply with Article 299B a specific, standalone statement addressing the available results of other statements must accompany the application for planning permission. In doing so, the High Court drew a distinction between just the information required found in the application documents and a statement which he found to be “an identifiable document”. The High Court found that Article 299B required four clear elements:

(i)         a distinct identifiable document constituting a statement of all the relevant matters for the purposes of reg. 299B(1)(b)(ii)(II)(C);
(ii)        identification of the relevant assessments that are available;
(iii)       identification of the results of those assessments; and
(iv)       identification of how those results have been taken into account.

On 29 July 2021 the High Court (Owens J) delivered judgment in Pembroke Road Association v An Bord Pleanála & Others[1] ("Pembroke"). This judgment gave rise to a conflicting interpretation Article 299B whereby Owens J. found that the requirement under Article 299B is largely one imposed for the requirements of good administration and there is no absolute requirement that the analytical material referred to in a statement must always be presented in one distinct identifiable document.

The High Court judgments were delivered just one month apart, and as they were in direct contradiction of one another on this key issue, both cases were appealed to the Supreme Court by way of leapfrog application.

Supreme Court
The Supreme Court (MacMenamin J, Charleton J, O'Malley J, Baker J and Hogan J) heard both appeals together on 31 May 2022, and Hogan J delivered a joint judgment on 4 July 2022, wherein it held that the failure to include a separate document in these cases was not a significant enough impediment to render the Board unable to discharge their function as a planning authority. In reaching this decision, the Supreme Court conducted a comprehensive analysis of the proper construction of Article 299B and the use of the word "statement". While the Supreme Court did prefer the construction of the word as favoured by Humphreys J. in Waltham Abbey, it went on to find that the term should not be read as it appears in Article 299B in isolation from the rest of the Regulations, citing the principle of "noscitur a sociis" ("known by its companions"). This principle was outlined by Black J. in The People (Attorney General) v Kennedy[2] where he stated "A small section of a picture, if looked at close-up, may indicate something quite clearly; but when one stands back and looks at the whole canvass, the close-up of the small section is often found to have given a wholly wrong view of what it really represented."
 
The Supreme Court agreed with the pragmatic view taken by Owens J. in Pembroke Road in finding that the failure to supply a specific statement was not a real impediment to the Board in performing its functions and that the Board was "perfectly capable of interpreting the data and analysis furnished to it".
 
The Court also noted that, if the Court was to hold that Article 299B imposed a mandatory obligation on developers to supply a specific statement, it would lead to the "strange and contradictory state of affairs" whereby a permission could be invalidated for the failure to supply a specific statement when no such obligation existed in the first place when the developer was lodging the SHD Application Form 14. Hogan J. cited clear judicial authority[3][4] which set out that statute should be read, where possible, to produce a workable and coherent interpretation and avoiding interpretations which imposed unfair or anomalous obligations on private citizens.
 
The Court found that although there was no requirement for a standalone statement, the Board is still required to ensure that the developer supplies all of the results of the relevant environmental assessments to its satisfaction such that they may properly be considered and assessed. However, the failure to supply a standalone statement in this regard cannot in itself invalidate a subsequent grant of planning permission.
 
The Supreme Court ultimately allowed the appeal of the Board against Waltham Abbey and dismissed the appeal in Pembroke Road regarding the issue of Article 299B.

Two further issues were then considered in relation to the Pembroke Road case.

Section 146A
 
Under the Dublin City Council Development Plan ("the Development Plan"), 10% of site space for new residential developments should be reserved for public open space. Under Section 48(2)(c) of the 2000 Act, this requirement may be relaxed where a developer commits to the payment of a financial contribution in lieu of open space, used to support the provision of public spaces in the local area.
 
As the planned Pembroke Road development was situated beside a large park, Herbert Park, the Board accepted this financial contribution based on a recommendation report from the Chief Executive Officer. However, this decision was rejected by the High Court who considered that the Board had incorrectly relied on Section 48(2)(c) of the Planning and Development Act 2000 ("the 2000 Act").

At trial, Owens J adjourned the proceedings in order to allow the Board to correct this error under Section 146A(1)(iii) of the 2000 Act, which permits the amendment of a planning permission granted where the amendment to be made may "reasonably be regarded as having been contemplated" by the permission taken as a whole but which was not expressly provided for in the permission, on the basis it was wide enough to permit such a correction. Owens J. held that he was exercising his discretion as to remedies in circumstances where the error was not one which required certiorari. This was challenged by the Applicant in the Supreme Court who contended that such a mistake should be sufficient to set aside the decision of the Board, and that the provisions of Section 146A should not have been available to remedy its error.  

The Supreme Court also upheld the decision of Owens J. on this issue. In explaining the gravity that an order of certiorari holds, Hogan J. noted that it was a remedy for which "excessive enthusiasm" for its use has been evident in recent times, noting that such a "powerful and effective" remedy should not be reserved for cases where a simple mistake has been made, as was the case in Pembroke Road. The Supreme Court held that this was an error which could readily be corrected by simply substituting the correct statutory reference in the planning decision.

Building Heights Guidelines
 
The final issue raised in Pembroke Road was in relation to material contravention of the Development Plan in respect of the height of the proposed development. Under Section 9(6)(c) of the Planning and Development (Housing) and Residential Tenancies Act 2016 ("the 2016 Act"), the Board may grant planning permission in material contravention of a development plan provided this decision can be justified with reference to Section 37(2)(b) of the 2000 Act. Section 37(2)(b) allows such permission to be granted where the Board considers that it should be granted having regard to certain matters including guidelines issued under Section 28 of the 2000 Act.

The Board argued that it had given due consideration to the required matters here before determining that the permission should be granted despite the material contravention of the Development Plan due to the proposed development's strategic or national importance and with regard to Specific Planning Policy Requirement 3 ("SPPR 3") as per the ministerial guidelines. The Applicant contended that if the Board wanted to rely on SPPR 3 for the purposes of Section 37(2)(b)(iii) then it must "demonstrate" that the Development Plan is not in alignment with the National Planning Framework. In the High Court, Owens J. considered that this requirement had been satisfied, despite the fact that there was no express statement made by the Board to this effect, on the basis that it was "self-evident" that the Development Plan and the National Planning Framework did not align.

The Applicant argued that the High Court erred in reaching this conclusion, contending that the Board could only invoke its powers under Section 9(6)(c) of the 2016 Act and Section 37(2)(b) of the 2000 Act in circumstances where it was clear that there was an identified want of alignment between the height requirements and objectives of the Development Plan and the ministerial guidelines and National Planning Framework. The Supreme Court agreed with Owens J in holding that this want of alignment regarding height guidelines was obvious and it was at the very least implicit in the Board's decision that it was aware of this and that appropriate attention was paid to the general objectives of the Guidelines and the need to comply with the combined requirements of Section 9(6) of the 2016 Act and Section 37(2)(b) of the 2000 Act.

Both cases are to be remitted to the High Court for further consideration of the implications of the Supreme Court Judgment.
 
Written by: Jonathan Moore, Patrick Reilly, Craig Farrar and Daniel Delaney