Lack of Proper Assessments Proves Fatal to Apartment Development

Our Planning & Environment team reviews how the High Court quashed a decision of An Bord Pleanála to grant permission for an apartment development due to a failure by the developer to properly assess the significant likely impact on bats.

Background

Shadowmill Limited (the Applicant) sought an order quashing An Bord Pleanála’s (the Board) decision to grant planning permission for 18 apartments. The apartments were proposed to be built at the site of ‘Stone Villa’, North Circular Road, Dublin. Stone Villa is a 19th century house designated as a protected structure. Originally, Lilacstone Limited (the Developer) had sought permission from Dublin City Council (the Council) for 32 apartments, consisting of the renovation of Stone Villa and two additional blocks of apartments to the rear of the house (Block A and Block B). This application was refused on the grounds that the proposed development was overbearing and likely to have adverse effects on the protected structure.

The Applicant argued that the Board, in granting permission, had failed to carry out an adequate assessment for the purposes of the Environmental Impact Assessment (EIA) Directive [1]. The Applicant alleged that the Board had exceeded its power in granting permission for a modified development which omitted Block B from the consented development. The Applicant also argued that the Board had failed to consider the works being conducted on the protected structure when granting the permission.

Mr Justice Holland ultimately quashed the decision to grant planning permission on the following grounds:

1. The papers before the Board could not have objectively allowed them to conclude by way of Preliminary Examination that there was no real likelihood of significant effect of the destruction of bat roosts in Stone Villa. This was therefore contrary to the EIA Directive.
2. The Board did not have sufficient detail regarding the works proposed to the interior of Stone Villa to allow them to be satisfied that the protected structure would be adequately protected.

EIA Preliminary Examination

In reaching its decision, the Board’s Inspector carried out a Preliminary Examination, concluding that an EIA was not required. However, the Board, in their decision, did not explicitly express agreement with the Inspector’s Report on whether an assessment was carried out or whether they relied upon their internal EIAR pre-screening form. Mr Justice Holland considered it ‘emphatically regrettable’ that the Applicant had a statable case. The judge emphasised the need for the Board, in their decision, to make clear whether they agreed with their Inspector’s Report or not.

Adequacy of EIA regarding the nature of the consented development

The Applicant argued that in granting consent to the modified development, which omitted Block B from the proposed development, that no Preliminary Examination was in fact carried out on the development actually permitted. Mr Justice Holland said that deciding whether a new Preliminary Examination is required is a fact-specific undertaking. In the present case, the Court accepted the Developer’s assertion that the EIA screening which had been conducted considered all potential significant impacts of the original proposal. The court considered that there was nothing to suggest that the omission of Block B would do anything but reduce the potential likely impacts of the development.

Adequacy of EIA regarding bats

Bats are strictly protected species by virtue of Article 12 of the Habitats Directive [2]. In acknowledging that the level of protection afforded to bats risks being perceived as an impediment to development Mr Justice Holland explained that it is necessary to reflect carefully on the level of disturbance and that sporadic disturbances without any likely negative impact should not be considered as disturbance under Article 12 of the Habitats Directive.

As regards to mitigation, Mr Justice Holland stated that the effectiveness of any mitigation measure must be known at the date of the decision making for the consent in question. The judge cautioned that in assessing the mitigation proposed, it is not open to developers to resort to ‘bland assertions so the measures in question are ‘standard’, without rationalising their reassurance or invoking the evidence-base for such reassurance.

On the facts, Mr Justice Holland found that there were limitations in the Developers own consultant’s report. The Court therefore held that there was no objective basis within the papers before the Inspector and the Board to form the conclusion of no significant effect by reason of destruction of bat roosts in Stone Villa. Accordingly, he found that the permission granted was defective. He ordered that the permission be quashed as it is incompatible with the EIA Directive and wrong in law.

Jurisdiction to permit Modified Development

Condition 2 of the planning permission omitted Block B in its entirety from the consented development. The Applicant argued that section 34(1) of the Planning and Development Act, 2000 does not implicitly empower the Board to grant part of an application. The Board retorted that the power to grant part of a development was implicit in section 34(1) and had been habitually in operation since 1963 and the advent of the modern planning system.

Mr Justice Holland dismissed the Applicant’s argument and held that the practice of issuing modified permissions was so widespread, that it must have been within the contemplation of the legislator at the time the enactment.

Power to permit unspecified Landscaping

Condition 2 of the planning permission directed that landscaping be agreed with the planning authority. The Applicant claimed that the Board lacked power to condition this and that the public had not been consulted on the proposed nature of the landscaping.

Mr Justice Holland held that it is necessary for the court to be pragmatic in interpreting these conditions. and that they will only be found to be invalid uncertain or ultra vires, that being action done beyond its legal power.

Challenge to Condition 6 concerning protected structure

Condition 6 of the permission required the appointment of a qualified conservation professional to supervise the development and secure the authentic preservation of the structure. This is done in the hopes to ensure that the proposed works are carried out in accordance with best practice.

A Conservation Report was prepared on behalf of the Developer. However, Mr Justice Holland labelled it as ‘trite’ that the author could not access the entire building owing to its state of dilapidation. Mr Justice Holland was similarly critical of the lack of structural report or expert engineering report within the papers provided to the Board. He insisted that developers would not be discharged from the requirement of providing a full suite of expert papers in a planning application for reason of disrepair of the proposed development site.

The Inspector’s report maintained that while more detailed information was required as to the nature of the internal works proposed within Stone Villa, that she did not consider it reasonable to refuse permission on the basis of impact on a Protected Structure. The Applicant, however, pressed that the Board acknowledged the requirement for more information. They argued further that Condition 6, by matter of operation, would amount to the conservation architect imposing his/her will on the works.

Mr Justice Holland agreed with the Applicant and found that the Conservation Architect appointed under Condition 6 would not have the same “statutory function and responsibility” as the planning authority regarding the allowable landscaping condition. The Court remarked that the result of such a condition if permitted would be to in effect ‘privatise to a person to be retained and remunerated by the developer, the performance of what are public law functions of protection of protected structures’.

Conclusion

While this extensive judgment touched on a number of important legal issues, the main takeaway for clients is to ensure that planning applications are comprehensive, and that the relevant reports and assessments have been carried out to a high standard before an application is submitted to the relevant authority for consideration.

For more information and expert advice, contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

1. Directive 2011/92/EU as amended by Directive 2014/52/EU
2. Council Directive 92/43/EEC