Environmental & Planning case law update: Heather Hill Management Company CLG v An Bord Pleanála
On 21 June 2019, Judge Garrett Simons delivered his judgment in Heather Hill Management Company CLG v An Bord Pleanála (Burkeway Homes Limited as Notice Party)  IEHC 450. In this case, Heather Hill Management Company CLG and Gabriel McGoldrick (the Applicants) challenged a decision of An Bord Pleanála (the Board) to grant permission for a Strategic Housing Development at Bearna, County Galway. The application site is located in the village of Bearna and is generally zoned in the development plan for residential development. The High Court granted an order of certiorari setting aside the decision of the Board to grant permission for a residential development of 197 units, on the basis that it was a material contravention of the Galway County Development Plan (the CDP), failed to carry out a 'justification test' as required and failed to carry out proper Appropriate Assessment (AA) screening.
Ground 1: Material Contravention of Population Allocation
Firstly, the Applicants challenged the Board's decision to grant permission on the basis that the population allocation in the CDP allocated a figure of 420 persons/130 residential units to Bearna but the proposed development was for 197 residential units.
The CDP had been varied by the Bearna planning policy (Bearna Plan) to set the population allocation for future growth at 420 persons. The Board acknowledged that the proposed development exceeded this figure but argued that the contravention was not a material contravention of the CDP, as it believed that the decision to grant permission was consistent with the more general strategy of the CDP to accommodate for a population growth of 13,000 in the Galway Metropolitan Area. The judge held that the existence of a conflict between two objectives in a CDP could not allow the Board to contravene one of them and dismiss it as immaterial. The proposed development would breach the allocated units in the CDP by 50% and thus clearly was a material contravention. The Board could still have granted permission by reference to the criteria set out in section 37(2) of the Planning and Development Act 2000 (as amended) (pursuant to section 9(6)(c) of the Planning and Development (Housing) Act 2016), however it failed to do this.
Ground 2: Flood Risk Management
Secondly, the Applicants argued that the failure to carry out a 'justification test' (as per flood risk management guidelines) for development on land at risk of flooding was a material contravention of the CDP.
Objective CCF6 of the CDP 'Inappropriate Development on Flood Zones' (Objective CCF6) states: 'Any development proposals…will be required to comply with the Planning System and Flood Risk Management Guidelines for Planning Authorities/Circular PL2/2014 & the associated Development Management Justification Test.'
The court held that the wording of Objective CCF6 made the 'justification test' mandatory and rejected the argument that it merely imposed an obligation to comply with the flood risk management guidelines (to which the Board was obliged to 'have regard to'), although the judge did note the test was also triggered in these circumstances under the guidelines regardless. The judge supported this conclusion by also observing that a reasonably intelligent person with no legal or planning expertise would have concluded the same by reading Objective CCFS.
Ground 3: Habitats Directive Issues
Thirdly, the Applicants claimed that the Board incorrectly determined that the proposed development was not likely to have significant effects on a European site and that it failed to carry out proper AA screening, pursuant to Directive 92/43/EEC (the Habitats Directive). The court held that the Board had relied on a commitment to comply with 'best practice measures' during construction in order to minimise any emissions into the Trusky Stream, which was identified as being a potential pathway to the Special Protection Area (SPA) and Special Area of Conservation (SAC) in Galway Bay. The court held that this commitment to comply with 'best practice measures' represented an avoidance or reduction measure that must be excluded for the purposes of reaching a screening determination. The Board had sought to rely on the Inspector's report which stated that the best practice measures in place to minimise emissions to the Trusky stream were not intended to reduce or avoid any harmful effect on a European site as any harmful effects would be dissipated by tidal currents. The court held that the determination of whether there was significant effect did not rest exclusively on the tidal dissipation. The Inspector and Board were relying on the combined effect of this and the 'best practice measures' to make this determination. On that basis, the court rejected the Board's argument and held that it should have proceeded to a stage 2 AA and requested a Natura Impact Statement from the developer.
Ground 4: Landowner Consent
Finally, the court rejected the Applicant's argument that because Heather Hill Management Company CLG contended that it had a beneficial interest in the lands, the written consent of the legal owner did not satisfy the requirements of Article 297(2) of the Planning and Development Regulations 2001. The dispute relating to ownership of part of the land was the subject of separate Circuit Court proceedings and the Board was not required to go behind the evidence of title presented.
On the basis of grounds 1-3 above the High Court granted an order of certiorari quashing the Board's decision. Further arguments will be heard on whether the decision should be remitted to the Board.
A link to the full judgment can be found here.
For more information, please contact Jason Milne, Chris Stynes or any member of the A&L Goodbody Environmental & Planning team.
Date published: 5 July 2018
*This article is for general information purposes only and should not be relied upon as a substitute for legal advice. The author(s) do not accept liability for any errors or omissions made.