Waltham Abbey v An Bord Pleanála & Ors; Pembroke Road Association v An Bord Pleanála & Ors  IESC 30 concerned appeals against two separate decisions of the High Court. Both decisions raised an identical question of law: whether the word ‘statement’ in Article 299B of the Planning Regulations required a separate identifiable document to be included in a planning application for a strategic housing development (SHD) or whether the obligation under this article can be fulfilled if, to the satisfaction of An Bord Pleanála (the Board), the relevant information has been included generally in the planning application and can be ascertained from a reading of that document.
The joint judgment in both the Waltham Abbey and Pembroke cases was handed down as contradicting interpretations of Article 299B had been delivered by High Court judges in the cases. In Waltham Abbey Humphreys J concluded that a separate identifiable document was required, whereas in Pembroke Owens J concluded that no such separate identifiable document was required.
The Article 299 obligation requires the Board to satisfy itself that the applicant has provided a statement showing how the results of relevant assessments of the effects on the environment carried out pursuant to EU legislation, other than the EIA directive, have been taken into account.
The Court found that the fact that the Board did not have a separate identifiable document did not preclude it from discharging its statutory functions and the “Board was perfectly capable of interpreting the data and the analysis furnished by the developers and it is well used to navigating complex environmental and planning documents”.
The Court allowed the Waltham Abbey appeal but dismissed the Pembroke appeal in so far as it concerned the Article 299B issue.
In relation to Pembroke, two further issues were also addressed:
- the use of section 146A of the Planning and Development Act 2000 (the 2000 Act) in order to allow the Board to amend a condition in its grant of planning permission as it had relied on the wrong section to impose a financial condition, along with the related question of whether the High Court was correct to consider this amendment to be non-material; and
- the interpretation of the Urban Development Building Height Guidelines, in particular, whether the Board was required to expressly consider whether the relevant development plan was consistent with the National Planning Framework or whether the Board could consider this to be ‘self-evident’.
With regards to these other issues, the Court agreed with Owen J’s analysis in the High Court of section 146A and found that he was correct in the circumstances of this case to adjourn the judicial review proceedings in order to allow the Board to amend the permission. The Court also held that the Board had paid appropriate attention to the general objectives of the Urban Development Building Height Guidelines and the need to comply with the combined requirements of s. 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016 (which provides the Board with the power to grant a SHD permission which would materially contravene an aspect of the development plan) and s. 37(2)(b) of the 2000 Act (which allows for the Board to depart from the development plan where, having regard to the relevant guidelines, it considers the departure is warranted).
For further information on this topic, please contact Kristen Read, Senior Associate, Niamh Collins, Lawyer or any member of A&L Goodbody’s Environmental and Planning team.