Appeal court to clarify planning board's obligations after High Court judges clash

An Bord Pleanála has secured leave to appeal a High Court decision overturning its fast-track permission for a development of 123 apartments in Ballincollig, Co Cork.

Among the reasons for granting leave is to address a conflict between two High Court judges relating to whether the board is required, under planning regulations, to decline to deal with certain planning applications that are not accompanied by certain documents.

Mr Justice Richard Humphreys, in granting leave to appeal to the Court of Appeal (CoA), noted the board intended to also seek a “leapfrog” appeal directly to the Supreme Court, which would bypass the CoA.

A Supreme Court appeal would, among other things, provide “definite” and potentially faster resolution on the legal issues, he observed.

Waltham Abbey Residents’ Association had challenged the board’s September 2020 approval for the development, designated strategic housing, by O’Flynn Construction Company at a site on the Old Fort Road, Ballincollig.

Last May, Mr Justice Humphreys overturned the permission after finding it did not comply with planning regulations concerning environmental screening of projects.

He said the regulations clearly require, unless a “statement” of the analysis of the effects of the project under non-EIA EU law is provided, the board must decline to deal with the planning application. In this case, no such statement was provided.

He rejected arguments by the board and developer, for reasons including certain information had been provided in the inspector’s report, and the general importance of providing housing, he should reject the challenge under the court’s discretion.

In a further judgment on Thursday, he granted leave to appeal.

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Relevant regulations

The appeal centres on whether the relevant regulations mean a permission application under strategic housing law, which is to be subject to EIA screening, should be accompanied by a “distinct identifiable document” addressing available results of other assessments carried out under European legislation other than the EIA Directive, or do they permit the board to satisfy itself, without any such document, there is sufficient information in the application addressing the available results of other assessments

The judge observed, in relation to European directives regarding environmental noise, clean air or any other relevant provision of EU law, the board had advanced “the Joseph Heller/Lewis Carroll argument that this was not mentioned, so was not relevant, so doesn’t have to be mentioned”.

He granted leave to appeal for reasons including the need to reconcile a conflict resulting from a subsequent judgment of June 2020 by his High Court colleague, Mr Justice Alexander Owens.

Mr Justice Owens had declined, despite identifying an invalidity in the board’s permission for 105 apartments in Ballsbridge, Dublin, to overturn the permission. He said “only a small part” of the planning process had miscarried and remitted the matter so the board could correct the problem.

Mr Justice Owens was made aware of Mr Justice Humphreys May 2020 judgment but did not follow it.

In his judgment granting leave to appeal in the Ballincollig case, Mr Justice Humphreys remarked: “Without taking from anyone’s right to disagree, in an ideal world such disagreement would be illuminated by engagement with the logic of the argument underpinning the conclusion being disagreed with”.

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