Michael Furminger BL is presently providing Briefings on the Planning Bill at any location where there is sufficient demand, or online.
In Sherwin v An Bord Pleanála [2023] IEHC 26, Humphreys J quashed the Board's SHD permission (No310860) for 1,600 apartments in the grounds of the former Holy Cross College, Clonliffe Road, Drumcondra, Dublin.
Take note. For good or ill, depending upon your point of view, this is the power of Judicial Review under the rule of law. A large housing development, within walking distance (approximately 1.7km) of Dublin City Centre, was successfully challenged by one person (neither a number of different applicants nor a large residents' association) on the basis of legal error by the decision-maker.
The Developer was refused leave to appeal to the Court of Appeal by the trial judge ([2023] IEHC 232) (para 19) and sought leave to appeal to the Supreme Court which was granted ([2023] IESCDET 108) in respect of the meaning of s57(10) of the Planning and Development Act 2000 (“the Act”), the interpretation/application of Development Plans and the adequacy of reasons (para 22) - all of which aspects we’ll look at.
We are concerned here with the Supreme Court judgment at [2024] IESC 13 unless otherwise stated and to which the paragraph numbers refer.
Section 57(10) and “Exceptional Circumstances”
Section 57(10) provides that in considering an application for permission in relation to a protected structure, regard shall be had to its protected status and permission shall not be granted for the demolition of a protected structure “save in exceptional circumstances.” For similar provision within the Planning Bill, see sections 2, 83(1)(a)(iv) and 157 – and for a crucial difference see the point made at the end of this article.
In the High Court, Humphreys J held that the definition of “structure” in s2 of the Act (by reference either to “structure” or to “protected structure”) includes any part and that therefore the exceptionality requirement of s57(10) applied to the demolition of any part of a Protected Structure (SC para 9, HC para 193).
The Developer submitted that the 'exceptionality' requirement cannot apply to demolition of part only (paras 26/31) and the Board similarly submitted that 'exceptionality' does not apply to anything less than total or substantial demolition (paras 32/5). Both parties referred to the caveat at the beginning of s2 to the effect that its definitions will apply “except where the context otherwise requires”.
Woulfe J characterised the question before the Supreme Court as whether the “exceptional circumstances” requirement of s57(10) is triggered by proposed demolition of any part or only by proposed demolition of an entire Protected Structure, or “something close” to that (see paras 41/3).
Woulfe J held, in accordance with the caveat at the beginning of s2, that the context of s57(10) does require a different definition of structure than would usually be dictated by s2 so that the requirement for 'exceptional circumstances' “is not triggered by the proposed demolition of any part of such a structure” (para 47). Firstly, the context of Chapter 1 of Part IV of the Act (despite the definition of s2) “is that if it is intended that the word “structure” should include any part of or any element of a structure, then there is express language to state this.” (para 49) Secondly, minor demolition of parts of Protected Structures is possible under the Act without Planning Permission so it cannot be that the 'exceptionality' requirement applies to a demolition of part in all circumstances (paras 50/2).
The regime for the proposed demolition of a whole/part of a Protected Structure is as follows. If the proposed works are not exempt, then there will need to be an application for Planning Permission and by s57(10)(a) the Planning Authority will be required to have regard to the Protected status of the structure.
“Harmonious interpretation” of s57(1)(a) and (b) “requires that “protected structure” in s57(10)(b) means the entire structure, and not just any part of the structure.” (para 55).
“The Oireachtas intended a graduated level of protection, whereby the lower level is that any application for demolition of part of a protected structure falls within s57(10)(a)...If, however, the application...involves the proposed demolition of the entire protected structure, then the especially strict rule in s57(10)(b) applies, and the requirement for “exceptional circumstances” is triggered.” (paras 55/6).
In this “graduated level of protection” (para 55) “the extent of the demolition, short of total demolition, may well be a significant factor for the planning authority or the Board in exercising its discretion whether to grant permission.” (para 58)
Material Contravention and the Standard of Review
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