Planning Permission

 

 

Strategic Housing Developments: The failure to upload report forming part of application can lead to planning permission being set aside

 

In the recent decision of Southwood Park Residents Association v An Bord Pleanála & Others [2019] IEHC 504, the High Court held that failure to upload and make available to the public an updated bat survey/report submitted as part of a SHD planning application was not merely a de minimis breach (a breach which is trivial, technical or insubstantial) of the Planning and Development Regulations 2001 (“the Regulations”). As a result, the decision of An Bord Pleanála (“the Board”) to grant planning permission for a large-scale housing development in Blackrock, Co Dublin, was set aside.

This decision is of particular significance to developers involved in Strategic Housing Development (“SHD”) applications. It highlights the need to ensure full compliance with the relevant procedural and legal requirements.

Background

In February 2019 the Board granted planning permission for a housing development in Blackrock, County Dublin under the SHD planning regime. Pursuant to Article 301(3) of the Regulations, all documents submitted as part of a SHD planning application must be uploaded to a dedicated website by the developer from the date of application and for a period of eight weeks.

In this case, the applicant failed to upload one of the documents forming part of the application. This document was the second of two reports on bats at the site of the proposed development. The first report uploaded to the website contained a survey of bat activity at the site and recommended measures to mitigate against any environmental impact the development might have on the bats. The second report however, which was not uploaded to the website, amended the mitigation measures proposed in the first report.

Grounds of Review

Southwood Park Residents Association sought an order setting aside the decision of the Board to grant planning permission for the development. The failure to upload the second report was conceded by both the Board and developer to be a breach of the Regulations. However, the Board contended that this breach was de minimis and did not affect the validity of the decision to grant planning permission.

Decision

Justice Simons emphasised that neither the Board nor developer enjoyed any discretion as to compliance with the obligation to upload all documentation. There was no question as to whether a breach had taken place. The relevant question was whether the failure to upload the second report could be considered a de minimis breach and the judge held that it could not be regarded as such on the basis that:

  • The breach deprived the public of a right to review and make submissions on the actual application documentation; and
  • A member of the public reviewing the earlier report which was uploaded may have thought certain mitigation measures, which were more robust in the first report and subsequently amended in the second report, remained in place.

The judge referred to the differences between the mitigation measures proposed in the two reports. One of the mitigation measures proposed in the first report was the requirement to obtain a derogation licence pursuant to the Birds and Natural Habitats Regulations 2011. This was amended in the second report, resulting in a member of the public relying on the website version. The suggested effect of this is that such a person may have decided not to object to the proposed development on the basis that the mitigation measures were in place. The court therefore granted a provisional order setting aside the Board’s decision to grant planning permission.

Conclusion

This decision highlights the importance of ensuring full compliance with the procedural and legal requirements when making an application for planning permission. It also emphasises that a failure to ensure full public participation during the planning process can prove detrimental to an application.

This is particularly important for SHD applications, given that the SHD procedure does not contain any ‘request for further information’ mechanism which might allow potential issues to be resolved in advance of the application being considered. As the application is made directly to the Board, the public do not have an opportunity to make submissions or observations at both the planning authority stage and any subsequent Board appeal, as would be typical in a standard planning application.

 

Vanessa Mullally

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