High Court overturns permission for 123 apartments in Co Cork

Residents association last year challenged board’s approval for Ballincollig development

Mr Justice Richard Humphreys overturned tAn Bord Pleanála’s permission decision in favour of O’Flynn Construction Company. Photograph: iStock

Mr Justice Richard Humphreys overturned tAn Bord Pleanála’s permission decision in favour of O’Flynn Construction Company. Photograph: iStock

 

A local residents group has won a High Court order overturning permission for a development of 123 apartments in Ballincollig, Co Cork.

Waltham Abbey Residents Association had challenged An Bord Pleanála’s approval last September for the development – designated strategic housing –at a site on the Old Fort Road, Ballincollig.

On Monday, Mr Justice Richard Humphreys overturned the board’s permission decision in favour of O’Flynn Construction Company after finding the board failed to comply with planning and development regulations concerning screening of projects.

The board, for the purpose of appropriate assessment, had said it adopted the screening exercise done by its inspector, he noted.

In relation to Environmental Impact Assessment (EIA) screening, the inspector did not conduct a screening exercise in the sense of the Planning and Development Regulations 2001, he said. Rather, the board said “it” completed an EIA screening.

The regulations clearly and unambiguously 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, he said. In this case, no such statement was provided.

The board’s decision phrased itself as having made a single decision on screening but it is clear in the regulations two decisions are involved, he said. The first decision was that, on preliminary examination, there was some doubt concerning the development being likely to have significant effects on the environment, and the second concerned screening.

Arguments rejected

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 exercise of the court’s discretion.

There was no basis for refusing relief on grounds of discretion, he said. Doing so would only weaken the rule of law and weaken the relevant regulation, “probably fatally”.

Unfortunately for the board, judicial review is a mechanism for ensuring a decision is made in accordance with mandatory legal requirements, including procedural requirements, “which certainly was not done here”, he said.

While the board argued it was satisfied it had sufficient information to make a decision on the screening exercise, that did not address the question whether it was right to be so satisfied or whether it had the specific materials required by the regulations.

This whole situation showed how desirable it is that a decision under an enactment should in the terms and language of the decision, engage with the steps required in the enactment.

The necessary matters required for the statement have not been demonstrated to be present in all their aspects, even if elements could be unearthed in scattered parts of the documents, he said.

Another core ground of challenge concerning the validity of the pre-application consultation procedures under the strategic development legislation does not have to be considered because he had decided the issues on domestic law, he said. Those claims, made against the State, would be struck out as moot given his other findings.

Represented by Neil Steen SC, with John Kenny BL, instructed by Denis Healy & Co Solicitors, the case was against the board, the Minister for Housing and the State with the developer as a notice party.

Final orders will be made later.