The Supreme Court allowed An Bord Pleanála’s appeal in the Waltham Abbey case and dismissed Pembroke Road Association’s appeal. In a judgment delivered on 4 July 2022, it ruled that failure to provide a separate, identifiable statement under Article 299B of the Planning and Development Regulations 2001 could not, by itself, invalidate a later planning permission.
The two appeals concerned strategic housing developments and whether developers had to submit a distinct statement explaining how available results from environmental assessments under other EU legislation had been taken into account. The Court said the wording of Article 299B, read alone, pointed to a self-contained document or a clearly separate part of a document. But it held that the Regulations had to be read as a whole. The prescribed application form did not require this particular statement, and treating its absence as automatically fatal would create an incoherent result.
The Court said An Bord Pleanála must still ensure that relevant environmental assessment results are supplied and can be considered. Its ruling was limited: the absence of the statement in the specific form described by Article 299B could not, on its own, invalidate a grant of permission.
The Waltham Abbey proceedings concerned permission for 123 homes and associated works at Old Fort Road, Ballincollig, Cork. The High Court had quashed the Board’s decision after finding that the developer had not included a clear and identifiable statement. The Supreme Court allowed the Board’s appeal from that decision.
Pembroke Road Association challenged permission for a development at Herbert Park, Ballsbridge, comprising 112 apartments, a 10-suite aparthotel and associated works. The Supreme Court dismissed its appeal on the Article 299B issue and rejected its two other grounds.
One concerned a condition requiring a financial contribution in lieu of public open space. The High Court had adjourned the judicial review proceedings to allow the Board to correct the statutory reference in the condition under section 146A. The Supreme Court agreed that the correction did not materially alter the permission and that the High Court had been entitled to adjourn to allow it.
The other ground challenged the Board’s treatment of building-height policy. The proposed building was approximately 45 metres tall and departed from the Development Plan’s height limits. The Court held that the Board’s decision showed it had appropriately considered the relevant planning guidelines and national policy. It did not decide the planning merits or whether Dublin should depart from its generally low-rise character.
The judgment also recorded allegations that the developer demolished three properties, including No. 40 Pembroke Road, shortly after permission was granted and before pre-commencement conditions were met. The developer denied misconduct, and Dublin City Council had begun enforcement proceedings. The Supreme Court made no finding on that allegation, which was not directly before it.