The High Court set aside An Bord Pleanála’s permission for a residential development at Cross Avenue, Blackrock, after the developer failed to put the correct bat report on the planning application website.
In a judgment delivered on 10 July 2019, Mr Justice Garrett Simons ruled that the omission breached a regulation requiring a full copy of the planning application to be available online. He found the breach was not trivial because the missing 2018 report included additional survey results and revised mitigation measures that had informed the Board inspector’s assessment.
The proceedings were brought by Southwood Park Residents Association against An Bord Pleanála, with the Minister for Culture, Heritage and the Gaeltacht, Ireland and the Attorney General as respondents. Cairn Homes Properties Ltd and Dún Laoghaire-Rathdown County Council were notice parties. Cairn Homes had submitted the planning application and established the project website.
An earlier, 2017 version of the bat report had been posted in place of the 2018 version. The newer report included results from an additional survey and revised measures. The judge said the Board inspector had relied heavily on the developer’s mitigation proposals, which were incorporated into planning permission condition 8.
The court found that members of the public, including the residents association, had lost the opportunity to comment on the newer report. The older version also included a recommendation to obtain a derogation licence if a building was found to be a bat roost, which was absent from the 2018 version. The judge said the mismatch could have misled people about the permission’s safeguards and could affect their ability to decide whether to challenge the permission within the statutory eight-week period.
An Bord Pleanála accepted that the regulations had been breached but argued the failure was de minimis. Cairn Homes accepted that the permission should be set aside on that ground. The judge rejected the Board’s argument, concluding that the mandatory website requirement left no discretion to excuse this breach and that public participation had been undermined.
The ruling addressed only the public participation and online-document ground, pleaded as ground E.25 of the amended statement of grounds. It did not decide the association’s other challenges, including issues concerning protected bat species, derogation licensing or environmental assessment. The judge said the permission might have been different if the correct report had been available, but made no determination on those other grounds.
In a later costs determination included in the judgment, the court awarded the applicant its costs against An Bord Pleanála alone. The judge said the Board’s decision to contest the narrow ground after Cairn Homes had conceded it led to an additional one-day hearing. No order for remittal was sought.