The High Court has ordered the quashing of An Bord Pleanála’s permission for a 123-apartment development at Old Fort Road, Ballincollig, after finding that a mandatory environmental assessment statement was missing from the planning process.
In a judgment delivered on 10 May 2021, Mr Justice Humphreys found that the board had not complied with regulation 299B of the Planning and Development Regulations 2001. The regulation required a statement explaining how available results from relevant environmental assessments under other EU laws had been taken into account.
The court said no such statement was submitted. References to environmental matters scattered across the application documents did not meet the requirement for a distinct document identifying relevant assessments, their results and how those results were considered. The judge also found that the regulations required the board to refuse to deal with an application when the specified material was not provided.
O’Flynn Construction Company Unlimited had applied for permission for the development, and the board granted permission on 16 September 2020. The residents association sought judicial review. Although its original submission to the board raised numerous issues, only two grounds concerning environmental impact assessment screening were pursued in this module. Other grounds, including challenges relating to appropriate assessment, parking and the site notice, were not pursued at the hearing. A challenge to the validity of the pre-application consultation legislation was left for a possible later module.
The court rejected arguments that relief should be refused as a matter of discretion, including submissions invoking the importance of housing provision and the association’s failure to raise the missing statement with the board. The judgment said an objector was not required to identify gaps in an applicant’s paperwork for the decision-maker.
A separate ground concerned the adequacy of environmental assessment in relation to bats. The judge noted that the applicant had complained about the lack of a full bat survey and that the screening report contained little on impacts to bats. He did not decide that issue, or refer questions to the Court of Justice of the European Union, because the proceedings could be resolved under domestic law.
The order removes the board’s permission for the purpose of quashing it. The judge provisionally proposed striking out the case against the State with no order, while preserving the possibility of re-entry if a future development made that legally appropriate. The parties were directed to liaise with the State and the List Registrar to arrange a hearing for consequential directions.