Strategic Housing Development case-law update – failure to upload bat survey leads to permission being set aside

Strategic Housing Development case-law update – failure to upload bat survey leads to permission being set aside

This decision is of particular relevance to developers involved in Strategic Housing Development (SHD) applications and highlights the need to ensure full compliance with the procedural and legal requirements of the associated legislation.

In Southwood Park Residents Association v An Bord Pleanála & Others [2019] IEHC 504 the High Court held in its judgment, delivered 10 July 2019, that failure to upload and make available to the public an updated bat survey/report submitted as part of a SHD planning application could not be considered a de minimis breach of the Planning and Development Regulations 2001 (as amended) (the Regulations). As a result, the decision of An Board Pleanála (the Board) was set aside.

Background

On 13 February 2019 the Board granted planning permission for a housing development in Blackrock, County Dublin. This was granted under the SHD planning regime. Under 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 their 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 proposed measures to mitigate against any environmental impact the development might have on the bats. The second report, which was carried out a number of months later and not uploaded, contained a further survey and amended the mitigation measures proposed in the first.

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. The Board contended that this breach was de minimis and did not affect the validity of the decision to grant planning permission. The legal consequences of this breach were decided as a preliminary issue to the rest of the judicial review proceedings.

Decision

Justice Simons examined the obligation to upload documents to a dedicated SHD website pursuant to the Regulations and opined on the legal consequences of breaching those obligations. In considering the obligation to upload all documentation as per the Regulations, he emphasised that neither the Board nor developer enjoyed any discretion as to compliance. There was no question as to whether a breach had taken place. In examining the further question of whether the failure to upload the second report could be considered a de minimis breach, that is a breach which is trivial, technical or insubstantial, the judge held that it could not be regarded as such on the basis that:

• The breach undermined public participation in the planning process by depriving the public of a right to review and make submissions on the actual application documentation
• 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. This could potentially undermine the right of access to the courts within the eight week statutory period for challenging a planning decision

The judge referred to the differences between the mitigation measures proposed in the 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 in the event that a bat roost was found in the main house. This was amended in the second report, leaving a member of the public who relied on the website version with a mistaken impression of the safeguards in place. The suggested effect of this is that such a person may have decided not to object to the proposed development on the basis of the mitigation measures they believed would be 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 how a failure to ensure full public participation during the planning process can be fatal 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. The fast track procedure limits public participation to submissions or observations made at the Board application stage, which means all appropriate documentation must be made available in order to ensure access to the courts in any potential judicial review proceedings is not frustrated.

The Environmental & Planning team at A&L Goodbody are market leaders in advising on the Strategic Housing Development regime. For more information please contact Alison Fanagan, Consultant, Jason Milne, Partner, Chris Stynes, Solicitor, or any member of A&L Goodbody's Environmental & Planning team.

Date publisehd: 23 July 2019

*This article is for general information purposes only and should not be relied upon as a substitute for legal advice. The author(s) do not accept liability for any errors or omissions made.