Atlantic Diamond Limited v An Bord Pleanála and EWR Innovation Park Limited - Synopsis of Judgment

Kane Tuohy LLP (with Niall Handy BL and Micheál O’Connell SC), acting for the Applicant in the Judicial Review proceedings, sought to challenge ABP’s decision on a number of grounds, including that (i) ABP did not explain why it did not accept the Applicant’s argument that the development was unprecedented (by incorporating a residential development within the confines of an existing industrial estate); (ii) that ABP did not correctly approach the consideration of daylight/sunlight issues; and (iii) that the prescribed form used for such SHD applications was not completed correctly.

On the first point, the Court found that the Applicant was not given the main reasons for the rejection of its submissions, having regard to what the Court found were the “atypical circumstances” and on that basis alone was prepared to quash the decision.

On the second point, the Court dismissed arguments as to the Applicant’s “standing” to raise the sunlight/daylight issue because it did not raise the issue at the objections stage and is not personally affected by it. In dismissing both “standing” arguments, the Court found that it is not for an objector to “correct the developer’s homework” such that any objector is entitled to assume that it is for ABP to discern whether there are omissions or defects in the developer’s application and, if not done, then the Applicant is entitled to raise the issue on Judicial Review. On the second “standing” point, the fact that the Applicant was not “personally affected” by this issue did not deprive it from the right to raise it.

On the substantive second point itself, the Court found that two of the essential documents which underpin the daylight/sunlight issue (the BRE Guide and the British Standard) must be read together and that ABP must have regard to them. In so doing, if the developer cannot meet all of the requirements, then this must be clearly identified, compensatory design solutions outlined and a discretion and balancing exercise then applied. In examining the relevant report on daylight/sunlight, the Court noted that ABP accepted the relevant Inspector’s report which itself, in some respects, reiterated word for word what the developer had stated. The underlying issue concerned the average daylight factor which the guidelines specify as 2% for kitchens, 1.5% for living rooms and 1% for bedrooms and, in the case of the British Standard where rooms have combined uses, then the highest percentage should apply. Neither the study relied on nor ABP’s decision dealt with the fact that there were combined kitchens and living rooms and rather than apply the higher 2% standard, the lower 1.5% standard was applied. As such, according to the Court, there was a “… methodological gap in the reasoning…”. As such, ABP acted erroneously in endorsing what the developer claimed without properly testing it against the relevant guidelines.

The Court found that binding mandatory statutory guidelines require that ABP have appropriate and reasonable regard to the standards identified in those guidelines which in turn refer to the BRE guidelines and the British Standard and that this was not done in circumstance where the wrong average daylight factor was supplied.

Finally, on the third substantive point, while the developer in its application confirmed the existence of statutory enforcement notices, it failed to include details. The Court found that this offended the terms of the statutory instrument which clearly indicates an intention that such details are mandatory and that as such, the application was invalid.

This Article is not intended as legal advice. For further information on judicial review proceedings and related matters, please contact our Cómhnall Tuohy, details as below.

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Cómhnall Tuohy, Partner
E: ctuohy@kanetuohy.ie
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