A fast-track planning approval for more than 100 houses and apartments in Co Cork has been overturned after the High Court dismissed An Bord Pleanála‘s “conveniently Jesuitical” reading of the county development plan.
The permission was quashed over the board’s failure to justify, in accordance with planning law, its material contravention of objectives of the Cork county development plan (CDP) providing that it “should” carry out a proper historic buildings assessment, in this case of a post-medieval heritage structure, Highlands House, and associated buildings, before granting planning approval.
The board defended its decision on the basis of the notion that the best interpretation of the wording, intention and purpose of the CDP was to say “that ‘should’ means you don’t have to do it” and the word “assess” means to assess after the decision has been taken to knock the structure down, Mr Justice Richard Humphreys said.
Neither the developer nor board had inspected the interior of Highlands House, which appears on maps from the 1840s and therefore benefits from the protections in the objectives of the CDP, he said.
The board incorrectly placed “outsize reliance” on the non-inclusion of the buildings in the Record of Protected Structures and the National Inventory of Architectural Heritage. The scheme of the CDP was clearly to extend protection for structures not included in those, he held.
In his judgment on Friday, he rejected the board’s “conveniently Jesuitical reading” of the CDP and upheld the challenge by a local resident, Deirdre Condon, to the permission granted in late May 2022 to Ruden Homes Ltd.
The permission was for demolition of existing buildings and the construction of 112 residential units – 72 houses and 40 apartments – on the site at Ballynaroon, Glounthaune.
Cork County Council objected to permission in the absence of an archaeological assessment of the site structures and the board’s approval was made under what the judge described as the “ill-fated”, “much-criticised” and since repealed strategic housing development (SHD) procedure.
This particular application was coming before the board as its record of SHD permissions in breach of development plans was “coming to something of a crunch point, as its deputy chairperson [Paul Hyde] stepped aside on May 10th, 2022”, he noted.
A board inspector had completed a site visit on May 16th 2022 and, in his report, had recommended permission be granted. The report said Highlands House and other buildings had been heavily modified over time, with “little” remaining of importance, and disagreed with the local authority’s view the house should not be among structures for demolition.
Having agreed with the inspector’s report, the board directed on May 31st, 2022 that permission be granted.
The judge agreed with the board that the relevant CDP – which was replaced on June 6th, 2022 by the Cork County Development Plan 2022-28 – was not mandatory in relation to preserving historic buildings in situ. Before demolition, other options included preservation by a record or by recovered artefacts.
However, an assessment, in the clearly intended sense of a physical survey, was envisaged by the CDP as required in advance of demolition, he said.
In this case, the board had decided that a full physical survey was required but argued that did not have to be done before a grant of permission and could instead be addressed via a planning condition.
That logic was “incompatible” with the view that there was compliance with the CDP, the judge held. The primary purpose of a survey of historic buildings can only be to guide whether development consent should be granted.
Otherwise, if anything of interest that would affect the permission to demolish was discovered in the survey, all that could then be done was to close an empty door “with the runaway horse just a dot on the horizon”.
