2026 IEHC 365

Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC

1. THE HIGH COURT PLANNING AND ENVIRONMENT JUDICIAL REVIEW H:JR:2024:1088 [2026] IEHC 365 IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50, 50A and 50B OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED BETWEEN: ABBEY PARK AND DISTRICT RESIDENTS ASSOCIATION BALDOYLE and JOHN OLIVER MCCANN Applicants And AN COIMISIÚN PLEANÁLA Respondent And RONDESERE LTD Notice Party Contents JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 16 JUNE 2026 ........................................................... 2 INTRODUCTION ................................................................................................................................................... 2 GENERAL OBSERVATIONS.................................................................................................................................... 3 Proper Planning & Sustainable Development is About Living Conditions - The “Lens” .................................. 3 Discretionary Relief & Harmless Error ............................................................................................................. 6 DEVELOPMENT PLAN & LAP .............................................................................................................................. 10 Community & Zoning ................................................................................................................................. 10 Open Space ................................................................................................................................................ 11 Financial Contribution in Lieu of Public Open Space ................................................................................. 12 SuDS ........................................................................................................................................................... 13 Visual & Landscape .................................................................................................................................... 14 Building Heights - LAP ................................................................................................................................ 14 STATUTE ............................................................................................................................................................ 15 FINGAL’S REFUSAL ............................................................................................................................................. 16 RONDESERE’S APPEAL, INSPECTOR’S REPORT & IMPUGNED DECISION ........................................................... 17 GROUND 2 – PLAYGROUND .............................................................................................................................. 20 Core Ground 2 ............................................................................................................................................... 20 Playgrounds - Development Plan & Guidelines ............................................................................................. 21 Proposed Development ................................................................................................................................. 22 Fingal on Playground ..................................................................................................................................... 23 Inspector & Commission on Playground ....................................................................................................... 24 G2, Playgrounds - Discussion & Decision ...................................................................................................... 25 OTHER GROUNDS .............................................................................................................................................. 28 Ground 8 - AA ................................................................................................................................................ 28 Ground 7 – EIA as to Height .......................................................................................................................... 30 Ground 3 – Height ......................................................................................................................................... 32 1 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
2. Ground 1 – Public Open Space ...................................................................................................................... 35 CONCLUSION ..................................................................................................................................................... 38 JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 16 JUNE 2026 INTRODUCTION
3. The Applicants seek certiorari quashing the Commission’s Impugned Decision of 3 July 2026 to permit the Notice Party (“Rondesere”) to build a Proposed Development consisting of a Large-scale Residential Development1 (“LRD”) of 104 apartments in one “block” of up to 11 storeys over basement on a 0.45-hectare Site (“the Site”) at the junction of Grange Road and Longfield Road in Dublin 13 - west of Baldoyle and just north of and across the Grange Road from Baldoyle Industrial Estate.
4. “Block” is a slightly misleading description – though not in any legal sense. Rondesere’s planning application was for an L-shaped building, including a 12-storey tower at the south eastern corner of the Site at the junction of Grange Road and Longfield Road, stepping down to 4-5 storeys to the north along the Longfield Road Site boundary and to 5 storeys to the west along the Grange Road Site boundary.2 The Impugned Decision conditioned the omission of, specifically, the 2nd floor. So it permitted an 11-storey tower stepping down to 3-4 storeys to the north and to 4 storeys to the west.
5. The Site is currently brownfield - a builders’ yard and buildings. It is bounded to south and east by Grange Road and Longfield Road. A 3-storey school adjoins it to the west. To the north it is bounded by Myrtle Road, across which lies the Myrtle Apartment development which Rondesere describes variously as of 2-4 storeys and 2-6 storeys (I suspect the latter is correct).3 It is about 500m from Clongriffin train station.4
6. The First Applicant is an unincorporated association and describes itself as dedicated to the protection of the built and natural environment of Abbey Park, Baldoyle and the greater Baldoyle area. The Second Applicant describes himself as a local resident of the area which will be impacted by the Proposed Development and as the secretary of the First Applicant. The Applicants’ general standing to prosecute these proceedings is not disputed. I will refer to the Applicants collectively as “Abbey Park”.
7. Fingal County Council5 (“Fingal”) and Rondesere met pursuant to s.32C PDA 20006 on 19 September
8. Further to that meeting, Fingal issued an opinion under s.32D PDA 2000 that Rondesere’s LRD 1 Within the meaning of the Planning and Development Act 2000 – (“PDA 2000”). 2 See graphics in Rondesere’s Architectural and Urban Design Statement, 4.3 | Bird’s Eye View and 5.4 | Proposed Massing. 3 Architectural and Urban Design Statement 2.2 | Neighbourhood Context. 4 See graphic in Rondesere’s Architectural and Urban Design Statement 5.5 | Neighbourhood Height Context showing radii from the train station. The relevant circle runs through the middle of the Site – which is clearly the appropriate measuring point – not least in a Site on which the proposed buildings are beyond that point. I disregard some lesser given figures. 5 The planning authority. 6 Planning and Development Act 2000 As amended. 2 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
9. proposal did not constitute a reasonable basis on which to apply for an LRD permission. Fingal’s opinion cited inappropriate density, scale, massing and layout, inappropriate visual impact, insufficient provision and quality of public open space and insufficient on-Site car parking.
10. On 14 December 2023, Rondesere made an LRD permission application to Fingal for a Proposed Development on the Site described in the Inspector’s report and as here relevant, as follows: “Demolition of existing single-storey storage structures on site (c. 446.5sq. metres GFA7). Construction of a residential development (c. 15,234.11sq. metres GFA) comprising of 120 no. apartment units (15 no. studio units, 18 no. 1 bed units, 78 no. 2 bed units, 7 no. 3 bed units, 2 no. 4 bed penthouse units) within 1 block (ranging in height from 4-12 storeys over basement level). The construction of a basement to be accessed off Myrtle Road with provision of c. 47 no. car parking spaces, ……. 2 no. creche drop off car parking spaces at surface level. …… Provision of c. 1877sq. metres of open space to serve the development and green roof garden terraces between 5th and 10th floor level. Provision of a childcare facility at ground floor level (c. 156.6sq. metres GFA) with capacity in order of 35 no. children and associated, secure, open play area (c. 117.1sq. metres). ……”8
11. By papers filed in the High Court on 27 August 2024, Abbey Park sought leave to seek judicial review, which was granted on 4 November 2024 and an amended Statement of Grounds was filed on 12th November
12. Rondesere has not participated in the proceedings. Grounds 4, 5 and 6 are not pursued. The trial took 2 days.
13. On 21 May 2026, the Court (Humphreys J) granted the Commission leave to file, on a de bene esse basis, a Supplemental Affidavit of Robert Brophy, sworn on 20 May 2026, to exhibit certain documents – planning application drawings - not exhibited previously. Issues of admissibility were to be addressed at trial. Ultimately, at trial, no objection was taken to the exhibits. GENERAL OBSERVATIONS PROPER PLANNING & SUSTAINABLE DEVELOPMENT IS ABOUT LIVING CONDITIONS - THE “LENS”
14. I should mention one aspect of the argument which I found surprising. Counsel for the Commission was reluctant, in the absence, he said, of any specific statutory provision to that effect, to accept that, as to planning permission applications for proposed residential development by developers other than the likely ultimate resident or residents, the requirements of proper planning and sustainable development impose on planning authorities and the Commission a duty to seek to protect the residential conditions and amenities 7 Gross Floor Area. 8 Layout of text altered for exposition. Content irrelevant to these proceedings omitted. 3 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
15. (using the word amenity in its broad sense) of those, usually as yet unidentified or unidentifiable, who will live in the dwellings proposed. I was surprised as I consider that to be an indisputably obvious proposition.9 While it has many other aspects, if proper planning and sustainable development is not at least about living conditions of residents, is it worth the candle? I consider the proposition amplified, and as imposing a particular and autonomous duty on planning authorities and the Commission, by the consideration that as to such dwellings – for example, apartments built for sale or rent – the residents, as yet unidentified or unidentifiable and who, likely, themselves do not yet anticipate living in the proposed development in question, but whose living conditions will ultimately be in very large degree determined by that proposed development, are highly unlikely to participate in and be heard in the planning process, or even to be able to do so. The point is illustrated by the rhetorical question: absent objectors raising the issue, may the planning authority or the Commission, in deciding a residential planning application, ignore such living conditions? If not, the duty is autonomous. I should say that it is not my experience that they do ignore such living conditions – which made counsel’s reticence all the more surprising.
16. It may be that counsel’s reticence arose from a recent, in itself proper, tendency in the law to consider the legality of a planning permission though the “lens” of the material before the planning authority or the Commission and to ask whether anyone in the planning process “raised” the issue later argued in judicial review. Of itself, that can be an important and sometimes determinative approach in judicial review. But it should not be over-deployed. Nor should it prompt reluctance to identify the duties of the planning authority or the Commission as autonomous. Perhaps it derives from lawyers’ proper tendency in adversarial litigation, indeed, in particular in judicial review, to insist that the issues are determined by the parties in their pleadings and decided by reference to the evidence each chooses to adduce. If so, the analogy is far from precise.
17. It is true, of course, that the lens of the material before the Commission will always be the starting point of inquiry. Planning applications are grounded in particular development proposals. They are not abstract exercises. But neither are they litigation. While opposed planning applications are in practice considerably adversarial, they are primarily inquisitorial processes - Stapleton.10 Or, to put it another way, a planning applicant faced with no objectors has, nonetheless, far from an open goal. Planning authorities and the Commission are not passive recipients of planning applications. An inquisitor must be inquisitive. Curial deference to decisions of expert bodies is contingent on their actively deploying both that expertise and proper curiosity. As was said in Fernleigh,11 “the very function of expertise, and the reason it is accorded deference, is to exercise judgment in analysis.”
18. The material placed before the planning authority is, in very large part, put there by the developer, whose interests are, perfectly properly, primarily private and commercial. For that matter, objectors’ interests are often and, equally properly, primarily private. So, the materials placed and issues raised before the decision-maker are often a function of choices largely informed by private interests. Yet the duties of planning authorities and the Commission and the interests they must protect are primarily, or at least 9 Reflected, for example, in Rondesere’s Architectural and Urban Design Statement 7.1 | Residential Quality. 10 Stapleton v ABP & Savona [2024] IEHC 3 §
19. 11 Fernleigh v ABP & Ironborn [2023] IEHC
20. 4 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
21. largely, public. It follows that planning authorities and the Commission are very far from prisoners of, or constrained by, the materials placed before them by private interests on either side of an argument.
22. Further, and as to decision-makers’ duties of inquisition, in a process in which experts of many kinds are now invariably deployed and the decision-maker is invited to rely on that expertise, it bears observing that expert reports are not always as independent as they should be of their clients’ interests. There is no reason to think that experts deployed in planning applications are any less susceptible than experts deployed in litigation to the concerns expressed by Collins J in Duffy12 when he said:
23. • “… arguably the most significant concern about expert evidence relates to issues of objectivity, impartiality (lack of bias) and independence …” • “… many expert witnesses either fail to understand and/or fail to take seriously their duties as such. Far too frequently, expert witnesses appear to fundamentally misunderstand their role and wrongly regard themselves as advocates for the cause of the party by whom they have been retained. It may be said that this is an established part of litigation culture. If so, the culture is unacceptable and it needs to change. To that end, courts need to be forceful in policing the rules …” Charleton J articulated similar concerns in Weston,13 “
24. Planning applications seek to change the character of a neighbourhood and landscape. The granting of permission can be the fulfilment of a modest domestic ambition or the opening up of what is perceived to be the path to riches. Human nature, with its inescapable tendency to exaggeration, evasion and deception, is an integral part of this process. The role of an inspector under the planning code is to bring objectivity to bear in circumstances where assertions may be made that are unsupported; where what appears on the ground may be different to the maps and plans supplied; and where wishful thinking may be seen in the cold light of reality. An inspector is entitled to make his own observations not only in the context of the arguments advanced in favour of a planning permission, but as to how facts may be assessed. It may be fair to observe, in the context of planning applications especially, that those who seek permission rarely make errors against their own interest.”
25. As a result Stapleton14 refers to a “ … Board whose duty of “scrupulous rigour” is identified in Weston15 and whose duty of both “expert” and “detailed scrutiny” – a duty of the “utmost importance” – is identified by O’Donnell J for the Supreme Court in Balz.16 In similar vein, Humphreys J in Treascon17 emphasised “the need for thoroughly 12 Duffy v McGee [2022] IECA 254, [2022] 11 JIC
26. 13 Weston v An Bord Pleanála [2010] IEHC
27. 14 Stapleton v ABP & Savona [2024] IEHC 3 §208 §
28. 15 Weston v An Bord Pleanála [2010] IEHC 255, [2010] 7 JIC
29. 16 Balz v An Bord Pleanála [2019] IESC 90; [2020] 1 I.L.R.M. 367 §
30. 17 Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála [2022] IEHC
31. 5 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
32. independent and detailed expert scrutiny by the statutory decision-maker” and in Jennings its duty was described as one of “active and critical interrogation”.18
33. Similar observations are found in Fernleigh19 and Coolkill.20 The latter refers to “the Board’s duties of independent curiosity and stringent scrutiny” and of “rigorous scrutiny and critical interrogation of planning applications”. To be clear, the material before the Commission does not, as it may do the Court’s duties in litigation, circumscribe the Commission’s duties of “active and critical interrogation”. The Commission’s duties include testing the accuracy, reliability and completeness of the information before it and seeking out what may be missing. If it fails to do so, the lens of the material before the Commission will be more or less myopic.
34. I emphasise that no aspersions of misdirection or concealment were made in this case. Nor was anyone’s integrity impugned. My purpose in mentioning these issues is, rather, to explain why the Commission’s duties are actively inquisitorial and considerably autonomous, why they are far from prisoners of the materials placed before them and why care should be taken in judicial review not to overly rely on the lens of those materials when clarity of vision is required of the Commission. DISCRETIONARY RELIEF & HARMLESS ERROR
35. As is now all but invariable in proceedings such as these, the Commission urges that, even if I find the Impugned Decision in legal error, I should refuse relief as a matter of discretion. Of course, relief is inherently discretionary in judicial review - though the court is not in any real sense at large as to the exercise of that discretion, which either must be exercised within the framework of recognised categories of case, or be justified on a principled and reasoned basis – e.g. Independent Newspapers v IA21 and LA.22 Of course, I accept generally the principles recited in Reilly as to the exercise of the discretion to refuse relief – though I would respectfully doubt whether Independent Newspapers is authority that the discretion is wider, or appreciably so, as to breach of domestic law than EU law, and L.A. seems to me a counterweight to that proposition.
36. Humphreys J in Reilly took care to make clear that his list of principles and factors relevant to the exercise of the discretion is not exhaustive or exclusive. He introduces them with the words: “some issues regarding discretion established by the caselaw are as follows”. As to harmless error, he “summarised” the law – but again I do not understand him to have essayed an exhaustive, exclusive or definitive account of the law in that regard. 18 [2023] IEHC 14, §
37. 19 §69 &
38. 20 Concerned Residents of Coolkill v An Bord Pleanála & Midsal Homes [2025] IEHC
39. 21 Independent Newspapers v I.A. [2020] IECA 19, [2021] 1 IR
40. 22 L.A v The Chief Appeals Officer, [2026] IESC 22, [2026] 3 JIC 2503, [2026] 3 I.C.L.M.D.
41. 6 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
43. As is said in Reilly, on ample authority, one “well-established” instance of that discretion is that relief may be refused where the error in law is harmless in that it did not materially affect the result effected by the Impugned Decision. Of course, error may be harmless in different ways. For example, the error may be procedural - an error in a site notice of a planning application may be harmless to an objector who saw the newspaper notice and participated in the planning process. The position seems to me more difficult where it is suggested that the error was harmless as to the merits of the decision.
44. I think it useful to add certain further observations on these issues as follows. They are proffered not in diminution of, much less in correction of, but in addition to and in elaboration of the principles stated in Reilly.
45. Importantly, and as Donnelly J said for the Supreme Court recently in L.A., “… the exercise of discretion to refuse to grant a remedy of judicial review which may otherwise be justified is tightly bounded by legal and constitutional considerations. In judicial review, the High Court exercises supervision over administrative bodies and courts of limited jurisdiction and in that way acts as a safeguard to the rule of law. There is a public interest in ensuring that those bodies and courts act in accordance with law.” “The use of the term discretion, in the sense of judicial discretion, is strictly delineated. As O’Donnell J. (as he then was) said in Kelly23…. “The fact that the remedies involved are discretionary does not, however, mean that a court is at large, or is free to take into account its views on the underlying merits.”24 When used in the context of a ground to refuse judicial review it is a vital consideration that “the circumstances which allow the court not to make an order which would otherwise be justified must be such as to derive from an important constitutional or legal value of sufficient weight to warrant not making an order otherwise justified.”
46. As to planning injunctions but in terms broadly transferrable to judicial review (as the foregoing indicates), Humphreys J has recently, in Threshford,25 echoing many cases including Planree,26 emphasised the “primary consideration of the integrity of the (planning) system, the principle of legality, the need for equal justice and the rule of law”.
47. Accordingly, and for the following reasons, primarily grounded in the raison d’etre of judicial review and in the importance of the rule of law as identified by Donnelly J, I respectfully caution against too-ready deployment of the discretion to refuse relief in judicial review and of the concept of harmless error. The rule of law, its application in administrative decision-making and the integrity of the planning code may not seem as important in an instant case when contrasted with urgent necessities of development. In Independent 23 Kelly v Minister for Agriculture [2023] 1 IR 38, [2021] IESC
48. 24 Emphasis added. 25 South Dublin County Council v Threshford [2026] IEHC 342 . 26 Donegal County Council v Planree & Mid-Cork Electrical [2024] IEHC 194 [2024] IECA 300; [2025] 3 I.C.L.M.D.
49. 7 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
50. Newspapers, Murray J instanced, as relevant to the exercise of the discretion, the “importance of the underlying issue”- though he may have been referring to the issue of law rather than the substantive subject matter of the impugned decision. (Farrell,27 which Murray J understandably cites for the general proposition, does not seem to me to illuminate that distinction). In any event, strategically over time, the rule of law, its application in administrative decision-making and the integrity of the planning code are, in truth, highly pragmatic. That is because on them rests in very considerable part public confidence in, and the democratic and legal validity of, both the administrative and the judicial decision-making processes. So I observe as follows: a. First, legal error does not strictly entitle the applicant to relief (at least usually – there are cases of entitlement ex debito justitiae) but it does presumptively result in relief. As the court can exercise of its own motion the discretion to refuse relief, I do not use the concept of presumption in its usual sense of assignment of onus of proof – though, own motion exercise apart, the onus of persuasion is on the party submitting that relief should be refused. Perhaps a better way of putting it is that, where legal error is established, its remedy is the starting point of analysis. b. Second, legal error is presumptively harmful of itself. Perhaps the primary raison d’etre of judicial review is to correct – and to correct only – legal error. The project of judicial review is “the maintenance of the highest standards of public administration”.28 Fordham J (of particular eminence in judicial review) has said in Badger Trust29 that “The public interest enterprise of judicial review accountability secures lawfulness. It promotes discipline. It exposes unlawfulness. It promotes public confidence in public authority decision-making.” The rule of law and public confidence in the rule of law, especially when confronted with the mighty power of the State, and as was observed in Balz,30 real imbalance of forces as between protagonists, are values – constitutional and democratic - of high weight in and of themselves. The rule of law is not to be reduced, in administrative decision-making, to a mere means of producing a substantively meritorious result. The integrity of and public confidence in administrative processes – perhaps especially planning and environmental processes in which financial, environmental, private and public interests and other stakes are often high – are fundamentally underpinned by the rule of law. c. Decisionmakers’ proper insistence that judges stay away from the merits of their decisions (save in case of irrationality) is not too readily to be reversed once legal error is found and the merits are thought to weigh for rather than against the decision. If over-deployed, such reversals could justify a cynical view of the law’s priorities and even-handedness. (I use the words “too readily” and “over-deployed” deliberately.) Further, such reversal would offend the constitutional separation of powers on which administrative decision-makers properly insist. In Talbot31 the Supreme Court rejected an argument that 27 Eastern Health Board v Farrell [2000] 1 ILRM
51. 28 Shadowmill v ABP & Lilacstone [2023] IEHC 157, citing R v Lancashire CC ex p. Huddleston [1986] 2 AER 941; Saleem v Minister for Justice, Equality and Law Reform [2011] IEHC 55; Murtagh v. Kilrane [2017] IEHC 384; Environmental Trust Ireland v An Bord Pleanála, Limerick City and County Council & Cloncaragh Investments Ltd [2022] IEHC 540; Jennings v. An Bord Pleanála [2022] IEHC
52. 29 R.(Badger Trust) v Natural England, [2025] EWHC 2761 (Admin) [2026] A.C.D. 4, [2025] Costs L.R.
53. 30 Balz & Heubach v An Bord Pleanála, Cork County Council & Cleanrath Windfarms [2019] IESC 90, [2020] 1 I.L.R.M. 367, §45: “It is of the utmost importance that planning authorities and the board, on appeal (or, as is increasingly the case, the board in those circumstances in which direct application can be made to it for permission), should carry out their functions as professionally and competently as possible. The system of appeal (or first instance application) to an independent expert body was a great advance when introduced in
54. The imbalance of resources and potential outcomes between developers on the one hand, and objectors on the other, means that an independent expert body carrying out a detailed scrutiny of an application in the public interest, and at no significant cost to the individual, is an important public function.” 31 Talbot v An Bord Pleanála [2008] IESC 46, [2009] 1 IR
55. 8 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
56. leave to seek judicial review should be refused on the basis that the applicable planning policy was so obviously against the applicant that even if the planning refusal was quashed, a subsequent planning application would fail such that no benefit would accrue to the applicant from certiorari. To rephrase the argument – the impugned refusal had caused the applicants no harm which was not inevitable anyway. Fennelly J recognised that the planning history in that case was very strong evidence that the applicants faced an uphill battle in seeking planning permission. However, he noted that it would be open to the planning authority to modify their position and he insisted that “a judge is not entitled to presume in advance what the outcome of an application will be. That is exclusively a matter for the statutory bodies charged with those functions.” It is only if this is kept in mind that fears of the doctrine fall into what Humphreys J termed “alarmist cliché”. d. It may be that harmless error is to the discretion to refuse relief what irrationality is to legality: that it operates only where it is clear that a different decision on remittal would be irrational. If so, it represents a high hurdle – though, clearly absolute certainty would represent an unworkable standard – Foran.32 Humphreys J in Reilly seems to have had had a similar idea in mind when he suggested a “working approach” that in finding harmless error, “the court should exclude a reasonable possibility that the error would have made a difference to the actual outcome.” He seems to have used the phrase “a reasonable possibility” in the sense of “any reasonable possibility”. In that context and of his assignment of the onus of proof, the statement of Humphreys J that “Where by contrast the error would have had a material effect on the outcome, any breach of EU law should normally be remedied by certiorari” might perhaps be reframed as “Where those seeking to uphold the decision have not shown to the requisite standard of proof that the error would not have had a material effect on the outcome, any breach of EU law should normally be remedied by certiorari.” And, as Humphreys J said, on the premise of a finding of legal error and as to the question of discretionary refusal of relief by reference to the substantive merit of the decision, “Any after-the-event assessment which would allow a permission to stand should only be permitted in exceptional circumstances.” e. Clearly, the proportionality of relief to the legal error found may weigh in the scales of discretion – sometimes heavily and perhaps especially so when weighed against merely technical or trivial errors of law. And certiorari is always very significant relief – not to be under weighed. But, these days, remittal is, correctly in principle and in law, emphatically the norm. Even remittal imposes both delay and cost and sometimes consequential burdens – often imposed on an innocent third party in whose favour the quashed decision was illegally made. In the planning sphere and in some cases those considerations may even suffice to frustrate a particular development. But while proportionality should not be under weighed, nor should it be over weighed. Certiorari with remittal does not, at least usually, prevent lawful development. Delay (or, more neutrally, time taken to make planning decisions) is, in considerable part and perfectly properly, a function of resource allocation to decision-makers, as to which the courts should not second-guess executive priorities. If, on remittal, permission is granted in accordance with law, development can proceed. If, on remittal, permission is refused in accordance with law the developer can have no valid complaint. And the principle identified in Talbot seems all the easier to justly apply where remittal absolves the developer from starting the application process all over again. 32 Foran v An Coimisiún Pleanála & Glenveagh [2026] IEHC
57. 9 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
59. Finally on this issue, and lest a contrary impression be formed, it is not the case that the rule of law requires that every legal error in administrative decision-making merits certiorari. All of the foregoing is to be understood in the context of the caselaw generally on discretionary relief and harmless error. They are important recourses in cases proper to their careful and judicious deployment. In particular, they assist in cases of merely technical or trivial legal error. DEVELOPMENT PLAN & LAP
60. The development plan applicable to the Impugned Decision was the Fingal Development Plan 20232029 (“the Development Plan”). The Site is also covered by the Baldoyle-Stapolin Local Area Plan 2013 (“the LAP”).33 The following Development Plan provisions are relevant.34 (Note, I set out the Development Plan content as to Playgrounds when addressing Ground 2 below). Community & Zoning a. Policy CSP22 – Howth, Sutton and Baldoyle – Consolidate the development and protect the unique identity of Howth, Sutton and Baldoyle. This includes protection against overdevelopment. • Accompanying text35 includes: Baldoyle, Sutton and Howth are long established, historical settlements with distinct character and sense of place which contribute significantly to the character of Fingal. Integral to their character and exceptional amenity offer is their coastal environment … and strong built heritage including the presence of Architectural Conservation Areas in both Baldoyle and Howth Villages as well as excellent public transport accessibility. It is envisaged that these areas will develop through the provision of a range of facilities to support existing and new populations. For this to be achieved, it is vital that the role of Baldoyle, Howth are strengthened, and development consolidated within the original villages. b. Zoning Objective ‘RA’ Residential Area • Objective: Provide for new residential communities subject to the provision of the necessary social and physical infrastructure. • Vision: Ensure the provision of high quality new residential environments with good layout and design, with adequate public transport and cycle links and within walking distance of community facilities. Provide an appropriate mix of house sizes, types and tenures in order to meet household needs and to promote balanced communities. 33 The Fingal Planner’s Report appended to its decision of 16 February 2024 records that the LAP had expired in May 2023 but was in effect extended by CDP §3.5.3, which reads, in part: "The Council will continue to implement the LAPs … currently in place at the time of adoption of the Development Plan." 34 There is quite a bit of repetition in Development Plan text. I have omitted some. 35 P
61. 10 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
62. Open Space c. Open Space Serving Residential Development36 - As to Development Management, there are three categories of open space: Public Open Space, Communal Open Space and Private Open Space. The quantum, location and design of open space is addressed as part of the Development Management process and conditioned as part of a planning permission for development. d. Public open space is accessible to the public at large and in general is intended to be ‘taken-in charge’ by the Local Authority, but in certain circumstances may be privately managed. Appropriate provision must be made for public open space within all new developments. In all instances where public open space is not provided, a contribution under Section 48 will be required for the shortfall. “(Target minimum amount of 15% except in cases where the developer can demonstrate that this is not possible, in which case the 12% to 15% range will apply.)” e. Public Open Space – Quantity - For all developments with a residential component, the overall standard for public open space provision is a minimum 2.5 hectares per 1000 population. In order to provide existing and future communities with adequate recreational and leisure opportunities, the Council will employ a flexible approach to the delivery of public open space and more intensive recreational/amenity facilities. It is the intention of the Council, however, to ensure, except under exceptional circumstances, public open space provision exceeds 12% of a development site area.37 f. Objective DMSO51 – Minimum Public Open Space Provision - Require a minimum public open space provision of 2.5 hectares per 1000 population. For the purposes of this calculation, public open space requirements are to be based on residential units with an agreed occupancy rate of 3.5 persons in the case of dwellings with three or more bedrooms and 1.5 persons in the case of dwellings with two or fewer bedrooms. g. Objective DMSO52 – Public Open Space Provision - Public open space shall be provided in accordance with Table 14.
63. Table 14.12: Recommended Quantitative Standards (Sustainable Residential Developments in Urban Areas, Guidelines for Planning Authorities 2009) Land use Minimum public open space standards Overall standard. 2.5 hectares per 1000 population New residential development on greenfield sites/LAP lands 12% - 15% of site area New residential development on infill/brownfield sites 12% of site area (Target minimum amount of 15% except in cases where the developer can demonstrate that this is not possible, in which case the 12% to 15% range will apply.) 36 §14.6.
64. 37 §14.3.
65. 11 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
66. h. Table 14.11 Public Open Space and Play Space Hierarchy and Accessibility Standards - The standards allow for a wide variety of accessible public open spaces. In all residential developments a mix of public open space types should be provided where achievable. Table 14.11 describes the following types of public open space: Pocket Parks, Small Parks (both Class 2 as per Development Contribution Scheme), Local Parks, Urban Neighbourhood Parks and Regional Parks (all Class 1 as per Development Contribution Scheme). Financial Contribution in Lieu of Public Open Space i. Objective DMSO53 – Financial Contribution in Lieu of Public Open Space - Require “minimum” open space, as outlined in Table 14.12 for a proposed development site area. (Target minimum amount of 15% except in cases where the developer can demonstrate that this is not possible, in which case the 12% to 15% range will apply). ▪ The Council has the discretion to accept a financial contribution in lieu of the “remaining” open space requirement to allow provision for the acquisition of additional open space or the upgrade of existing parks and open spaces subject to these additional facilities meeting the standards specified in Table 14.
67. ▪ Where the Council accepts financial contributions in lieu of open space, the contribution shall be calculated on the basis of 25% Class 2 and 75% Class 1, in addition to the development costs of the open space. ▪ The Council has the discretion for the remaining open space required under Table 14.11 to allow provision or upgrade of small parks, local parks and urban neighbourhood parks and/or recreational/amenity facilities outside the development site area, subject to the open space or facilities meeting the open space ‘accessibility from homes’ standards for each public open space type specified in Table 14.
68. ▪ The Council has the discretion for the remaining open space required under Table 14.11 to allow provision or upgrade of Regional Parks in exceptional circumstances where the provision or upgrade of small parks, local parks and urban neighbourhood parks and/or recreational/ amenity facilities is not achievable. This is subject to the Regional Park meeting the open space ‘accessibility from homes’ standard specified in Table 14.
69. ▪ The Council has the discretion to accept a financial contribution in lieu of remaining open space requirement required under Table 14.11, such contribution being held solely for the purpose of the acquisition or upgrading of small parks, local parks and urban neighbourhood parks and/or recreational/amenity facilities subject to the open space or facilities meeting the open space ‘accessibility from homes’ standards for each public open space type specified in Table 14.
70. ▪ The Council has the discretion to accept a financial contribution in lieu of the remaining open space requirement to allow provision or upgrade of Regional Parks in exceptional circumstances where the provision or upgrade of small parks, local parks and urban neighbourhood parks and/or 12 Abbey Park Residents v An Coimisiún Pleanála & Rondesere [2026] IEHC
71. recreational/amenity facilities is not achievable, subject to the Regional Park meeting the open space ‘accessibility from homes’ standard specified in Table 14.
72. j. Objective DMSO57 – Development Contribution Schemes - Require the monetary value in lieu of open spaces to be in line with the Fingal County Council Development Contribution Scheme. k. The Development Contribution Scheme38 as to Open Space Shortfall provides as follows: “The Fingal Development Plan provides the discretion to the Council to determine a financial contribution in lieu of all or part of the open space requirement for a particular development. This contribution in lieu of open space will be levied at the following rates;
73. Class 1 Open Space - €100,000 per acre to purchase land based on the value of amenity land, Plus €100,000 per acre for development costs.
74. Class II Open Space - €250,000 per acre to purchase land in residential areas, Plus €100,000 per acre for development costs. These rates may be reviewed by the Council from time to time have regard to market conditions. The contributions collected will be used for the provision of open space, recreational and community facilities and amenities and landscaping works – see Appendix 2.”39 SuDS l. Sustainable Urban Drainage Systems (SuDS),40 Objective DMSO203 – FCC SuDS Guidance Document & Objective IUO11 – SuDS in New Developments “Ponds, artificial wetlands and water features can make a positive contribution to the provision of SuDS and to the amenity of an area. Properly designed and located SuDS features can be incorporated within and can complement the amenity and aesthetic value of open spaces. There is a requirement to ensure that the design of SuDS enhances the quality of open spaces. SuDS shall be incorporated into all parts of a development (open spaces, roads, footpaths, private areas) as per the FCC SuDs Guidance Document – Green/ Blue Infrastructure for Development, as amended (Appendix 11), and shall ensure: ➢ That the design of SuDS enhances the quality of open spaces and when included aspart of any open space provision, it must contribute in a significant and positive way to the design and quality of the open space. ➢ Open space areas shall not be dominated by SuDS features.” m. Development Plan Appendix 11 (SuDS Guidance Document) states41 “Properly designed and located SuDS features can be incorporated within and can complement the amenity and aesthetic value of open 38 Fingal County Council Development Contribution Scheme 2021-2025 (under Section 48, Planning & Development Act 2000, as amended). 39 The Appendix project list for “Community & Parks” is explicitly indicative only. 40 §4.5.2.8, Table 14.6: Open Space Categories. 41 Pg
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76. spaces. SuDS areas do not form part of the public open space provision, except where they contribute in a significant way to the design and quality of open space as defined by the Planning Authority.” n. Development Plan Appendix 11, Appendix A Surface Water Management Design Statement states:42 “Applicants shall be required to clearly demonstrate how the design makes a significant and positive contribution to the amenity value of the open space provision and shall state how the usability of these areas by the public has been addressed.” Visual & Landscape o. Objective GINHO55 – Protection of Skylines - Protect skylines and ridgelines from development. p. Objective GINHO56 – Visual Impact Assessments - Require any necessary assessments, including visual impact assessments, to be prepared prior to approving development in highly sensitive areas. q. Objective GINHO57 – Development and Landscape - Ensure development reflects and, where possible, reinforces the distinctiveness and sense of place of the landscape character types, including the retention of important features or characteristics, taking into account the various elements which contribute to their distinctiveness such as geology and landform, habitats, scenic quality, settlement pattern, historic heritage, local vernacular heritage, land-use and tranquillity. Building Heights - LAP
77. As to Local Area Plans, the Development Plan states that Fingal “will continue to implement the LAPs currently in place at the time of adoption of the Development Plan” – including the LAP. It will do so “in cooperation with relevant stakeholders, and actively seek the achievement of the specific objectives within.” 43
78. The LAP, as to building heights, states Objective RS 12 – “Require buildings to conform to the heights set out in Figure 4D.2 Building Heights within the LAP lands.” Figure 4D.2 identifies the Site as a “Punctuation Node” and for building height of 3 – 4 storeys. The accompanying text includes the following: “… a central requirement of the LAP is that the new development be fundamentally urban. …. Broadly speaking, the LAP provides for increased densities and height around the village centre and the Racecourse Park edge falling to lower height and densities throughout the remainder of the development and in particular along the quiet streets. The height gradient across the site naturally corresponds to the density gradient and minimum and maximum heights (by floor) are established for all areas of the LAP lands. A number of punctuation nodes are provided for at key junctions and identified strategic locations. Buildings at these points should acknowledge their strategic location within the Plan lands. They may be 42 Pg
79. 43 §2.4.1, Table 2.15, §3.5.5 & Objective SPQHO
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81. slightly higher than their neighbours (but still within the heights parameters set out above) and/or have specific corner treatment which distinguishes them from other corner locations.”44 Notably, • the Site is on the southern boundary of the LAP Area. It is designated for meduim density of 42-50+ units per hectare. • The “village centre” referred to is not an existing village centre. It is a new Baldoyle-Stapolin village centre envisaged by the LAP about 500m north of the Site, near Clongriffin train station. • The Racecourse Park edge is some distance further north of the Site and east of the Site. 45 STATUTE
82. S.34