Key Contacts: Leonora Mullett – Partner

A recent decision of the Supreme Court will potentially have significant consequences for those who own, occupy or are seeking to carry out works to a protected structure. (See Sherwin v An Bord Pleanála and CWTC Multi Family ICAV [2024] IESC 13).

The High Court judgment quashed the Strategic Housing Development planning permission from An Bord Pleanála (“the Board”) for development of 1592 Build to Rent Units on the site of the former Dublin Diocesan Seminary at Holy Cross College in Drumcondra, Dublin [See [2023] IEHC 26]. The campus includes five buildings which are included on the Record of Protected Structures maintained by Dublin City Council and a recorded National monument, ‘The Red House’.

A Certificate for leave to appeal was refused in the High Court and the Supreme Court accepted a leapfrog appeal in the interest of expedition and efficiency.

The proposed development design incorporated the five Protected Structures (and other buildings) and it proposed construction of 12 residential blocks, ranging in height from 2 to 18 storeys. The Protected Structures were to be re-purposed involving demolition of some very small parts of the buildings, most of which were later additions to the protected structures. The permission was quashed in the High Court inter alia on account of the Board having permitted demolition of part of a Protected Structure in the absence of having considered if ‘exceptional circumstances’ existed, in breach of Sub-section 57(10)(b) of the Planning and Development Act 2000 as amended (“Sub-section 57(10)(b)”).

Leave to appeal was allowed on the following grounds and our focus here is on the interpretation issue:

  1. The correct interpretation of Sub-section 57(10)(b);
  2. Material contravention of the development plan and Standard of Review by the Court and
  3. The extent of the duty of the Board to give reasons in its decision.

Sub-section 57(1) provides that works to a protected structure shall be ‘exempted development’ only if they “would not materially affect the character of (a) the structure, or (b) any element of the structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest.’

Sub-section 57(10) (b) says “A planning authority, or the Board on appeal, shall not grant permission for the demolition of a protected structure or proposed protected structure, save in exceptional circumstances.

The High Court found that the Board Order was flawed as Sub-section 57(10)(b) required the Board to find ‘exceptional circumstances’ existed prior to permitting the demolition of part of the protected structure. The respondents to the appeal asserted that this interpretation would mean that any minor demolition would require the owner to demonstrate ‘exceptional circumstances’ in order to obtain planning permission and that this would defeat a purpose of the Act of “protecting structures or parts of structures, which form part of the architectural heritage”. Most renovations and repurposing work to a Protected Structure include some aspect of demolition albeit in many cases it will be of a very minor nature. Also, it was asserted that it would be difficult to demonstrate the circumstances as being “exceptional” if every application for permission for demolition was required to demonstrate “exceptionality”.

The Supreme Court found that the High Court erred in its interpretation of Sub-section 57(10(b) and that the requirement for ‘exceptional circumstances’ in relation to demolition of a ‘protected structure’ in Sub-section 57(10(b) is not triggered by the proposed demolition of a part of a protected structure.

The Court also affirmed that the carrying out of works to alter a Protected Structure, which includes demolition, may be exempted development if the double tests in Sub-sections 4(1)(h) and 57(1) of the Act are satisfied.

The Court found against the appellant on the second and third grounds and dismissed the appeal thereby upholding the Order for Certiorari quashing the permission.

Section 280 of the Planning and Development Bill 2023 (the “Bill”) proposes to amend the existing provision in Sub-section 57(2) which allows for a declaration to be sought as to the type of works which the planning authority considers would materially affect the character of the protected structure or any element referred to in Sub-Section 57(1)(b). The Bill proposes to allow a declaration to be made by the planning authority to confirm if identified specified works would materially alter the character of the structure or any element of it. This will provide greater certainty to homeowners seeking to carry out works. It also introduces a provision allowing the owner or occupier of a building (or someone carrying out work with their consent) to seek a declaration from the planning authority setting out features within the attendant grounds of the protected structure to be protected and the extent of the curtilage of the structure. The Bill has not been signed into law and it remains to be seen if these proposed amendments will be enacted into law.

This article was prepared by partner , Leonora Mullett  and associate , David Wacks. If you have any queries on this or require any advice on planning or environmental law, please contact Leonora Mullett , Rachel Minch or Alice Whittaker.