IEHC 93 — IEHC 93 — High Court

APPROVED [2026] IEHC 93

THE HIGH COURT

PLANNING & ENVIRONMENT

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

H.JR.2024.0001275

BETWEEN

PROTECT KENILWORTH SQUARE AND MARTIN JOYCE APPLICANTS

AND

DUBLIN CITY COUNCIL RESPONDENT

AND

THE CONGREGATION OF THE HOLY SPIRIT and THE BOARD OF MANAGEMENT OF SAINT MARY’S COLLEGE NOTICE PARTY

JUDGMENT of Mr. Justice Nolan delivered on the 18th day of February 2026

Introduction

1. The First Named Applicant is an unincorporated association of concerned residents of

the Kenilworth Square area (“the Square”), while the Second Named Applicant resides on the

Square. They seek an order of Certiorari quashing the declaration of the Respondent (“the Council”) dated 22nd August 2024 (Ref 0285/24) made pursuant to Section 5 of the Planning

and Development Act 2000 (as amended) (“the PDA”) in relation to an application made by

the Notice Party, the Board of Management of St Mary’s College Rathmines (“St Mary’s”),

that certain intended works in the Square are exempted development and do not require

planning permission.

2. The decision forms part of an overall project called ‘Project Kenilworth’ which

involves the replacement of three existing grass pitches and a small pavilion with two full size

pitches (one of which will be a 4G synthetic/artificial pitch and floodlit), the construction of a

large new pavilion, a new vehicular entrance, new pedestrian entrances and the creation of a

car park in the Square.

3. While most of the proposed development requires planning permission, St Mary’s

sought a Section 5 declaration from the Council in respect of part of the works. The Council

granted the application. A Section 5 declaration is a mechanism for determining whether

proposed works constitute “exempted development”, within the meaning of the PDA. The

works concern the reconfiguration of two smaller pitches into one full-size pitch with a 4G

artificial surface, together with the installation of 1.2-metre perimeter fencing around the

proposed all-weather pitch (“the proposed works”).

4. The Applicants rely on two core grounds of objection namely that the proposed works

do not fall within the Section 5 exemption (Core Ground 1) and that what is proposed

comprises an “infrastructure project” – namely “urban development” – for the purposes of

Environmental Impact Assessment (“EIA”) (Core Ground 4). Not surprisingly the Council and

St Mary’s disagree. Background

5. Since 1948, the Victorian garden square—situated between the leafy suburban districts

of Rathmines and Ranelagh—has been used by St Mary’s as a sports facility. Of the 88 houses

on the Square, 86 are protected structures listed in the Record of Protected Structures, and the

surrounding area is designated a Residential Conservation Area under the Dublin City

Development Plan. The Applicants say that permission has been granted for very significant

development without any consideration of the impacts on these Protected Structures.

6. As part of its application to the Council seeking a Section 5 declaration, St Mary’s

provided a report from its architects, which included much documentation, including a Site

Map and Layout Plan and an Appropriate Assessment (“AA”) Screening Report. The AA

Screening Report outlined the methodology adopted for preparing it, which was informed by

an ecological site survey of the lands. It also set out the nature of the proposed development,

including the site drainage design and provided a summary of the existing environment. The

documentation further included an Arboricultural Impact Assessment, an Arboricultural

Method Statement and a Landscape Design Report. It was most comprehensive.

7. The Council, in its Planning Report, came to the view that in respect of an EIA the

works are “not of a class or exceeds any relevant threshold” for the PDA or the Planning and

Development Regulations 2001, as amended, (“PDRs”) and that “it is considered that there are

no likely significant direct, indirect and/or cumulative effects likely to arise, therefore, there is

no real likelihood of significant effects of the environment”. In those circumstances it concluded

that an EIA was not required, and therefore there was no real likelihood of significant effects

on the environment.

8. Having noted the Developer’s AA Screening Report, detailing the Council’s AA

Screening conclusion – which was that the works individually or in combination with other plans or projects, would not have a significant effect on a European Site, which the Square is,

an Appropriate Assessment is not required for the works proposed.

9. The Council determined that the replacement of the surface of the rugby pitch and the

reconfiguration comprised “works” and “development” for the purposes of Section 2 and

Section 3 of the PDA and went on to find that the proposed works are exempted development

by reference to Class 33(c), Schedule 2, Part 1 of the PDRs.

10. The Report noted that the pitch is ancillary to the school and the documentation

submitted in support of the application outlined that no charge will be made for the public being

admitted to watch games on the pitch. The Report also set out, as per the information provided,

that the use of the facilities would be “restricted to club members and invited visitors on

payment of a fee only and there is no charge made for admission by the public to the land.

Therefore, the works to be undertaken fully comply with the exempted provisions set out in

Class33(c)…”.

11. The Report further noted that the proposal to include the erection of a 2.1 meter fence

around the boundary of the proposed all-weather pitch, involved the loss of eight trees and that

the works to install the all-weather pitch would involve the removal of approximately 430mm

(nearly half a meter) of the top layer of the pitch. It further noted that Class 33(c) does not

specify any conditions or limitations regarding alterations to ground levels to facilitate the

laying out of land for the purpose and that the alteration of ground levels would not be

“material” in terms of planning and was a necessary measure to facilitate the implementation

of the class of exempted development to be granted.

12. In assessing the proposed 1.2-metre fence, the Council considered Sections 2 and 3 of

the PDA, Article 6 and Article 9 of the PDRs, and Class 11(a) of Part 1, Schedule 2 of the

PDRs. Class 11 exempts “the construction, erection, lowering, repair or replacement, other than within or bounding the curtilage of a house, of—(a) any fence (not being a hoarding or

sheet metal fence)” provided that “the height of any new structure shall not exceed 1.2 metres

or the height of the structure being replaced, whichever is the greater, and in any event shall

not exceed 2 metres.” On that basis, the Council declared the proposed works to be exempted

development.

13. In respect of the removal of trees, the Council noted that there were no tree protection

orders in place, and therefore the removal of trees was considered ancillary to the exempted

development.

Class 33 of the PDRs - Exempted Development

14. Schedule 2 of the PDRs contain over 50 categories of exempted developments with a

description of the development in one column and conditions and limitations in the other. These

include development within the curtilage of a house, home landscaping, certain developments

by statutory undertakings and harbour authorities and developments for amenity and

recreational purposes. It is category Class 33 which is relevant in this case. The first column

reads as follows: -

“Development consisting of the laying out and use of land –

(c) for athletics or sports (other than golf or pitch and putt or sports involving the use

of motor vehicles, aircraft or firearms), where no charge is made for admission of the

public to the land”. (emphasis added)

15. There are no restrictions listed in the second column relevant to sub para. c.

16. Therefore, the key issues are what does “the laying out and use of land” mean and

whether a charge will be made “for admission of the public to the land” in circumstances where

the school says it will apply a payment fee to invited guests only. Section 5 — Declaration and Referral on Exempted Development of the PDA

17. Section 5 is relevant and reads as follows: -

5.—(1) If any question arises as to what, in any particular case, is or is not development

or is or is not exempted development within the meaning of this Act, any person may,

on payment of the prescribed fee, request in writing from the relevant planning

authority a declaration on that question, and that person shall provide to the planning

authority any information necessary to enable the authority to make its decision on the

matter.

(2) (a) Subject to paragraph (b), a planning authority shall issue the declaration on the

question that has arisen and the main reasons and considerations on which its decision

is based to the person who made the request under subsection (1), and, where

appropriate, the owner and occupier of the land in question, within 4 weeks of the

receipt of the request.

18. In essence, this is an application which does not form part of the usual public scrunty

of the planning process, a point to the fore in the submissions of the Applicants. As Simons and

Browne states in the 3rd edition of Simons on Planning Law, the issue of whether or not works

constitute exempted development is a matter to be exclusively determined by a planning

authority, and on appeal to An Bord Pleanála, now the Commission (Chapter 2 paras. 170-174

& 292-301).

19. It is not for the court to express any view as to whether the works are or are not

exempted development. It can only determine, in the context of a judicial review, whether such

a declaration was made intra vires and in accordance with law or not, as the case may be. The First Core Ground - The Applicants’ Case

20. Mr. Flynn SC for the Applicants argues that the sheer size and scale of the proposed

works are of such a character that they cannot be regarded as being exempt. The works will

involve major excavations by heavy plant, the removal and importation of very significant

volumes of material, the construction of significant structures in the form of a 4G pitch,

including its drainage and associated foundations. There has been a failure to provide a

construction environmental management plan, a waste management plan, a noise and dust

management plan, an environmental management plan, traffic management plans or a flood

risk assessment, notwithstanding the significant construction process envisaged.

21. He says the PDRs relate to minor or insignificant works, pointing to Section 4(2) of the

PDA which allows for the making of the regulations and that they must be strictly construed

and must fall “clearly and unambiguously” within the claimed exemption (Dillion v Irish

Cement Ltd [1986]11 JIC 2602). The interpretation of Class 33 of the PDRs is a matter for the

Court and not the Council, the primary interpretative focus are the words of the PDRs

themselves, with the words in context also relevant as an interpretative aide.

22. Turning to the decision itself he argues that none of these principles are evident. In

particular the phrase “Laying out of lands...for sport”. Here the proposed works involve the

replacement of a pitch with a brand-new structure including excavating down a distance of

nearly half a meter. He submits that the exemption is limited to effectively two-dimensional

surface works, because to see it any differently is to ignore the plain and ordinary meaning of

the words “laying out of lands” (Heather Hill [2022] IEHC 146). Digging a big hole is not

“laying out of lands”.

23. He says the other exempted development classes all point to restriction to minor or

insignificant works carried out by private parties as being exempt. Class 33 must be read restrictively and therefore this development with its excavation of a pitch and its replacement

with a new structure is “clearly and unambiguously” not within the exemption, since it is not

“minor and insignificant” as per Simons on Planning Law. (Chapter 2 para. 172).

24. Finally, he submits that the Council erred in law in concluding that the public would

not be charged for use of the facilities, which is a precondition for the application of Class 33

of the PDRs. It is clear from the information submitted by St Mary’s as part of its referral, that

in fact the public will be charged for use of the facility. The fact that only a sub-set of the public

will be “invited” to use the facility is irrelevant since members of the public and whatever

public use is permitted by the notice party, will be done based on a charge being levied.

The Council’s Response

25. Mr. Dodd SC for the Council says that the Applicants’ interpretation is unworkable and

incorrect. It says that while the interpretation of exemptions generally must be strictly

construed, but not so strictly that they cease to have any meaningful effect. He rejects the

submission that the exemptions must be minor or insignificant. Some exceptions are very

significant including construction, reconstruction, extension or removal of material as set out

in the Class. He argues that statutory interpretation shows that the provisions should be

interpreted considering the Act as a whole and should be read so as to produce a workable and

coherent interpretation. (see McGrath v McDermott [1988] I.R. 258)

26. He points to Section 3(1) of the PDA which defines “development” as “the carrying out

of any works on, in, over or under land or the making of any material change in the use of any

structures or other land…” While Section 2(1) of the PDA defines “works” as including “any

act or operation of construction, excavation, demolition, extension, alteration, repair or

renewal…”. 27. Section 4(2) of the PDA provides for “exempted development” and allows the Minister,

by way of regulations, to provide for any class of “development” (which includes “works

development”) to be exempted development and that such exempted development may be

subject to conditions. In this case development includes development for “amenity or

recreational purposes”. Here there are already existing sports pitches and the proposed works

merely involves the alteration of those pitches with artificial grass and a change in orientation.

28. He submits that the Applicants have failed to interpret the terms of the PDRs by

reference to the relevant statutory definitions. He refutes the submission of the Applicants that

the exemption is limited to effectively two-dimensional surface works and would amount to

the reading in a condition or limitation of the Class 33 exemption which is not there.

29. Regarding the Applicants’ contention that the Council erred in concluding that the

public would not be charged for use of the facilities, he submits that is incorrect interpretation

of the Class 33(c). The exemption relates to there being “no charge” for the “admission of the

public to the land”, and is concerned with access to the land, not the use of the land. The

exemption only requires that admission to the lands does not incur a charge.

St Mary’s Response

30. Mr. Fitzsimons SC for St Mary’s, the Notice Party, points to the nature of Section 5

declarations, as interpreted by the Court of Appeal in Narconon Trust Limited v. An Bord

Pleanála [2021] IECA 307. He submits that the Council correctly found that the laying of an

artificial surface on a pitch for the purposes of playing rugby is development consisting of the

laying out and use of land for sports and that the changing of the surface of the land from

natural grass to artificial grass constitutes the laying out of land, as set out in Class 33(c) of the

PDRs. 31. He notes that the Applicants acknowledge that there is no limitation placed on the

development of sports use in the second column relevant to Class 33 of the PDRs, yet their

arguments are premised on a requirement that the development must be “minor or

insignificant” to avail of the exemption provisions. Each exemption class is accompanied by

its own limitation provisions which delineate the scope of the exemption, where necessary. In

this case there are none.

32. Development means a lot more than simply laying out. It was the intention of the

Oireachtas that there would be no restrictions otherwise there would be.

33. It was clearly specified in the application documentation that members of the public

would not be charged for admission to the facilities to observe matches taking place thereon.

34. He submits that the meaning of the relevant condition is clear: any proposed sporting

or athletic facility development is “de-exempted” where it is intended to charge members of

the public for entry to watch the sporting events taking place. Such a scenario does not arise in

the context of the proposed works, since the renting out facilities for use by other sports clubs

does not equate to charging members of the public for entry to the lands.

Discussion and Decision on First Core Ground

35. There is little doubt that at first glance the proposed works would seem to be significant.

The Square in question is beautiful, surrounded, as it is, by protected structures. Sadly, the

Square is not a protected structure, nor is it owned by the residents. It is private property owned

by St Mary's since 1948, who have used it as part of their sports facilities since then. In this

day and age of environmental protection, this is a sad state of affairs, nonetheless it is the case.

36. I accept that the PDRs must be strictly construed by the court to ascertain whether St.

Mary’s has put itself within that exemption “clearly and unambiguously”, as Finley C.J. said

in Dillon., however I believe they have. 37. I agree with Mr Fitzsimons where he says that the issue of what is or is not an exempted

development, has already been considered by the Minister, when he invoked the PDRs, which

must be seen in the light of the PDA. In this case Class 33 has no conditions or limitations in

relation to developments for amenity or recreational purposes.

38. The definitions of the term “development” clearly involves “the carrying out of any

works in, on, over or under land or the making of any material change in the use of any land

or structures situated on land” as per Section 3(1). Therefore, applying the normal canons of

statutory interpretation, the activity which has an exemption includes development consisting

of the laying out and use of land. That includes subterranean works, since development includes

“the carrying out of any works in, on, over or under land”. While Section 2(1) of the PDA

defines “works” as including “any act or operation of construction, excavation, demolition,

extension, alteration, repair or renewal…”. Therefore, the phrase “the laying out and use of

land” must be seen in the context of the definitions of the words “development” and “works”

and as such, does not have the meaning contended for by the Applicants.

39. In my view the laying of a 4G pitch with the associated drainage works to a level of

something in the region of half a metre, is not a material change in the use of the land, nor

indeed has it been so argued. I cannot read into the legislation words which are not there.

40. Nor can I read in the limitation which the Applicants have urged upon me, namely that

the works must be “minor or insignificant”. While those words come from Simons on Planning,

read in context they refer to the rationale for allowing exempted development (Chapter 2 para.

172). The learned authors noted that Section 4(2) of the PDA, allows the Minister to make

regulations where he is of the opinion that by reason of the size, nature or limited effect on its

surroundings the development belonging to that class, the carrying out of such development

would not offend against the principles of proper planning and sustainable development (para

171). As Mr Dodd submitted, that provision carries with it the presumption of being lawful and not offending against the principles of proper planning and sustainable development. I

appreciate that from the Applicants perspective the works are significant and, no doubt, are not

what the original developers or planners of the Square had envisaged. But in the context of the

legislation and the regulations they are not, falling squarely as they do, within the parameters

of a Section 5 declaration. The only question the court can ask is whether the Council made the

decision ultra vires. Sadly, I am of the opinion that it did not so act. In the circumstance the

decision is lawful.

41. The next issue to be addressed is the one restriction, as opposed to limitation, which

appears in the body of the class, and that is “where no charge is made for admission of the

public to the land”.

42. It is clear, that proper statutory interpretation of the words can lead to only one

conclusion, that the exemption only requires that admissions to the lands, as opposed to use, of

the lands, does not incur a charge. Mr Fitzsimons confirms that the facility, which is a private

facility and not open to the public, is restricted to club members and invited visitors, on

payment of a fee only. What is envisaged is that the facility will be hired out to local

communities so that they may benefit from it. It is not suggested that there will be a charge

made for admission of the public to the land. In that regard I accept the submission of St Mary's

that what is exempted is a proposed sporting facility where no charge will be made for

admission of the public to the land or to put it in simpler terms it is not intended to charge

members of the public for entry to watch a sporting event taking place.

43. In those circumstances, it seems to me that the Applicants have failed to prove their

case under Core Ground One. The Fourth Core Ground – EIA, The Applicants’ Case

44. Mr. Flynn for the Applicants argues that the Section 5 declaration is invalid since the

Council failed to consider adequately or at all the likely significant effects on the environment

of the proposed works. It had no objective information before it to come to that view, for the

purposes of excluding the necessity for an EIA assessment or screening to be undertaken by it.

Therefore, the Council failed to make a lawful reasoned EIA screening determination, contrary

to Article (5)(b) of the EIA Directive.

45. He submits that the affidavit of Ms. Uí Fhátharta, the Deputy City Planner, says that an

EIA screening report was carried out “on a precautionary basis only” and was without

prejudice to the principle that the proposed works was not a category of EIA project. He says

there should have been screening and if the Court came to the view that screening did occur,

that contaminates the decision. European law gives a broad scope to the Directive. He points

to steps taken by the Commission in other cases.

46. As the parties all agree this Court is not bound by the views expressed by inspectors to

the Council or the Commission in other cases, I will not rely upon any such submissions, either

from the Applicants or the Respondents.

47. In respect of what the Council decided, namely that an EIA screening was not necessary

because the application did not meet the threshold for an EIA project, Mr. Flynn says the

information required under Article 4(4) of the EIA Directive was absent. There was no

description of the project including the duration, times or type of activities for which the facility

will be used other than that it will be used for both school purposes and third-party activities.

There was no assessment of the impacts on the surrounding protected structures nor was there

any information on the amount of soil and other wastes to be taken from the site as well as the

nature and quantity of materials to be imported onto the site for construction or information on biodiversity impacts including bats, which use the location. There was no comprehensive

information on drainage, including flood risk assessment, Uisce Éireann confirmations and

engineering calculations or information on sites of cultural significance in the area.

48. He submits that the Council erred in finding that the proposed works do not fall within

any Class under the PDR Schedules and that they do, in fact, constitute “urban development”

and infrastructure on a significant scale.

49. He accepts that all depends upon the Court’s view in relation to the issue as to whether

the Council was obliged to undertake a Screening for EIA purposes. If I conclude that the

Council was correct in the position it now adopts, then that is the end of the matter. On the

other hand, if I agree and conclude that the Council was obliged to screen for EIA (whether or

not it actually did so) then environmental aspects were not considered nor the impact on the

surrounding Protected Structures.

50. In the written submissions the residents submit that the Council failed to give reasons

for its EIA screening position and for concluding there would be no likely significant

environmental effects, thereby breaching Article 4(5)(b) of the EIA Directive and s.5(7A) and

simply repeated the statutory test.

The Council’s Response

51. The Council’s position is that there was no necessity to consider the matter further

because the works do not constitute “urban development” and are not a category of EIA project

under Schedule 5 of the PDRs or the EIA Directive. The discussion in the Planner’s Report was

undertaken on a precautionary basis only and was without prejudice to the conclusion that the

proposed development does not fall within any EIA project category. 52. Mr. Dodd submits that administrative decisions should be read in a manner which is

valid, where such a reading is open and to that end, relies upon a number of authorities

including Friends of Killymooney Lough v An Coimisiún Pleanála [2025] IEHC 407 and Eco

Advocacy v An Bord Pleanála [2025] IEHC 15. If the works, the subject matter of the Section

5 declaration, do not comprise an EIA project then any issues with substantive EIA Screening

are irrelevant (Carvill v Dublin City Council [2025] IECA 84).

St Mary’s Response

53. Mr. Fitzsimons for St. Mary’s submits that the proposed development does not

constitute a category or project for the purposes of the EIA Directive. On that basis there was

no obligation to provide or submit the information specified in Article 4(4) of the EIA Directive

on the Section 5 request. The proposed development does not constitute an “infrastructure

project” for the purposes of Section 10(b)(iv) of Part 2 of Schedule 5 to the PDRs.

54. The Applicants’ pleaded case acknowledges that the Council’s Decision is capable of

being read in the way the Council contends it should be read. The Applicants’ assertions that

the proposed development is “urban development” bears no realistic comparison to the other

types of infrastructure projects listed.

55. While there were further submissions received from the Applicants, the issues have

already been covered by their first set of submissions.

Discussion and Decision on Core Ground 4

56. The Applicants’ pleaded complaint is that the works, the subject matter of the Section

5 declaration, comprise a class of EIA development under Section 10(b)(iv) of Part 2, Schedule

5 of the PDRs – which relates to infrastructure projects. The provision reads as follows: - “10. Infrastructure projects

(a) Industrial estate development projects, where the area would exceed 15

hectares.

(b) (i) Construction of more than 500 dwelling units

(ii) Construction of a car-park providing more than 400 spaces, other than a

car-park provided as part of, and incidental to the primary purpose of, a

development.

(iii) Construction of a shopping centre with a gross floor space exceeding 10,000

square metres.

(iv) Urban development which would involve an area greater than 2 hectares in

the case of a business district, 10 hectares in the case of other parts of a built-

up area and 20 hectares elsewhere.

(In this paragraph, “business district” means a district within a city or town

in which the predominant land use is retail or commercial use.)

57. As can be seen, the proposed works does not resemble anything close to this category

of work. Given the nature, character and type of works envisaged, I cannot find that the works

fall within that which the legislators envisaged in the PDRs. The type of developments set out

in the Schedule includes crude oil refineries, nuclear power stations, integrated chemical

installations, railways, intermodal transhipment facilities and airfields. It would be stretching

the meaning of words, even on a restrictive basis, to include the laying of a 4G rugby pitch,

even in the beautiful surroundings of the Square, into this category.

58. As O’Moore J. noted in Kavanagh v An Bord Pleanála [2020] IEHC 259, “The

obligations placed on Member States by the Directive are limited by reference to the classes of

projects or developments set out in the Annexes, and do not extend beyond them.” 59. The EIA Directive is clearly aimed at major projects. In Carvill v Dublin City Council

[2025] IECA 84 (“Carvill”) the Court of Appeal considered whether traffic calming measures

along Sandymount Road were “urban development” for the purposes of the EIA Directive and

the PDRs. The court concluded that the proposed works “does not sit even remotely easily

alongside the guidance provided by the EU Commission” on urban development (para. 228).

60. In my view the proposed works are not an infrastructural project. That being the case

an EIA is not required as per the Court of Appeal in Carvill (para. 254.) I do not consider the

“precautionary basis” approach of the planner to be a ground for criticising the Council or

arguing that in fact the proposed development does require an EIA to be carried out. One only

has to look at the nature of the proposed works. No matter how unpalatable it is, is not

infrastructure on a very significant scale. While I have no doubt that the Applicants believe that

not to be the case, but when viewed from the position of the Court, it is. Nor do I accept that it

failed to give reasons. In the circumstances repeating the statutory test was quite sufficient.

Conclusion

61. Notwithstanding a significant degree of sympathy which I have for the Applicants, in

circumstances where I have no doubt that the proposed development will be disruptive to the

beautiful Square, in more ways than one, I am of the opinion that the decision made by the

Council is not one which can be overturned by way of Certiorari. Based on the material before

the Council and noting the Council’s Planning Report, the conclusions reached were open to it

and there was nothing irrational about its finding. Therefore, I shall dismiss the application. I

shall hear the parties as to the order to be made.