Liffeyfield Limited v An Coimisiún Pleanála and Anor

[2026] IEHC 186 THE HIGH COURT PLANNING & ENVIRONMENT Record No: 2025 / 956 JR LIFFEYFIELD LIMITED Between Applicant and AN COIMISIÚN PLEANÁLA Respondents and PETER O’KELLY Notice Party JUDGMENT of Ms. Justice Emily Farrell delivered the 14th April 2026 Introduction 1. The Applicant applied for and was granted planning permission for change of use of the part of the Bonnington Hotel on the Swords Road, Whitehall, Dublin, which was in use as a conference centre. 2. The application, dated 20th August 2024, sought permission to use that part of the hotel “as a standard hotel function room for conferences, functions and other similar uses associated with a hotel.” The Applicant applied for permission for: “change of use of a single storey building constructed to the rear of the hotel. The building was originally approved as a Conference Centre, associated with the hotel. A series of temporary permissions were granted to allow music and dancing in association with the use of this building and those permissions have now expired. Permission is now sought to use this area as a standard hotel function room for conferences, functions and other similar uses associated with a hotel.” 3. The extension of the hotel to accommodate the conference centre was granted permission on appeal in 2000 (under reference PL29N.117196). Condition 3 of that permission provides: “3. The proposed conference rooms and meeting rooms shall be used for the stated purpose only. They shall not be used as function rooms where music is played, or as dancehalls or discotheques, except with a prior grant of planning permission. Reason: To protect the amenities of residential properties in the vicinity of the site.” (emphasis added): 4. That permission was amended by ABP PL29N.220345 which also included the following condition: “2. The proposed conference rooms and meeting rooms at ground floor level shall be used for the stated purpose only. They shall not be used as function rooms where music is played or as dancehalls or discotheques unless such uses are authorised by a separate grant of planning permission.” 5. An application was made for a change of use from conference room to function room in 2008 but was refused for reasons relating to disturbance and noise (PL29N.230401). 6. A series of temporary permissions was granted to allow music and dancing in the conference centre and those permissions have now expired. Music and dancing were allowed subject to limiting conditions from 2012 to 2021. 2012 – May 2015: PL 29N.239389 was subject to the condition that “The use for music and dancing … shall be confined solely to use for functions (such as gala dinners) related to conferences being held at the venue” 2015 – 2018: PL 29N.244496 included the condition “The use of music or dancing at the venue shall cease on or before 1 am and the conference centre shall not be used as a public dance hall, nightclub, public bar or venue for concerts for which a public dance hall license is required. The number of permitted music/dancing events shall not exceed one per week.” 2019 – 2021: ABP-302507-18 also provided that “The number of permitted music/dancing events held in the conference centre shall not exceed one per week.” 2 7. The Statutory Notice advertising the application stated that permission was sought for a change of use of the Conference Centre associated with the Bonnington Hotel and stated that “A series temporary permissions were granted to allow music and dancing in association with the use of this building and those permissions have now expired. Permission is now sought to use this area as a standard hotel function room for conferences, functions and other similar uses associated with a hotel.” 8. The Planning Authority, Dublin City Council, made a request for further information on 15th October 2024, noting that: “there are serious concerns regarding the management of events in the proposed function room and the subsequent impacts on adjoining residential amenity at unsocial hours, as a result of patrons congregating outside during functions, and accessing and exiting the premises in close proximity to existing residential development. The applicant is requested to demonstrate that the proposed use will not negatively impact on adjoining residential amenity. Consideration should be given to restricting access to the external terrace and to restricting the use of the independent entrance to the proposed function room for events, requiring the main access and egress for patrons attending events to be via the main hotel entrance.” and “Notwithstanding the results of the submitted traffic survey, there remain concerns about the potential of the proposed development to give rise to increased traffic / parking issues at the site and within adjacent residential areas, which do not have parking controls in place. No details have been provided on any car parking management measures in place to discourage illegal/haphazard car parking. The applicant is requested to submit mitigation measures on how it proposes to address the ongoing traffic / parking issues. Details around the event management strategy for these events should be provided and consideration given to implementing measures to alleviate the haphazard parking e.g. booking a car parking space with event ticket, providing shuttle buses etc.” 9. In the Planner’s Report, the submissions on the application were summarised as relating to “noise, nuisance, disturbance and anti-social behaviour and the subsequent impact on neighbouring residential amenity as well as parking, access and unsafe traffic 3 management.” The concerns of third parties were stated to “largely relate to the impacts of patrons congregating outside during functions and leaving the premises late at night.” 10. The Planning Authority decided to grant permission subject to nine conditions on 21st November 2024. In its decision to grant permission, the Planning Authority described the development in the same terms as the application form. 11. The decision to grant did not limit the number of days on which music/dancing was permitted, nor was a limit placed on the number of such events which could take place each week. The conditions provided that the external terrace area could not be used during functions and events unless otherwise agreed with the Planning Authority, and restricted use of the conference centre entrance to emergency access. 12. The Notice Party, who is a local resident, submitted a third-party appeal against the grant of permission to the Commission on 18th December 2024. The main issues raised in the appeal related to carparking and traffic, but issues of noise and other impacts on residential amenity were raised. He noted that there had been a reduction in the number of car parking spaces available since an application for change of use was refused in 2008 and expressed concern regarding an increase in the intensity of the use of the hotel which would have an adverse impact on the residential amenity of adjoining residences. The Notice Party submitted: “For future clarity purposes, the conference room should have no music or dancing, as originally stipulated. Such activities to be confined to the existing and abundant function and bar facilities. The current condition should remain in force, and further strengthened to specifically exclude functions.” 13. The four-week period for making an observation or responding to the appeal ended on 23rd January 2025, by virtue of section 251 of the Planning and Development Act, 2000. The Applicant’s response to the third-party appeal was dated 10th January 2025 but was not received by the Commission until 17th January 2025. The Applicant proposed a solution for the parking issues in Seven Oaks, which it submitted were caused by lack of parking controls in the estate, “rather than restricting the hotel’s legitimate business operations”. It also submitted that the conditions imposed by the Council balanced the business needs of the 4 hotel with residential amenity. Referencing the previous temporary permissions, it was stated: “This change was originally granted some years ago subject to a review every two years. This review each time granted permission for the operation for a further period and a further review. During Covid the centre ceased operation for a number of years and permission is now sought to use this without the need for further reviews.” 14. In the response to the third-party appeal, the Applicant urged the Commission to grant permission “subject to appropriate conditions to protect residential amenity while allowing this important facility to operate effectively.” In conclusion, it was submitted: “This application is for a relatively focussed aspect of the wider operation of the Bonnington Hotel in Whitehall in Dublin 9. It relates to an extension to the hotel originally granted as a conference centre, but which is now sought to be used in the manner of a regular function room. This change was originally granted some years ago subject to a review every two years. This review each time granted permission for the operation for a further period and a further review. During Covid the centre ceased operation for a number of years and permission is now sought to use this without the need for further reviews. The current application has been approved by the planning authority following a thorough assessment and subject to stringent and robust conditions. In spite of that, one resident has appealed this decision to grant permission.” 15. The temporary permissions to which the Applicant referred in its response authorised music and dancing only when linked to a conference from 2012 to 2015, and between 2015 and 2021, was limited to one such event per week. Prior to the grant of those temporary permissions, and after the expiration of the third temporary permission, the prohibition on such events imposed by Condition 3 of the 2000 permission applied. 16. The Council did not submit a response to the appeal. An observation was lodged by Tom Tansey, a local resident, on 22nd January 2025. This observation was not circulated, and the Applicant had no opportunity to respond to it. 5 17. On 11th April 2025, the Commission’s Inspector issued her Report recommending refusal of permission. The Commission granted the permission sought subject to eight conditions on 1st May 2025. Condition 2 provides: “All music and dancing at the venue shall cease at or before 0100 hours and the conference centre/function room shall not be used as a public dance hall, nightclub, public bar or venue for concerts for which a public dance hall licence is required. The number of permitted music/dancing events held in the conference centre shall not exceed one per week. Reason: In the interest of clarity and the protection of residential amenity.” 18. The Applicant was granted leave to apply for judicial review on 30th June 2025 on the grounds set out in the Amended Statement of Grounds, which was filed on 3rd July 2025. Summary of main issues 19. The Statement of the Case distils the Applicant’s main argument to the assertion that, as the Commission did not invite the Applicant to make submissions on this proposed restriction, nor was it otherwise afforded an opportunity to be heard on the limitation imposed by the second sentence of Condition 2, the condition is invalid. The Applicant’s case is that the last sentence of Condition 2 will have the effect of circumscribing the use of the venue and the revenue which the Applicant can generate from it. This issue is raised in Core Ground 1. The Applicant also contends that it ought to have been given an opportunity to respond to the submission made by Mr. Tansey. 20. At Core Ground 2, the Applicant contends that the Commission failed to have any, or any adequate regard to the Dublin City Development Plan 2022-2028, in particular Objectives CUO35, CUO39 and CUO41. 21. The Applicant complains that the Commission failed to provide adequate reasons for its decision to impose the restriction to one music/dance event per week in Condition 2, and that its decision to do so was irrational and breached the Applicant’s right to reasons, fair procedures and natural and constitutional justice. (Core Ground 3) 6 22. At Core Ground 4, the Applicant contends that the Order of the Commission is unreasonable, irrational and/or disproportionate by reason of the inclusion of the second sentence in Condition 2, having regard to Conditions 3, 4 and 5. The Applicant maintains that the restriction of the permission to one music/dancing event per week is redundant, superfluous and/or unnecessary because, it is submitted, Conditions 3, 4 and 5 secure the same objective. 23. On that basis, the Applicant contends that “The imposition of the last sentence of Condition 2 is superfluous, unnecessary and redundant, it serves no purpose not already achieved by the remaining conditions, and it was not sought by the sole Appellant to the planning application. In such circumstances, the inclusion of the last sentence of Condition 2 serves only to unilaterally restrict the use of the proposed development, and in consequence, it detrimentally prejudices the commercial operations of the Applicant. Accordingly, the Applicant seeks an Order severing the last sentence of Condition 2 from the grant of permission.” 24. It was accepted by counsel for the Applicant that the question of severability of the second sentence of Condition 2 could only arise if the Applicant succeeded on Core Ground 4. It was conceded that if the Applicant succeeded on Core Grounds 1, 2 or 3, the only remedy open to the Court would be to quash the grant of permission in its entirety. CG 1 – Fair Procedures 25. The crux of the Applicant’s case in respect of Core Ground 1 is that the interests of natural and constitutional justice and fair procedures mandated that it be given an opportunity to address both the possibility of a condition being imposed restricting the holding of music and dance events to one event per week, and to respond to the observation made by Mr. Tansey, after it had submitted its response to the Third Party Appeal. 26. The Applicant has not specified in the Amended Statement of Grounds or in submissions, the statutory power which it contends ought to have been utilised to enable it to make further submissions on these two issues. The Commission has raised a pleading point in this regard, but I consider that the argument is acceptably clear from the Amended Statement of Grounds despite the Applicant not having specified a statutory mechanism by which it contends the Commission ought to have invited a further submission. 7 27. The Commission had the power under section 131 of the Planning and Development Act, 2000 to request the Applicant to provide submissions or observations if the Commission was of the opinion that this was appropriate in the interests of justice. The Commission may invite an applicant for permission to submit revised plans or other drawings or other particulars providing for the modification of the development under article 34 of the Planning and Development Regulations 2001 (as amended), if it is disposed to grant permission for the proposed development subject to modification. As submitted by the Commission, this is a discretionary power. 28. The Commission did not invoke either power. It was specifically noted by an officer of the Commission that section 131 did not apply as the observation by Mr. Tansey included no new information. Mr. Tansey’s submission 29. The observation made by Mr. Tansey described the application as an application for “a change of use to the conference centre to a function room facility which would remove the existing restrictions of NO dancing, disco and late night functions” and was strongly opposed by him. 30. The Applicant has accepted, in submissions, that the observation of Mr. Tansey was “a further submission on the same issues”, but maintains the argument that further submissions should have been invited in respect of it. It was also accepted that it is the substance of a submission, rather than the number of people who make the same submission, which is material. 31. The Applicant does accept that the requirements of fair procedures and natural justice do not require the Commission to circulate every observation received. While disavowing the suggestion that every observation or submission made to the Commission should be brought to the attention of an applicant for permission in the context of a third-party appeal, the substance of the argument made by the Applicant amounts to such a contention. Although the submission of Mr. Tansey did refer to residential amenity, the third-party appeal and each of the submissions and observations made to the Planning Authority raised this issue. 8 Unlike the Applicant, the applicant in The National Museum of Ireland v. Minister for Social Protection [2016] IEHC 135 had no notice of the substance or contents of an email on which significant weight was placed and that applicant was deprived of the opportunity to address its contents. The Commission had provided the Applicant with a reasonable opportunity to deal with the factors which could influence the decision. O (A S) v. The Refugee Appeals Tribunal and Minister for Justice [2009] IEHC 607, C (O O) (An Infant) v. The Minister for Justice and Refugee Appeals Tribunal [2013] IEHC 278 and Ashford Castle v. SIPTU [2006] IEHC 201, [2007] 4 I.R. 70 do not advance the Applicant’s case any further. 32. The statutory scheme, which did not require the Commission to invite submissions on Mr. Tansey’s observation, has not been challenged. The onus is on the Applicant to demonstrate that procedural fairness required the Commission to invite it to comment upon that observation. No cogent reason has been advanced for requiring the Applicant to be permitted to respond to the Tansey submission. The fact that a second person agreed with the third- party appellant in submitting that permission should be refused due to adverse impacts on residential amenity neither alters the substance of that submission, nor does it add to the weight thereof. 33. In circumstances where the substance of Mr. Tansey’s submission added nothing new, and the Applicant was aware of the submissions and observations made to the Planning Authority and had an opportunity to respond to the third-party appeal, the Commission did not breach the Applicant’s right to fair procedures or natural and constitutional justice by not giving the Applicant an opportunity to respond to that submission. 34. The Commission also submits that it was incumbent on the Applicant to set out the submissions which it would have made had it been afforded such an opportunity, to discharge the burden of demonstrating that the process was unfair, per Charleton J. in Wexele v. An Bord Pleanála (No. 1) [2010] IEHC 21. As in that case, no new and important point was introduced into the appeal by the Tansey submission. The imposition of a condition restricting music and dance to one event weekly 35. The options open to the Commission in determining the appeal were to grant permission, refuse permission or to grant permission subject to conditions: section 34 of the 2000 Act. Section 34(4)(q) expressly provides that the conditions which the Commission may impose 9 under section 34(1) may include “conditions for regulating the hours and days during which a business premises may operate.” 36. The Planning Authority had not proposed the inclusion of a condition which restricted the number of music or dance events which could be held per week. The decision was to grant permission subject to conditions, including conditions to mitigate the impacts on residential amenity. 37. As noted above, the third-party appeal, and submission by Mr. Tansey, had called upon the Commission to refuse the permission sought. The observations and submissions made to the Planning Authority also raised issues of residential amenity, particularly relating to noise, disruption, traffic and parking. 38. The Inspector recommended refusing the application for two reasons. Firstly, having regard to the planning history of the site and submissions made, the Inspector considered that the proposed change from use as a conference centre to a function room would be detrimental to adjacent residential amenities by reason of an increase in general disturbance/noise levels, and as a result, she considered the proposed development to be contrary to the zoning and the proper planning and sustainable development of the area. Secondly, the Inspector considered that the available car parking provision was be seriously deficient, which would be prejudicial to public safety and tend to create serious traffic congestion. 39. The Commission decided that, subject to compliance with the conditions imposed by its Order, the proposed development would not seriously injure the residential amenities of property in the vicinity and would, therefore, be in accordance with the proper planning and sustainable development of the area. Those conditions included Condition 2, which restricts music and dance to one event per week. The Commission explained why it did not accept the Inspector’s recommendation to refuse permission as follows: “In deciding not to accept the Inspector’s recommendation to refuse permission, the Board concluded that the noise mitigation measures, as proposed, would mitigate potential negative impacts on the residential amenities of adjacent residential properties and that car and coach parking within the subject site could be managed by means of a mobility management plan for this accessible urban location.” 10 40. In Dellway v. NAMA [2011] IESC 4, [2011] 4 I.R. 1 Fennelly J. reiterated that the requirements of fair procedures vary depending on the nature of the decision. He stated: “The courts have never laid down rigid rules for determining when the need to observe fair procedures applies. Everything depends on the circumstances and the subject- matter. The fundamental underlying principle is fairness. If a decision made concerning me or my property is liable to affect my interests in a material way, it is fair and reasonable that I should be allowed to put forward reasons why it should not be made or that it should take a particular form.” 41. Macken J. stated: “Indeed, it might be said that where the discretion afforded is very broad, as here, and the limits on possible review may be very narrow indeed, this makes it all the more important that an affected party should have the right to make submissions to the decision maker before a decision is made.” 42. The Applicant submits that in imposing Condition 2, the Commission imposed a significant and financially prejudicial limit on the Applicant’s property rights. However, this submission fails to acknowledge the planning history of the site and the fact that the Applicant’s right to develop its lands is limited by the Planning Acts. The Applicant had been granted, and had not challenged the validity of, planning permission for a conference centre which prohibited all music and dance, and three temporary permissions which authorised a limited number of music and dance events. It is of note that the Applicant was permitted only to hold one music or dance event per week from 2015 – 2021 and since the expiration of the latter permission, the original condition precluding such events applied. Whilst the Planning Authority’s decision to grant permission did not include a restriction on the number of events which could be held, the appeal and submissions and observations made to the Planning Authority, sought to prevent all music and dance events i.e. to continue the status quo. The grant of permission in terms of the temporary permissions but on a permanent basis, which was referred to in the Applicant’s response to the appeal, was undoubtedly one of the outcomes which could reasonably have been anticipated having regard to the planning history and section 34. 43. The Applicant submits, relying on obiter comments of Ferriter J. in McMonagail v. An Bord Pleanála [2023] IEHC 223, that it should have been afforded the opportunity to 11 comment on the proposed imposition of the restriction in Condition 2 and the submission of Mr. Tansey. For the reasons set out above, I am satisfied that the Commission did not act unlawfully by not inviting the Applicant to comment on the Tansey submission. 44. The Applicant is not a passive participant in the appeal process and must have regard to the planning history and statutory scheme in making submissions to the Commission. The statutory scheme includes the power of the Commission to impose conditions restricting the times and days on which a particular use could take place. As Ferriter J. stated, at §75 of McMonagail, “A quarry owner or operator … cannot present itself as some form of passive entity waiting to be informed as to what the decision-maker regards as weak points in its application so that it can then make submissions or further submissions on those points.” Similarly, an applicant for asylum was also found not to be a passive participant in the administrative process set up for the processing of such applications in In Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360, 395. 45. The Applicant relied on the judgments of the CJEU in M.M. C-277/11 (EU:C:2012:744), in support of its submission that the Commission was required to give notice of the possibility of imposing the specific restriction impugned. In M.M. and Sopropré C- 349/07 (EU:C:2008:746), the CJEU held that the right to be heard guarantees every person the opportunity to make known their views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. In M.M. the CJEU rejected the argument that an applicant for subsidiary protection was entitled to see a draft decision before it was finalised to address the matters therein which tended towards a negative result. I regard the contention that the Applicant was required to be informed that the Commission was considering limiting music and dancing to one event per week to be very close, in this case, to the argument that a draft decision should be provided to the Applicant for comment. 46. The Commission was not required to inform the Applicant that it intended to impose, or was considering imposing, a condition limiting the number of music or dance events to one event per week. Having regard to the particular planning history, and the statutory scheme, this would effectively amount to requiring the Commission to circulate a draft decision for comment. This was not necessary in order to satisfy the requirements of natural and constitutional justice or fair procedures. The Applicant did have a sufficient opportunity to effectively make known its views on the appeal, including the possibility of the re- 12 imposition of the restriction on the holding of more than one music and dance event per week, which applied from 2015 – 2021. As was the case in McMonagail, the restriction imposed was clearly signalled by the planning history, and it could reasonably have been envisaged that it would be relied upon by the Planning Authority and/or the Commission. Dellway. M.M. and Sopropré do not support the contention that a second round of submissions were required in this case. 47. It is significant that in deciding to grant permission rather than follow the Inspector’s recommendation to refuse permission, by reason of the detriment which would be caused to residential amenity as a result of disturbance, noise, parking and traffic hazard and congestion, the Commission considered that the proposed development was consistent with the proper planning and sustainable development of the area subject to compliance with the conditions imposed. The impugned restriction only limits use of the conference centre/function room for music and dance events to one event per week, but the other uses referred to in the Applicant’s planning report remain open. 48. The Commission did not breach the requirement of natural and constitutional justice or breach the Applicant’s right to fair procedures in limiting the holding of one music and dance events to one per week. CG 2 - Consideration of CDP – Objectives CUO35, CUO39 and CUO41 49. It is not in dispute that the Commission has an autonomous duty to consider the Development Plan: Redmond v. An Bord Pleanála [2020] IEHC 151; Ballyboden Tidy Towns Group v. An Bord Pleanála [2023] IEHC 722; Stapleton v. An Bord Pleanála [2025] IEHC 178; Grafton Group plc v. An Bord Pleanála [2023] IEHC 725. This is required by section 34(2)(a)(i) of the 2000 Act which mandates that a planning authority has regard to the applicable plan and is applied to the Commission by section 37(1)(b) of that Act. 50. The Development Plan “regulates the future development of property by setting out, inter alia, policy objectives which indicate the parameters within which permission may be granted or refused. The development plan informs the public of the approach that will be followed by the planning authority (and the Board) in decision-making, unless there is good reason to depart from it as may be permitted by the planning legislation, subject to 13 particular procedures being followed.” per Woulfe J. in Sherwin v. An Bord Pleanála [2024] IESC 13 (§90). Each development plan contains numerous objectives and policies, the nature of which varies from plan to plan. The Commission is not required to refer to, or expressly consider, every policy or objective which has, or may have, some relevance to the appeal before it. It is not suggested that the Commission failed to have regard to the Development Plan, per se. At §7.1.1 of the Inspector’s Report, the Inspector states that she considered national and local policies and guidance and inspected the site. She refers to limited extracts from the Development Plan at §5.1 – 5.1.4 of her Report. The Commission did not explicitly refer to the Plan in its Direction or Order, but it must be presumed to have acted lawfully, and accordingly its decision is presumed to be valid: Re Comhaltas Ceolteorí Éireann, unreported, High Court, Finlay P., 14th December 1977. However, the presumption may be rebutted. 51. In Redmond v. An Bord Pleanála [2020] IEHC 151 Simons J. explained that the rationale underlying the principle that the interpretation of a development plan is a question of law for the court is predicated on the legal effect of a development plan, in particular the manner in which it acts as a fetter on the discretion of the Commission. He noted that the Commission enjoys a broad discretion in determining planning applications, and that its decision on whether proposed development is in accordance with proper planning and sustainable development is subject only to the most limited merits-based review under the principles in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. 52. The Applicant did not refer to Objectives CUO35, CUO39 and CUO41, either in applying for permission or in its response to the third-party appeal. The Applicant contends that the Commission failed to consider these objectives, adequately or at all, and thereby breached its obligations under section 34(2)(a)(i). As there is an autonomous duty to consider the Plan, and the Applicant did not make a submission in the planning process, which is contrary to the case advanced, the Applicant is not precluded from advancing this argument in these proceedings. However, the fact that these objectives were not relied upon by the Applicant is a factor which is relevant to the question whether there was an obligation to expressly refer to or consider these specific objectives. 53. By virtue of the statutory obligation to have regard to the Development Plan and the presumption of validity of the Commission’s decision, the onus rests on the Applicant to demonstrate a failure on the part of the Commission. The Applicant contends that the 14 absence of reference to these objectives in the Direction and Order of the Commission and the Report of its Inspector is sufficient to rebut this presumption in this case, and specifically, demonstrates that the Commission failed to adequately consider those objectives. 54. The Inspector referred to the Dublin City Development Plan 2022-2028 at Section 5 of her Report, although Objectives CUO35, CUO39 or CUO41 are not included in the extracts therefrom. The Inspector stated that the site is zoned Z1 Sustainable Residential Neighbourhoods, which has the stated objective “To protect, preserve, provide and improve residential amenities”. The Inspector also noted that hotel use is ‘open for consideration’ in lands zoned Z1 and referred to Policy CEE26, Tourism in Dublin, together with Section 15.14.1.1, Hotel Development, and Table 2 of Appendix 5, which provides for parking standards. Other submissions to the planning authority had also referred to car parking ratios and Policy CEE26. 55. In Friends of Killymooney Lough v. An Coimisiún Pleanála & Ors [2025] IEHC 407, Humphreys J. stated: “116. ... Where the issues arise from submissions as opposed to being independently falling for consideration, the decision-taker must first evaluate whether the submissions raise relevant issues, subject to review of that: (Friends of the Irish Environment CLG & Anor v. Minister for Housing, Local Government and Heritage & Ors [2025] IECA 128 (Unreported, Court of Appeal, 5 June 2024) per Hyland J. (Costello P. and Collins J. concurring) at para. 148. 117. Merely because something isn't mentioned and isn't on the file (as Mr Logue demonstrates was the case here) doesn't necessarily mean it wasn't considered although depending on what the something is, lack of mention may raise an inference of non- consideration which the decision-taker may or may not be in a position to rebut.” 56. The fact that the applicant had not raised the relevant portions of the Development Plan before the Commission was described as “irrelevant” by Humphreys J. in Clane Community Council v. An Bord Pleanála [2023] IEHC 467: 15 “The fact that the applicant didn't raise the issue is irrelevant – compliance with the plan or in the alternative valid consideration of the material contravention power is an autonomous duty on the board.” 57. The Commission submits that it is obliged to refer to specific policies or objectives in the Development Plan which have not been raised in the appeal, submissions or observations, only where those policies or objectives are specifically relevant, or highly material to the appeal, by reference to Clane and Watchhouse Cross Shopping Centre Limited v. An Bord Pleanála [2025] IEHC 520, where Humphreys J. found that the failure of the Board to engage with the Development Plan “on such a critical issue” must amount to a basis for certiorari. 58. The Applicant contends that Objectives CUO35, CUO39 and CUO41 were “clearly relevant” to the appeal “given that they are addressed directly toward the use of venues for evening entertainment and music in particular”, and “would have supported the Applicant’s application”. It is also submitted that the Commission’s decision to grant permission subject to the restriction in the second sentence of Condition 2 is antithetical to those objectives. In the written submissions, the Applicant submits that “The Bonnington Hotel is a renowned music venue, particularly for local Dublin artists. The restriction imposed by Condition 2, however, prevents its use in the manner supported by the policy objectives ignored by the Commission.” It follows, the Applicant submits, that the absence of reference to these objectives or explanation of how the Commission reached its decision, is indicative of a failure to consider them, properly or at all. 59. Whilst the Commission responds by noting that there is no evidence before the Court to support the submission that the hotel is a renowned music venue, particularly for local Dublin artists, a more fundamental issue is that the restriction in Condition 2 to which the Applicant objects, only relates to the use of that part of the hotel which was originally developed as a conference centre. There is no restriction on the use of other parts of the hotel for those purposes, which use is unaffected by this permission. It is evident from the submissions and observations made to the Planning Authority and the Commission that other parts of the hotel, including McGettigan’s Bar, are or have been used for late night music. 16 60. The complaint made at §§10 and 43 of the affidavit of James McGettigan was that “the break in use of the venue allowed for a review of the planning approach. The requirement to continually re-apply for extensions of the permission to utilise the venue as a function room was undesirable and prejudicial to the commercial certainty that a business requires. This was particularly the case where the temporary permissions were continually extended. This led the Applicant to make a new application for permission, which led to the most recent decision.” At §54, he states that the restriction will have a “severely negative impact on the ability of the Applicant to utilise the venue for its intended purpose”. The permission which the Applicant had sought to extend restricted the use of the conference centre for music and dancing. 61. The permission sought was for use of the conference centre as a “standard hotel function room for conferences, functions and other similar uses associated with a hotel”. The Applicant’s Planning Report stated that the purpose of the application was to allow the Applicant “hold functions normally held in hotels” and listed benefits which included the ability to rent out function rooms for “various events, conferences and meetings”, and the ability of residents (presumably of the area rather than the hotel) to use the function rooms for personal events such as weddings, birthdays and post-funeral meetups or community gatherings. The only reference to music in the material provided by the Applicant to the Planning Authority or the Commission was reference to the previous temporary permissions – each of which restricted use for music and dance events – and in relation to the Acoustic Report, which was prepared with a view to the room being used for entertainment purposes. Whilst music and dance would usually be included within the uses of a function room, the Applicant had not sought permission to change the use to a music venue. 62. The Commission pleads that Objectives CUO35, CUO39 and CUO41 are not specifically relevant or sufficiently germane to the proposed development, to warrant, and specifically to require, express consideration in the Commission's Decision. In submissions, the Applicant accepted, in principle, that only objectives of specific relevance must be considered autonomously, and that the Commission need not expressly consider other objectives unless raised in submissions or observations. However, it maintained that any relevant objectives must be considered by the Commission. The Applicant submitted that as these Objectives were “supportive” of the Applicant’s application, the Commission was required to consider them. 17 63. The Applicant submits that as the decision made effectively negated these objectives of the Development Plan, the decision maker must demonstrate that they had been considered, and reasons must be provided for imposing the condition in contravention thereof. 64. The Commission submits that nothing in Objectives CUO35, CUO39 and CUO41 militates against the restriction in the second sentence of Condition 2, nor do those objectives preclude the Commission from regulating the frequency of music and dancing events. Therefore, it submits, it was not necessary to expressly consider those objectives. 65. The Commission submits that its decision is valid, and that the presumption of validity is not rebutted. The Commission submits that the need to expressly consider these objectives, or the power to impose the limitation contained in the second sentence of Condition 2 must be assessed in light of the application made by the Applicant, which was for a “standard function room” in a hotel and not for a music and dance venue. Furthermore, the Commission notes that the Applicant does not seek to challenge Condition 2 insofar as it provides that “the conference centre/function room shall not be used as a public dance hall, nightclub, public bar or venue for concerts for which a public dance hall licence is required”. Therefore, that part of Condition 2 must be regarded as valid. 66. Having regard to the nature of the application made and the planning history, the arguments as to the relevance of Objectives CUO35, CUO39 and CUO41 could have, and ought to have, been raised before the Commission. In effect this aspect of the Applicant’s case amounts to a merits-based challenge to the Commission’s identification of the objectives which it considered merited express consideration. The only references to music and dance in the Applicant’s application are in relation to the Acoustic Report, and the conditions of previous planning permissions, none of which had been challenged. The objectives in question are not sufficiently relevant to the appeal before the Commission to require it to consider those objectives despite none of the parties having raised those objectives before the Planning Authority or the Commission. I reject the Applicant’s assertion that the grant of the permission sought, subject to conditions, in particular the limitation of which the Applicant complains within Condition 2, negates or materially conflicts with Objectives CUO35, CUO39 and CUO41. 18 67. The Applicant did not engage with the Commission’s submission that Objective CUO35, which “encourage[s] the development of new music and dance venues at accessible locations that will provide opportunities for music artists to perform and spaces for people to experience music at a range of venue sizes” is not applicable as permission had not been sought for a new music or dance venue. Furthermore, CUO39 and CUO41 are not specifically relevant to the appeal as the conference centre, for which change of use to a standard hotel function room was sought, is not a new larger development or new hotel, nor was permission sought for a club or dance venue as referred to in Objective CUO41. The Commission submits that these objectives, which are included under the heading “Night Time Cultural Activities”, are not specifically relevant to the site, which is zoned Z1 Residential and adjoins existing residential properties. In referring to “Night Time Cultural Activities”, the Development Plan states that “The Council will seek to cluster certain late night activities onto busy streets and key thoroughfares of the city or locations with limited residential uses where people are not using quieter residential streets to exit venues or to avail of transport options”. 68. The application made by the Applicant was not made for a music or entertainment venue, but rather for permission “to use this area as a standard hotel function room for conferences, functions and other similar uses associated with a hotel.” The Planning Report submitted with the application explained that “It became apparent [during the break in use of the area due to Covid and other factors] that continually reapplying to alter a condition was not the most appropriate way to proceed. Instead, it was considered that the as the proposal was for a change of use from a Conference Center to a function room, the application should more properly be applied for in those terms.[sic]” As the Commission has submitted, a multiplicity of uses are authorised by the permission to use the conference centre as a function room. Unlike Sherwin, and Watchhouse Cross Shopping Centre, the application in question did not require the Commission to focus on the specific objectives on which the Applicant now relies despite those objectives not having been referred to in the application, submissions or observations. 69. In Sherwin, in considering the obligation to consider whether a particular development would materially contravene the Development Plan, Woulfe J. held, at §111 that the Inspector, and the Board, were not required to engage in a mechanical or legalistic analysis when considering each and every allegation of contravention of the Development Plan. He 19 held, however, that “some level of engagement with the relevant provision [is required] where that provision is of fundamental importance in the context of the particular planning application, and where the interpretation and application of that provision is not clear. …” Neither the Applicant nor the Planning Authority, or any of the objectors had referred the Commission to objectives CUO35, CUO39 and CUO41. I do not consider that those objectives were of sufficient importance, or critical, to the appeal, and in particular do not consider that the imposition of the impugned restriction in Condition 2 conflicts with those objectives, such that it is established that the Commission failed in its autonomous duty to consider the Development Plan by not expressly considering them. 70. As was submitted on behalf of the Council in Jones & Anor v South Dublin County Council [2024] IEHC 301, “judicial review is not an invitation to the Court to embark on a merits- based assessment of the rights or wrongs of the impugned decision”. (§138). 71. In all the circumstances, the presumption that the Commission complied with its statutory duty to have regard to the Development Plan has not been rebutted. CG 3 - Reasons 72. The application made by the Applicant was for permission for “a change of use of a single storey building constructed to the rear of the hotel. The building was originally approved as a Conference Centre, associated with the hotel. A series of temporary permissions were granted to allow music and dancing in association with the use of this building and those permissions have now expired. Permission is now sought to use this area as a standard hotel function room for conferences, functions and other similar uses associated with a hotel.” In the Planning Report submitted with the application, the basis for the application was described as follows: “This application involves the change of use of a single storey building to the rear of the hotel ( see area in green below) to use as a function room. The break in use of this area due to Covid and other factors allowed for a review of the planning approach to the use of this building. It became apparent that continually re- applying to alter a condition was not the most appropriate way to proceed. Instead, it was considered that the as the proposal was for a change of use from a Conference Center to a function room, the application should more properly be applied for in those 20 terms. Accordingly, we approached the planning authority to request a pre planning consultation to confirm this approach was appropriate.” 73. The public notice specified that permission was sought for: “a change of use of a single storey building constructed to the rear of the hotel. The building was originally approved as a Conference Centre, associated with the hotel. A series of temporary permissions were granted to allow music and dancing in association with the use of this building and those permissions have now expired. Permission is now sought to use this area as a standard hotel function room for conferences, functions and other similar uses associated with a hotel.” 74. The Applicant submits that it does not know why the Commission imposed a restriction of one event per week, and the Commission urges that the reasons, which it says can be gleaned from the materials before the Commission, are adequate. In particular, at §58 of the Statement of Opposition, which is verified by Brigetta Lannen, it is pleaded that the Applicant could not have been in any real doubt as to why Condition 2 was imposed and that “it is clear from the Commission Order when read in context that while the Commission's Inspector recommended refusal on the grounds of impact on residential amenity, the Commission considered that inter alia by limiting the music/dancing events to one event per week, the impact on residential amenity would be acceptable.” (emphasis added). Therefore, whilst the reason was not spelt out in the Commission Order dated 1st May 2025, the Commission submits that the reason for its decision has been made adequately clear when its Order is read in context. 75. The obligation on the Commission to provide reasons for its decision is derived from section 34(10) of the 2000 Act, and the principles of natural and constitutional justice. The obligation is to provide “the main reasons on the main issues”, and not to provide detailed reason for every aspect of the decision. Section 34(10) provides,: “... a decision given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the 21 paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection.” 76. The test for the adequacy of reasons for planning decisions is as described by the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31, [2018] 2 I.L.R.M. 453, [2021] 2 I.R. 752 and Balz & Anor v. An Bord Pleanála & Ors [2019] IESC 90, [2023] 3 I.R. 751, [2020] 1 I.L.R.M. 367. The parties also relied on Sexton v. An Bord Pleanála and Fingal County Council [2025] IEHC 449 and Stanley v. An Bord Pleanála [2022] IEHC 177 and Stanley (No. 2) [2022] IEHC 671, subsequent judgments of the High Court in which the relevant principles were applied. 77. As the Supreme Court held in Connelly, the reasons for a decision may be ascertained in a variety of ways, including from consideration of a range of material documents, the context of the decision, or in some other way. What is fundamental is that the reasons must actually be ascertainable and capable of being determined. Clarke C.J. stated that it would be difficult to justify placing reliance on material which was not publicly available to identify the reasons for a decision. 78. The Chief Justice stated: “Any materials can be relied on as being a source for relevant reasons subject to the important caveat that it must be reasonably clear to any interested party that the materials sought to be relied on actually provide the reasons which led to the decision concerned. … The trial judge was clearly correct to state that a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive then the reasons could not be said to be reasonably clear.” (§73) 79. As Siobhán Phelan J. held in Stanley, the principles are well settled and “where the reasons are not included in the text of the decision itself and are “inferred”, “implied” or indeed 22 “extrapolated” … they must be capable of being readily determined.” (§8 of Stanley (No. 2)). 80. Phelan J. noted in Stanley, and Simons J. held in Board of Management of St. Audeon’s National School v. An Bord Pleanála [2021] IEHC 453, that the courts cannot properly exercise their supervisory function in the absence of a statement of reasons. In considering a decision which an applicant contends is unreasonable, the court is obliged to consider the reasons, the rationale or justification for the impugned decision. 81. In Stanley, Phelan J. found that it was appropriate to have regard to the planning report in respect of a prior application for retention permission in deciding that adequate reasons had been provided by the Board (since replaced by the Commission) for its decision under section 5 of the 2000 Act that there had been a material change of use. She noted that “it would not be an appropriate exercise of my discretion were I to intervene where there is a common sense or logical basis for the decision adopted by the respondent which should be clear from the record of the decision as a whole and the planning history of the site.” 82. Phelan J. noted that the Inspector’s report had adopted similar language to describe the concerns raised in the previous retention application. While the Inspector and the Commission had not expanded on the concerns in the subsequent decision, the material on file was considered to be sufficient to ground the conclusion that the same concerns arose and were sufficiently material to the new use proposed. In this case, the restriction was imposed only in relation to music and dance events, and it was imposed for substantially the same stated reasons, and in the same terms as the two previous temporary permissions. Whilst the Applicant submits that disturbance by reason of noise from the hotel had been mitigated to a level to render the restriction to one event per week redundant, the Noise Impact Assessment, or Acoustic Report, submitted by the Applicant was prepared to investigate “entertainment noise emissions from the function room within the Bonnington Hotel”. The Report states that it was understood that the venue had a licence to operate the function area for events with music, but that it had subsequently expired. 83. Humphreys J. also held that reasons may be implicit from the context in Killymooney (§42), and that it can be implicit that matters submitted were held not to be outweighing when placed against factors supporting the conclusion arrived at Rana v. Minister for Justice [2024] IESC 46, §96–99 (per O’Malley J., Dunne, Hogan, Collins and Donnelly 23 JJ. concurring). He also reiterated that there is no need to provide reasons for that which is obvious: Killegland Estates v. Meath County Council [2022] IEHC 393, and [2023] IESC 39 (§ 83); Industrial Development Agency v. Information Commissioner [2024] IEHC 649, §132. Furthermore, it was held in Killegland and Killymooney that there is generally no obligation to give reasons for not changing one's mind from a previously articulated position absent a significant change in circumstances or a significant new point. 84. As O’Donnell J. (as he then was) stated in Balz, and adopted in GOCE Ltd v. An Bord Pleanála [2024] IEHC 554 in relation to the substance of planning decisions, “57. … It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decision making institutions if the individuals concerned, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live.” 85. The recognition that disappointed participants in the planning process will have to live with decisions with which they profoundly disagree underscores the importance of the adequacy of reasons. It does not reduce the extent of the reasons or explanation required. 86. “[R]easons must be judged from the standpoint of an intelligent person who has participated in the relevant proceedings and is appraised of the broad issues involved, and should not be read in isolation.” per Humphreys J. in Balscadden Road SAA Residents Association Limited v. An Bord Pleanála & Ors [2020] IEHC 586. 87. The Commission Order must be read in the context of the application made, the planning history (which is explicitly referred to in the Commission Order) and the report of the Commission’s Inspector, who recommended that permission be refused. 88. The reasons for the Inspector’s recommendation to refuse permission were: “1 Having regard to the planning history of the site and the submissions made in connection with the planning application and the appeal, it is considered that the proposed permanent change of use from conference centre to function room would be 24 detrimental to adjacent residential amenities by reason of a significant increase in general disturbance/noise levels. Accordingly, the proposed development is considered to be contrary to the zoning objective 'ZI’- “protect, provide and improve residential amenities” and would, therefore, be contrary to the proper planning and sustainable development of the area. 2 Having regard to the capacity of the subject site to cater for existing parking demand generated by the hotel and its associated activities and to the development plan requirement for one space per 10sq.m. of function room floor area, it is considered that the shortfall in car parking provision would be seriously deficient. The impact of such a shortfall would be prejudicial to public safety by reason of traffic hazard on the public roads in the vicinity, particularly the residential developments in the immediate area and which would tend to create serious traffic congestion.” 89. The Reasons and Considerations given by the Commission in its Order are “Having regard to the planning history of the overall hotel development, the established use of the site and the pattern of development in the area, it is considered that, subject to the compliance with the conditions set out below, the proposed development would not seriously injure the residential amenities of property in the vicinity and would, therefore, be in accordance with the proper planning and sustainable development of the area. In deciding not to accept the Inspector’s recommendation to refuse permission, the Board concluded that the noise mitigation measures, as proposed, would mitigate potential negative impacts on the residential amenities of adjacent residential properties and that car and coach parking within the subject site could be managed by means of a mobility management plan for this accessible urban location.” (emphasis added) 90. The Applicant does not seek to impugn the decision of the Commission not to follow the recommendation of the Inspector to refuse permission, or the reasons given therefor. The Commission Order refers to the prior authorised use of the conference centre and the series of temporary permissions which had allowed music and dancing in association with the use of the building or once per week, noting that those temporary permissions had expired. As 25 appears from the stated reasons and considerations, the Commission’s decision was made subject to compliance with the conditions, which include the restriction on the number of events per week in Condition 2. The reasons given by the Commission for Conditions 2, 3, 4 and 5 are, or include, residential amenity, which was the first reason given by the Inspector for recommending that permission be refused. The second of the Inspector’s reasons for recommending refusal included the impact of serious traffic congestion on the residential developments in the immediate area. Undoubtedly the issue of residential amenity was a significant factor in the reasoning of the Commission. 91. Section 34(10) requires “the main reasons” to be provided for the imposition of any conditions and provides that it is sufficient to refer to the relevant to paragraph of subsection (4) where a condition imposed is a condition described in subsection (4). Section 34(4)(q) provides that conditions may be imposed “for regulating the hours and days during which a business premises may operate.” While the Commission did not refer to section 34(4)(q), the restriction in Condition 2 which the Applicant challenges was encompassed by section 34(4)(q). The Oireachtas has set a low bar in terms of the requirement to justify the imposition of a condition that regulates the days or times during which a business premises may operate. The impugned restriction regulates the frequency of one particular aspect of the business, but all other permitted uses of the conference centre or function room are not curtailed. 92. When the Commission’s decision is read in the context of the recommendation of the Inspector to refuse permission due to adverse impact on residential amenity, and the planning history, no one could be in any real doubt but that the reason for the specific restriction was to reduce the adverse impacts of use of the conference centre for music or dance events to an acceptable level. The Commission specifically considered the planning history of the hotel, which included a prohibition on all music and dance in the conference centre, and to the subsequent authorisation of music and dance for functions (such as gala dinners) related to conferences between 2012 and 2015 and, from 2015 to 2021, was limited it to one music or dance event per week. Permission had been refused for a change of use from conference centre to a function room in 2008 on grounds of disturbance and noise (PL29N.230401). The original prohibition on music and dance, the 2008 refusal and the limited nature of their authorisation in the temporary permissions were not challenged by 26 the Applicant. In each permission, the reason given for limiting the number of music or dance events was residential amenity. 93. The Applicant places great emphasis on the review envisaged by the temporary permissions and submits that the purpose of the restriction on the temporary permissions was to enable compliance with the conditions and the impact on residential amenity be reviewed. The 2012 permission, which was the first permission to authorise music and dance, did so on a temporary basis, and only when associated with a conference, stated that the grant of the permission for a three-year period was to enable the impacts of the development to be monitored and reviewed. The reason given for restricting music and dance to functions related to conferences did not refer to a review, nor was such a reason given for limiting such events to one event per week in the 2015 or 2019 permissions. The reasons given for limiting the life of those permissions to three and two years respectively included the review of the impact of the development. It does not follow that the Commission was required to provide the same depth of reasons to restrict the number of days for a specific use when deciding to grant an enduring permission in terms similar to prior temporary permissions, as would be required had this been the first decision to grant such permission on a restricted basis. The planning file included the concerns expressed by local residents relating to the impact of music and dance events on residential amenity. Those concerns had been taken into account by restricting the number of such events authorised under the previous temporary permissions. 94. In making the application, the Applicant stated that it sought to avoid the need to apply for further temporary permissions. It also sought permission to use the conference centre as “a standard function room”, which could be regarded as implicitly seeking permission to hold unlimited music and dance events. The Applicant provided greater information regarding noise and traffic management in this application than had been submitted for the previous applications. 95. The Applicant complains that it does not know why the limitation of one event per week was imposed and submits that the adverse impact on residential amenity would be sufficiently mitigated by the other conditions imposed by the Commission that this restriction was otiose and redundant. When asked how the rationale of that argument did not equally undermine the requirement that music and dancing cease at or before 1am, the 27 Applicant referred to this as a standard restriction and referred to licencing obligations. It was accepted at the hearing that music and dance at functions, including weddings, are frequently permitted to continue past 1am, although counsel referred to 1am as a common cut off period for licenced premises. In the grounding affidavit, it was accepted on behalf of the Applicant that the Inspector’s recommendation was based, inter alia, on the ground that “the change in use would increase disturbance/noise levels and therefore be detrimental to adjacent residential amenities.” In deciding not to accept the Inspector’s recommendation to refuse permission, the Commission stated that “the noise mitigation measures, as proposed, would mitigate potential negative impacts on the residential amenities of adjacent residential properties and that car and coach parking within the subject site could be managed by means of a mobility management plan for this accessible urban location.” 96. The effect of Conditions 3, 4 and 5 is to mitigate noise emanating from inside the premises, preclude use of the external terrace and direct all but emergency access to the conference centre/function room through the hotel’s main entrance. Similarly, whilst Conditions 6 and 7 were imposed in the interests of effective traffic and parking management, they cannot eliminate all adverse impact on residential amenity. I am satisfied that, as in Killegland Estates Ltd. v. Meath County Council & Ors [2023] IESC 39, there cannot be any real doubt as to the basis for the decision to impose the impugned restriction. It is obvious that the impugned restriction in Condition 2 was imposed to grant permission to the Applicant whilst minimising the adverse impact on residential amenity of the proposed development. The Commission considered that the grant of permission subject to the conditions imposed was consistent with the proper planning and development of the area despite the Inspector’s opinion that the permission should be refused in particular by reason of “a significant increase in general disturbance/noise levels” and “serious traffic congestion”. 97. It is sufficiently clear, from its decision and the materials before the Commission, that the Commission considered that notwithstanding these conditions, there would be an adverse impact on residential amenity which would be mitigated by restricting music and dance events to once per week. It was not necessary for the Commission to spell out that despite compliance with those conditions, it considered the use of the conference centre for music and dance (even when finishing at 1am) would create noise, disturbance and traffic and parking impacts for local residents and that permitting this once per week, but not more frequently, was considered to strike a tolerable and acceptable balance. It is impossible to 28 divorce the planning history from the appeal which was before the Commission and from its decision. The Commission expressly relied on the planning history. 98. The Applicant submits that the decision of the Commission merely provides a conclusion and not a reason for imposing the restriction in issue, referring to GOCE Limited v. An Bord Pleanála [2024] IEHC 554. The nature of the reasons which must be given for the imposition of a condition is less than for the grant or refusal of permission, or for departing from the recommendation of the Inspector. The Applicant was on notice of the possibility of permission being refused altogether. That is what the third-party appellant and Mr. Tansey sought and was recommended by the Inspector, for the reasons clearly set out in her report. 99. In F.C. v. Mental Health Tribunal [2022] IECA 290 Ní Raifeartaigh J. held that in respect of the duty to give reasons, “there is a balance to be struck. It is of course ultimately a question of substance and not form, and there must be an element of common sense and practicality in approaching the question of adequacy of reasons.” In considering whether reasons are adequate in a particular case, one must not lose sight of the fact that the underlying objective of reasons is to ensure fairness in the process: Mallak v. Minister for Justice [2012] IESC 59; Duffy v. An Bord Pleanála [2024] IEHC 558. 100. When the Direction and Order of the Commission are read together with the Inspector’s report, I am satisfied that a sufficient explanation or reason was given for imposing the impugned restriction in Condition 2. There is a commonsense and logical basis for the decision which is clear from the decision as a whole and the planning history of the site, as was found to be the case in Stanley. In the Commission’s Statement of Opposition, verified by Bridgetta Lannen, it is stated that “The Commission considered having regard to inter alia the established use of the site - including most recently the use of the Conference Centre for music/dancing events limited to one event per week - and subject to compliance with the conditions identified in the Order - including condition 2 limiting the music/dancing events to one event per week - the impact on local residential amenity were acceptable.” I regard this as an accurate reflection of the Commission decision, having regard in particular to the Direction and Order, the Inspector’s Report, the planning history and the material before the Commission. This is not a case in which it is necessary to rely on the ability of a respondent to explain reasons for its decision in its Statement of Opposition: Mishra v. Minister for Justice [1996] 1 IR 189. 29 101. It can be said, as Holland J. said in Duffy v. An Bord Pleanála [2024] IEHC 558, at §160, that the Commission could have expressed itself more clearly and explicitly. As Phelan J. held in Stanley, the reasons could and should have been better stated, however, I do consider that they are sufficiently clear to a reasonable observer with access to the planning file carrying out a reasonable enquiry. 102. While it would have been desirable that the Commission would have provided more detailed reasons, on balance and applying a common-sense and pragmatic view of the decision when read in context, the reason for imposing the restriction in question is adequately discernible. The Commission imposed the restriction in the second sentence of Condition 2 to protect the residential amenities of property in the vicinity, and for clarity. The Commission was satisfied that permitting the same number of music and dance events as had been permitted from 2015 to 2021 was consistent with the proper planning and sustainable development of the area, subject to compliance with the conditions imposed. In so finding, the Commission rejected the recommendation of its Inspector to refuse the permission sought for reasons including disturbance by way of noise, traffic congestion and parking. CG 4 – Unreasonableness, irrationality, disproportionality 103. The Applicant’s case under this Core Ground 4 is that the imposition of a limit of one music or dance event per week is redundant, superfluous, and/or unnecessary because, it submits, Conditions 3, 4 and 5 address the question of protection of residential amenity. On that basis, the Applicant contends that the restriction is unreasonable and irrational. The Applicant maintains that the commercial prejudice occasioned by this limitation is disproportionate to the aim sought to be achieved, because that aim has been met by Conditions 3, 4 and 5. Therefore, it is submitted the imposition of this restriction is disproportionate and irrational and unreasonable in the Meadows sense. 104. In Board of Management of St. Audeon’s National School v. An Bord Pleanála [2021] IEHC 453, at §32, Simons J. stated in relation to a challenge based on unreasonableness and proportionality, “The threshold to be met by an applicant for judicial review who seeks to pursue such grounds is extremely high and is almost never met in practice. This is because 30 an applicant must demonstrate that the decision impugned is fundamentally at variance with reason and common sense.” 105. The Applicant relies in particular on Holohan v. An Bord Pleanála [2017] IEHC 268 and Four Districts Woodland Habitat Group v. An Bord Pleanála [2023] IEHC 335 and submits that there was no material before the Commission which supported the decision to impose that restriction. 106. In Four Districts, Humphreys J. held, at §79: “Purely factual assessments by a decision-maker attract a high degree of deference: O'Keeffe remains relevant as part of the test in the negative sense that if there is no material supporting a decision, it will be quashed. But even if there is such material, a decision may still be quashed by reference to the reasonableness and proportionality standards of Keegan, Meadows and other cases. There is no separate watertight set of doctrines for different areas of the law – reasonableness and proportionality cover all types of judicial review insofar as there is always some form of right at issue (the comments of Denham J. in Meadows are relevant to the rationale for this), but the application of those doctrines varies with context across a spectrum. Any review of purely factual findings remains highly deferential in principle (subject to the point made above that even a finding of pure fact can be set aside if the decision-maker asks the wrong question or fails to conduct the exercise in a manner provided for by law), but there is nonetheless a range of deference within that.” 107. Neither the planning authority nor any of the objectors or third-party appellant had proposed that the use of the room for music and dance should be limited to one event per week, but the objectors and third-party appellant had opposed the change of use altogether, for reasons including disturbance, noise and traffic. Insofar as a fair procedures argument is raised in Core Ground 4, it goes no further than the arguments considered under Core Ground 1 above. It was open to the Commission to grant or refuse the permission sought, or to grant it subject to conditions including may include restrictions on the times or days on which it could be used. The most recent temporary permissions had restricted music and dance to one event per week. The Applicant stated that it sought to avoid the need to make repeated applications for further temporary permissions. 31 108. The Applicant’s case is predicated on its position that the restriction imposed by the restriction on the number of music and dance events is otiose, redundant and wholly unnecessary to protecting residential amenities of neighbouring properties. As a matter of principle, an unnecessary or entirely redundant condition for which the stated reason is devoid of any substance would be unlawful. It must be presumed that the Commission considered that there was a benefit in terms of clarity and residential amenity, which were the reasons given for adding Condition 2, in restricting music and dance events to once weekly. 109. Conditions 3 and 4 require patrons of the conference centre/function room to enter and leave the conference centre/function room through the main hotel entrance and provide that the external terrace areas adjoining that room shall not be accessible during functions and events. Condition 5 specified steps to be taken to assist in reducing amplified sound escaping from the function room areas. It also imposed conditions regarding the LAeq level (the mean A-weighted sound level over a distinct time period,) and Leq level (Equivalent noise level) in the 63 Hz and 125 Hz octave bands, measured over five minutes at the nearest noise sensitive dwelling to show that there is no increase when entertainment is taking place. The Acoustic Report was directed to noise created by the entertainment whilst entertainment is taking place. 110. The Respondent is correct in its submission that Condition 5 does not address the noise or disturbance arising from pick up / set down activities or from patrons congregating at the entrance to the hotel, which was referred to as an issue of concern by the Inspector at §7.4.4 of her Report. Noise and disturbance from those sources after the entertainment had stopped would not be prevented or mitigated by Condition 5, although Conditions 3 and 4 are directed towards reducing noise from patrons outside the conference centre/function room. Although the previous applications for the temporary permissions did not include an Acoustic Report, an Entertainment Noise Assessment Report was submitted with the 2012 application and the conditions imposed by the 2015 and 2019 permissions required the carrying out of a noise survey and assessment programme, the methodology for which was to have been agreed with the planning authority. 111. In oral argument, the Applicant submitted, for the first time, that Conditions 6 and 7 also rendered the last sentence of Condition 2 redundant. Condition 6 requires the submission of 32 a Mobility Management Plan to provide for incentives to encourage use of public and other sustainable modes of transport as well as the provision of overflow parking. Condition 7 addresses the issue of congestion and traffic hazard created between the junction with Seven Oaks and the gated entrance to Gracepark Manor and along the access road. Those conditions, do not ameliorate the negative impacts identified by the Inspector, not dealt with by Conditions 3, 4 and 5, to the extent that the impugned restriction in Condition 2 is rendered redundant. Therefore, even if this were pleaded, I do not consider that it assists the Applicant. 112. Having regard to the material before the Commission, and the recommendations of the Inspector, I am not satisfied that the restriction on the number of music and dance events fails to achieve a purpose, nor do I consider that it is redundant or grossly disproportionate to the aim sought to be achieved, namely the protection of residential amenities of properties in the area. The Applicant’s argument is that in imposing the impugned restriction, the Commission sought to “gild the lily and go beyond these measures, which literally preclude any discernible noise impact on neighbours” and that Condition 5 has fully achieved the protection of residential amenity. As I have found at §§100 - 102 above, the Commission imposed the restriction on the number of music and dancing events to protect the residential amenities of property in the vicinity. 113. The Commission considered that permitting the one music and dance event per week, the same number of such events as had been permitted between 2015 and 2021, was consistent with the proper planning and sustainable development of the area, subject to compliance with the conditions imposed. The Commission’s decision to grant the permission subject to the conditions, including Condition 2, departed from the Inspector’s recommendation that permission be refused for reasons including disturbance by way of noise, traffic congestion and parking as the Commission considered that “the noise mitigation measures, as proposed, would mitigate potential negative impacts on the residential amenities of adjacent residential properties and that car and coach parking within the subject site could be managed by means of a mobility management plan for this accessible urban location.” It cannot be said that the last sentence in Conditi