Baile Eamoinn Teoranta v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 04 December 2020
• Neutral Citation: [2020] IEHC 642
• Docket Number: [Record No. 2018/1063 JR]
• Court: High Court
• Date: 04 December 2020

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN

BAILE EAMOINN TEORANTA

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

GALWAY COUNTY COUNCIL

NOTICE PARTY

[2020] IEHC 642

Barr

[Record No. 2018/1063 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Error of fact – Risk to public health – Applicant seeking planning permission – Whether the respondent’s decision to refuse permission proceeded on the basis of a material mistake of fact

Facts: The applicant, Baile Eamoinn Teoranta, applied for planning permission for demolition of a cottage and construction of an eighty-one bedroom hotel, two self-catering cottages, a business and food innovation centre, six detached residential houses, together with associated car parking and works at a site in Spiddal, Co. Galway. The applicant was refused permission for the development by the notice party, Galway County Council, on 10th November, 2017. He appealed that refusal to the respondent, An Bord Pleanála, but in a decision issued on 23rd October, 2018, the respondent also refused permission for the development. The applicant applied to the High Court challenging the legality of the decision issued by the respondent on the following grounds: (1) contrary to the provisions of the relevant guidelines, under which the respondent was obliged to have regard to the views of Irish Water, it failed to have regard to the views of that entity as contained in a letter, which it had issued to the applicant’s engineer on 26th October, 2017, in advance of the lodgement of the planning application, confirming that it was feasible for the waste water from the proposed development to be attached into the existing public waste water system in the Spiddal area; (2) Galway County Council in reaching its decision had relied on a non-statutory policy which was stated to be against allowing developments which had private waste water treatment plants, when the provisions of the relevant County Development Plan expressly permitted the use of such plants in certain circumstances and when this had been raised by the applicant in its appeal to the respondent, this issue had not been addressed by it in its decision; (3) the respondent’s decision was irrational due to the fact that it had proceeded on the basis of a material mistake of fact in relation to the existence of any application by Irish Water to build a municipal waste water treatment plant for the Spiddal area; and (4) in reaching the conclusion that the development, which involved the temporary use of a private waste water treatment plant, would be injurious to public health, the Inspector and the respondent had acted on unspecified “potential concerns” and “reservations” on the part of the Inspector, which were not backed up by any evidence and therefore such conclusion was irrational on the part of the respondent.

Held by Barr J that the decision of the respondent must be set aside on the grounds that it reached its decision on the basis of a material error of fact, which was due to the fault of its own agent and was not due to any fault or omission on the part of the applicant. Barr J held that if planning permission is to be refused on the grounds that the development poses a risk to public health, it is incumbent upon the decision maker to point to some evidence which supports that conclusion. It seemed to Barr J that this was lacking in this case. Accordingly, the court held that it would quash the decision of the respondent on that ground as well.

Barr J proposed that the court make an order setting aside the decision of the respondent made on 23rd October, 2018. The court proposed remitting the appeal back to the respondent for further consideration. The court allowed the parties a period of fourteen days within which to furnish written submissions on the final order that should be made by the court, together with any submissions in relation to costs and on any ancillary matters.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 4th day of December, 2020.

Introduction

1 The applicant applied for planning permission for demolition of a cottage and construction of an eighty-one bedroom hotel; two self-catering cottages; a business and food innovation centre; six detached residential houses; together with associated car parking and works at a site in Spiddal, Co. Galway. The applicant was refused permission for the development by Galway County Council on 10th November, 2017. He appealed that refusal to the respondent, but in a decision issued on 23rd October, 2018, the respondent also refused permission for the development.

2 Permission was refused by the respondent on two grounds: firstly, that due to the deficiency in the public waste water system servicing the Spiddal area, the development would be premature until a proper municipal waste water treatment plant (MWWTP) should be put in place by Irish Water, notwithstanding the fact that the applicant had proposed to install its own private waste water treatment plant (PWWTP) to service the development in the interim, and secondly, it was considered by the respondent that discharge from a private sewerage plant into an inadequate public sewerage network would be prejudicial to public health having regard to the additional hydraulic loadings involved and the fact that it would be discharged from the public system directly into the sea near two beaches.

3 In these proceedings, the applicant challenges the legality of the decision issued by the respondent. In summary, the applicant challenges the decision on the following grounds:-

(1) The applicant claims that contrary to the provisions of the relevant guidelines, under which the respondent was obliged to have regard to the views of Irish Water, it failed to have regard to the views of that entity as contained in a letter, which it had issued to the applicant's engineer on 26th October, 2017, in advance of the lodgement of the planning application, confirming that it was feasible for the waste water from the proposed development to be attached into the existing public waste water system in the Spiddal area. In the alternative, it was argued that if the respondent did have regard to that letter as required by the guidelines, it had failed to give any reasons or any adequate reasons in its decision as to why it was going to depart from those views in the decision that it gave;

(2) It was asserted that Galway County Council in reaching its decision had relied on a non-statutory policy which was stated to be against allowing developments which had private waste water treatment plants, when the provisions of the relevant County Development Plan expressly permitted the use of such plants in certain circumstances and when this had been raised by the applicant in its appeal to the respondent, this issue had not been addressed by it in its decision;

(3) The respondent's decision was irrational due to the fact that it had proceeded on the basis of a material mistake of fact in relation to the existence of any application by Irish Water to build a municipal waste water treatment plant for the Spiddal area; due to the fact that the Inspector had consulted an inaccurate website, he had operated on the basis that Irish Water had not submitted any planning application for a MWWTP, when in actual fact they had lodged an application for planning permission with Galway County Council three months earlier on 6th June, 2018, which permission had been granted twenty-three days prior to the respondent's decision, on 1st October, 2018; it was submitted that this mistake rendered the decision irrational; and

(4) It was submitted that in reaching the conclusion that the development, which involved the temporary use of a PWWTP, would be injurious to public health, the Inspector and the respondent had acted on unspecified “ potential concerns” and “ reservations” on the part of the Inspector, which were not backed up by any evidence and therefore such conclusion was irrational on the part of the respondent.

4 The response of the respondent can be briefly summarised in the following way:-

(1) In relation to the “ views” of Irish Water as expressed in its letter to Mr. McDermott of O'Connor Sutton Cronin, consulting engineers, dated 26th October, 2017, it was submitted that that was merely a pre-connection feasibility letter, which confirmed that it was technically feasible for the waste water from the proposed development to be accommodated in the existing waste water treatment system servicing the Spiddal area. It did not constitute the views of Irish Water in relation to either the desirability of allowing such connection to take place, nor in relation to any public health consequences that there may or may not be, due to such connection. It was merely a technical letter confirming that it was feasible for the connection to be made. More importantly, it was submitted that the views set out in that letter, were not such as were mandated under the guidelines to be taken into account by the respondent. The respondent was only obliged to take into account submissions which were made by the statutory consultees after the application for planning permission had been lodged. In this regard Irish Water had been informed of the application on two occasions by Galway County Council, but had not made any submissions. Accordingly, it was submitted that the respondent had not breached the guidelines, because no submissions had been made to it.

(2) In relation to the assertion that the respondent had not addressed the applicant's argument that Galway County Council had wrongly taken into account a non-statutory policy which was against the use of PWWTPs, which was inconsistent with its stated policy in the County Development Plan, it was submitted that neither the respondent's Inspector, nor the respondent,...