Brophy v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 03 July 2015
• Neutral Citation: [2015] IEHC 433
• Docket Number: [2013 No. 635 J.R.]
• Court: High Court
• Date: 03 July 2015

[2015] IEHC 433

HIGH COURT

JUDICIAL REVIEW

Baker J.

[2013 No. 635 J.R.]

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

BETWEEN

GILLIAN BROPHY AND DAVID NULTY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

SOUTH DUBLIN COUNTY COUNCIL

NOTICE PARTY

Government – Zoning & Development – S. 50 of the Planning and Development Act, 2000 – Contravention of development plan – The Sustainable Rural Housing Guidelines for Planning Authority (April 2005)

Facts: The applicants sought an order for quashing the decision of the first named respondent refusing permission for the construction of a dwelling house associated with the establishment of a horticultural business at the desired site. The first named respondent contended that the applicants failed to satisfy the genuine need criterion mentioned in Policy H32 of the County Development Plan 2010-2016 and hence contravened the zoning objective and the County Development Plan 2015-2016. The applicants contended that the first named respondent's decision was prejudicial and unreasonable.

Ms. Justice Baker refused to grant an order of certiorari to the applicants. The Court held that the development plans were the result of a democratic and public consultation process and they were made after taking an array of information for the common good and benefit of society. The Court opined that in case of any conflict between individual interest and the development plan, the common public contract contained in the development plan must prevail. The Court found that the decision of the first named respondent was well informed based on experts' reports and various submissions from the applicants. The Court held that the applicants could not be given liberty to go beyond what was expressly required by the statute, that is, the need to live in a house adjacent to the proposed horticultural business, despite demonstrating the motivation, commitment and intention to start the business.

Ms. Justice Baker

1 The applicants seek to quash the decision of the respondent, An Bord Pleanála (the ‘Board’), dated the 14th June, 2013 refusing planning permission for the construction of a dwelling house and various structures associated with the establishment of a horticultural business on a 0.996 hectare site owned by the applicants at Glassmucky Brakes, Glenasmole, Tallaght, Dublin (the ‘Glenasmole/Bohernabreena site’). The permission was refused as being in material contravention of the relevant Development Plan.

Background

The applicants were married on 1st August, 2009 and have a young son. When the first applicant, Ms. Gillian Brophy, was 11 years old her family moved to Amberville, Friarstown, Bohernabreena, Dublin 24. She lived at this address until 2005 when she, and her then intended husband, purchased a dwelling house at 20 Ellensborough Copse, Kiltipper Road, Tallaght, Dublin 24. Ms Brophy works as a process engineer and Mr Nulty as a project manager. In her affidavit sworn on the 8th August, 2013, Ms Brophy avers that she and her future husband purchased the dwelling at Kiltipper in 2005 in order to ‘get a foot on the property ladder’ in the face of quickly rising house prices, but it was always their intention to establish a home in Bohernabreena. The applicants remortgaged this house in Kiltipper Road when an opportunity arose in July 2007 to purchase the subject site which lies just two kilometres from her parents' house at Glenasmole/Bohernabreena. They moved to reside with her parents and let the house at Kiltipper to South Dublin County Council for a minimum period of eight years from 2007 under the rental accommodation scheme. Their young son is looked after by his maternal grandparents while the applicants are at work. The commitment and family ties of the applicants to the area can scarcely be doubted.

2 The couple was aware of the restrictive planning requirements in the Glenasmole/Bohernabreena area but believed, following consultation and pre-planning meetings with planning officials, and the engagement of their planning consultant with the planning authority, that they were likely to meet the criteria. In the event they have failed to obtain planning permission, and prior to the refusal which gives rise to this judicial review they failed on three occasions to obtain planning permission.

3 The site in respect of which planning was sought was below the 350m contour line and in accordance with the zoning objectives in the South Dublin County Council Development Plan 2010-2016 (the ‘Development Plan’) was ‘open for consideration’ in the light of Policy H30. The applicants submitted a planning application to the notice party, South Dublin County Council, on 29th June, 2012 for permission to construct a private dwelling and a horticultural business on their site.

4 The local authority sought further information, and it would be fair to say that the applicants engaged very fully with the process and submitted reports in particular to deal with a question which ultimately led to the refusal of permission, namely their need to live in the area. The proposed horticultural business was intended to, at least initially, be run on a part-time/weekend basis and the planning authority expressed a concern that the business itself did not require the applicants to reside in the area. The link between this proposed business venture and the expressed need of the applicants to reside in the area was the focus of the refusal, and both the local authority, and the Board on appeal, took the view that the business would not require daily attendance on site and could not form the basis of a genuine need to reside close by.

5 The local authority by a decision dated 16th January, 2013 refused permission for the following reasons:

‘The applicants have not adequately demonstrated a genuine need for housing in this particular area in order to progress their proposed horticultural business.

Therefore, the applicants do not satisfy the “genuine need” criterion detailed in Policy H32 of the County Development Plan 2010 – 2016. Thus the proposed development would materially contravene the zoning objective for the area and policies regarding rural housing in the County Development Plan 2010-2016 and would be contrary to the proper planning and sustainable development of the area.’

6 This decision was appealed on 11th February, 2013 to An Bord Pleanála and a particular submission was made in the course of the appeal that the applicants did need to live on thesite by reason of the need for proximity to the proposed horticulture business to ensure its long term viability. The Board refused the permission on the 14th June, 2013 for reasons stated as follows:

‘…it is considered that the applicants have not demonstrated their need for a dwelling at this particular location. The Board is not satisfied that the proposed dwelling is needed in order to progress the proposed horticulture business. In this regard, it is considered that the applicants have not demonstrated that they comply with all of the criteria set out under Policy H32 of the South Dublin County Council Development Plan 2010-2016 for a dwelling at this location. The proposed development would, therefore, materially contravene the zoning objective for the area and rural policies as set out in the Development Plan and would, therefore, be contrary to the proper planning and sustainable development of the area’.

Essentially the Board found that the applicants met three of the four criteria in Policy H32 but failed to show ‘a genuine need for housing in that particular area’.

7 Application for leave to bring judicial review was granted by McDermott J. on the 8th August, 2013.

8 The decision of the Board is to be understood in the context of the Development Plan and the Department Guidelines which I now detail.

9 These Guidelines (the ‘2005 Guidelines’) were issued by the Department of the Environment, Heritage and Local Government under s. 28 of the Planning and Development Act 2000 (the ‘Act of 2000’).

10 Chapter 3.2.3 of the 2005 Guidelines headed Rural Generated Housing states:

‘Development plans in defining persons considered as constituting those with rural generated housing needs, should avoid being so prescriptive as to end up with very rigid development control system. For example, specifying that persons engaged in full time agriculture only will be considered as constituting a rural generated housing need, could preclude other family members being accommodated on the family farm. An overly vague approach should be avoided, as this would be of little practical use.’

Section 3.2.3 lists as examples of categories of persons who would fit into the definition of having a rural housing need: persons who are an intrinsic part of the rural community and persons in full-time or part-time work in rural areas. The first example encompasses those who have spent a large part of their lives integrated in the rural community such as farmers, offspring of farmers, those taking over the running of farms, persons building their first homes near their families, or emigrants returning to work locally. The second example includes those who are involved in farming, forestry, inland waterway or marine related occupations on a full-time basis, and also those whose part-time occupations are predominantly farming or natural resource related.

11 The housing policy study conducted in 2002 informed Policy H32. The definition of persons qualified for new housing contained in the rural housing policy of the Glenasmole/Bohernabreena area (the ‘rural housing policy’) is set out as follows in section 9.2.1 of the 2002 Glenasmole/Bohernabreena Housing and Planning Study (the ‘2002 Planning Study’):

• Persons who were born in the Study Area, or

• Persons who have...