Damer v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 11 July 2019
• Neutral Citation: [2019] IEHC 505
• Docket Number: 2018 No. 363 J.R.
• Court: High Court
• Date: 11 July 2019

IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

AIDAN DAMER

LORETTA DAMER

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

KILDARE COUNTY COUNCIL

NOTICE PARTY

[2019] IEHC 505

Simons J.

2018 No. 363 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Adequacy of reasons – Applicants seeking to challenge a decision of the respondent to refuse planning permission – Whether the respondent’s decision failed to meet the standard of reasoning

Facts: The applicants, Mr and Ms Damer, sought to challenge a decision of the respondent, An Bord Pleanála, to refuse planning permission for proposed development consisting of (i) the erection of a dwelling house, and (ii) the provision of agricultural buildings and netting to facilitate the production of snails. The gravamen of the challenge was that An Bord Pleanála did not properly apply the development plan policies for “Housing in Rural Areas”. In particular, it was said that the Board erred in its application of the policies in respect of one-off dwellings.

Held by the High Court (Simons J) that the most authoritative statement of the legal test to be applied in assessing the adequacy of reasons in planning matters is found in the judgment of the Supreme Court in Connelly v An Bord Pleanála [2018] IESC 31. Simons J was satisfied that An Bord Pleanála’s decision — even when read in conjunction with the inspector’s report — failed to meet this standard of reasoning. Simons J held that the absence of a proper statement of the main reasons and considerations of An Bord Pleanála frustrated the High Court in the exercise of its supervisory jurisdiction by way of judicial review; in particular, it was not possible on the basis of the decision as formulated to determine whether the other grounds of challenge advanced, especially those to the effect that the Board misinterpreted the relevant provisions of the development plan, were well made out. Simons J held that the absence of a proper statement of the main reasons and considerations also made it difficult for the applicants to know whether there were any steps they could take, in the context of further planning application, to address the concerns which resulted in the refusal of planning permission.

Simons J proposed making an order setting aside the decision of An Bord Pleanála and remitting the matter to the Board for reconsideration in the light of the findings of the High Court. Simons J held that the appeal was to be reconsidered in its entirety. Simons J held that the fresh decision — whether to grant or refuse planning permission — should comply with the requirements of s. 34(10) of the Planning and Development Act 2000.

Application granted.

JUDGMENT of Mr Justice Garrett Simons delivered on 11 July 2019.

SUMMARY

1 These judicial review proceedings seek to challenge a decision of An Bord Pleanála to refuse planning permission for proposed development consisting of (i) the erection of a dwelling house, and (ii) the provision of agricultural buildings and netting to facilitate the production of snails. This proposed activity has been described variously as a ‘ snail farm’ or a ‘ heliculture business’.

2 The gravamen of the challenge is that An Bord Pleanála did not properly apply the development plan policies for ‘ Housing in Rural Areas’. In particular, it is said that the Board erred in its application of the policies in respect of one-off dwellings.

3 It will be necessary to consider the relevant provisions of the development plan in some detail presently. For introductory purposes, however, it is sufficient to note that in order for an applicant to be considered for a one-off dwelling in the rural area of Kildare, an applicant must meet one of the local need criteria set out in Table 4.3 (a) or (b). The Applicants in the present case had sought to rely on the following criterion.

‘(iii) Persons who can satisfy the Planning Authority of their commitment to operate a full time business from their proposed home in the rural area where they have existing links to that rural area and that the business will contribute to and enhance the rural community and that the nature of such enterprise is location dependent and intrinsically linked to a rural location.’

4 The application of this policy to the proposed dwelling house and snail farm (‘ heliculture business’) had been addressed as follows by An Bord Pleanála in the impugned decision.

‘[…] The restrictive approach of the Development Plan to housing in such areas is considered reasonable. Notwithstanding the information submitted in support of the application and appeal, including the information in relation to the proposed heliculture business, the Board is not satisfied that a compelling location-dependent need for a dwelling at this location has been demonstrated. In these circumstances, it is considered that the application does not come within the scope of the Development Plan criteria for a dwelling at this location. The proposed development would therefore contravene the provisions of the Development Plan in relation to rural housing, and would be contrary to the proper planning and sustainable development of the area.’

5 As appears, the impugned decision merely states a conclusion, i.e. that a compelling location-dependent need for a dwelling at this location had not been demonstrated. The rationale for this conclusion is not recorded.

6 In circumstances where the Board Direction indicates that the Board decided to refuse permission generally in accordance with the inspector's recommendation, it is legitimate to have regard to the inspector's report in seeking to identify the Board's reasoning. Unfortunately, however, the inspector's report is unilluminating this regard. See further paragraph 39 below.

7 I am satisfied that the impugned decision—even when read in conjunction with the inspector's report—fails to meet the standard of reasoning required under section 34(10) of the Planning and Development Act 2000 (‘ the PDA 2000’), as most recently interpreted by the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31; [2018] 2 I.L.R.M. 453.

8 The absence of a proper statement of the main reasons and considerations for An Bord Pleanála's decision frustrates the High Court in the exercise of its supervisory jurisdiction by way of judicial review. In particular, it is not possible on the basis of the decision as formulated to determine whether the other grounds of challenge advanced, especially those to the effect that the Board misinterpreted the relevant provisions of the development plan, are well made out. The absence of a proper statement of the main reasons and considerations also makes it difficult for the Applicants to know whether there are any steps they can take, in the context of a further planning application, to address the concerns which resulted in the refusal of planning permission.

9 In the premises, I propose to make an order setting aside the decision of An Bord Pleanála and remitting the matter to the Board for reconsideration in the light of the findings of the High Court. The objective of remittal is not that a proper statement of the main reasons and considerations be produced on an ex post facto basis. Rather, the appeal is to be reconsidered in its entirety, and in circumstances where the analysis in the inspector's report is inadequate, the Board may wish to arrange to have a further report prepared. The fresh decision—whether to grant or refuse planning permission—should comply with the requirements of section 34(10) of the PDA 2000.

FACTUAL BACKGROUND

10 The Applicants herein are the owners of lands at Daars North, Sallins, County Kildare. The lands were purchased in February 2016 for the sum of €70,000.

11 The Applicants seek to challenge a decision of An Bord Pleanála to refuse planning permission. The proposed development was to consist of the provision of a one-and-a-half storey dwelling house and a single-storey domestic garage, together with the construction of a netting area to facilitate a snail farm, the construction of an agricultural shed and polytunnel. The proposed heliculture business was intended to develop snail-based products including premium organic snail meat, snail egg caviar and snail slime secretion. It was indicated that the business would have two full-time employees in the first year of operation, and it was projected that two additional farmhands would be required during snail egg and mature snail harvesting seasons.

12 The planning application was submitted to the local planning authority, Kildare County Council, on 27 June 2017. Kildare County Council made a decision to refuse planning permission on 18 August 2017. An appeal against this decision was made to An Bord Pleanála on 13 September 2017. The appeal bears An Bord Pleanála reference ‘PL09.249234’. The Board made a decision to refuse planning permission on 13 March 2018. The Applicants instituted the within judicial review proceedings on 14 May 2018.

DEVELOPMENT PLAN

13 The development plan in force at the time that the decision impugned in these proceedings was made is the Kildare County Development Plan 2017 – 2023. The housing policy is set out at chapter 4 of the plan. The policy in respect of ‘ Housing in Rural Areas’ is set out at §4.12 and onwards.

14 The development plan expressly cites (at page 82) the definition of ‘rural generated housing demand’ from the National Spatial Strategy 2002 – 2020 as follows.

‘Rural generated housing demand arises from persons who are an intrinsic part of the rural area by way of family links to the area and/or who work in a type of employment, intrinsic to the rural economy, which requires them to live in a rural area, to be close to their rural based employment.’

15 The functional area of the planning authority has been divided into two ‘Rural...