James Talbot and Margaret Talbot v an Bord Pleanála, Kildare County Council, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Mr Justice Michael,Mr Justice Michael Peart
• Judgment Date: 16 November 2005
• Neutral Citation: [2005] IEHC 215,[2006] IEHC 202
• Court: High Court
• Docket Number: Record Number: No. 350 JR/2004
• Date: 16 November 2005

[2005] IEHC 215

THE HIGH COURT

Record Number: No. 350 JR/2004

TALBOT v AN BORD PLEANALA

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

BETWEEN:

JAMES TALBOT AND MARGARET TALBOT

APPELLANTS

AND

AN BORD PLEANÁLA, KILDARE COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S50

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

CAHILL v SUTTON 1980 IR 269

BRADY & ORS v DONEGAL CO COUNCIL & DOYLE 1989 ILRM 282

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

FARRELL v FARRELLY & JUDGE O'DONNELL 1988 IR 201 1988/4/1086

HEAVEY v PILOTAGE COMMITTEE OF THE DUBLIN PILOTAGE AUTHORITY & ANOR UNREP BLAYNEY 7.5.1992 1992/7/2088

RSC O.84

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125 1995/3/1122

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT & ORS UNREP GEOGHEGAN 2.7.1999 1999/14/3977

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Discretionary remedy - Application for leave to apply for judicial review - Whether substantial grounds for application - Only some of the grounds of refusal of permission challenged - Whether judicial review futile - Cahill v Sutton [1980] IR 269 and Farrell v Farrelly [1988] IR 201 considered - Planning and Development Act 2000 (No 30), s 50 - Leave refused (2004/350JR - Peart J - 21/6/2005) [2005] IEHC 215

Talbot v An Bord Pleanála

Facts: The applicant applied for leave to apply for judicial review for inter alia an order of certiorari quashing a decision of An Bord Pleanala refusing planning permission. They contended that they were persons who benefited from a positive presumption under the development plan towards the building of one-off housing and the decision of the Board was flawed.

Held by Peart J. in refusing the application for leave that relief by way of judicial review was discretionary and no benefit could result in the long run from success in the judicial review proceedings. The ground relied on, namely the positive presumption ground, was very far from being the sole ground on which applicants’ appeal was turned down. Even if the court were to find the ground of refusal relating to the positive presumption frail, the applicants would be left with the inevitable prospect that in any further application which they might make, the remaining grounds of refusal would remain and they would have gained nothing of benefit from any successful outcome of the judicial review proceedings.

Reporter: R.W.

Judgment of

Mr Justice Michael

1 The applicants are husband and wife and seek leave to apply for judicial review for the following reliefs.

2 Firstly, they seek an Order of Certiorari quashing a decision of An Bord Pleanala dated 27th February 2004 ("the decision") by which their application for the construction of a house and ancillary works at Gormanstown, Co. Kildare was refused.

3 Secondly, they seek a declaration that they are persons who benefit from a positive presumption under the Kildare County Development Plan ("the county development plan") towards the building of one-off housing for their own occupation on the lands the subject matter of these proceedings.

4 Thirdly, they also seek as against Kildare County Council ("the County Council") a declaration that paragraph 2.9.1(A)(4) and 2.9.1(A)(5) of the county development plan are not reasonably related to the securing of proper planning objectives and/or are unconstitutionally arbitrary and vague and accordingly were made ultra vires the powers conferred on the County Council by the Planning and Development Act ("the 2000 Act")

5 Fourthly, they seek, if necessary, as against Ireland and The Attorney General, a declaration that the said two paragraphs of the county development plan are incompatible with the State's obligations under the European Convention on Human Rights Act,2003.

6 Lastly, they seek an order remitting the application for planning permission back to the County Council for reconsideration in the light of any directions which this Court might make in its determination of the proceedings for Judicial Review.

7 For completion, I should note that the applicants no longer seek leave in respect of the relief set forth at 4(d) of the Reliefs sought in the Statement of Grounds.

8 The applicants married in December 1970. At paragraph 8 of his grounding affidavit James Talbot sets out his close family links with County Kildare. His mother's family were from Moone in County Kildare, and he says that he himself was "partially raised in south County Kildare", and that he has many family connections there. He avers that he spent virtually every summer in Moone at his mother's family home during what he describes as his "formative and teen years", and that as a consequence he has strong ties still in that county with his cousins. In addition he has averred that many of his relatives, including great grand parents, grandparents, uncles, aunts, and a cousin are all interred in the cemetery at Moone, and that he has a great number of relatives living in a number of stated locations in the county. He and his wife moved to and lived in Dublin until 1989, when they returned to live in County Kildare, namely at Yellow Bog, near Kilcullen. They and their children integrated into the local community and involved themselves in many local activities and organisations. He gives considerable details of all this in his grounding affidavit. These averments are relevant to the relief claimed at 4(b) of the Statement of Grounds, relating to the presumption contained in the county development plan for one off housing for persons with close family or employment connections with rural parts of the county. I will consider those presumptions and submissions made in relation thereto in due course.

9 The applicants purchased a site in April 2002 at Gormanstown, Kilcullen, Co. Kildare. Their first application for a planning permission to build a house on the site was refused in February 2003. They applied again in August 2003, but before doing so they had a pre-planning meeting with planning authority officials. However, permission was refused on six grounds which are set forth in the Inspector's Report to An Bord Pleanala dated February 2004. On appeal to An Bord Pleanala, these grounds of refusal were reduced to two, namely:

10 1. The site of the proposed development is located in a rural area which is within the Strategic Green Belt as set out in the Strategic Planning Guidelines for the Greater Dublin Area and is identified as an Area of Development Pressure in the current Kildare County Development Plan. It is an objective of the planning authority, as expressed in the current Development Plan, to restrict residential development in such areas to certain classes of person. This objective is considered reasonable. It is considered that the applicants do not come within the scope of the housing need criteria in the Development Plan. The proposed development would, therefore be contrary to the proper planning and sustainable development of the area.

11 2. The proposed development would result in a disorderly, backland pattern of development in this rural area lacking certain public services and community facilities and would militate against the preservation of the rural environment and lead to demands for the uneconomic provision of further public services and facilities in the area where they are not proposed. The proposed development which would constitute suburban type sprawl in a rural area, would, therefore, be contrary to the proper planning and sustainable development of the area.

12 The Grounds put forward for the reliefs sought relate to the first of the reasons of the refusal. That gives rise to a submission made on behalf of the first named respondent, to which I shall in due course refer, namely that this application should be refused because, even if the Court were to allow leave to seek judicial review on the grounds sought, the applicants would still be faced with the second ground of refusal set out above, and that a victory in relation to reason number 1 would avail them nothing.

13 What has been referred to as "the positive presumption" contained in the County Kildare Development Plan is at the heart of this application, and I should set it out. In that Plan at paragraph 6.6.2 under the heading "Policy Statement" it states, relevantly to these proceedings:

"It is the policy of the Council to focus the provision of one-off housing in the rural countryside to the category of “local need”, outlined below, subject to compliance with normal planning criteria. Applicants must comply with normal siting and design considerations and one of the following criteria outlined in Schedule 6.1 below:"

1. ………

2. ………

3. Persons who have grown up in or who have spent substantial periods of their lives (c.12 years) living in rural areas in Kildare as members of the rural community and who seek to build near their family residence and who currently live in the area.

4. Persons who have grown up in or who have spent substantial periods of their lives (c.12 years) living in rural areas in Kildare as members of the rural community who have left the area but who now wish to return to reside near other immediate family members or to care for elderly immediate family members. Immediate family members are defined as mother, father, brother, sister or guardian.

5. ………"

14 The applicants seek to establish in these proceedings that the manner in which the Board reached its decision is flawed. It is well recognised that judicial review proceedings must be confined to the process by which the body reached its decision, rather than the merits of the application itself. If the process was not flawed, then it is of no concern to the Court that it might...