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

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns,Mr. Justice Fennelly
• Judgment Date: 23 July 2008
• Neutral Citation: [2008] IESC 46
• Court: Supreme Court
• Docket Number: [S.C. No. 2 of 2006]
• Date: 23 July 2008

Talbot v Bord Pleanála & Ors

BETWEEN:

James Talbot and Margaret Talbot

Applicants/Appellants

-and-

An Bord Pleanála, Kildare County Council, Ireland and the Attorney General

Respondents/Respondents

[2008] IESC 46

Fennelly J.

Kearns J.

Finnegan J.

Record No. 02/2006

THE SUPREME COURT

Abstract:

Planning and development law - Judicial review - Development plan - Planning and Development Act 2000 - Whether the court could exercise its discretion to refuse leave to apply for judicial review on the basis that the application for planning permission would in any event be unsuccessful.

Facts: The appellants were refused permission to build a house in a rural area both by the Council and An Bord Pleanala. The basis of the refusal was that the proposed site was an 'area under development pressure' according to the relevant development plan and the appellants did not fall within the class of persons entitled to a positive presumption in favour of the building of a one-off house. The second reason for refusal combined a number of specific planning reasons related to the character of the proposed development. The grounds put forward by the appellants supporting their application for leave to apply for judicial review related solely to the issue of positive presumption and they sought a declaration that they were entitled to the benefit of such a presumption. The learned trial judge refused the application for leave but granted a certificate pursuant to the provisions of s. 50(4)(f)(i) of the 2000 Act, stating that there were points of exceptional public importance and that it was desirable in the public interest that an appeal be taken to the Supreme Court. This court was asked whether the court, when hearing an application for leave pursuant to the 2000 Act was entitled to exercise its discretion to refuse leave on the ground that no benefit would in any event accrue to the applicant and if the court was so entitled, was it permissible to reach a conclusion that leave should be so refused by drawing an inference from the material put before the court that any future application for planning permission would be refused in any event on a ground(s) which was/were not sought to be impugned in the proceedings for judicial review.

Held by Fennelly J (Finnegan J concurring & Kearns J dissenting) in allowing the appeal, setting aside the order of the High Court and remitting the matter to the High Court: That it was accepted by counsel for the appellants that a judge could not be precluded as a matter of law, in a proper case, from exercising a judicial discretion to refuse leave to apply for judicial review. However, the judge was not entitled to presume in advance what the outcome of an application for planning permission would be. That was exclusively a matter for the statutory bodies charged with those functions. In this case as the court did not hear full argument on the question of the grant of leave, it was appropriate that the matter be remitted to the High Court for determination.

Reporter: L.O'S.

PLANNING & DEVELOPMENT ACT 2000 S50

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)(i)

KENNEDY v LAW SOCIETY OF IRELAND & ORS 2002 2 IR 458

R v INNER LONDON EDUCATION AUTHORITY EX PARTE WESTMINSTER CITY COUNCIL 1986 1 WLR 28

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14

RSC O.58 r8

RSC O.84

RSC O.58 r13

CONSTITUTION ART 34.4.3

PLANNING & DEVELOPMENT ACT 2000 S50(4)(g)

1 1. Rural counties have been faced for some years with the need to reconcile the objectives of controlling haphazard housing development in rural areas with the legitimate needs of persons enjoying strong local links to the countryside. "One-off" housing and ribbon development may conflict with the objective of conserving the character of the countryside.

2 2. Kildare County Council, through its 1999 Development Plan, adopted a policy designed to provide guidance in deciding on planning applications. The appellants have been refused permission to build a house in a rural area near Kilcullen both by the Council and An Bórd Pleanála. Their attempt to obtain judicial review of the Board's decision comes before this Court via the special appeal procedure laid down by section 50 of the Planning and Development Act, 2000.

Kildare County Development Plan 1999

3 3. The 1999 plan was in force at all times relevant to the appellants' planningapplication. Section 2.9.1 was headed: "Housing in the Rural Countryside." It stated that "some rural areas of the county are under development pressure, particularly from scattered urban-generated housing" and that "that this is creating problems for the balanced development of the county as a whole." It is common case that the site of the appellants' proposed development is in such an area, outlined on a map attached to the plan. The plan contains the following relevant statement of policy:

"In order to preserve the rural character of these areas, to prevent the degradation of the rural landscape resource, to protect the operations of the bloodstock industry, and to ensure economies of servicing and settlement, it is the policy of the Council that sporadic one-off housing in the rural areas of the county..................will not be permitted, subject to the exceptions set out below."

"Accordingly, in order to retain the rural population of the county, and to support rural communities and their services.......the general policy set out above will not be applied in respect of certain categories of persons. They are as follows:"

"Within the Areas of Development Pressure.................................a positive presumption will be given to the building of one-off houses, for their own occupation, of the following classes of person:

1. [Omissis]

2. [Omissis]

3. [Omissis]

4. Persons whose primary employment is within County Kildare, and need to live in a rural location because of that employment, or whose employment would provide a service to the local rural community.

5. Persons who have existing family linkages with the rural location in which they wish to build."

The appellants

4 4. The appellants were married in 1970. The first-named appellant's family, on his mother's side originally came from Moone and he was "partially raised" in south County Kildare, where he has many family connections. He spent virtually every summer in his formative and teenage years in his mother's family home. He maintains a strong bond with his cousins on his mother's side. His parents and many relatives are interred in Moone cemetery. He has many cousins in south Kildare.

5 5. The first-named appellant spent his later youth and adulthood in Dublin. In 1989, he moved with his wife to Yellow Bog, a rural area near Kilcullen. His wife and family integrated into the local community and have always been very active in rural and social affairs including voluntary work.

6 6. The appellants sold their house at Yellow Bog. In April 2002, they purchased the site at Gormanstown, Kilcullen, on which they wish to build a dwellinghouse. They now live in Kilcullen.

History of the planning application

7 7. The appellants applied for planning permission to build a house on the site, which was refused in February 2003. The present application was made to Kildare County Council on August 2003. It was for permission to build a one and a half story house, septic tank and constructed wetland treatment system. The County Council refused that application for six reasons. Peart J considered these to have been subsumed in the two reasons ultimately given by An Bórd Pleanála ("the Board").

8 8. The Inspector's report on the appeal to the Board is, by common consent, the basis of the decision of the Board to refuse permission. The Inspector notes that the site is an area "under development pressure." She says:

"By virtue of the proximity of the area to Kilcullen, the fact that it is within Dublin's zone of influence and taking into consideration the pattern of sporadic and random housing evident in the general area I consider such a designation to be entirely reasonable."

9 9. With reference to the classes of persons listed under five headings at section 2.9.1 of the Plan, in relation to whom a "positive presumption will be given to the building of one-off houses," the inspector states:

"However I submit that such a positive presumption does not confer an absolute right to develop regardless of site considerations."

10 10. The Inspector goes on to note that the appellants' case was that they were employed in a business in the county which, they stated, provided a service to the local community as required by section 2.9 A4 of the plan, which I have quoted above, and the appellants' family ties generally. She then mentions that the appellant works in Athy some 22 km south-west of the site. The core of her conclusions on this issue should be quoted:

"While I would accept that the business may provide a service to the rural community it is not area specific and it is reasonable toassume that it also provides a service to persons residing in both urban and rural communities in which the appeal site is located. In my opinion the interpretation put forward by the appellant is not in keeping with the meaning or spirit of the provision. If accepted it is reasonable to assume that many types of employment located within towns and villages also provide a service to the 'local rural community.' In my opinion such an interpretation would undermine entirely the intention of the provision. Concurrently the site, at such a remove from their primary place of employment, will result in a commuting pattern which is inherently unsustainable."

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