Larkin and Another v Roscommon County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 25 April 2025
• Neutral Citation: [2025] IEHC 250
• Docket Number: Record No. 2023/363JR

Between:

Michael Larkin and Maureen Larkin

Applicants

and

Roscommon County Council

Respondent

and

John Heneghan

Notice Party

[2025] IEHC 250

Record No. 2023/363JR

AN ARD-CHÚIRT

THE HIGH COURT

Judicial review – Planning permission – Alternative remedy – Applicants seeking to quash the notification of the decision to grant retention permission and planning permission by way of judicial review – Whether an alternative remedy was available

Facts: The applicants, Mr and Mrs Larkin, in an application to the High Court for judicial review, sought to quash the notification of the decision of the respondent, Roscommon County Council, dated 21 February 2023 to grant retention permission and planning permission for the following development: (1) retain milking parlour shed; (2) retain roofed dungstead; (3) retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works; (4) permission to roof existing cow collection yard at the farm premises located at Rathleg, Castlerea, County Roscommon, which was owned and operated by the notice party, Mr Heneghan. The applicants submitted that the impugned decision of the respondent was made contrary to the Planning and Development Act 2000 and the Planning and Development Regulations 2001 and the decision was unreasonable or irrational having been made on erroneous information and/or was made on foot of irrelevant and incorrect facts, of which each individually was reason to set aside the impugned decision.

Held by Bradley J that the discretionary nature of the remedies available pursuant to the judicial review process is exemplified in several principles, including, the availability of an alternative remedy. Bradley J noted that the statutory process of invoking an appeal to An Bord Pleanála (the Board) was the alternative remedy which was in issue in this case. Bradley J had regard to all of the circumstances of the case, including the purpose for which the remedies of judicial review were sought, the adequacy of the alternative remedy of an appeal to the Board and the conduct of both the applicant and the respondent (paraphrasing O’Higgins CJ in The State (Abenglen Properties) v Dublin Corporation [1984] I.R. 381 at p. 393). Bradley J did not consider that the applicants had been prejudiced or disadvantaged in the making of their submissions, at any stage, or that their circumstances satisfied the requirement of exceptionality which would warrant a challenge to the first instance decision of Roscommon County Council in circumstances where the applicants had in fact appealed to the Board (which grounds of appeal included their arguments that the site notice did not comply with Article 17(1)(b) of the 2001 Regulations) but where the Board determined that the applicants’ appeal was itself invalid because of non-compliance with the fee requirements. Having considered the nature and scope of the appeal procedure and all the circumstances of the case, Bradley J considered that the route of an appeal to the Board would have afforded the applicants, who sought to challenge the correctness of the County Council’s decision, an effective remedy.

Bradley J refused the applicants’ application for the reliefs claimed by way of judicial review.

Application refused.

Appearances:

177. Paul McGarry SC and David Dodd BL appeared for the applicants, instructed by O'Dwyer Solicitors, Solicitors for the applicants, Bridge Street, Ballyhaunis, County Mayo.

178. Peter Bland SC and Dermot G Hewson BL appeared for the respondent, instructed by Dermot M. MacDermot Solicitors, Solicitor for Roscommon County Council, Castlerea, County Roscommon.

179. The notice party did not participate in the hearing.

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 25 ^th day of April 2025

TABLE OF CONTENTS

Preliminary	3
LETTER OF SUBMISSION DATED 30TH JANUARY 2023	4
Summary	4
The issues raised	4
Site Notice & description	4
Underground slurry storage tank	5
Nutrients Management Plan	5
Alleged material change of use	5
Planning permission in 2011	6
Spreading of slurry	6
Noise	7
Smell/Odour	7
Aesthetics	8
Site Location Map/Plan	9
Site Layout Plan	9
Drawing No. 101	10
E-Plan – Roscoco.maps.arcgis.com	10
NOTIFICATION OF DECISION DATED 21ST FEBRUARY 2023	10
SUMMARY OF THE SECOND-NAMED APPLICANT'S APPEAL TO THE BOARD	13
THE APPLICATION FOR JUDICIAL REVIEW	16
The parameters for judicial review	16
The Applicants' grounds	17
Statement of Opposition	27
DISCUSSION & DECISION	28
Reasons	28
Preliminary Examination	32
The question of validity	33
The 2001 Regulations	33
The question of ‘exceptional circumstances’	35
The submissions of the second named applicant	36
The response of the planning authority	36
Additional matter	41
Jurisdiction of An Bord Pleanála	44
Merits-based, errors and other grounds	48
An adequate (or suitable) alternative remedy & the exercise of discretion	49
CONCLUSION	55
PROPOSED ORDER	56

INTRODUCTION

Preliminary

1 In this application for judicial review, Michael and Maureen Larkin (“the applicants”) seek to quash the notification of the decision of Roscommon County Council 1 dated 21 ^st February 2023 (“the decision”) to grant retention permission and planning permission for the following development: (1) retain milking parlour shed; (2) retain roofed dungstead (3) retain and complete slatted shed with feeding passage and cow cubicle accommodation and associated site works; (4) permission to roof existing cow collection yard at the farm premises located at Rathleg, Castlerea, County Roscommon, which is owned and operated by the notice party (Mr. John Heneghan).

2 The application was received by the County Council on 19 ^th December 2022 and submissions and observations were made by Ms. Maureen Larkin, Mr. Alan Larkin and Mr. Michael Larkin on 30 ^th January 2023.

3 The subsequent notification of decision was dated 21 ^st February 2023.

4 Whilst these matters are addressed in more detail later in this judgment, in summary, this challenge against the decision of the County Council arises in circumstances where the applicants initially sought to appeal the notification of the decision to grant retention permission/planning permission to An Bord Pleanála (“the Board”) but that appeal was deemed invalid arising from an error in the fee which accompanied the appeal. The context for the appeal arose from the use of the notice party's farming enterprise in proximity to where the applicants live as a retired couple.

5 In terms of substantive issues, again by way of synopsis, this application for judicial review is buttressed or book-ended by what is claimed by each of the central protagonists to be errors which have certain legal consequences: on behalf of the applicants, for example, it is claimed that the initial ‘site notice’ for the proposed development was not erected until 5 ^th January 2023 even though the actual site notice stated that it was erected on 18 ^th December 2022. The applicants submit that this alleged failure to comply with Article 17(1)(b) of the Planning and Development Regulations 2001, as amended (“the 2001 Regulations”) renders the entire application and subsequent decision of the County Council to be invalid; the

County Council argues first that its decision was correct (notwithstanding minor errors in the conditions attached to the permission consisting of a typographical error and the reference to a Regulation which had been revoked and replaced). It argues that the applicants' complaints are properly matters which should have been addressed on appeal to the Board and that the applicants, albeit through an inadvertence arising from an error in the fee which accompanied the appeal, have failed to exhaust the appropriate alternative remedy comprising of an appeal to the Board and, therefore, their challenge should be refused

6 In considering these matters, I refer, first, to the issues which were raised by the applicants in their initial submission to the County Council as part of the notice party's planning application, second, to the applicants' appeal to the Board (which was deemed invalid) and, finally, to their application for judicial review, before discussing the legal consequences which arise.

LETTER OF SUBMISSION DATED 30TH JANUARY 2023

Summary

7 In the period after which the application for retention permission/permission (Reference Number 22672) was submitted by the notice party and received by the planning authority, the second named applicant made a number of “submission/observations” by way of a handwritten letter dated 30 ^th January 2023.

8 In summarising the contents of this letter, as follows, it can be noted that the applicants raised the same or similar types of issues which it sought subsequently to raise in their appeal to the Board, which was deemed invalid, and which they also seek now to raise in this challenge by way of judicial review, including inter alia the following: reference was made to the site notice and description of the proposed development (the subject of the application for retention), the underground slurry storage tank, the Nutrients Management Plan, the alleged material change of use, the planning permission in 2011, the spreading of slurry, whether slurry was being spread on sterilised land on particular dates ( i.e., 20 ^th January 2023) and reference was made to a section 47 Agreement with the Planning Authority, Roscommon County Council and Condition 15 of the planning permission in reference no. 11389, the alleged noise, the odours and smells, the aesthetics, the site location map, the site lay-out...