Supreme Court allows appeal to High Court on planning application leave despite statutory finality provisions.

THE SUPREME COURT

Record No. 02/2006

Fennelly J.

Kearns J.

Finnegan J.

BETWEEN:

James Talbot and Margaret Talbot

Applicants/Appellants

-and-

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

Respondents/Respondents

Judgment of Mr. Justice Fennelly delivered on the 23rd day of July, 2008.

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. 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. The 1999 plan was in force at all times relevant to the appellants’ planning application. 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. 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. 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. 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. 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. 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. 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. 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 to assume 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.

“In terms of family linkages I consider that Section A5 is quite clear in its intention in stating that the

linkages are with the ‘rural location in which the appellant wish to build’. While details of family relations

(1st cousins) are given in support of the application none would appear to be residing in or near the location

of the appeal site.”

11. In short, the Inspector was of the opinion that, on a consideration of the facts, the appellants did not comply with the

criteria stipulated in the County Development Plan for rural housing in areas under development pressure.

12. In addition, the Inspector expressed serious reservations about the suitability of the proposed layout, describing it as

“haphazard” and unsuitable in a rural location.

13. Based on the Inspector’s report, the Board made a decision refusing planning permission on 27th February 2004 for the

following two reasons:

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.

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.

14. The first reason is that the appellants do not come within the class of persons entitled to the “positive presumption” in

favour of “one-of houses” provided by the Development Plan. The second combines a number of specific planning reasons

related to character of the proposed development.

The Judicial Review application

15. By notice of motion dated 23rd April 2004, the appellants gave notice of their intention to apply for judicial review by

way of certiorari of the decision of the Board, a declaration that they are persons entitled to the benefit of the “positive

presumption” mentioned in the Plan, alternatively a declaration that the relevant provisions of the Plan are incompatible with

the obligations of the State pursuant to the European Convention on Human Rights Act, 2003. A separate ground contesting

the constitutionality of the relevant provisions of the Plan has since been abandoned.

16. The first and principal series of grounds put forward in support of the application concern the issue of the appellants’

claim to a positive presumption.

17. The statement to ground the application for judicial review, though referring to the European Convention on Human

Rights Act, 2003, does not cite any particular Article or provision of the Convention. It claims that the requirements of the

plan constitute unjust, unnecessary and disproportionate interference with the appellants’ right to earn a livelihood as well as

discrimination in a number of respects.

18. It is of especial note that all of the grounds put forward by the appellants for judicial review related to the first of the two

reasons given by the Board for its refusal of planning permission. None related to the second ground. The appellants did not

include in their notice of application for leave any ground affecting the validity of the second ground. This fact became

highly material to the decision of the High Court.

19. When the matter came on for hearing in the High Court before Peart J, counsel for the Board submitted that the learned

judge should, in his discretion, decline the application on the basis that, even if the relief sought were granted, it would

confer no benefit upon the appellants. Thus, the application should be refused because, even if the Court were to allow

leave to seek judicial review on the grounds sought, the appellants would still be faced with the second ground of refusal,

and that a victory in relation to reason number 1 would avail them nothing. The Court would be indulging in a futile and

pointless exercise in exercising its discretion by granting leave. The learned judge addressed this issue first. In view of the

conclusion he reached, he did not give any consideration to the actual grounds advanced on behalf of the appellants in

seeking leave.

20. He posed for himself the question whether success in their application for judicial review “could reasonably avail the

applicants at all in the long run.” It seemed to him that the court’s decision could not touch on the second ground of refusal.

Thus the question arose “as to the inevitability or otherwise of that same ground being found to be applicable in any

reconsideration of the appeal, or any fresh application which might be made for permission to the County Council.”

21. He reviewed the planning history of both the appellants’ site and the adjoining site for which their son and his wife had

sought permission. Both had made two unsuccessful applications. The reasons for refusal other than that relating to the

“positive presumption,” related to broader planning considerations. The learned judge concluded:

“Certainly there can be no prospect whatsoever from the history of the application, both in respect of these

applicants as well as their son and daughter in law, and the reasons stated therein for refusal, that even if this

Court were to find a frailty in the first ground of refusal related to the interpretation of and application of the

positive presumption in relation to the applicants, 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 these judicial review proceedings.”

22. Thus, he exercised his discretion to refuse leave to apply for judicial review “on the basis that no benefit can result in

any event from success in the application at the end of the day.”

The appeal

23. The learned judge, on 16th November 2005, in what he described as the “unusual circumstances of this case,” granted

a certificate pursuant to the provisions of s. 50(4)(f)(i) of the Planning and Development Act, 2000 that the following are

points of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the

Supreme Court in relation thereto, to wit:

1. Is the Court, when hearing the application for leave on notice pursuant to the provisions of s. 50 of the

Planning and Development Act, 2000 as amended, entitled to exercise its discretion to refuse leave to seek

judicial review on the ground that no benefit would in any event accrue to the applicant?

2. If the court is so entitled to refuse leave on that basis, is it permissible to reach a conclusion that leave

should be so refused by drawing an inference from the material put before the Court on the application for

leave that any future application for planning permission would be refused in any event on a ground or

grounds which was/were not sought to be impugned in the proceedings for judicial review?

24. The appellants have filed a notice of appeal containing a number of grounds related to the certified questions. However,

counsel for the appellants accepted, at the hearing of the appeal, that it could not be maintained that a judge at the hearing of

an application for leave to apply for judicial review is precluded as a matter of law, in a proper case, from exercising a

judicial discretion to refuse leave. Accordingly, that issue was not further argued and it is unnecessary to comment upon it

any further.

25. On the second question, counsel for the appellants, Mr Colm O h-Eochaidh, submitted that the learned judge was

mistaken in law. He was not entitled to hypothesise as to the outcome of the present or a future application before the Board

or the planning authority for a similar development of the appellants’ site. He went so far as to submit that there might even

be a benefit to the appellants if they were to lose the judicial review proceedings: the court, in its judgment, might interpret

the provisions of the Development Plan in such a way as to be helpful in the context of a future planning decision.

26. Ms Nuala Butler, Senior Counsel, for the Board submitted that the learned trial judge was correct to hold that, in the

light of the planning history, there was no conceivable prospect of a successful planning application. The Board’s second

reason for refusal stood undisturbed. The consistent history showed that it was inevitable that permission would be refused

for reasons covered by that ground.

Consideration of the second certified point

27. The learned trial judge did not enter into consideration of the appellants’ primary argument to the effect that they were

entitled to a positive presumption in their favour for the purpose of their application for a “one-off” housing development.

Logically, therefore, it must be assumed that he reached his decision on the hypothesis that the appellants would have been

successful on that ground.

28. There are further implications in that hypothesis. The hypothesis itself implies that the appellants come within a class of

persons to whom the planning authority states that a “positive presumption will be given to the building of one-off

houses…” There can be no doubt that a presumption does not, as the Inspector said, “confer an absolute right to develop

regardless of site considerations.” Mr O h-Eochaidh quite correctly accepted as much at the hearing.

29. However, a person entitled to the positive presumption may be in a better position to persuade the planning authority to

decide in his favour, depending, of course, on the strength of the countervailing planning considerations. In other words, I

do not think that those considerations are necessarily in a watertight compartment, uninfluenced by the status, vis-à-vis the

issue of positive presumption, of the applicant for permission. I merely say that it would be open to a planning authority or

the Board to modify their position. I would not wish to say any more and I certainly do not state that they would or should

modify their position. There is no doubt that the planning history constitutes very strong evidence that the appellants face an

uphill battle in seeking to obtain planning permission. However, I am satisfied that a judge is not entitled to presume in

advance what the outcome of an application will be. That is exclusively a matter for the statutory bodies charged with those

functions.

30. I wish also to state that none of the foregoing suggests to the slightest degree that the appellants are entitled to succeed in

their challenge to the first reason for refusal. In order to obtain leave, the appellants must establish “substantial grounds for

contending that the decision” of the Board is invalid. Nor have I given any consideration at all to the question, discussed by

Kearns J in the judgment he is about to deliver, of whether the fact that one only of a number of reasons in the Board’s

statement of reasons for refusal is invalid in law the decision is necessarily invalid. The Court has not been addressed on the

issue. It might be necessary to consider, for example, the decision of this Court in Kennedy v Law Society [2002] 2 IR 458,

where reference was made to "the general problem of plurality of purpose as a 'legal porcupine which bristles with

difficulties…” (Glidewell J. in Reg. v. The Inner London Education Authority, Ex parte Westminster City Council [1986] 1

W.L.R. 28). I express no opinion on the likely outcome.

Procedural consequences of this decision

31. The parties did not have a clear position about the consequences of a potential successful result of the appeal by the

appellants. Mr O h-Eochaidh originally submitted, in writing, that this Court should continue to consider granting leave. At

the hearing, he submitted that section 50 (4)(b) of the Act of 2000 provides that “leave shall not be granted unless the High

Court is satisfied that there are substantial grounds….” (emphasis added) and thus that this Court cannot decide whether

leave should be granted. Against that is the fact that it is precisely the “determination of the High Court” which is rendered

final by section 50(4)(f)(i) of the Act. That finality is made subject to the possibility of an appeal if a certificate is given in

accordance with the same provision. The certificate must state that “it is desirable in the public interest that an appeal be

taken to the Supreme Court.” Such an appeal would be an entirely pointless exercise unless this Court were empowered to

encroach on the finality of the High Court decision.

32. Regard must also be had to section 14 of the Courts (Supplemental Provisions) Act, 1961, which provides that the

jurisdiction of this Court is to be “exercised so far as regards pleading, practice and procedure, generally, including

liability to costs, in the manner provided by rules of court……” Order 58, rule 8 of the Rules of the Superior Courts

provides:

“The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High

Court……… The Supreme Court shall have power to draw inferences of fact and to give any judgment and

make any order which ought to have been made and to make such further or other order as the case may

require……”

33. In addition, section 50 makes it clear that any application for judicial review is to be brought pursuant to Order 84 of

those Rules. That Order does not include Order 58, rule 13 which provides that, in the case of refusal of an ex parte

application, an application may be made to this Court.

34. The right of appeal to this Court derives in the first instance from Article 34.4.3 of the Constitution. The provisions of

section 50 of the Act, while limiting the right of appeal, cannot be interpreted so as to limit its effectiveness, once the

necessary certificate is granted.

35. I am satisfied that section 50, considered in the light of the Rules of Court, permits this Court either to grant leave itself

in appropriate cases or to make an order remitting the entire matter to the High Court. Rule 8 gives the Court power “to

make such further or other order as the case may require.” In the present case, the Court has not heard full argument on

the question of the grant of leave. I would, therefore, propose that this Court make an order allowing the appeal, setting

aside the order of the High Court and remitting the matter to the High Court for further consideration of the application for

leave.