High Court judge mystified by county council’s planning decision

A High Court judge has described as "very difficult to understand" Galway County Council's grant of planning permission for "a substantial housing estate outside Kinvara village on a blind corner, on a main road to Ballyvaughan and the Burren area".

It had been proposed to build 31 houses on a main road with a 100kph speed limit and the Council's permission also extended a town in an unplanned manner in an important tourist area, Mr Justice Peter Charleton said. The development would have resulted in the blind movement, in terms of sight lines for traffic, of many vehicle journeys to and from "this suburban type estate".

It was difficult to see why the court should be required to authorise "a public danger" or to quash a "well-reasoned" decision of An Bord Pleanala which overturned the council's grant of permission, he said.

Mr Justice Charleton last evening dismissed developer Brian McMahon's challenge to ABP's November 2009 refusal of permission after finding the Board was not required to enquire into the validity of the council's acknowledgement of a submission made by two objectors to the development.

The judge also rejected arguments the High Court, if it finds defects in the procedures leading to the making of planning decisions, has then no discretion but to quash those decisions.

It was not the law that the court in every case must grant judicial review so as to effectively authorise a development when that development has been judged by ABP to represent several adverse effects, he said.

The board had "very strong reasons" for its refusal of permission, including its view the proposed development would imperil traffic safety, subject the water table to potentially life-threatening contamination or further despoil the countryside with suburban development.

In the context of those clear reasons and the council's refusal of previous planning applications for this site, the council's April 2009 grant of permission for the development was "very difficult to understand", he observed.

Local authority planning departments were not entitled to ignore the "central principle of planning law" - the proper planning and sustainable development of an area, he said. They must consider proper area zoning with proper provision for infrastructure, protection of our physical heritage, preservation of the character of the landscape, conservation of the environment, and the avoidance of accidents.

The "priceless heritage of generations of work within the countryside, as reflected in our landscape and in the separation of town from rural areas, has been an invaluable economic resource since the foundation of the State," he said. Tourism was attracted by the very environment the planning code was designed to foster and protect and the obligation to plan for sustainable development must take into account the nation's need for revenue from "this vital industry".

"To mix up the countryside with development only appropriate for suburbs and towns deforms the need for proper planning," he said.

In his judicial review proceedings, Brian McMahon had argued the board was required to enquire whether a statutory acknowledgement by the council of a submission to it against the development by two local objectors, Sean Forde and Jane Joyce, who live beside the proposed development site, was valid on its face.

The couple's submission was made outside the legal time limits but the Council sent them a formal acknowledgement of receipt of the submission. When the couple later appealed against the grant of permission to An Bord Pleanala, they enclosed that acknowledgement among their documents as they were required to under the Planning and Developmnent Act 2000.

Mr McMahon had argued the board should have enquired into the validity of the acknowledgement but Mr Justice Charleton ruled the Board did not have authority under the 2000 Act to make any legal analysis of steps conducted in pursuit of a planning application by a local authority.

The power to enquire into the validity of the council's acknowledgment of the couple's submission was of a quasi-judicial kind and was "singularly absent" from the statutory scheme for planning appeals, he ruled. On that ground, he was refusing the application for judicial review.

He also dismissed Mr McMahon's claims of "a complete absence of merit" on the part of an Bord Pleanala and the couple in the matter.


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