Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 453
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

However, the court determined that the Board had failed to engage at all with the objections raised by the local primary school and did not provide adequate reasons for the decision. Further, the decision to authorise the use of the facility for three years was unreasonable, having regard to the inspector’s report and the HSE guidelines.

Background

Under the Misuse of Drugs (Supervised Injecting Facilities) Act 2017, the Minister for Health was empowered to grant licences for medically supervised injection facilities (MSIFs) where the possession of controlled drugs for immediate personal use would not be punished. The scheme was designed to allow drug users to safely inject narcotics.

Under the scheme, planning permission also had to be obtained from the Board. The notice party, Merchants Quay Ireland CLG applied for permission to host a MSIF. The Board granted the permission on a temporary basis for a three-year period.

In reaching this conclusion, the Board had regard to inter alia, the zoning objective for the area, the inner-city location of the site, the proposed monitoring/evaluation and the pilot-nature of the scheme.

The planning permission was partly based on the findings in the inspector’s report, which determined that a two-year period was appropriate for the temporary permission. Further, the report noted that there was a “very high level of dissatisfaction” within the local community for the scheme. It was stated that it was difficult to answer whether the monitoring/evaluation processes for the development would be sufficient to change the poor track record of MQI to date.

A local primary school, St. Audoen’s National School, put in detailed submissions in response to the developer’s proposal. The submission claimed that it was inappropriate for a drug injection site to be situated so close to the primary school as it would normalise drug use for the children. The school pointed to the recognised impressionability of children by the Oireachtas, referencing “no fry zones” around schools to help alleviate obesity.

It was also claimed that the local area would become a de facto drugs marketplace for users and dealers, which was clearly not appropriate.

As stated, the planning permission was granted despite these objections. The school subsequently applied to the High Court by way of judicial review seeking to quash the decision. The school argued that the permission was unreasonable and that their submissions had not been adequately considered. The specific points in issue before the court were 1) the three-year period for the permission and 2) the purpose of the temporary planning permission.

High Court

Delivering judgment in the case, Mr Justice Garrett Simons began by noting that the inspector was confused in determining the minimum time limits for the scheme. She had initially recommended eighteen months for the duration of the permission, but erroneously believed that two years was the minimum temporary permission that could be granted.

The court then noted that the Board’s decision failed to engage with the submissions of the school. There was “no reference at all to the school, education or the impact of the proposed development on the welfare of the pupils,” the court said. This was “inexplicable” in circumstances where the school had criticised the proximity of the MSIF to the school.

The court accepted that the decision had to be read in conjunction with the inspector’s report (Connelly v. An Bord Pleanála [2018] IESC 31). However, recourse to the inspector’s report did not provide a defence for the Board, because the report also did not adequately engage with issues raised by the school. While the inspector set out the objections of the school, it did not come to any conclusions or findings on the relevant issues.

Citing Balz v. An Bord Pleanála [2019] IESC 90, the court held that the right to make submissions necessarily included a right to be informed why submissions were accepted or rejected.

The court noted that the temporary nature of the permission made it more difficult for the applicant to establish that the permission was unreasonable. However, any assessment of the reasonableness of a decision required an analysis of the reasons provided by the decision-maker, the court said. In the absence of proper reasoning, a court cannot exercise its supervisory jurisdiction.

The court held that there were two aspects of the Board’s reasoning which caused concern. First, it was held that other public authorities had agreed that eighteen months was the appropriate period for the pilot scheme, which was also the view of the inspector before she erroneously advised for a two-year period. The court said that there were no reasons for why the Board determined that a three-year period was appropriate.

The court also rejected a suggestion that the planning permission was not a concern because the Minister’s licensing system could be relied on instead to govern the pilot scheme, stating that the Board would be abdicating its responsibilities to the Minister for Health.

The second issue was the purpose of the temporary permission, which the Board had stated was “to allow the impacts of the proposed use to be reviewed after a trial period.” However, the court noted that there was no reference to educational uses or the school in the Board’s reasons for any potential review. Instead, the proposed review would only have regard to the “interest of residential amenity and public safety.”

The court held that it was unreasonable to limit any review in this way considering the issue which had been raised by the school.

Finally, the court considered whether the applicant had properly pleaded its case regarding the reasonableness of the decision. The court applied Kelly (Eoin) v. An Bord Pleanála [2019] IEHC 84 and People Over Wind v. An Bord Pleanála (No. 1) [2015] IEHC 271, holding that the pleaded case was broad enough to encompass arguments in respect of reasonableness and reasons.

Conclusion

Accordingly, the court quashed the decision of the Board on the basis that it did not engage adequately with the school’s submissions. The proposed review provided no consideration of the school or pupils and the decision to authorise the permission for three years was unreasonable.