Margaret Austin

A recent decision of Judge Max Barrett regarding the duty of An Bord Pleanála to give reasons for its planning decisions has broader application to the duties of any administrative body to give reasons for its decisions.

Background

In Alun Owens v An Bord Pleanála [2021] IEHC 532, Mr Owens, an organic food farmer, sought to build a house on the land adjacent to his farm so that he could remain close to and carry out 24 hour monitoring of his produce.

In 2017, Mr Owens applied to Wicklow County Council and was granted, planning permission to construct a house on his landholding adjacent to the farm. However, the Council’s decision was the subject of a third party appeal to the Board who ultimately refused planning on the basis that it would “be contrary to the Sustainable Rural Guidelines for Planning Authorities and to the proper planning and sustainable development of the area” and, given the small size of the farming plot, a grant of permission would set a precedent which would adversely affect the “balanced, orderly development” of the rural area.

In 2018, Mr Owens submitted another application for planning permission which sought to address concerns raised by the Board in 2017. The application was accompanied by a planning report which indicated that Mr Owens had a genuine rural need and was in compliance with the relevant national policies and guidelines and the Council’s 2016-22 Development Plan. A report from Teagasc was also submitted with the application which suggested that it was essential for Mr Owens to reside on the holding to ensure the security of his crops and that, even with the dwelling, there would be room on the landholding for the expansion of his operation.
Notwithstanding the Council’s previous conclusion in respect of the 2017 application and the additional supporting information submitted with the 2018 application, the Council refused permission on 16 April 2019. The Court noted that the reasons for refusal were almost identical to the Board’s reasons for refusal of the permission in 2017.

Mr Owens appealed the Council’s decision to the Board and on 23 September 2019, the Board refused permission on the basis that the development would be contrary to the ‘Sustainable Rural Housing Guidelines for Planning Authorities’ and the Council’s Development Plan 2016-22, national policy, and the proper planning and sustainable development of the area and given the small size of the farming plot, a grant of permission would set a precedent which would adversely affect the “balanced, orderly development” of the rural area.

High Court challenge

Mr Owens challenged the Board’s decision in the High Court and Mr Justice Max Barrett identified 10 problems with the Board’s decision-making process to include, for example, that:

1. The Board did not explain how Mr Owens did not meet the social or economic needs test, even though he satisfied several of the criteria in Objective HD23 of the Council’s Development plan. In fact, it was noted that the planning inspector’s conclusion that Mr Owens did not meet the economic needs test flew in the face of the evidence that was before him.
2. The Board failed to comply with section 34(10) of the Planning and Development Act 2000 (as amended) as it did not give any insight into why Mr Owens did not have a genuine rural housing need based on social or economic criteria by reference to Objective HD23.
3. The Board failed to engage properly with the additional evidence before it and considered irrelevant information, including Mr Owens place of upbringing.

In reaching his decision, Mr Justice Barrett applied the key principles upon the giving of reasons for administrative decisions set out in the Supreme Court judgment of Connelly v An Bord Pleanála [2018] 2 I.L.R.M 453 and concluded that, it was not possible to understand the Board’s reasoning for its decision, even when viewed in the context of the previous planning applications.

For the reasons set out above, Mr Owens succeeded in his application and the Court granted:

1. an order of certiorari quashing the Board’s decision of 23 September 2019;
2. a declaration that the decision was in breach of the Board’s statutory duty under section 34(10) of the Planning and Development Act 2000 (as amended) to state the main reasons and considerations on which a decision is based; and
3. an order remitting the planning application to the Board for fresh consideration.

Mr Owens was also awarded his costs in the matter, subject to a hearing in respect of costs.

Commentary

This planning case provides helpful insight as to what the Courts will consider when determining whether a public authority has given appropriate and sufficient reasons for its decision when exercising its statutory decision-making powers.

• Margaret Austin is a partner and Kate Liddy-Cormican is a solicitor at Eugene F. Collins.