The Supreme Court allowed James and Margaret Talbot’s appeal and sent their application for leave to seek judicial review back to the High Court for further consideration. It did not decide whether the planning authority’s refusal was invalid or whether the Talbots were entitled to permission to build.
The Talbots sought permission for a house at Gormanstown, Kilcullen, in an area identified by Kildare County Council’s 1999 Development Plan as under development pressure. The plan restricted one-off rural housing, while giving a “positive presumption” to certain categories, including people with qualifying employment or family links to the rural location where they wished to build.
An Bord Pleanála refused permission in February 2004. One reason was that the Talbots did not meet the plan’s housing-need criteria. A second cited disorderly backland development, lack of public services and community facilities, and harm to the rural environment. The Talbots’ judicial review grounds challenged the first reason; they did not challenge the second.
The High Court refused leave to seek judicial review, reasoning that success against the first reason would bring no benefit because the second would remain and defeat any future application. The Talbots appealed on a certified point of exceptional public importance. At the Supreme Court hearing, they accepted that a judge could, in an appropriate case, refuse leave where no benefit could result. The remaining question was whether the High Court could infer that a future planning application would inevitably fail on a ground not challenged in the review proceedings.
The Supreme Court said the planning history was strong evidence that the Talbots faced an uphill battle. But a person qualifying for the plan’s positive presumption might be in a better position to persuade the planning authority, depending on the countervailing planning considerations. The Court said a judge could not presume in advance what the planning authority or Board would decide.
The judgment stressed that it did not suggest the Talbots would succeed in challenging the first refusal reason. Nor did it decide whether invalidating one of several reasons would invalidate the Board’s overall decision. The Supreme Court had not heard full argument on whether leave should be granted, so it allowed the appeal, set aside the High Court order and remitted the leave application for further consideration.