The High Court has refused an applicant’s request to reopen a judicial review judgment over planning permission for a proposed cottage rebuild, despite acknowledging a factual error in its earlier reasoning.
In a judgment delivered on 29 October 2013, Ms Justice O’Malley said the court had wrongly stated that Galway County Council had made its planning decision for a second time. The Council had not reconsidered the application. After an earlier judicial review, the matter had been sent back to An Bord Pleanála to address a failure to notify the objector of an appeal.
The planning application was made in July 2009 by Peter Meagher, who sought permission to rebuild a cottage as a holiday home. Galway County Council refused permission, including on the basis that the applicant had not demonstrated the necessary links to build in a rural area. An Bord Pleanála later granted permission on appeal. That grant was set aside in earlier judicial review proceedings because the objector had not been notified. The Board then reconsidered the matter and granted permission again, subject to conditions.
The applicant’s subsequent judicial review challenged the Board’s power to grant permission under section 37(2) of the Planning and Development Act 2000. The issue was whether the Council had refused permission on the ground that the proposal materially contravened the development plan. If it had, the Board could grant permission only in specified circumstances.
In its November 2012 judgment, the court concluded that the Council had not made a finding of material contravention. It reasoned in part that the Council had been aware of the issue when approaching its decision for a second time but had not used the word “material”. The later judgment corrected that factual account and said the error was the judge’s own, not attributable to any party.
The applicant argued that the mistaken account was central to the decision and that the court should revisit the issue. The other parties submitted that the conclusion did not rest solely on that error. The court accepted that it had jurisdiction in some circumstances to reopen a case after judgment but before a final order. It found the error was not the sole basis for its conclusion: the earlier judgment had also rejected the argument that every refusal for a plan contravention must be treated as a material contravention, and had considered the inspectors’ views and the Council’s lack of submissions during the appeal process.
Justice O’Malley said the applicant had not established that the Board was wrong to proceed on the basis that the Council had made no material-contravention finding. She declined to reopen the hearing, concluding that the error did not substantially undermine the basis of the earlier decision. The judgment does not itself set out a final order in the underlying judicial review.