The High Court has allowed a family to bring a late challenge to An Bord Pleanála’s refusal of planning permission for a home in rural County Wexford, finding that their medical and caring circumstances justified the delay. The court granted leave to pursue five grounds of judicial review, but refused a sixth concerning photographs. It did not decide the substance of the challenge or grant planning permission.
Mr Justice Cian Ferriter gave the ruling on 13 February 2023. The applicants sought to retain a mobile home, wastewater treatment system and associated site works, and permission to build a house, garage and wastewater polishing filter. Wexford County Council refused the application on 17 February 2021. The applicants appealed, and the Board refused permission on 22 June 2021.
The applicants brought their leave application on 2 September 2021, 17 days after the eight-week statutory deadline for challenging the Board’s decision. The judge found that their circumstances met both requirements for extending time: good and sufficient reason, and circumstances outside their control. During the relevant period, the first applicant, who is autistic and severely dyslexic, was preparing for and sitting 10 repeat professional examinations. The second applicant was caring full-time for their three autistic children. The judge said these pressures applied throughout the eight-week period and the additional 17 days.
The court refused an extension to challenge the Council’s decision. Because the applicants had appealed that decision and the Board had ruled on the appeal, the Council’s decision had been annulled and was a legal nullity, the judge found.
The Board’s refusal cited rural housing policy and concerns that the site’s subsoil might not dispose of wastewater safely. The applicants argued that the Board had failed to assess their case under the development plan’s exception for people with exceptional health circumstances. They relied on medical evidence about their children’s needs and the suitability of the proposed home.
At this stage, the judge found substantial grounds to argue that the Inspector and Board may have failed to lawfully consider that evidence and the core of the applicants’ case. The ruling grants leave on grounds E13 to E17, including related arguments about the policy assessment, the “random rural development” conclusion and the applicants’ claimed social circumstances. The judge did not express a view on the ultimate strength of those grounds.
The court refused leave on ground E18, which alleged that the Board had failed to consider photographic evidence. The Board said the photographs described in the applicants’ affidavit were not included with their appeal, and the applicants did not meaningfully answer that point. The court therefore found no substantial ground on that issue.