The High Court has refused a developer’s judicial review challenge to An Bord Pleanála’s refusal of permission for a 31-house development outside Kinvara, holding that the Board was not empowered to investigate whether an earlier planning submission had been made on time.
Mr Justice Charleton delivered judgment on 8 December 2010. The parties had agreed to combine the application for leave to bring judicial review with the substantive hearing. The court refused the application on the jurisdictional issue.
Galway County Council granted permission for the scheme on 15 April 2009, subject to 19 conditions. Sean Forde and Jane Joyce, adjoining landowners, had sent observations to the council on 14 April, after the applicable deadline. The council acknowledged their submission, then wrote to them saying it was late and that, as adjoining landowners, they could appeal under section 37(6) of the Planning and Development Act 2000.
They appealed to An Bord Pleanála, which refused permission on 9 November 2009. The proposed developer argued that the appeal was invalid because the submission to the council was late, and that the Board should have examined its timing. The Board argued that it had no authority to make that inquiry.
The judge held that the Board’s task was to check an appeal against the statutory requirements, including whether it was accompanied by the planning authority’s acknowledgment. The acknowledgment was formally issued and valid on its face. The Board could rely on it; the planning legislation did not give the Board power to conduct a legal inquiry into the validity of earlier steps taken by the council.
The judgment distinguished that issue from a possible challenge to the council’s own acknowledgment. The judge said such a challenge would have required Galway County Council to be the respondent and would have needed to address the statutory time limits for judicial review. The developer had not challenged the acknowledgment itself.
The judgment also noted the landowners’ affidavit allegation that a council official had told them the planning application was invalid and would be replaced by a new application in 2009. The council denied that allegation. The court did not decide it. The judge said it could have been central to a challenge concerning whether the acknowledgment was valid, including whether the landowners had been misled about their opportunity to make observations.
The judge added that the Board had given strong reasons for refusing permission, including traffic safety and the scheme’s fit with planning and sustainable development. Those observations did not replace the jurisdictional basis for refusing judicial review. The court did not quash the Board’s decision or reinstate the council’s permission.