The High Court has refused An Bord Pleanála leave to appeal a judgment that invalidated planning permission for a strategic housing development in Bearna, Co Galway. The court ruled that none of the board’s three proposed points of law met the statutory threshold for an appeal and that an appeal would not affect the outcome of the judicial review.
The decision was made in a supplementary judgment on 5 December 2019 by Mr Justice Garrett Simons. The application was heard on 13 September. The developer, Burkeway Homes Ltd, had indicated it would not take part in the leave application.
In its principal judgment, delivered on 21 June 2019, the High Court had held An Bord Pleanála’s grant of planning permission invalid. The challenge concerned a proposed residential development that the court found would exceed Bearna’s allocated 130 residential units by 50 per cent and its population growth target by almost 25 per cent. The board had conceded that exceeding the population target contravened the Galway County Development Plan; the dispute was whether the contravention was material. The court said its finding depended on the plan’s wording, the development’s scale and other planning permissions in the area, rather than an automatic rule about breaches of a plan’s core strategy.
The board also sought to challenge the interpretation of a development-plan objective concerning flood risk and the need for a “justification test”. The court said the earlier judgment had separately found that the test was required under national flood risk management guidelines, a finding the board had not challenged. Even if the board succeeded on its proposed challenge to the plan’s wording, the permission would remain invalid on that separate ground.
The third proposed point concerned “best practice measures” in the screening assessment under the EU Habitats Directive. The court said the board’s proposed question rested on a factual premise contrary to the principal judgment, which found that the inspector had attached importance to those measures rather than relying solely on tidal dispersion. The statutory appeal route was limited to points of law and could not be used to reopen the High Court’s factual findings.
The judge also concluded that an appeal would not be desirable in the public interest. It would be moot because the permission remained invalid on the separate flood-guidelines ground, and would use judicial resources without changing the result. The court also noted that the applicants could face the time and expense of defending an appeal without an undertaking from the board to cover their costs.
The application for leave to appeal under section 50A(7) of the Planning and Development Act 2000 was dismissed. This ruling concerned permission to appeal; it did not reinstate the planning permission.