The High Court refused Maurice Fitzgerald leave to seek judicial review of An Bord Pleanála’s decision to grant planning permission for a dwelling at An Charraig, Baile na nGall, County Kerry. Fitzgerald argued that the board had unreasonably relied on an earlier permission and failed to consider traffic safety afresh. The court found there were grounds supporting the board’s decision and that it had not fettered its discretion.
Kerry County Council had refused permission in October 2004, citing a traffic hazard from poor sight lines at the proposed entrance. On appeal by the second named notice party, Máire Ní Iarlaithe, An Bord Pleanála granted permission on 15 March 2005, subject to conditions. The site plan showed sight lines of 55 metres in both directions.
The board’s inspector said he remained concerned about road safety and would normally regard 100 metres as the minimum sight line on a regional road with a 100 km/h limit. But he considered the proposal acceptable in light of an earlier permission for the site, including a condition locating the access at its westernmost point. The board granted permission having regard to the site’s planning history. Conditions required entrance gates to be set back at least four metres from the public road and surface water not to drain onto it.
Fitzgerald, whose property was immediately adjacent to the site, submitted that the board had treated itself as bound by the earlier permission and disregarded the council’s objection and the inspector’s reservations. The board argued that the earlier condition and the material before it supported its decision, and that it had considered traffic safety.
The court applied the test for irrationality in judicial review: the applicant had to show that the decision-making body had no relevant material supporting its decision. It observed that the court had not been shown the applicable sight-line regulations or the relevant development plan provisions. The appeal submission asserting that the proposed sight lines complied with those requirements had not been controverted in the material before the court.
The court said a fresh application should be considered afresh while also taking account of the site’s planning history. It treated the council’s changed view on traffic hazard as a subjective view rather than a changed objective circumstance. The board had considered the inspector’s recommendation and imposed conditions relating to traffic safety, the court said. It concluded that the board had not fettered its discretion and refused leave to apply for the reliefs sought. The court did not quash the permission; this was a decision on whether to grant leave to pursue judicial review.