The High Court has refused a challenge by Corbally Homes Limited, David O’Reilly and John O’Reilly to a planning condition restricting development on adjoining lands near Monasterevin, Co. Kildare.
The case concerned An Bord Pleanála’s December 2006 permission for 229 homes on lands described in the judgment as the Island and Townland of Skirteen, on the Portlaoise Road. Condition 12 required a low-lying area between the Skirteen townland boundary and the River Barrow to remain free from development, citing visual amenity, nature conservation, the river’s flood plain and the setting of Monasterevin.
The applicants said the condition unlawfully sterilised adjoining lands they owned, known as the Monasterevin lands, which remained zoned for residential development. They sought to have the condition quashed while leaving the rest of the permission in place, or alternatively to have the matter returned to the Board for reconsideration. The Board maintained that the condition was connected to the authorised development and justified by amenity, conservation and flooding concerns.
Justice John Hedigan applied the limits on judicial review set out in O’Keeffe v An Bord Pleanála. The court said it could not substitute its own planning judgment for the Board’s and could intervene on irrationality grounds only where the decision maker had no relevant material capable of supporting its decision.
The judgment said the Board had evidence that the lands were subject to flooding. Although the Minister had concluded that they were not within the river’s functional floodplain, the judge said this did not prevent the Board from reaching a different view for planning purposes. The court considered that flooding and the preservation of the town’s setting were factors capable of benefiting the development and justifying the condition.
The court concluded that the applicants had not shown that the condition was imposed contrary to the O’Keeffe principles and refused the reliefs sought. The judge added that, even if he had found the condition unlawful, he would not have severed it because doing so would have amounted to rewriting the permission. The planning permission and condition therefore remained in place.