The High Court has ruled that An Bord Pleanála acted unfairly when it refused planning permission for a proposed residential development in Kildare without giving the developer an opportunity to address a development plan variation adopted while its appeal was pending.
In a judgment delivered on 27 June 2023, Ms Justice Siobhán Phelan extended the time for Keshmore Homes Limited to bring its judicial review and found that fair procedures required the Board to invite submissions on the variation before relying on it to refuse permission. She said the Board should have used its power under section 131 of the Planning and Development Act 2000 to seek those submissions.
The court proposed to make an order quashing the Board’s refusal. The judgment said that if the parties could not agree the final form of the order within two weeks, the matter would be listed to hear them on consequential matters and the order’s wording.
Keshmore Homes had sought permission for a development of 64 homes, later reduced to 62, on lands in the townlands of Loughminane, Knocksborough Glebe and Whitesland West. Kildare County Council refused the application in February 2020, citing a conflict with the Kildare Town Local Area Plan’s phasing of residential lands. The company appealed to the Board.
While the appeal was pending, the Council adopted a variation to the county development plan that cut Kildare Town’s housing target to 283 homes by 2023, an 81 per cent reduction. The Board refused permission in November 2020, relying on the variation and the number of existing permissions in Kildare Town. The developer had argued in its appeal that permission could still be granted even if the proposal materially contravened the plan.
Justice Phelan found that the variation was a significant change with no legal effect until its adoption, and it became the primary basis for the refusal. Although the developer knew a variation was proposed, the court said it could not be expected to make detailed submissions on the assumption it would be adopted. A previous Board decision granting permission for a development in Kilcock despite the same variation illustrated the kind of argument the developer could have made, the judge said.
The court rejected the claim that the Board’s differing outcomes in the two cases were, by themselves, unlawful or irrational. It also found no legal obligation to consider granting permission despite a material contravention, or to give reasons for not doing so, once the Board had concluded the proposal was contrary to proper planning and sustainable development.
The 13-day extension of time was granted because the Board had not uploaded its decision documents in line with its usual practice and COVID-19 restrictions impeded access to the courts. The judge found those circumstances were outside the developer’s control and that no specific third-party prejudice had been identified.