Mr Justice Kearns would dismiss James and Margaret Talbot’s appeal over the refusal of planning permission, concluding that an unchallenged second reason for refusal remained in force regardless of any error concerning the first reason.
In a judgment delivered in the Supreme Court on 23 July 2008, Kearns said he had read and adopted part of Mr Justice Fennelly’s judgment on the history of the planning application and judicial review. He differed on how the appeal should be dealt with. He said the first certified question should be answered in the affirmative and the second, which he considered moot in the circumstances, in the negative.
Kearns agreed that a judge could not presume in advance what the outcome of a future planning application would be, as that was a matter for the statutory bodies responsible for planning decisions.
But he said that did not mean leave to bring judicial review should have been granted. The High Court judge, Mr Justice Peart, was entitled to conclude that the planning refusal remained valid because the applicants had not challenged its second, separate ground.
The first ground was that the Talbots did not meet the Development Plan criteria for a “positive presumption” exception. The second was that the proposed development would be contrary to the proper planning and sustainable development of the area. Kearns said the second ground had not been challenged in the proceedings.
He acknowledged that an error affecting one part of a decision can sometimes invalidate the whole decision, such as where there is bias, a failure to consider a relevant matter or a breach of fair procedures. He said no such challenge had been made in this case, and there was no reason to conclude that an invalid first ground would also undermine the separate second ground.
Kearns cited section 50(4)(g) of the Planning and Development Act 2000, which allows a court reviewing part of a decision to quash or declare that part invalid without quashing the remainder.
He concluded that Peart was entitled to treat the refusal as valid and subsisting, and to find that the applicants could gain no benefit from the proceedings even if successful. Kearns said he would dismiss the appeal. The source is Kearns’s judgment and does not state the Supreme Court’s overall disposition of the appeal.