The High Court has proposed an order setting aside An Bord Pleanála’s permission for 197 homes in Bearna, Co Galway, after finding errors involving the county development plan, flood risk and environmental screening.
In a judgment delivered on 21 June 2019, Mr Justice Garrett Simons found that the board had misjudged whether the development materially contravened the Galway County Development Plan. The plan allocated Bearna growth of 420 people, or about 130 homes. The proposed 197 homes alone exceeded that allocation by 50 per cent. The judge said the breach was material and likely to give rise to substantial planning objections.
The board had argued that Bearna’s allocation could be considered alongside Oranmore’s because both are in the Galway Metropolitan Area, where housing delivery had fallen short of the plan’s overall target. The judge rejected that interpretation. He said the board could still grant permission despite a material contravention if statutory criteria were met, but it had not considered those criteria because it concluded there was no material contravention.
The court also found that the plan required a development management justification test for works proposed on lands marked as being at risk of flooding. No such test was carried out. The judge held that the board could not rely on a developer’s revised flood maps in place of the flood zones identified in the plan. He also ruled that the board acted unlawfully by leaving further assessment of ground works and flood impacts until after permission was granted, through Condition 12(e).
On habitats screening, the board had concluded that the project was not likely to significantly affect the Galway Bay Complex Special Area of Conservation or Inner Galway Bay Special Protection Area, and therefore did not require a stage two appropriate assessment. The judge found that the screening relied on “best practice measures” intended to reduce emissions reaching the Trusky Stream. Because the stream provides a potential hydrological connection to the protected sites, those measures could not be considered at the initial screening stage. The board should instead have required an appropriate assessment and a Natura Impact Statement.
The judge rejected the applicants’ separate landowner-consent challenge. He said the disputed ownership concerned adjacent access lands, while the registered owner of the application site had consented to the application.
The judgment said the court would make an order of certiorari setting aside the permission. The matter was adjourned for submissions on costs and whether it should be remitted to the board. The judgment did not determine those issues or any later planning application.