The High Court has rejected a judicial review brought by the Board of Management of Temple Carrig Secondary School against An Bord Pleanála’s decision to grant planning permission for a McDonald’s drive-through near the school.
In a judgment delivered on 11 July 2017, Mr Justice Max Barrett refused the reliefs sought, including an order of certiorari. The board had narrowed its challenge to two grounds: that the planning authority failed to comply with the appropriate assessment screening requirements in section 177U of the Planning and Development Act 2000, and that it failed to have regard to government policies and objectives as required by section 143.
The application for permission was made by McDonald’s Restaurants of Ireland Limited in November 2014. The proposed two-storey restaurant would have been about 30 metres from the school’s main gate, 48 metres from its principal pitch and 89 metres from the school entrance. The board argued that a nearby fast-food outlet would undermine healthy eating among pupils.
On the first ground, the board accepted that the planning inspector had carried out a Stage 1 screening and concluded that a full Stage 2 appropriate assessment was not required. Its complaint was that An Bord Pleanála’s own decision did not show that the Board had conducted the screening or made that determination. The judge found that the Board’s direction adopted the inspector’s recommendation, subject to stated amendments, and that the inspector’s report supported the decision. He concluded that the Board had done what the law required, even though it had not used the specific wording the board sought.
On the policy ground, the board said the inspector and, by endorsing his report, the Board had failed to have regard to policies on children’s healthy eating, including the Healthy Ireland Strategy. The judge said the healthy-eating concern had been before the Board and that the inspector had expressly considered the National Policy Framework for Children and Young People 2014–2020, which addresses childhood obesity. The failure to refer expressly to another policy document with broadly similar objectives did not, in the circumstances, establish a breach of section 143.
The inspector had concluded that, without relevant provisions in the applicable county development or local area plan, national healthy-eating policies alone did not justify refusing the application in the particular circumstances. The judge found no legal basis to overturn that conclusion. He also noted that the inspector’s report had considered planning guidelines on healthier lifestyles and the location of fast-food outlets near schools and parks.
The court therefore declined all the reliefs sought. The judgment noted that McDonald’s appeared, at that time, to have decided not to proceed with an outlet near the school, but that circumstance was not relevant to the court’s decision.