Wednesday 7 March 2018

Should the Board better explain its decisions when it over-turns its own Planning Inspectors?

Next Monday the Supreme Court will hear an appeal which concerns the duty of An Bord Pleanála to give reasons for its decisions. The appeal is against a High Court judgment quashing the board’s permission for a wind farm development of six turbines at Coor West, Shanvogh, Co Clare. Calls for more detailed reasons for decisions in which the Board over-rules its own Planning Inspectors’ recommendations have been long called for; this case could help to address this.

In this case, Louise Kiernan, the Board’s Planning Inspector, in a 78 page report containing six detailed reasons for refusal (the report is dated 30th November, 2011) , recommended that the planning application be refused  - this recommendation was in line with the decision of Clare County Council which had refused planning permission. The Board’s Direction (this is available @ lists each of the Inspector’s recommended reasons for refusal and sets out reasons for not accepting the recommendation of its Inspector in each case. Four turbines were then granted from the original six.

On the 14th June 2016, the High Court overturned the grant of permission as a result of a judicial review case taken by a woman named Kathleen Connolly.  In making the decision Mr Justice Max Barrett was critical of the absence of clarity and specificity in An Bord Pleanála’s grant of permission. He noted how decisions of public bodies must be clear enough for someone reading the decision to consider if there is sufficient legal basis to challenge them. He stated: “Proper planning was never intended to be, nor can it be allowed to become, a perk reserved for the few who can afford expert lawyers, with something less than best being the lot of the many who cannot.” The Board must, as a statutory body, comply with legal requirements. The Board claimed it had, but Mr Justice Barrett found it had not. He ruled Ms Connolly was entitled to an order quashing the Board’s 2014 grant of permission.

What did the High Court find the Board did wrong? Clare County Council had refused planning permission in 2011 for a range of planning and environmental reasons (visual impact, noise impact, water pollution risk, unsuitable location, impact on ecology, etc.). The Board sought information from the developer to address these issues and then, on the basis of this information, granted permission in 2014. Ms Connolly took her High Court appeal because, she claimed, the Board failed to meet statutory planning requirements in its assessment and decision. A particular issue arose over the Board deciding a Natura Impact Statement was needed such that it could undertake an appropriate assessment; however, the Board failed to explain why it decided such an assessment was necessary.

Mr Justice Barrett decided that in addressing Ms Connolly’s complaints the Board could not just say it had considered all the material put before it and then decided an appropriate assessment was necessary. The issue being how could Ms Connolly possibly identify from all of the material which formed the planning application and appeal the basis of the Board’s decision. This reason needed to be provided such that Ms Connolly could understand the basis for the Board’s decision and whether to take judicial review.

Mr Justice Barrett referred to the Board’s own assessment (as opposed to its Planning Inspector’s) as a “rather contrary report relating to a different development”.

The case highlighted how the Board must provide clearly, concisely and precisely set out its findings and its conclusion in a manner that is sufficiently specific for anyone reading them to decide if those findings and the subsequent decision are lawful. They are also needed, Mr Justice Barrett pointed out, to allow the courts to assess, by way of judicial review, whether a decision made by a statutory body is a lawful one.

Essentially, a person reading the Board’s findings and decision must be able to decide whether or not to challenge them in court without reviewing the entire planning file / planning appeal file to determine if everything the Board had done was done in accordance with statutory requirements.

This decision, if upheld by the Supreme Court, could serve to make the Board’s findings and decisions clearer to the benefit of all those involved in the planning process. It should help Third Parties to better understand Board decisions and whether to challenge them. It is just a pity it is taking so long. The original Clare County Council decision on this case was made on the 12th November 2011. It is now March 2018. The time delay here for one single planning application highlights the significant time delays can beleaguer Irish planning.

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