High Court quashes planning decision for failing to engage with inspector's recommendation and address economic need.

[2025] IEHC 533

THE HIGH COURT

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO THE PLANNING AND

DEVELOPMENT ACT 2000, AS AMENDED

-and-

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 and 50A OF THEPLANNING AND DEVELOPMENT ACT 2000, AS AMENDED 2024 1038 JR BETWEEN JANE PHELAN WALSH APPLICANT AND AN BORD PLEANALA RESPONDENT AND FINGAL COUNTY COUNCIL NOTICE PARTY JUDGMENT of Mr Justice Nolan delivered on the 8th day of October, 2025

Introduction

1. It is somewhat ironic that in the middle of a national housing crisis, a planning authority, in this case Fingal County Council (“the Planning Authority”) and the Board, now called An Coimisiún Pleanála (“the Commission”), would reject a development on the single ground that the Applicant, who has lived and worked all her life in the area of a rural village, wishes to live less than four kilometres outside that rural village.

2. This, in circumstances, where the funding, design, infrastructure and Environmental Impact Assessment of the proposed development, a house, are all accepted. That is the issue at the core of this case.

3. The Applicant seeks to challenge a decision of the Commission, dated the 21st of June 2024 (“the Decision”), to refuse to grant planning permission to her, for the construction of a proposed new two and a half storey, five-bedroom dwelling, at a site at Woodpark Farmhouse, Woodpark, Lusk, County Dublin (“the proposed development”).

4. The net issue is the status of the Applicant and the proposed development within the context of a rural location and the statutory obligation placed upon the Commission to give reasons, in circumstances where it does not agree with the recommendation of its own inspector.

Reliefs Sought

5. The Applicant appealed to the Commission on 9th January 2024, from a decision of the Planning Authority, to refuse to grant permission for the proposed development.

6. The Commission appointed an Inspector to prepare a report. The Inspector carried out a site inspection and, in his report, dated 27th March 2024, recommended that planning permission be granted for the proposed development, for the reasons and considerations set out, subject to certain conditions.

7. The application was considered by the Commission on 18th June 2024, where it decided to refuse permission. It is from that decision that the Applicant seeks judicial review.

8. The core relief which the Applicant seeks is an Order of certiorari, quashing the

decision of the Commission , on the grounds that it failed to provide any or any adequate reasons for its decision, contrary to Section 34 (10)(a) of the Planning and Development Act 2000 (“the PDA”) and a declaration that the Respondent acted ultra vires and/or erred in law by its failure to express a reasoned argument as to why the Inspector’s report should be departed from.

Background

9. The Applicant is a successful businesswoman. She grew up in her family home in rural Ballyboughal, in the townland of Bettyville, a rural village in the middle of the Fingal Local Authority area, with a population of less than 1,000, where she still resides. She attended the local Ballyboughal National School and Secondary School. In 2008, aged 22, she set up a hairdressing business called “Red Velvet Hairdressing” in the village, close to her family home and has lived and worked in the locality all her life.

10. It seems to be a successful business, with the vast majority of her clients coming from the local and rural community and the surrounding area. Business is said to be thriving, and she employs twelve staff. All this economic activity is very beneficial to the local economy. The business has paid rent, taxes, and commercial rates since its inception and she says that the economic viability of the village would be severely disadvantaged if the business closed, which is a real possibility, if she is not able to live close to it. Indeed, her grounding affidavit clearly states that if she does not get planning permission for this development, she will be homeless, and her business will close.

11. For her entire adult life, she, her partner and five children, have lived in rented accommodation in and around North County Dublin, costing something in the region of €3,000 a month. Given the cost and size of her family, she says that this is completely unsuitable, unsustainable and lacks security. There are simply no suitable affordable houses available for sale in the Ballyboughal area, but due to her hard work she is now, for the first time, able to build the home of her dreams, which nobody criticises.

The Statutory Framework

12. The statutory framework relevant to the village of Ballyboughal and the rural area surrounding it, is governed by a number of different guidelines, frameworks and plans. The crucial ones, for the purposes of this case, are the Sustainable Rural Housing Guidelines for Planning Authorities April 2005 (“the 2005 Guidelines”), the National Planning Framework 2040 (“the N.P. Framework document”) and, and the Fingal County Development Plan 2023- 2029 (“the CDP”).

13. In the context of this case, the 2005 Guidelines and the N.P. Framework document are particularly relevant. Section 5.3 of the National Policy Objective 19 of the N.P. Framework document provides: - “In rural areas under urban influence, facilitate the provision of single housing in the countryside based on the core consideration of demonstrable economic or social need to live in a rural area and siting and design criteria for rural housing in statutory guidelines and plans, having regard to the viability of smaller towns and rural settlements.”

14. The 2005 Guidelines refer to the importance of rural generated housing which sustains and renews rural communities and allows accommodating people of a rural area in their area of origin. It emphasises the requirement for planning authorities to tailor their policies for local circumstances to take this into account.

15. Section 3.2.3 refers to “persons who are an intrinsic part of the local community,” and members of the established rural community and persons who wish to return to reside near other family members or care for elderly family members. Such persons should be considered appropriately.

16. Therefore, the macro planning guidelines and framework documents have direct application in this case.

17. The final important document is the CDP for the years 2023-2029. Chapter 3 sets out the Planning Authority’s rural housing policy which follows the 2005 Guidelines. In particular it deals with ‘Sustainable Placemaking and Quality Homes’ and in Section 3.5.15, ‘Housing in Rural Fingal’ policies relating to rural settlement are set out.

18. Section 3.5.15.3 reads as follows: -

“The Fingal Rural Settlement Strategy serves to meet settlement needs which are the result of a genuine rural-generated housing requirement. Residential development in areas zoned RU, HA, GB and RC which is urban generated will be restricted to preserve the character of Rural Fingal and to conserve this important limited resource. The countryside for the purposes of this section of the Plan are those areas with the rural zoning objectives identified as Rural (RU), Greenbelt (GB) and High Amenity (HA). Rural-generated housing needs are considered to be the housing needs of people who have long standing existing and immediate family ties, or occupations which are functionally related to the rural areas of the County and are specifically defined as follows:”

19. It then sets out five different categories, the relevant one being as follows: - “Persons who have been in long term employment, which is related to, and supportive of, the rural community as defined in Table 3.5 paragraph (ii) and where the employment is dependent on the residence of the person within of the rural community”.

20. Table 3.5 (ii) reads as follows: -

“ii. A person who has been in employment in a full-time occupation which is considered to satisfy local needs by predominantly serving the rural community/economy for fifteen years prior to the application for planning permission, and has not already been granted planning permission for a new rural dwelling since the 19th October 1999. Documentary evidence of such employment is required.”

The Decision of the Planning Authority

21. Notwithstanding that the Applicant stated that there was no availability of affordable housing in the Ballyboughal area, the Planning Authority considered that the Applicant had not adequately demonstrated compliance with the Rural Settlement Strategy, as her business was located within the rural village of Ballyboughal, which it said was approx. 5.5 km from the proposed rural site at Woodpark Lusk and therefore was not intrinsically linked to the rural area where it was to be located, and did not satisfy local need criteria.

22. In point of fact the proposed site was 3.6 km from her place of employment, so on that point, which seems to have been material, the Planning Authority was incorrect. Further the implication of its decision was that her proposed development, due to its distance from the village, meant that it did not satisfy local needs, by which I presume it was referring to those who lived surrounding the proposed development.

23. It went on to say that it did not consider that the business in the “rural village” met the requirements of Table 3.5, in terms of constituting a role which predominantly served the rural community economy. It said, “in this regard, it is not considered that the nature of the employment meets the criteria stipulated such as to necessitate a dwelling house in a rural area remote from the location of the employment where alternative housing zoned lands are available within the rural village to meet this need.”

24. It concluded that the Applicant had not demonstrated compliance with the Rural Settlement Strategy, as set out within the CDP and therefore, the principle of the development was not considered acceptable. On this basis, it is recommended that planning permission be refused.

The Appeal to the Commission

25. It was from this decision that the Applicant appealed to the Commission. As part of the appeal process, she submitted a detailed report prepared by Brackfield Consulting Engineers and Architects. The expert evidence, which has never been challenged and therefore must be accepted, showed that there were only eight dwellings in the four km radius of the village. The properties in question were all valued in excess of €700,000 and those that were less, where either too small or required significant further investment. Of the eight, six were exceedingly expensive, and two were proposed building sites and only one was located in the village. One of the sites was this site. The report made clear, that properties at that value were unaffordable as far as the Applicant was concerned.

The Inspector’s Report

26. The Commission’s Inspector, Derek Daly, carried out an inspection in March and prepared a very detailed 20-page report, dated the 27th of March 2024. In his report he set out the original Planning Authority decision, the submissions made to him, the statutory framework, the development itself and his recommendations with reasons. He dealt in some detail with the 2005 Guidelines, the N.P. Framework document and in particular National Policy Objective 19 and the CDP and in particular Section 3.5.15 and Table 3.5.

27. He noted that Section 7.2.6 of the CDP, entitled “Employment and Economy”, stated that the Council supports existing rural employment and commercial enterprises and will promote and encourage appropriately scaled enterprises.

28. He then dealt with the Planning Authority’s decision recommending refusal of permission on the grounds that the proposal did not comply with the provision of the plan in relation to housing needs in rural areas with specific reference to Table 3.5.

29. Given the comprehensive nature of the report, it is worth setting out the grounds of appeal, as summarised by him, were. “The Applicant is from the area of Ballyboughal and has established ties to the area including a business with local clientele . The Applicant rents in the local area and her family home is a one-off home in Bettyville with no additional lands . The Applicant has lived her entire adult life in rented accommodation in and around North County Dublin. . There is no suitable houses available in the area, is limited and what is available is expensive. . No issues are raised in relation to the design of the proposed dwelling. . The Applicant owns and operates a successful hairdressing business and the CDP supports rural enterprise and business. . The Applicant refers to Table 3.5 (ii) and local business owners need homes for themselves in the local area and the Applicant has a long-established connection to the area. . The Applicant has never owned a home. . The Applicant has a housing need. . Details of the established connection to the Ballyoughal area are outlined. . The place of employment is within 3.6 kilometers of the site. . Zoned lands in villages are generally not available to individuals. . Reference is made to precedent or permitting development in the area F20A/0459.”

30. He noted that the proposed site was in a rural area and not within a designated settlement or development area boundary as defined in the current CDP, but that the principle of a dwelling in a rural area was a permitted use in the RU zoning under the criteria as set out in chapter 3 and in particular 3.5.15.3 and Table 3.5 of the plan, as I have set out above.

31. He said that rural housing national policy was largely set out in the 2005 Guidelines, which differentiated between rural and urban generated housing and the need for a plan led approach. He noted that the CDP also referred to the 2005 Guidelines and quoted them. In particular to “persons who are an intrinsic part of the rural community.”

32. He noted the Planning Authority did not consider that an exception to the strict provisions on rural housing was warranted, based on the information submitted, this it would seem, notwithstanding that the CDP reflected the matters raised in the circular to which he referred.

33. He noted that one of her grounds in her appeal was in relation to employment and that she owned and operated a successful hairdressing business, and that the CDP supported rural enterprise and business and local business owners need for homes for themselves in the local area and the Appellant had a long-established connection with the area.

34. He noted that she had a long connection with the area, had attended school there grown up there and that her parents had no lands other than the family home and therefore was not in a position to provide a site.

35. He then went on to say something which the Respondent says was fundamentally incorrect.

36. He said: -

“The primary consideration of the planning authority would appear to be that the nature of the business operated by the appellant is not a core rural enterprise engaged in a particular employment or business which will contribute to and enhance the rural community and will demonstrate to the satisfaction of the council, addresses and satisfies local needs, and will protect and promote the rural community.”

37. He went on to say: -

“it could be considered, however, that although preserving and protecting the Agri based economy is a very important consideration other services which are non related Agri businesses are also of major importance in serving and sustaining the rural community and economy and in the absence of these services rural dwellers would be required to travel outside of their area to avail of such services and impact on sustaining rural areas and rural communities.”

38. Before moving to his reasoning, he concluded at para.11.3.9, that the Guidelines provided that people who are part of the rural community should be facilitated by the planning system in all rural areas and that system should take a positive approach to applications from such persons in the areas referred to in circumstances where permission might otherwise be refused.

39. The Respondent says the Inspector was fundamentally incorrect. The decision of the Planning Authority was that it did not consider that the nature of the employment met the criteria stipulated so as to necessitate a dwelling house in a rural area remote from the locations of the employment where alternative housing zoned lands were available within the rural village to meet this need and that the reasons for the decision was that the Applicant had not satisfactory demonstrated that they were employed in a full time occupation which is considered to satisfy local needs by predominantly serving the rural community economy as set out in the Table and therefore would be contrary to the National Policy Objective 19 of the N.P. Framework document and that to facilitate the provision of a single housing in the countryside based on the core consideration of demonstrable economic or social need to live in a rural area.

40. In point of fact that is not quite what the Planning Authority decided. It decided that the Applicant had not adequately demonstrated compliance with their rural settlement strategy as her business was located within the rural village approximately 5.5 km from the proposed site, and that it was not intrinsically linked to the rural area in which it was intended to be located and did not satisfy local need criteria.

41. The Planning Authority then went on to say that it did not consider that the business situated in the village met the criteria of Table 3.5 in terms of constituting a role which predominantly served the rural community economy. It then went on to note that it did not consider that the nature of the employment met the criteria stipulated such as to necessitate a dwelling house in a rural area remote from the location of the employment where alternative housing/zoned lands where available within the rural village to meet this need and on that basis had not demonstrated compliance with the rural settlement strategy.

42. The difference being that the Planning Authority focused on her business and incorrectly described the distance between the proposed site and the business and then dealt with the business meeting the requirements of Table 3.5 and whether it predominantly served the rural community economy.

43. But the whole point of Table 3.5 para. 3.5.15.5 is to allow a dwelling house in a rural area under specific conditions, in the context of the National Policy Objective 19 of the N.P. Framework document and ministerial guidance and the 2005 Guidelines. Its whole purpose is to give guidance to rural generated housing to a certain category of people, namely persons who are an intrinsic part of the rural community.

44. The Inspector then set out his reasoning: -

“There is no dispute that the appellant based on documentation submitted has established a long connection to the Ballyboughal area, attended school locally and grew up in the rural area northwest of Ballyboughal in Bettyville and that her parents have no lands other than the family home and therefore are not in a position to provide a site. The primary consideration of the planning authority would appear to be that the nature of the business operated by the appellant is not a core rural enterprise engaged in a particular employment or business which will contribute to and enhance the rural community and will demonstrate to the satisfaction of the council, addresses and satisfies local needs, and will protect and promote the rural community. It could be considered, however, that although preserving and protecting the Agri based economy is a very important consideration other services which are nonrelated Agri business are also of major importance in serving and sustaining the rural community and economy and in the absence of these services rural dwellers would be required to travel outside of their area to avail of such services and impact on the sustaining rural areas and rural communities. I also note that the guidelines provide that people who are part of the rural community should be facilitated by the planning system in all rural areas and to take a positive approach to applications from such persons in the areas refer to, in circumstances where permission might otherwise be refused”.

45. Then he dealt with the criteria outlined in Table 3.5 and said as follows: - “… the appellant has identified having lived in the family home or within the locality of the family home for at least 15 years. In relation to (ii), a person who has been employment in a full time occupation which is considered to satisfy local needs by predominantly serving the local community/ economy for 15 years prior to the application for planning permission. In this regard as already indicated the appellant has and continues to operate a business which services the rural community/ economy and assists in sustaining the local economy.”

46. Having given his reasons, he recommended that permission be granted. In the face of that 20-page comprehensive and impressive report, it is instructive that the Board’s decision, to include reasons and considerations, was less than two pages.

The Decision

47. The key element of the decision of the Commission reads as follows: - “The proposed development is located in an area zoned “RU-rural” in the Fingal County Development Plan 2023-2029 where the objective seeks to protect and promote in a balanced way, the development of agriculture and rural related enterprise, biodiversity, the rural landscape and the built and cultural heritage. Based on the information provided with the application and the appeal, the applicant has not satisfactorily demonstrated that they are employed in a full-time occupation which is considered to satisfy local needs by predominately serving the rural community/economy as detailed in Table 3.5(ii) of Section 3.5.15.5 of the development plan. The development would, therefore, contravene materially the rural housing strategy and the relevant provisions relating to rural housing need set out in the development plan and would be contrary to National Policy Objective 19 of the National Planning Framework which seeks to facilitate the provision of single housing in the countryside based on the core consideration of demonstrable economic or social need to live in the rural area. The proposed development would, therefore, result in a haphazard and unsustainable form of development which would militate against the preservation of the rural environment and the efficient provision of public services and infrastructure. and would be contrary to the proper planning and sustainable development of the area.”

48. It went on to say: -

“In deciding not to accept the Inspector's recommendation to grant permission, the Board did not share the view of the Inspector that a hair salon business located within an urban settlement would meet the requirements of Table 3.5 of the Fingal County Development Plan 2023-2029 in terms of constituting a role which predominately serves the rural community/economy. While accepting that other services which are not related to agri-business are also of major importance in serving and sustaining the rural community and economy and in the absence of these services rural dwellers would be required to travel outside of their area to avail of such services which would potentially impact on sustaining rural areas and rural communities, the Board did not agree with the Inspector that this would correlate with the service provider needing to live in a rural area when the business itself is located within the urban area and customers travel to the urban area to avail of this service. In this regard the Board agreed with the Planning Authority and considered that notwithstanding the appellants undoubted contribution to the service economy within the wider area which includes a large rural hinterland, the carrying out of this activity would not require the appellant to be located within the rural part of this area”.

49. The last sentence reads “the Board also noted that the development as proposed would exacerbate ribbon development in the area but noted that this would comprise a new issue and given the substantive reason for refusal above it decided not to pursue this matter as part of the subject development.

50. In point of fact, there were no reasons given in the decision, only conclusions, namely that the Commission did not agree with the Inspector and agreed with the Planning Authority. One gets the impression that the real reason is the last sentence, but the Board sensibly accepted that this was a new issue which had not been raised before.

Applicant’s Submissions

51. The Applicant says that the Commission’s decision is invalid because it has failed to provide reasons or adequate reasons for its determination contrary to Section 34 (10)(a) of the Planning and Development Act 2000. It is a requirement that a decision (and the notification of the decision) shall state the main reasons and considerations on which the decision is based. This is of fundamental importance to applicants so they can assess options open to them due to the refusal. Therefore, reasons for refusal should be unambiguous, informative, helpful, and self-contained. The Respondent has failed to provide adequate reasons for its determination, and therefore, the determination is non-compliant with the legislature and is ultra vires.

52. The Order does not refer to any specific section of either the Development Plan or National Framework to explain its decision other than refer to table 3.5. But it must, pursuant to statute and the 2001 Regulations (as substituted by the 2006 Regulations). The Planning Authority must also consider submissions or observations received in deciding a planning application (see Connelly and Mallak (see also: Crekav Trading GP Ltd v. An Bord Pleanála and Ors [2020] IEHC 400 (“Crekav”) (at paras. 156 to 165) and Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2021] IEHC 203 (“CHASE (No. 2)”) (at paras.

394 to 408).

53. Where a decision is different, in relation to the granting or refusal of permission, from the recommendation in the Inspectors' Reports on a planning application, the Commission should indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission in some detail. This it did not do. (See Connelly v An Bord Pleanála [2018] IESC 31, Crekav Trading GP Ltd v. An Bord Pleanála and Ors [2020] IEHC 400, Killegland Estates Ltd v Meath County Council [2023] IESC 39 and O'Donnell v ABP [2023] IEHC 381).

54. The Applicant says that the Commission has not discharged its obligations to offer “main reasons on the main issues” in circumstances where it failed to show that it has engaged in a meaningful way with the recommendations of the Inspector’s Report, or that it had given proper and meaningful consideration to the report. Furthermore, there is no explanation offered to support the deviation from the Inspector’s recommendations.

55. The Commission contends that its refusal was based on the Applicant not being “employed in a full-time occupation which is considered to satisfy local needs by predominantly serving the rural community/economy.” This reason cannot be considered to satisfy the well-established standard of “main reasons for main issues”, in circumstances where it is accepted that the Applicant has and is contributing to the rural community/economy, employing 12 staff. Therefore, the reasoning could never measure up to the “main reason for main issue” adequacy standard established by the court.

56. While the Applicant had four grounds of appeal, Mr. Kennedy SC says it all comes down to the failure of the Commission to give adequate reasons for its decision. For sake of completeness the other three reasons are irrationality, impossible standard and that the impugned Decision is invalid since the Commission Respondent adopted an unduly strict interpretation of the County Development Plan, which is inconsistent with the planning code and from routine planning practice.

The Commission’s Submissions

57. Mr. O’Connell SC for the Commission says that the order states the main reasons and considerations for its decision and, in particular, indicates the main reasons for not accepting the Inspector’s recommendation in accordance with the PDA in line with Fahybeg Windfarm Opposition Group & Anor v. An Bord Pleanála [2025] IEHC 310, Humphreys J.

58. The Applicant is not entitled to micro-reasons for the Commission’s decision (see Balscadden Road v. An Bord Pleanála [2020] IEHC 586 at §40; Save Roscam (No. 6) v. An Bord Pleanála [2024] IEHC 335 at §87).

59. In the context of the Commission departing from its Inspector’s recommendation, it is clear from Section 34(10)(b) itself that the obligation on the Commission is to state the “main reasons” for not accepting the Inspector’s recommendation. The Commission says that it is appropriate to consider the provisions to which it referred to in its reasons. Counsel then referred to the zoning of the lands under the Fingal County Development Plan 2023-2029 (“the Development Plan”), with the following Objective: “Protect and promote in a balanced way, the development of agriculture and rural-related enterprise, biodiversity, the rural landscape, and the built and cultural heritage”.

60. Observing that the Commission disagreed with the Inspector and expressly agreed with the Planning Authority and considered that the carrying out of the hairdressing activity would not require the Applicant to be located in the rural part of the area and that constituted the giving of “reasonable information as to why the particular decision was made and whether there are grounds for challenging it.” It is not necessary for the Commission to go beyond that or to provide a discursive judgment.

61. He submits that this case can be distinguished from GOCE Ltd v. An Bord Pleanála [2024] IEHC 554, relied upon by the Applicant and which I shall deal with below, because here the Commission expressly found that the proposed development would contravene materially the rural housing strategy and the relevant provisions relating to rural housing need set out in the development plan.

62. By contrast here the Commission expressly found that the Applicant had not satisfactorily demonstrated that they are employed in a full-time occupation which is considered to satisfy local needs by predominately serving the rural community/economy as detailed in Table 3.5(ii) of Section 3.5.15.5 of the Development Plan.

63. He submits it is clear from the Order that the reason for the Commission’s decision that the Applicant did not meet the requirements of Table 3.5 terms of constituting a role which predominately serves the rural community/economy was not the nature of the business as a hairdressing business per se but rather the fact that the business itself is located within the urban area and customers travel to the urban area to avail of this service and, therefore, it is not necessary for the Applicant to live in the rural area and is not dependent on her living in the rural area, particularly where there are alternative housing/zoned lands available within the village. In the circumstances, the Commission did not adopt an unduly strict interpretation of the Plan.

Case Law

64. Before I go into a discussion in relation to the merits of the arguments, I think it appropriate to deal with the statutory provisions and the case law, insofar as it relates to the obligation upon the Commission to give reasons where it is departing from the recommendation of its inspector.

65. The appropriate statutory provision is Section 34 (10) (a) and (b) which reads as follows: - “(10) (a) A decision given under this section or section 37 and the notification of the

decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the

decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition is described shall be sufficient to meet the requirements of this subsection.

(b) Where a decision by a planning authority under section 37 or by the Board under section 37 to grant or refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in-

(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the case of a planning authority, or

(ii) a report of a person assigned to report on an appeal on behalf of the Board, a statement under paragraph(a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission.”

66. Thus, in cases where the Commission is deciding to refuse permission, which is different from the recommendation of its inspector, who was assigned to report on the appeal, the Commission is obliged to indicate the main reasons for not accepting the recommendation.

67. In Connelly v An Bord Pleanála [2018] IESC 31, Clarke C.J. said at para. 5.4: - “In my view it is of the utmost importance, however, to make clear that the requirement to give reasons is not intended to, and cannot be met by, a form of box ticking. One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account, and all irrelevant factors are excluded from the consideration. It is useful, therefore, for the decision to clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the

decision is challenged, as to whether those requirements were met. But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other. That does not enlighten any interested party as to why the decision went the way it did. It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons.”

68. The court’s thinking can be summarised as follows: -

1. Administrative law requires of any decision maker that all relevant factors are taken into account, and all irrelevant factors are excluded from the consideration;

2. The decision should clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the decision is challenged, as to whether those requirements were met;

3. But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other;

4. It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the

conclusion to the degree necessary to meet the obligation to give reasons;

5. Legal Certainty - the reasons given have to be ascertainable and capable of being determined.

69. Given the statutory imperative of Section 10 (b) of the PDA, those reasons must be clear and understandable. In Crekav Trading GP Ltd v. An Bord Pleanála [2020] IEHC 400, Barniville J. (as he then was) concluded that the Board’s reasons for refusing permission and for disagreeing with the Inspector’s recommendation to grant permission were inadequate on various grounds.

70. He said as follows: -

“The Board was required to set out the reasons for its decision and, in particular, for differing from the recommendation of its inspector, in sufficient detail to enable a person affected (in the widest sense of that term) to know why the Board differed from the inspector and to determine whether there was any basis for forming the view that the decision of the Board was not sustainable. The level of reasoning required must be such as to provide an interested party with reasonable information as to why the particular decision was made and whether there are grounds for challenging it. However, it was not necessary for the reasoning to go beyond that.

71. He determined that “the adequacy of the reasoning must be assessed from the viewpoint of a reasonable observer carrying out a reasonable enquiry.”

72. In the more recent Supreme Court decision of Killegland Estates Ltd v Meath County Council [2023] IESC 39, Hogan J. considers the adequacy of reasons and at para 68 states that the following questions should be posed when deciding whether the reasons were adequate:- “One may thus ask: is there a documentary record which sufficiently explains the rationale for the decision of the elected members. If so, are those reasons consistent with the requirements of the 2000 Act? Were reasons given and, if so, did they adequately explain the rationale for the de-zoning decision?”

73. Hogan J. went on to say at para. 67 that “the reasons for such a decision should be properly evidenced and justified. Accordingly, the reasons for such a decision should either be clear from the resolution itself or from the documentation before the councillors when the making of the resolution was discussed.”

74. He went on to say in reference to the decision of Clarke J. in Connelly at para. 71 that:- “…a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive, then the reasons could not be said to be reasonably clear.”

75. Humphreys J. in O'Donnell v ABP [2023] IEHC 381, having considered many authorities, concluded that the obligation was to provide the “main reasons on the main issues”. That is undoubtedly true but there still must be main reasons. Stating a conclusion or even repeating a conclusion is not a reason.

76. That obligation however should not be so onerous so as to require the Commission or indeed the Planning Authority, to go into chapter and verse in relation to every issue. As Bradley J. said in Konisberry v. An Bord Pleanála [2024] IEHC 194: - “Generally, the duty to give reasons can be viewed as being ‘book-ended’ by two points on the decision-making spectrum. At one end of the spectrum, there is a discursive analysis (which is not required); at the other end of the spectrum, there is a formulaic tick-box exercise (which is insufficient).”

77. Nonetheless the obligation to give reasons is there. In this regard I fully adopt the views of Farrell J. in GOCE Ltd v. An Bord Pleanála [2024] IEHC 554 where she said: - “…sufficient reasons must be given including for decisions on appeal which result in refusal of planning permission to enable the developer to understand why permission was refused. This leads to public trust, and the reasons given inform the options of a disappointed applicant for permission, whether to make a fresh application for permission or seek to quash an adverse decision, and if so, on what grounds. Unsuccessful applicants for permission are expected to accept decisions with which they may profoundly disagree and to live with the refusal of permission to develop their lands in the manner proposed. The significance of reasons to the decision whether to make a fresh application for permission was emphasised by Simons J. in Damer v. An Bord Pleanála [2019] IEHC 505 (para. 8 and 43).”

78. Both parties accept that this is the state of the law on this issue. Before I move on from an analysis of the case law, there was one further case which I think is relevant and to which I should refer.

79. In Konisberry, Bradley J. considered the provisions of Section 34 (10) (a) and (b) of the 2000 Act at §§17 to 40. The case is quite similar to the issues which this case raises in the context of a refusal of planning permission for an agricultural shed by Bord Pleanála, where it disagreed with its inspector's recommendations, focusing on the adequacy of the Board's reasoning where there had been a number of planning applications. He noted that a review of the extensive jurisprudence on this issue in recent years emphasised that the singular responsibility on a decision-maker – the Commission in this instance – is one of ‘meaningful engagement’ where, for example, its decision will clearly show that relevant submissions were addressed and that an explanation was given as to why they were not accepted. He felt that that was what was intended when the Oireachtas decided to enact Section 34 (10) (a) and (b).

80. He considered Connelly, Crekav, Mulholland v An Bord Pleanála (No.2) [2005] IEHC 306; [2006] 1 I.R. 453 and O’Neill & Ors v An Bord Pleanála [2020] IEHC 356, where McDonald J. said at para 180: - “… the Board is given a significant measure of latitude in the way in which it expresses itself and is not required to give reasons in the same detailed way as a court might be expected to do. Nonetheless, given the significance of the issue and the detailed reasons given by the Inspector for taking the contrary view, it is difficult to understand or accept that the Board could properly adopt such a broad-brush approach without spelling out, in some level of detail, the basis upon which it concluded that the views of the Inspector should be rejected.”

81. Bradley J. concluded his views para 28: -

“In circumstances, therefore, where the Board is rejecting the recommendation and analysis of an inspector appointed to carry out a report, the requirement for meaningful engagement by the Board imports an enhanced duty on it when it is furnishing its reasons to set out why it disagrees with its inspector: Flannery & Ors v An Bord Pleanála [2022] IEHC 83, per Humphreys J. at paragraph 155”

82. and at para 38,

“In this regard, in Clonres CLG v An Bord Pleanála [2021] IEHC 303 this court (per Humphreys J. at paras. 99 and 100) identified two main reasons for this enhanced duty: first, if the Board is not accepting the Inspector’s reasons, it has to come up with reasons of its own; second, the Board is expected to engage with the Inspector’s rationale”.

Discussion

83. The central provision of the statutory framework relevant in this case is Table 3.5 (ii) of Section 3.5.15.5 of the CDP. That sets out exceptions so as to facilitate the provision of single housing in the countryside based upon core considerations of demonstrable economic or social need to live in a rural area. In this case the Applicant has set out clearly that she cannot afford any of the houses that are within the catchment area of the rural village of Ballyboughal. She has also said that she has a need to live within the area. That has not been challenged therefore she has demonstrated an economic need, something which the Inspector dealt with comprehensively.

84. However, the Commission made no reference to this crucial issue. The obligation placed upon it is to give reasons for its decision, particularly in circumstances where its decision is contrary to that of its own inspector. As Clarke J said in Connelly: “One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account and all irrelevant factors are excluded from the consideration.”

85. The Inspector's Report is admirably thorough. It dealt with the 2005 Guidelines, the N.P. Framework document and the CDP, all which incorporate the rural settlement strategy. Having considered all of those macro issues, he concluded that in this particular case, the Applicant did fall within the criteria set out in Table 3.5.

86. It is worth repeating the key elements of that table again. ii. A person who has been in employment in a full-time occupation which is considered, to satisfy local needs by predominantly serving the rural community/economy for fifteen years prior to the application for planning permission, and has not already been granted planning permission for a new rural dwelling since the 19th October 1999.

87. The Applicant has shown that she has been in full time occupation for the statutory period of time of 15 years and employs 12 people in the local community. The crucial issues are whether the applicant has a housing need and whether her business satisfies local needs by serving the rural community/economy.

88. Mr. O’Sullivan submitted that the Commission expressly found that the Applicant had not satisfactorily demonstrated that they are employed in a full-time occupation which is considered to satisfy local needs by predominately serving the rural community/economy as detailed in Table 3.5(ii) of Section 3.5.15.5 of the Development Plan. Yet it is clear that she is providing a full-time occupation in the form of a hairdressing saloon which is satisfying the local needs and thereby predominately serving the rural community/economy.

89. He argued that it was not the nature of the business as a hairdressing business per se but rather the fact that the business itself is located within the urban area and customers travel to the urban area to avail of this service and, therefore, it is not necessary for the Applicant to live in the rural area. But where else would you put a hairdressing salon but in an urban setting?

90. He submitted that the Applicant’s business, which is in the urban village, was not dependent on her living in the rural area, particularly where there are alternative housing/zoned lands available within the village.

91. But that is to ignore the undisputed evidence before the Commission that if she cannot live close to her business it will close. Therefore, the continuation of her business is dependent upon her living close to it. Notwithstanding those detailed submissions and the opinion of the Inspector that she complied with the national and CDP policy and that she had a housing need, none of this was dealt with by the Commission and no considered reasons were given.

92. Since the Commission says it is considered all of the papers and submissions before making its decision, it is remarkable, to say the least, that they did not pick up the error in the

decision. That error related to the distance of the proposed development from the rural village which it said was 5.5 km, but it is clear that that is incorrect. The distance in fact is less than 4 kilometres.

93. The Planning Authority’s report says that the business was not intrinsically linked to the rural area in which it was intended to be located. But that is not a requirement under Table

3.5. The requirement is that the person is in a full-time occupation which satisfies local needs by predominantly serving their local community and/or predominantly serving the rural economy. It does not say anything about being “intrinsically linked to the rural area” nor is there reference to the type of business.

94. The Applicant submitted detailed evidence in relation to her inability to purchase a house or a site within the geographical boundaries permitted. The Inspector referenced this in his report. However, the Commission did not make any reference to it whatsoever.

95. Further, the Planning Authority’s report says that there were alternative housing or zoned lands available within the rural village to meet this need. However, at no stage did it or the Commission deal with the availability or cost of such alternative housing or zoned lands, which the Inspector referred to.

96. The report of the architect sets out the Applicant’s housing need and says that there is only one property in the rural village potentially available and that it and all other properties are unaffordable, but there was no engagement with this issue either. At no stage does the Commission deal with the availability of property in the rural village, notwithstanding accepting, without question, the decision of the Planning Authority based upon its report.

97. Further, there is no reference whatsoever to the fact that all the other criteria applicable to such a development has been complied with. At paragraph 11.3.4 the Inspector noted that the Planning Authority did not consider, based on the information submitted, that an exception to the strict provisions on rural housing was warranted. At 11.3.6 he noted that there was no dispute that the Appellant, based on documentation submitted, had established a long connection to the area, attended school locally and grew up in the rural area and that her parents had no lands other than the family home and therefore were not in a position to provide a site.

98. He also noted that the 2005 Guidelines provides that people who are part of the rural community should be facilitated by the planning system in all rural areas and to take a positive approach to applications from such persons in the areas referred to in circumstances where permission might otherwise be refused. The Commission failed to engage with this argument at all.

99. The report specifically referred to The National Policy Objective 19 of the N. P. Framework which has as its objective to facilitate the provision of single housing in the countryside based upon the core consideration of a demonstrable economic or social need to live in the rural area. The report dealt with the demonstrable economic need of the applicant in detail. However, the Commission did not engage with this issue in any meaningful way.

100. It simply said that it agreed with the Planning Authority, without indicating the reason why. The statute mandates that where the Board is disagreeing with its inspector’s views it must meaningfully engage with the relevant submissions to show clearly that they were addressed and explain why they were not accepted, to paraphrase Bradley J.’s words in Konisberry.

101. Other than a rather gratuitous remark, which must have been hurtful to the Applicant, where the Commission referred to her “undoubted contribution to the service economy within the wider area which includes a large rural hinterland”, it concluded that the nature of her business did not need her to live nearby. She could not afford anything in the village but was prepared to build a house for herself, her partner and five children to which nobody objected.

102. The Respondent has urged the court to the view that lack of affordability is not a ground which it can consider. Mr. O'Connell argues that personal circumstances cannot be seen to prevail and that one cannot have a different system distinguishing financial considerations. Yet the N.P. Framework document specifically refers that the provision of single housing should be considered based on a demonstrable economic or social need to live in a rural area.

103. I would find it hard to imagine a greater need to live in a rural area, which is less than 4km from one’s business, in circumstances where there is no other available affordable housing. Either way the issue of economic need was not dealt with. This in circumstances where the criteria clearly provide social and economic needs should be considered.

Decision

104. I am satisfied that given the comprehensive report which was prepared by the Inspector, that it is behooven upon the Commission to give reasons why it departed from his recommendation. There is no question of imposing upon the Commission an obligation that is artificial or unworkable. The simple fact is that it did not engage in any meaningful way with its own Inspector’s Report, as it is mandated to do.

105. Therefore, I will make the order sought.