High Court dismisses certiorari where Planning Board correctly applied new Development Plan policy excluding exceptional circumstances.

APPROVED [2025] IEHC 673

THE HIGH COURT

PLANNING AND ENVIRONMENTAL

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 H.JR.2024.0000759 BETWEEN EITHNE HERBERT APPLICANT -AND- AN COIMISIÚN PLEANÁLA RESPONDENT -AND- KILDARE COUNTY COUNCIL NOTICE PARTY JUDGMENT of Mr. Justice Nolan delivered on the 1st day of December 2025

Introduction

1. The Applicant is a farmer who has lived all her life at her home at Lowtown, Robertstown, Naas in Co Kildare. Arising from an order made in legal proceedings she must sell her family home. Given that she runs her farm business from the home and her children are closely connected to the local community, she wishes to build a single-story modest farmhouse on her own land. For the last three years she has sought planning permission which has been refused on more than one occasion, notwithstanding a successful judicial review.

2. It is common case that she presently meets all the legal requirements in order to get that planning permission, except one, but has run foul of the new Kildare County Development Plan 2023 – 2029 (“the New Plan”).

3. She seeks an order of certiorari quashing the decision of the Board, now An Coimisiún Pleanála (“the Commission”), dated the 16th of April 2024, wherein the Commission refused her application for planning permission.

Background

4. The history to the case is complicated, but important in order to explain her situation.

5. In 2001 she obtained permission for a one-off rural house which became the family home, now subject to sale.

6. In April of 2022 she submitted a planning application to the Notice Party (“the County Council”) which was refused. She then appealed to the Commission. The first report of the Commission’s inspector was based upon the Kildare County Development Plan 2017 -2023 (“the Old Plan”).

7. He noted that the Applicant had previously applied for a one-off house and in particular noted that the local policy in the Old Plan had specific requirements in relation to one-off dwellings in a rural area. That requirement was set out in RH3 which reads as follows: - “It is the policy of the Council to:… Require applicants to demonstrate that they are seeking to build their home in the rural area in Kildare for their own full time occupation. Applicants will be required to demonstrate that they do not own or have not been previously granted permissions for one off rural dwelling in Kildare and have not sold this dwelling or site to an unrelated third party, save in exceptional circumstances.” (emphasis added)

8. He noted that the term “exceptional circumstances” had not been defined although RH8 did refer to “exceptional health circumstances”. He concluded his views by saying the following, which is very much to the fore of the Applicant’s submissions: - “In circumstances such as this, I consider it unreasonable for a prospective applicant to be prohibited from building a home in their local area in perpetuity. I am therefore satisfied that exceptional circumstances do exist in this specific instance. Notwithstanding this, Policy RH3 cannot be read in isolation and there are other policy objectives that are directly relevant to the assessment of the application, critically Policy RH2.”

9. He noted that the Applicant’s full-time profession was not agricultural in that she was described as a part-time farmer. On that basis, he formed the opinion that she was not engaged full-time in agriculture and did not satisfy the requirements of the Policy RH2 in the Old Plan. He recommended refusal of the appeal.

10. The Commission’s decision, issued on the 9th of February 2023, followed the inspector’s report, which had been prepared under the Old Plan. However, the decision referred to the New Plan, which came into effect on the 28th of January 2023, after the inspector’s report was completed but before the decision was made.

The First Judicial Review

11. The Applicant brought a judicial review in relation to the Commission’s refusal. By letter dated the 30th of June 2023, solicitors for the Commission wrote to the Applicant’s solicitors confirming that it would not oppose her claim for certiorari, quashing the decision to refuse planning permission. The grounds given were that the decision was invalid because in the particular circumstances of the case the reasons given were inadequate for the purposes of Section 34 (10) of the Planning Development Act 2000, as amended (“PDA”).

12. The Applicant now contends that when the Commission issued its decision which was later quashed, it had clearly considered the application under the New Plan, as the decision expressly refers to it. However, it seems to me that that is over stating matters. Firstly, that

decision had been quashed and therefore was no longer valid and can not avail the Applicant. Secondly, it seems to be far more likely that the matter was not considered under the New Plan and therefore the reasons given were inadequate since they were based upon the Old Plan, while referring to the New Plan.

The Second Application and Report and the Commission’s Decision

13. Following her success, she applied again. Prudently, the Commission sought submissions from both parties and instructed the same inspector to prepare, what is described as an addendum report. In accordance with Section 131 of the PDA, it wrote to both parties’ solicitors requesting any further submissions which were received.

14. But circumstances had changed. Firstly, it would seem that the Applicant was no longer in part-time employment, however that is not entirely clear. Crucially, however, the policy and objectives had changed in the intervening period. The New Plan removed the equivalent of both RH2 and RH3. Gone was the requirement that the Applicant had to be in full-time agricultural employment. Gone also was the exception under RH3, namely “exceptional circumstances” allowing for one-off housing development. In its place was a new Objective, HO O43.

15. The new Objective HO O43 reads: -

“It is an objective of the Council to: Require applicants to demonstrate that they do not own or have not been previously granted permission for a one-off rural dwelling in Kildare.”

16. The only reference to the word “exceptional” is found under HO O47, which recognises that “exceptional health circumstances, supported by relevant documentation from a registered medical specialist, may require a person to live in a particular environment.”

17. There is one other relevant place where the words “exceptional circumstances” are to be found in the New Plan, and that is at para. 3.18 entitled “Technical Considerations for Rural Housing Proposals in County Kildare”, accompanied with a table, Table 3.5. In essence it is a more graphic way of giving a narrative. The preamble reads: - “In order to provide guidance and assist those engaging in the planning application process for a new home in a rural area in County Kildare, the Council has developed a set of basic principles under which an application would be considered (in addition to additional design and siting considerations outlined in Appendix 4). The principles set out below are intended to be a high-level checklist for applicants (or agents acting on their behalf) to consider when determining the suitability of a site or applicant for a new rural dwelling.” (emphasis added)

18. There is little doubt that this is confusing. The use of a term, which is not defined, such as “high-level checklist”, has been discussed in some detail during this case. I shall return to this phrase.

19. The first section of Table 3.5 is entitled “Genuine Housing Need and Future Occupancy Sustainable Rural Guidelines”, which says: - “An applicant seeking permission for a new rural dwelling must be building their home for their permanent occupation, must demonstrate a genuine housing need in accordance with the requirements of the NPF and the Sustainable Rural Housing Guidelines for Planning Authorities (April 2005, or any subsequent updates). Applicants must not already own or have been permitted a dwelling, save in demonstrable exceptional circumstances”. (emphasis added)

20. The inspector concluded that Applicant satisfied the requirement of having an economic need as per the specific provisions of the New Plan. He also was satisfied that she had a demonstrable social need.

21. But unfortunately, HO O43 came into play. He noted that the Old Plan had included the provision of permitting one off rural dwelling in circumstances where a previously granted permission had been given, in “exceptional circumstances”, but that the New Plan had removed the exemption. He said at para. 4.1.6: - “Although I acknowledge the Applicant's rationale for a new dwelling at this location (i.e. a matrimonial breakup), the exceptional circumstances as afforded under the previous policy (i.e. RH3) no longer applies under the provisions of the current Plan.”

22. He went on to comment upon Table 3.5 and the use of the phrase “high level checklist” and “exceptional circumstances”. He said in the same paragraph: - “Whilst I acknowledge the Table 3.5 (Technical Considerations for Rural Housing Proposals in County Kildare) includes a reference to exceptional circumstances, the Plan (Section 3.18) notes that the principles set out in Table 3.5 are intended to be a high level checklist for Applicants to consider when determining the suitability of a site or applicant for a new to rural dwelling. As this is intended to be a high level checklist only, it is reasonable to conclude that any proposal for a dwelling in a rural area must foremost comply with the relevant policies and objectives of the Plan.” (emphasis added).

23. He concluded his remarks by saying: -

“In this regard, the proposal fails to comply with policy HO P11 (not relevant here) and Objective HO O43 (set out above) of the Plan and should therefore be refused planning permission.”

24. The decision of the 15th of April 2024 to refuse planning permission followed the reasoning of the inspector. It did, however, acknowledge the totality of the information on file, the submissions received by both parties and further submissions received in response to a Section 131 notice. It is this decision which the Applicant seeks to quash.

The Submissions

25. Mr. Kennedy SC for the Applicant says that the Commission’s reason to refuse permission did not feature in the first report. The inspector and the Commission’s decision turned exclusively on the rural housing eligibility interpretation and that she was a part-time farmer. He submits that it failed to give reasons, as it is obliged to do, pursuant to Section 34(10) of the PDA and relies upon Balz v An Board Pleanála [2019] IESC 90, Connolly v An Bord Pleanála [2018] IESC 31 and my recent decision in Walsh v An Bord Pleanála [2025] IEHC 533.

26. He argues that this approach is unduly rigid, fails to consider the unique and involuntary nature of her circumstances. He says the Commission has altered its position completely which is irrational and flies in the face of fundamental reason and common sense pointing to O’Keeffe v An Bord Pleanála [1993] 1 IR 39, and The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642.

27. The addendum report adopted an unduly strict interpretation of the New Plan, which is inconsistent with the planning code and aside from routine planning practice.

28. He argues that the decision is invalid insofar as it is inconsistent with previous decisions in other cases and the previous decision on this application. He also submits that no relevant material supports its decision in circumstances where there has been inconsistent interpretation of the New Plan, and in particular Objective HO O43 and the implantation of “exceptional circumstances”.

29. The Applicant makes two further points in relation to the New Plan and the addendum report, in particular Table 3.5. Firstly, the use of the phrase “high-level checklist” is not defined but suggests that it must be of high importance and therefore in some way trump's other element of the New Plan.

30. The second point is the use of the term “save in demonstrable exceptional circumstances”. He argues that since the inspector already found in his first report that there were exceptional circumstances and as his addendum report, is still part of his first report, the report is contradictory and any decision based upon it is invalid.

31. Ms. Carroll SC for the Commission says that Objective HO O43 of the New Plan provides that, in relation to applications for one-off rural dwellings, it “Require[s] applicants to demonstrate that they do not own or have not been previously granted permission for a oneoff rural dwelling in Kildare.” (emphasis added).

32. She submits that what really is at play is an attempt by the Applicant to departed from the requirements of Objective HO O43 and create a unique and separate objective for her which is impermissible. That she, the Applicant, is seeking a grant of permission notwithstanding that it was contrary to the objectives of the New Plan.

33. She says this is not a sustainable or permissible basis on which to challenge a decision of the Commission and that the reliefs sought by the Applicant should be refused.

Discussion

34. While the Applicant seeks to challenge the decision on six core grounds the relevant ones are set out above.

35. It seems clear that national planning guidelines and development plans are increasingly seeking to move away from one-off rural housing to avoid the piecemeal and haphazard development of Ireland’s rural landscape. That is a policy decision which those tasked with developing the planning of housing construction within the State are perfectly entitled and, indeed, are mandated to make if, they believe it is appropriate.

36. However, in order to avoid unduly restrictive laws, there should always be exceptions, subject to the planning objectives.

37. In C. O’C v An Bord Pleanála [2021] IEHC 70, Humphreys J noted: “National guidelines provide that new one-off rural housing is to be considered only in particular circumstances. That reflects the planning policy view that such one-off housing is frequently not “sustainable” in the environmental sense, subject to the possibility of clearly defined social or economic need.”

38. That general policy against one off rural housing, save in specified or exceptional circumstances, was reflected in the Old Plan, which was in place when the application was made and when the Commission’s inspector finalised his report in November 2022. However, the New Plan was in place when the first decision was actually made. It was also in place when the Commission’s inspector finalised his addendum report in January of 2024.

39. While the Applicant complains that there is an inconsistency between the inspector’s first report and the addendum report, that is correct, in that they say different things. But that is because there had been a change in the planning objectives of the local authority in regard to one-off rural housing in the intervening period.

40. The New Plan took a different approach to the assessment of such applications. In particular, there is a crucial difference between the two plans as regards whether a person can be granted approval for a second one off house.

41. Section 3.14 (Rural Residential Density) of the New Plan notes that: “National guidelines and the County Development Plan policy has generally been formulated to manage rural housing to avoid a proliferation of one-off houses, extensive ribbon development, piecemeal and haphazard development that erode the intrinsic character of the Irish countryside, which is both an economic resource and a tourism asset.”

42. Against that background the Applicant applied for her permission. At her first attempt the Old Plan applied. The reason given related to the inspector and the Commission’s view that she did not satisfy the requirement of working full-time in agriculture. She successfully challenged that decision and it was quashed. The Order of the High court put that decision to an end.

43. She was most unfortunate that by the time she came to make her second application, the objectives had changed. The New Plan now emphasised, as set out in HO O43, that applicants are required to demonstrate that they do not own or have not been previously granted permission for a one-off rural dwelling in Kildare. Due to no fault of hers she fell foul of the new objective since she had already been granted permission.

44. While she argues that this approach is unduly rigid and fails to consider the unique and involuntary nature of her circumstances, in truth the Commission did consider them. The inspector in his addendum report specifically acknowledged her rationale for a new dwelling as being her matrimonial breakup but noted that “the exceptional circumstances” as afforded under the Old Plan no longer applied under the provisions of the New Plan.

45. I do not regard this as adopting an unduly strict interpretation of the New Plan, or that it is irrational or setting an impossible high bar. The inspector and the Commission were simply reflecting the changed plan. While it is understandable that this case could be compared to my decisions in Walsh, the legal issues are very different. In that case the Commission failed to give reasons in circumstances where its decision went against its own inspector’s report. In this case it was agreeing with its inspector. Therefore, the reasons which it gave did not have to be as fulsome or detailed, as reflected in the case law.

46. The decision of the Commission is different to its previous decision because the policy had changed, and for no other reason.

47. The next issue to be dealt with is the issue of Table 3.5. There is no doubt that the wording of this table is confusing, in at least two respects, which must make it hard for a citizen to understand its import, without expert advice. The first respect relates to the use of the words “intended to be a high-level checklist for applicants”. This phrase is not defined. The words “high-level checklist” would give the impression that it is of some overarching or important criteria over and above the rest of the document. In point of fact, it seems to me that it is nothing of the sort. It is no more than a checklist. I have no idea why it was called a “high-level checklist”, nor has any reason been given. Nonetheless, it is only intended to be guidance to applicants. It does not replace the policy objectives.

48. I am satisfied that the use of the phrase “save in demonstrable exceptional circumstances” must relate to the only exemption provided for, namely HO O47 which recognises “exceptional health circumstances, supported by relevant documentation from a registered medical specialist, may require a person to live in a particular environment”. This is the only circumstance which requires demonstration, namely documentation from a registered medical specialist. Therefore, I find that the words “save in demonstrable exceptional circumstances” must relate to HO O47.

49. It is clear that the context of the Table is the New Plan. If there was a conflict between the Table and the objectives, and I find that there is not, the objectives outweigh the Table (see Sherwin v An Bord Pleanála [2024] IESC 32). The Commission applied its objectives and policy to the factual matrix before it and concluded that the application would go against those objectives, under New Plan. It considered the totality of the information before it, including the submissions received from both parties and came to its decision in an appropriate way. The second report does not contradict the first, it simply reflects the New Plan. It is a different development plan in which the exemption no longer exists. The decision of the Commission was not cut and paste.

50. Decisions of the High Court show that a merits-based argument, in relation to the circumstances of the individual applicant, dressed up as a legal argument is not permissible.

51. In Moran v An Bord Pleanála [2025] IEHC 510, Farrell J. said as “This case illustrates the difficulty that the sympathetic personal circumstances of an applicant are not in themselves automatically sufficient to override planning considerations. While I have every sympathy for the Applicant, the merits of a given application, and the weighing of such interests, is a matter in the first instance for planning decision-makers, subject to legality and reasonableness. While the courts can ensure that due consideration is given to relevant issues, and that adequate reasons are provided, the courts cannot override the evaluative judgement of a statutory decisionmaker based on a merits disagreement dressed in legal form. The Oireachtas has provided the statutory framework for the making of planning decisions. The role of the courts, on judicial review, is limited to the review of the lawfulness of any such

decision.”

52. In many ways this case is very similar. While the Court’s empathy is clearly with the Applicant, the difficulty that she faces is that between the first report and the addendum report, the Kildare County Development Plan changed its policy objectives in relation to one off rural dwelling. The general exemption of exceptional circumstances had been removed.

53. It is even harder on the Applicant in circumstances where the first reasoning was flawed which gave rise to the Order of the High Court, but in the intervening period the policy changed.

54. In those circumstances, the Court is left in the position where it cannot make the order sought.