Appeal dismissed where partial invalidity of planning refusal grounds does not vitiate the overall decision if unchallenged grounds remain valid.

THE SUPREME COURT

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No. 02/06]

BETWEEN

JAMES TALBOT AND MARGARET TALBOT

APPLICANTS/APPELLANTS

AND

AN BORD PLEANALA,

KILDARE COUNTY COUNCIL,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered on the 23rd day of July, 2008

I have read the judgment delivered by Fennelly J. and gratefully adopt so much thereof as sets out the history of the

planning application and the judicial review application. I have come to a somewhat different conclusion as to how this

appeal should be dealt with, concluding as I do that the first certified question should be answered in the affirmative and the

second certified question, although moot in the particular circumstances of this case, should be answered in the negative.

Insofar as the second question is concerned, I would reach the same view as did Fennelly J., which is to the effect that a

judge is not entitled to presume in advance what the outcome of a future planning application might be, given that this is

exclusively a matter for the statutory bodies charged with such functions.

This does not mean however that leave to bring judicial review proceedings should have been granted in this case. In my

view the learned High Court judge was perfectly entitled to take the view, as he did, that as there no challenge brought to

the second reason for refusing planning permission, the overall decision remained valid regardless of any challenge,

successful or otherwise, to the first reason for refusal. That second reason, as set out at para. 13 of the judgment of

Fennelly J., was that the proposed development as placed before the first named respondent would in any event be contrary

to the proper planning and sustainable development of the area. This was a reason for refusal which was separate and

distinct from the first reason for refusal, namely the failure of the applicants to meet the criteria for the “positive

presumption” exception contained in the Development Plan.

Putting it another way, there were two hurdles which required to be overcome by the applicants in this case. The first was

the supposed failure to extend “positive presumption” status to the applicants. The second was the refusal, quite regardless

of the first reason for refusal, to grant planning permission on what might be described as the usual planning grounds.

The latter reason for refusal has not been challenged in the instant proceedings. It follows therefore that unless an error by

the respondents in respect of the first reason for refusal vitiates the refusal for the second reason the overall decision to

refuse permission remains valid.

Of course there will be cases where, if part of a decision is impugned, it logically must follow that the entire decision must

be quashed. If the grounds for granting relief in respect of part of a decision relate, for example, to bias on the part of a

planning authority, failure to take into account a relevant consideration or want of fair procedures, these would all be

reasons which would taint the overall decision.

However, no challenge of this nature is advanced here and in my view there is thus no reason to think - in this case in any

event – that in a situation where the first reason for refusal was found to be invalid that it must, in consequence, follow that

the second reason must also be bad or that the overall decision is invalid as a consequence.

I find support for this view in s.50 of the Planning & Development Act, 2000 where it provides as follows at s.50(4)(g):-

“Where an application is made for judicial review under this section in respect of part only of a decision

referred to in subsection (2), the High Court may, if it thinks fit, declare to be invalid or quash the part

concerned or any provision thereof without declaring to be invalid or quashing the remainder of the decision

or part of a decision, and if the Court does so, it may make any consequential amendments to the remainder of

the decision or part of a decision that it considers appropriate.”

Thus, regardless of any view which Peart J. may have formed in relation to the “positive presumption” ground of refusal,

he was entitled, in my view, to have regard to the fact that the applicants had not sought to challenge in any way the second

reason for refusal and was entitled to regard the overall decision to refuse as valid and subsisting. In those circumstances he

was entitled to conclude that the applicants could derive no benefit from the present proceedings even if successful.

I would dismiss the appeal.