An Bord Pleanála’s refusal of permission for a house and snail farm in Co Kildare has been overturned by the High Court.
Mr Justice Garrett Simons ruled the board must reconsider the appeal by Aidan and Loretta Damer “in its entirety” because of inadequate analysis in a board inspector’s report recommending refusal, and the board’s failure to meet the required standard of reasoning in its refusal decision.
The absence of a proper statement of the main reasons and considerations of the board frustrates the court’s exercise of its supervisory jurisdiction by way of judicial review, he said.
It meant the court could not address other grounds of the challenge, including the claim the board had not properly applied the Kildare development plan policies for housing in rural areas, particularly concerning one-off dwellings.
It also meant it was difficult for the applicants to know whether, in any further planning application, they could take steps to address the board’s concerns, he added.
Polytunnel
The Damers, from Lucan, Co Dublin, sought permission in 2017 to construct a 1½-storey dwelling house and single-storey domestic garage, along with an agricultural shed, polytunnel and netting for production of snails, on lands at Daars North, Sallins, which they bought in early 2016 for €70,000.
The proposed snail farm or heliculture business was intended to develop snail-based products, including premium organic snail meat, snail egg caviar and snail slime secretion.
The Damers said the business would have two full-time employees initially and they anticipated two additional farmhands would be required during snail egg and mature snail harvesting season.
After Kildare County Council refused permission in 2017 and the board upheld that refusal on appeal in March 2018, they went to the High Court where they were represented by Damien Keaney BL.
In his judgment on Thursday, Mr Justice Simons said for an applicant to be considered for a one-off dwelling in a rural area of Kildare, they must meet one of the specified local need criteria in the development plan.
The Damers had argued they met a criterion of having a commitment to operate a full-time business from their proposed home in the rural area, existing links to the area and that the business will contribute to and enhance the local community, is location-dependent and intrinsically linked to a rural location.
Conclusion
The board decision refusing their appeal merely stated a conclusion the board was satisfied a “compelling location-dependent need” for a dwelling at this location had not been demonstrated.
Because the board’s direction indicated it had decided to refuse permission generally in accordance with its inspector’s recommendations, it is legitimate to have regard to the inspector’s report in seeking to identify the board’s reasoning, he said.
However, that December 2017 report was “unfortunately unilluminating in this regard”.
As with the board’s decision, the report merely stated a conclusion without offering any rationale for that, he said. The report “fails to acknowledge, still less explain” the fact the inspector is relying on criteria – a requirement the business be resource-tied to the location – when such a requirement does not appear at all in the area development plan.
The board decision failed to meet the required standard of reasoning set out in Section 34D of the Planning and Development Act 2000 and he proposed to set it aside, the judge said.
Final orders will be made on a later date.
