Herbert v An Coimisiún Pleanála: Development Plan Objectives, “High‑Level Checklists” and Exceptional Circumstances in Rural Housing

1. Introduction

The High Court decision in Herbert v An Coimisiún Pleanála [2025] IEHC 673 is a significant planning judgment at the intersection of rural housing policy, the interpretation of development plans, and the limits of judicial review in the face of hard cases.

The Applicant, Ms. Eithne Herbert, is a lifelong resident of Lowtown, Robertstown, County Kildare and a farmer operating her business from her home. As a result of an order in separate legal proceedings, she is required to sell her existing family home, which had itself been granted as a “one‑off” rural house in 2001. To remain in the local area with her children and to continue farming, she sought permission to build a modest single‑storey farmhouse on her own land.

Over a three‑year period, she made repeated planning applications. Her first appeal to the national planning appeals body (formerly An Bord Pleanála, now An Coimisiún Pleanála) was refused, but that refusal was subsequently quashed in a judicial review because the Commission accepted it had failed to give adequate reasons under s.34(10) of the Planning and Development Act 2000 (as amended) (“PDA”). By the time she sought to have the planning authority reconsider the matter, the Kildare County Development Plan 2023–2029 (“the New Plan”) had taken effect, replacing the 2017–2023 Plan (“the Old Plan”).

Under the Old Plan, there existed a policy that allowed a second one‑off rural dwelling in “exceptional circumstances”. Under the New Plan, that general exemption disappeared. It was replaced by an uncompromising objective, HO O43, which requires that applicants for one‑off rural dwellings demonstrate that they have not previously been granted permission for such a dwelling in County Kildare.

The key questions before Nolan J were:

Whether the Commission lawfully applied the New Plan – particularly Objective HO O43 – in refusing Ms. Herbert’s application.
Whether the phrase “save in demonstrable exceptional circumstances” in Table 3.5 (a so‑called “high‑level checklist” in the New Plan) created a general exception to HO O43 that could assist the Applicant.
Whether the Commission’s decision was inadequately reasoned, irrational, or inconsistent such that it should be quashed on judicial review.
Whether the Applicant’s particularly hard and involuntary personal circumstances could ground a successful public law challenge to a refusal based squarely on the development plan.

The judgment provides important clarification on the status of guidance material (“technical considerations” and checklists) within development plans as against the binding policies and objectives, and on the courts’ unwillingness to use judicial review to soften the impact of clear and restrictive planning objectives, even in sympathetic cases.

2. Summary of the Judgment

Nolan J refused the application for judicial review and upheld the Commission’s refusal of planning permission.

The core holdings can be summarised as follows:

The New Plan – and in particular Objective HO O43 – governed the Commission’s decision.
By the time the Commission reconsidered the matter (and the inspector produced an addendum report), the New Plan was in force. Under HO O43, a person who has already been granted permission for a one‑off rural dwelling in Kildare cannot satisfy the objective. Ms. Herbert fell squarely within that prohibition because she had obtained permission in 2001 for her existing home.
The earlier “exceptional circumstances” policy in the Old Plan no longer existed.
Under the Old Plan, Policy RH3 allowed for a second one‑off rural dwelling “save in exceptional circumstances”. The inspector, under the Old Plan, had in fact accepted that such exceptional circumstances existed for Ms. Herbert. However, the New Plan deliberately removed this general exemption. The inspector’s addendum and the Commission’s decision simply reflected this change in policy.
Table 3.5 and the “high‑level checklist” are guidance only; they do not override or dilute Objective HO O43.
The phrase “high‑level checklist” was criticised as confusing, but the Court held that Table 3.5 is merely a guidance tool for applicants. It does not supplant or qualify binding objectives such as HO O43. Applying the Supreme Court decision in Sherwin v An Bord Pleanála [2024] IESC 32, the judge confirmed that the development plan objectives prevail over any conflicting narrative or tabular guidance.
The phrase “save in demonstrable exceptional circumstances” in Table 3.5 is confined to health‑related circumstances under HO O47.
The only express “exceptional” carve‑out in the New Plan is HO O47, which deals with exceptional health circumstances requiring a person to live in a particular environment and which must be supported by documentation from a registered medical specialist. The Court held that “save in demonstrable exceptional circumstances” in Table 3.5 must be read as referring to this limited health‑based exception, not as reviving a general “exceptional circumstances” gateway for second dwellings.
The Commission gave adequate reasons and acted rationally.
Unlike in the first decision (which had been conceded as unlawful), the Commission’s second refusal clearly adopted and relied upon the inspector’s addendum report. The reasons were sufficiently clear for the purposes of s.34(10) PDA. The change between the first and second inspector’s reports was not irrational; it flowed from the change in the development plan.
Personal hardship cannot override development plan objectives on judicial review.
Relying on Moran v An Bord Pleanála [2025] IEHC 510, the Court reaffirmed that sympathetic personal circumstances – however compelling – do not entitle an applicant to relief where the planning decision is lawful and reasoned. Judicial review is not a vehicle to re‑decide the planning merits.

In consequence, the Court held that it could not quash the Commission’s refusal. The Applicant’s misfortune – including the fact that the first refusal was invalid and that the New Plan came into force before the second decision – did not create a legal entitlement to have her application assessed under the Old Plan or to obtain a second one‑off rural dwelling contrary to HO O43.

3. Detailed Analysis

3.1 Background and Procedural History

3.1.1 The Applicant’s position

Ms. Herbert’s situation is factually compelling. She is a farmer operating from her home, which was built pursuant to a 2001 permission for a one‑off rural dwelling. A court order arising from unrelated legal proceedings requires her to sell that home. She wishes to remain in her local area – where her children are rooted and where her farm is based – by building a modest replacement farmhouse on her own land.

Her first planning application (April 2022) was refused by Kildare County Council and appealed to the Commission. The inspector, applying the Old Plan, accepted that she was in “exceptional circumstances” for the purposes of RH3 (thus, in principle, allowing a second house). However, he recommended refusal on a different basis: she was not a full‑time farmer and so did not meet Policy RH2’s requirement of full‑time agricultural occupation.

The Commission followed that recommendation, but its decision referred to the New Plan even though the inspector’s analysis had applied the Old Plan. The Commission later accepted that, in the particular circumstances, the reasons were inadequate under s.34(10) PDA and consented to the first decision being quashed by the High Court.

Following that success, Ms. Herbert made a new application. By then, the New Plan (2023–2029) had come into force, and critically:

The Old Plan’s RH2 and RH3 had been removed.
The general “exceptional circumstances” safety‑valve for people who already had one‑off permissions was gone.
A new, stricter Objective HO O43 had been introduced.

The Commission sought fresh submissions under s.131 PDA and asked the same inspector to prepare an addendum report. The inspector accepted that Ms. Herbert had both an economic and a social need for housing in the area. Nonetheless, he concluded that HO O43 required refusal: she had already been granted permission for a one‑off rural dwelling in Kildare. The Commission adopted that reasoning and refused permission on 15 April 2024.

3.1.2 The Applicant’s legal grounds

The Applicant challenged the second refusal on several core grounds, including:

Inadequate reasons under s.34(10) PDA, arguing that the change between the first and second inspector’s reports and the Commission’s reliance on HO O43 required more detailed explanation, with reference to authorities such as Balz v An Bord Pleanála [2019] IESC 90 and Connolly v An Bord Pleanála [2018] IESC 31, and Nolan J’s own decision in Walsh v An Bord Pleanála [2025] IEHC 533.
Irrationality and undue rigidity, contending that the Commission’s shift in approach (from focusing on part‑time farming status to rigidly applying HO O43) was inconsistent, irrational, and contrary to “fundamental reason and common sense” in the sense described in O’Keeffe v An Bord Pleanála [1993] 1 IR 39 and The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642.
Misinterpretation of the New Plan, arguing that Table 3.5 – labelled a “high‑level checklist” – and the phrase “save in demonstrable exceptional circumstances” created a continuing basis for allowing a second one‑off dwelling in exceptional situations such as hers. She contended that the inspector’s two reports were contradictory and the second was inconsistent with the New Plan’s own text and with other decisions.
Unlawful inflexibility, maintaining that the Commission had failed to have proper regard to her unique and involuntary personal circumstances – being compelled to sell her existing home – and that such an inflexible reading of the New Plan was contrary to the planning code and “routine planning practice”.

The Commission’s response, in essence, was that:

Objective HO O43 is clear and binding; Ms. Herbert had already been granted permission for a one‑off rural dwelling in Kildare, so she could not satisfy the objective.
The Applicant was effectively seeking a personal exemption from HO O43 – what counsel described as a “unique and separate objective” tailored to her circumstances – which was impermissible.
The Commission had fully complied with its obligations to consider the application under the New Plan, to have regard to the inspector’s report, and to give reasons.

3.2 Precedents Cited and Their Influence

3.2.1 Balz v An Bord Pleanála and Connolly v An Bord Pleanála – Duty to Give Reasons

The Supreme Court in Balz [2019] IESC 90 and Connolly [2018] IESC 31 clarified the duty on planning decision‑makers to give reasons that are:

sufficiently clear and intelligible,
such that the reader can understand why the decision was made, and
adequate to allow the person affected to consider whether there are grounds for judicial review.

These cases recognise that reasons need not be lengthy or address every argument, but they must explain the “essential rationale” of the decision. In the planning context, it is well‑established that a board can fulfil its duty by adopting an inspector’s report, provided that the report itself contains adequate reasoning.

Nolan J explicitly situates the first decision’s invalidity within this framework: the Commission had conceded that, in the particular circumstances, the reasons fell short of s.34(10) PDA. The combination of relying on an inspector’s report grounded in the Old Plan while referring in the formal decision to the New Plan created a lack of clarity as to the basis for refusal.

However, this earlier defect did not assist the Applicant in relation to the second decision. In the latter decision, the Commission:

had before it an addendum report expressly applying the New Plan;
agreed with and adopted that report; and
stated that the proposal was contrary to HO O43 (and HO P11, albeit that the latter was not central to the High Court’s reasoning).

Because the Commission’s conclusion aligned with the inspector’s reasoning, the Court drew a clear distinction from Nolan J’s own earlier decision in Walsh (where the Commission had departed from the inspector’s recommendation without adequate explanation). In Herbert, adoption of the inspector’s analysis meant that the reasons were sufficiently transparent: the Applicant was refused because she had already benefitted from a one‑off rural dwelling permission and HO O43 left no general room for a second.

3.2.2 O’Keeffe and Keegan – The High Threshold for Irrationality

The Applicant also relied on classic Irish public law authorities:

O’Keeffe v An Bord Pleanála [1993] 1 IR 39; and
The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642.

These cases set out the stringent test for “irrationality” or “unreasonableness” in judicial review: a decision will only be set aside if it flies in the face of “fundamental reason and common sense” or if no reasonable decision‑maker, properly directing itself in law and on the evidence, could have reached the conclusion in question.

The Applicant contended that the Commission’s alteration of its approach – from emphasising her part‑time farming status to relying on HO O43 – was such an irrational shift, especially given her involuntary need to sell her home.

Nolan J rejected this submission. The apparent inconsistency between the inspector’s first and second reports was traced directly to a legitimate change in policy between the Old and New Plans:

Under the Old Plan, there was a general “exceptional circumstances” exception (RH3).
Under the New Plan, that exception had been consciously removed and replaced with a stricter regime under HO O43.

In those circumstances, it was entirely rational for the inspector and the Commission to reach different conclusions once the governing policy instrument changed. The decision was a straightforward application of the New Plan’s objectives to the undisputed fact that Ms. Herbert had previously been granted permission for a one‑off rural dwelling.

3.2.3 C. O’C v An Bord Pleanála – National Policy on One‑Off Rural Housing

The judgment references C. O’C v An Bord Pleanála [2021] IEHC 70 (Humphreys J), which highlighted national planning guidance 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.”

Nolan J uses this decision to situate the Kildare County Development Plans within a broader policy trend: national guidelines and local plans have increasingly sought to curb piecemeal one‑off development in the countryside except where there is a clearly defined need. This contextualises:

the Old Plan’s allowance of one‑off dwellings in “exceptional circumstances”; and
the New Plan’s even tighter controls, reflected in HO O43 and the policy text in s.3.14 about avoiding the proliferation of one‑off houses and ribbon development.

In essence, C. O’C underscores that what happened in Kildare is not an isolated policy choice but part of a national planning trajectory towards more restrictive one‑off rural housing policies.

3.2.4 Sherwin v An Bord Pleanála – Objectives Trump Conflicting Guidance

The Supreme Court’s decision in Sherwin v An Bord Pleanála [2024] IESC 32 is central to one of the most important aspects of Herbert: the hierarchy within development plans between binding objectives and more discursive or graphic material (such as tables, narratives, and “technical considerations”).

At para. 49, Nolan J notes that even if there were a conflict between Table 3.5 and the plan’s objectives (which he ultimately found there was not), the objectives would prevail. This follows Sherwin, where the Supreme Court held that:

the legally operative part of a development plan is its policies and objectives; and
any apparent inconsistency between those and supporting narrative material must be resolved in favour of the formal objectives.

On this basis, even if Table 3.5’s phrase “save in demonstrable exceptional circumstances” might be read as implying a broad exception for second dwellings, such an interpretation could not override the clear wording of HO O43.

3.2.5 Moran v An Bord Pleanála – Merits vs Law

Finally, Moran v An Bord Pleanála [2025] IEHC 510 (Farrell J) is invoked to emphasise the limited role of the courts in planning disputes. The Court quoted a key passage (para. 51 of Herbert):

“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 decision-maker based on a merits disagreement dressed in legal form.”

Nolan J draws a close analogy between Moran and Ms. Herbert’s case. In both, there is judicial sympathy for the applicant’s personal circumstances, but that sympathy cannot displace:

the primacy of the development plan; and
the deferential role of the court in reviewing – rather than remaking – planning judgments.

This authority underpins the Court’s refusal to use judicial review to create a de facto exception for Ms. Herbert in order to mitigate the harshness of HO O43.

3.2.6 Walsh v An Bord Pleanála – Departing From the Inspector

The Applicant relied on Nolan J’s own decision in Walsh v An Bord Pleanála [2025] IEHC 533, which concerned a board’s failure to give reasons where its decision went against its inspector. In Herbert, the judge distinguishes Walsh on a fundamental point:

In Walsh, the board departed from its inspector, thereby requiring fuller and more explicit reasons.
In Herbert, the Commission agreed with its inspector; therefore, the inspector’s report itself, as adopted, provides the necessary reasoning.

This reinforces an important practical principle: the closer the decision-maker adheres to the inspector’s analysis, the less elaborate its own statement of reasons needs to be; but where it diverges, the duty to explain increases correspondingly.

3.3 Legal Reasoning and Application to the Facts

3.3.1 Temporal Application of the Development Plan

A central plank of the Applicant’s case was effectively temporal fairness: her first refusal was invalid for lack of reasons, and before she could obtain a fresh decision, the policy landscape changed, to her detriment.

Nolan J acknowledges that this is “most unfortunate” (para. 43) and “even harder on the Applicant” (para. 53). Nonetheless, he is clear that:

The first decision, once quashed, is void and cannot be relied upon to confer any planning advantage.
The Commission, when reconsidering or determining a new application, must apply the law and the development plan as they stand at the time of the decision – in this case, the New Plan.
There is no entitlement to have a planning application determined under a superseded development plan merely because an earlier decision was flawed.

Thus, the Commission was correct to assess the second application against the New Plan, including HO O43, rather than under the more favourable Old Plan policies RH2 and RH3.

3.3.2 The Shift from RH3 to HO O43 – Abolition of General “Exceptional Circumstances”

Under the Old Plan, Policy RH3 stated that applicants would be required to show that they had not been previously granted permission for a one‑off rural dwelling, and had not sold such a dwelling or site to an unrelated third party, “save in exceptional circumstances”.

The inspector’s first report, applying RH3, took a balanced, humane approach, observing that:

“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.”

However, by the time of the addendum report:

RH3 was no longer in force.
The New Plan contained HO O43, which states simply:
“Require applicants to demonstrate that they do not own or have not been previously granted permission for a one-off rural dwelling in Kildare.”
The general exception in RH3 – “save in exceptional circumstances” – had been removed.

The inspector recognised this and explicitly stated (para. 4.1.6 of his addendum) that:

“the exceptional circumstances as afforded under the previous policy (i.e. RH3) no longer applies under the provisions of the current Plan.”

Nolan J endorses this reading. He emphasises that the different conclusion reached in the second report is not a contradiction of the first report but a consequence of the democratically adopted change in planning policy. The key legal message is that:

A planner’s earlier finding of “exceptional circumstances” under a now‑superseded policy does not survive the adoption of a new development plan which has deliberately removed that exception.
The Court’s role is to ensure that the New Plan is lawfully applied, not to preserve the beneficial aspects of a previous policy regime for particular applicants.

3.3.3 Table 3.5 and the Meaning of “High‑Level Checklist”

Much argument focused on para. 3.18 of the New Plan and its accompanying Table 3.5, which is preceded by the following text:

“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 … The principles set out below are intended to be a high-level checklist for applicants …”

The Applicant contended that the phrase “high‑level checklist” suggested that the table had a particular importance, potentially giving it interpretative weight over or alongside the formal objectives. In the section headed “Genuine Housing Need and Future Occupancy Sustainable Rural Guidelines”, the table provides that:

“Applicants must not already own or have been permitted a dwelling, save in demonstrable exceptional circumstances.”

The Applicant argued that:

“High‑level” implied an overarching or elevated status.
The phrase “save in demonstrable exceptional circumstances” was broad and not limited to health‑related situations.
Given that the same inspector had previously found exceptional circumstances, the addendum report was internally contradictory and the Commission’s reliance on it unlawful.

Nolan J was unimpressed by the terminology “high‑level checklist”, describing it as “confusing” and noting:

The phrase is undefined in the Plan.
It might give the impression of superior status, but in truth it is “no more than a checklist”.

He concludes (para. 47) that:

“it is only intended to be guidance to applicants. It does not replace the policy objectives.”

This is a critical interpretative holding: technical or graphic guidance within a development plan is not on the same footing as the binding objectives. It exists to help applicants understand how the policies might be applied, but it cannot rewrite or dilute those policies.

3.3.4 “Save in Demonstrable Exceptional Circumstances” – Linked to HO O47 Only

The next question was how to read the phrase “save in demonstrable exceptional circumstances” in Table 3.5. The New Plan contains another objective, HO O47, which states that:

“exceptional health circumstances, supported by relevant documentation from a registered medical specialist, may require a person to live in a particular environment.”

Nolan J reasons as follows (para. 48):

The only circumstance expressly described as “exceptional” in the New Plan, and requiring demonstration via documentation, is HO O47’s “exceptional health circumstances”.
The word “demonstrable” in the table naturally connects to the requirement for medical documentation in HO O47.
Therefore, the phrase “save in demonstrable exceptional circumstances” in Table 3.5 must be read as referring to – and confined by – HO O47.

On this interpretation:

The New Plan no longer contains a general “exceptional circumstances” gateway for persons who already have a one‑off rural dwelling.
Any exception is narrowly focused on health‑related need supported by specialist evidence.
Ms. Herbert’s situation – though compelling – is not health‑related; it stems from matrimonial breakdown and a court order to sell her existing home. Accordingly, she cannot invoke HO O47 or Table 3.5.

This reading structurally aligns the table with the formal objectives and preserves consistency within the Plan. It also reflects the broader policy turn towards strict limitation of second one‑off dwellings.

3.3.5 Adequacy of Reasons in the Second Decision

On the reasons issue, the Court draws a sharp distinction between:

the first decision, where the Commission itself accepted that the reasons were inadequate (leading to the consent order of certiorari); and
the second decision, which is under challenge in these proceedings.

For the second decision:

The inspector’s addendum engaged with the New Plan, acknowledged the Applicant’s circumstances (matrimonial breakdown), and explained the impact of HO O43 and the removal of the Old Plan’s exceptional circumstances clause.
The Commission explicitly adopted this reasoning.
The formal decision record referenced the totality of the information and submissions, and set out the relevant objectives under which the application was refused.

Given that the Commission agreed with the inspector, the Court applied the logic from Balz, Connolly, and distinguished Walsh: there was no need for a separate, more detailed statement of reasons. The reasoning was apparent from the inspector’s report, which the Commission properly treated as its own.

3.3.6 Merits vs Legality and the Role of Sympathy

The Applicant’s personal story – lifelong local resident, farmer, compelled to sell an existing home that was itself once a “one‑off” permission – naturally evokes sympathy. Nolan J explicitly recognises this, stating that the Court’s “empathy is clearly with the Applicant” (para. 52).

However, drawing on Moran, he stresses that:

The courts are not a forum for rehearing the planning merits.
The Oireachtas has conferred the evaluative role on planning decision‑makers (local authorities and the Commission).
Judicial review is limited to the lawfulness of the decision, not its substantive fairness in broader social or moral terms.

Thus, even if many people – including judges – might think Ms. Herbert ought, in justice, to be allowed build a modest replacement farmhouse in her locality, that sentiment cannot translate into a legal basis to quash a decision that faithfully applies a democratically adopted development plan.

This reinforces a cornerstone of Irish administrative law: courts can ensure legality, procedural fairness, and rationality, but they will not substitute their own planning judgment or bend clear policy instruments to accommodate hard cases.

4. Impact and Significance

4.1 For Rural Housing Applicants (Especially in Kildare)

The combined effect of HO O43 and this judgment is stark for individuals in County Kildare who have already received permission for a one‑off rural house:

The general safety‑valve of “exceptional circumstances” has been shut. Under the Old Plan, a second house might be possible in genuinely exceptional cases; under the New Plan, that discretion has gone, except in the tightly defined health‑related sphere of HO O47.
Past one‑off permissions are a hard bar. Anyone who has previously obtained such a permission in Kildare will have great difficulty securing another one‑off rural dwelling, regardless of later changes in life circumstances such as divorce, insolvency, family breakdown, or forced sale.
Timing is critical but not legally protected. Applicants cannot rely on having made applications under an old plan or on earlier invalid decisions to secure assessment under a superseded policy. If the plan changes before the final decision, the new plan applies.

In practical terms, Herbert signals that rural housing in Kildare for people who have already had the benefit of a one‑off permission is now extremely constrained, save where:

a different policy route (e.g. village or settlement development rather than one‑off rural) can be engaged; or
the applicant can fall within HO O47’s strict health‑based exception, supported by specialist medical documentation.

4.2 For Planning Authorities and An Coimisiún Pleanála

The judgment has several operational implications for planning authorities and the Commission:

Primacy of Objectives: It re‑affirms, via Sherwin, that the legally operative components of a development plan are its policies and objectives. Graphical material, tables, or guidance (such as “technical considerations” and “high‑level checklists”) assist in interpretation but cannot compete with or override objectives.
Applying Current Law: Decision‑makers must apply the plan in force at the time of decision, even where that is newly adopted and less favourable to the applicant, and even where the applicant’s earlier decision was flawed and quashed.
Reasons by Adoption: The Commission may validly discharge its reasons obligation by adopting an inspector’s report, provided that the report comprehensively addresses the relevant issues under the correct plan and explains the key grounds for refusal.
Recognising, but Not Overriding, Hardship: Decision‑makers should acknowledge personal circumstances, but those cannot lawfully justify departing from clear objectives unless the plan itself builds in a discretion or exception (as, for example, HO O47 does).

4.3 For Drafters of Development Plans

From a policy‑drafting perspective, Herbert is a cautionary tale:

Avoid ambiguous labels: The phrase “high‑level checklist” is criticised as confusing. If a table or section is merely guidance, it should be described as such plainly, and its relationship to the binding policies and objectives should be clearly spelled out.
Be explicit about exceptions: Where a council wishes to allow flexibility in exceptional cases, it should say so explicitly in the objectives, and define the scope of that flexibility. The removal of “exceptional circumstances” language from RH3 and its re‑appearance only in HO O47 indicates a deliberate narrowing which the Court was swift to enforce.
Ensure internal consistency: Plans should minimise the risk of internal textual tensions between objectives and narrative guidance. Where such tensions do arise, courts will – following Sherwin and now Herbert – favour the formal objectives.

4.4 For Judicial Review Practice

For lawyers and litigants, Herbert underscores and refines several important themes in planning judicial review:

Merits-based arguments are out of bounds. Courts will be alert to challenges that dress up dissatisfaction with the planning merits as alleged legal errors. As in Moran, such attempts will be rebuffed.
Reasons challenges are context‑sensitive. If a board adopts its inspector’s report and the report clearly addresses the relevant policies under the correct plan, a reasons challenge is unlikely to succeed, especially where there is no departure.
Policy changes can lawfully produce different outcomes. An applicant cannot complain of irrationality simply because different decisions (or different inspector views) emerge at different times under different policy regimes.
“Hard cases” will rarely move the legality dial. Even where a court is overtly sympathetic, as Nolan J plainly was, it will not treat sympathy as a legal ground for intervention where the decision falls within the decision‑maker’s lawful discretion and accurately applies a clear development plan.

5. Complex Concepts Simplified

5.1 Development Plans, Objectives and Guidance

Development Plan: A statutory blueprint adopted by each local authority setting out how land is to be used and developed over a set period (typically six years). It contains written statements, zoning maps, policies, and objectives.
Objectives: These are the binding elements that decision‑makers are legally obliged to follow when deciding planning applications (unless a lawful “material contravention” occurs via a specific statutory mechanism). Examples here are HO O43 and HO O47.
Guidance / Technical Considerations / Checklists: These sections aim to help applicants understand how objectives are typically applied. They are not legally binding in the same way as objectives. Table 3.5 in the New Plan is such a guidance tool.

5.2 One‑Off Rural Housing

“One‑off rural houses” are standalone dwellings built in the countryside, outside villages, towns or planned estates. National and local policies have grown increasingly restrictive about such development because, in aggregate, it can:

lead to scattered housing,
place pressure on infrastructure and services,
affect landscape character, and
raise sustainability concerns (e.g. car dependence, environmental impact).

Many development plans therefore allow one‑off rural housing only for people with a defined social or economic connection to the area, and often restrict second or subsequent one‑off houses even more strictly.

5.3 “Exceptional Circumstances”

“Exceptional circumstances” in planning policy are usually intended to cover truly unusual situations that justify departing from an otherwise strict rule. Under the Old Plan:

RH3 allowed a second one‑off house where such exceptional circumstances existed.

Under the New Plan:

That broad escape clause was removed.
The only remaining “exceptional” carve‑out (relevant here) is HO O47, confined to documented health needs requiring residence in a particular environment.

5.4 Judicial Review vs Appeal

Judicial Review: A legal process where the High Court reviews the lawfulness of a decision by a public authority. It looks at whether the correct procedures were followed, whether the decision was rational, whether the authority acted within its powers, and whether adequate reasons were given. It does not re‑decide the merits.
Planning Appeal (to An Coimisiún Pleanála): A merits‑based process where the Commission looks at all material afresh and decides whether to grant or refuse permission, weighing planning considerations anew.

In Herbert, the Applicant had already used the appeal process (to the Commission) and was now in the High Court invoking judicial review, which is confined to legality, not planning judgment.

5.5 Standard of “Irrationality”

When a court considers whether a decision is irrational (under the O’Keeffe/Keegan standard), it is not asking whether the judge personally agrees with the decision. It asks:

Was the decision so unreasonable that no reasonable decision‑maker, properly informed and acting within its powers, could have made it?

This is a very high bar. A decision that is harsh, debatable, or even arguably unwise may still be lawful if it is rationally connected to the evidence and the governing policy, as was the case here.

5.6 Section 34(10) PDA – Duty to Give Reasons

Section 34(10) of the Planning and Development Act 2000 (as amended) requires that planning decisions (by local authorities and by the Commission) state the main reasons and considerations on which they are based. This enables:

transparency,
accountability, and
the ability for an affected person to assess whether a legal challenge might be justified.

In Herbert, the first decision was conceded to be invalid because of inadequate reasons. The second decision, which adopted a detailed inspector’s report under the correct plan, was held to satisfy this statutory requirement.

6. Conclusion

Herbert v An Coimisiún Pleanála is a paradigmatic example of a “hard case” in planning law: a sympathetic applicant, a compelling personal story, and a harsh outcome dictated by a rigid policy instrument. Yet, rather than bending the law to fit the equities of the case, the High Court reaffirms core structural principles of Irish planning and administrative law.

The decision establishes and clarifies that:

Development plan objectives are paramount. Guidance material such as “technical considerations” and “high‑level checklists” cannot override, contradict, or materially qualify binding objectives like HO O43. Where any tension appears, the objectives prevail.
General “exceptional circumstances” gateways can be legislatively removed and will be strictly interpreted when they are narrowed. Under the New Plan, the broad exceptional‑circumstances relief found in RH3 has been abolished and replaced only by specific, narrow exceptions such as the health‑based HO O47.
Planning decisions must apply the law and development plan in force at the time of decision, irrespective of earlier invalid decisions or temporal unfairness. A quashed decision confers no entitlement to assessment under a superseded plan.
Judicial review is about legality, not fairness on the merits. The High Court will not convert sympathetic facts into a ground to circumvent clear planning policy; merits‑based disagreements dressed up as legal arguments will not succeed.
Reasons can validly be given by adopting an inspector’s report, especially when there is no departure from the inspector’s recommendation. In such cases, the court will read the decision and the report together when assessing compliance with s.34(10) PDA.

For practitioners and applicants in the planning sphere, Herbert is a clear warning that the current Kildare County Development Plan adopts a stringent stance on second one‑off rural dwellings, with only narrow, health‑based exceptions. For public bodies and legislators, it underscores the importance of precise drafting, clear hierarchies within planning documents, and the judicial insistence that binding objectives be applied as written, even where the result is personally harsh.

In the wider legal context, the case reinforces the modern Irish courts’ consistent message in planning law: empathy and policy arguments must yield to the statutory framework and democratically adopted plans, unless a clear legal error can be identified. Herbert will stand as an important authority on the interpretation of development plan instruments, the limits of “exceptional circumstances”, and the circumscribed role of judicial review in planning disputes.