Baile Eamoinn Teoranta v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicant sought planning permission for a comprehensive development at a site in The City, including demolition of a cottage and construction of an eighty-one bedroom hotel, two self-catering cottages, a business and food innovation centre, six detached residential houses, and associated car parking and works. Galway County Council refused permission on 10th November 2017, primarily due to deficiencies in the public waste water system servicing the area and concerns about public health risks from discharge into the sea near two beaches.

The Applicant appealed to the Respondent, who also refused permission on 23rd October 2018, citing prematurity of the development given the inadequate municipal waste water treatment plant (MWWTP) and concerns that discharge from a private waste water treatment plant (PWWTP) into the deficient public sewerage network would be prejudicial to public health.

The Applicant initiated judicial review proceedings challenging the legality of the Respondent’s decision on several grounds, including alleged failure to properly consider the views of Irish Water, reliance on non-statutory policy, irrationality due to a material mistake of fact regarding Irish Water’s planning application, and lack of evidential basis for the public health concerns.

The High Court considered extensive submissions and evidence, including the Inspector’s report, correspondence between parties, and relevant statutory provisions and guidelines.

Legal Issues Presented

1. Whether the Respondent failed to have regard to the views of Irish Water as required by relevant guidelines and statutory provisions.
2. Whether the Respondent improperly relied on a non-statutory policy contrary to the County Development Plan.
3. Whether the Respondent’s decision was irrational due to a material mistake of fact concerning the status of Irish Water’s planning application for a municipal waste water treatment plant.
4. Whether the Respondent’s conclusion that the proposed development would be injurious to public health lacked evidential support and was irrational.

Arguments of the Parties

Applicant's Arguments

• The Respondent failed to properly consider the views of Irish Water expressed in a pre-connection feasibility letter dated 26th October 2017, which confirmed that connection of the proposed development to the existing public waste water system was feasible.
• If the Respondent did consider Irish Water’s letter, it failed to provide adequate reasons for departing from those views, breaching statutory duties and guidelines.
• The initial refusal by Galway County Council relied on a non-statutory policy against private waste water treatment plants, conflicting with the County Development Plan which permitted such plants under certain conditions; this issue was not addressed by the Respondent.
• The Respondent’s decision was irrational because it proceeded on a material mistake of fact, incorrectly believing Irish Water had not submitted a planning application for a municipal waste water treatment plant, when in fact such application had been submitted and permission granted prior to the Respondent’s decision.
• The conclusion that the development would be prejudicial to public health was unsupported by evidence, relying instead on vague “potential concerns” and “reservations.” The proposed PWWTP was a tertiary treatment plant with discharge quality asserted to be higher than the municipal plant proposed by Irish Water.
• Overall, the decision should be quashed and the matter remitted for fresh consideration.

Respondent's Arguments

• Irish Water was a statutory consultee entitled to make submissions but chose not to do so after notification of the planning application; thus, the Respondent was not obliged to have regard to the pre-application letter, which only confirmed technical feasibility.
• The alleged reliance on a non-statutory policy did not arise in the Respondent’s reasoning for refusal and thus did not require consideration.
• The decision must be assessed on the material before the Respondent at the time; it was entitled to rely on the Inspector’s report, which was based on the information then available, even if that information was later shown to be inaccurate.
• The distinction between technical feasibility and planning merit justified treating the pre-connection letter as insufficient to require the Respondent’s consideration or departure explanation.
• The Respondent properly refused permission on grounds of prematurity given the existing deficiency in the public waste water system and potential adverse effects on public health from additional hydraulic loading.
• There was evidence from the local environment section and the fact that Irish Water was in breach of its EPA licence that supported concerns about public health risks from the development.
• The absence of finality in Irish Water’s planning permission at the time of decision, due to an outstanding appeal, meant the Respondent’s understanding of the situation was reasonable and the decision rational.
• Planning policy considerations favored public waste water treatment facilities over private ones due to issues of control, maintenance, and odour emissions.
• The court should refuse the reliefs sought by the Applicant.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined each ground of challenge in turn. Regarding the alleged failure to consider Irish Water’s letter of 26th October 2017, the court found that the letter was a pre-connection feasibility response and did not constitute a formal submission by Irish Water as a statutory consultee. Since Irish Water had been notified twice of the planning application but made no formal submissions, the Respondent was entitled to proceed without regard to the letter. The court emphasized the procedural certainty required in planning decisions, noting that only formal submissions after notification must be considered, not informal pre-application communications.

On the second ground concerning reliance on a non-statutory policy, the court accepted the Respondent’s submission that this was not a factor in the refusal decision and therefore did not require consideration or response.

The third ground, regarding the material mistake of fact, was upheld. The Inspector’s report relied on an out-of-date Irish Water website indicating no planning application had been submitted for the municipal waste water treatment plant. In reality, Irish Water had submitted the application months earlier and obtained planning permission before the Respondent’s decision. This material factual error was not attributable to the Applicant and was significant because the Respondent’s refusal was premised on prematurity related to the absence of a municipal facility. The court found the error material enough to vitiate the decision, as it may have influenced the outcome.

Finally, on the public health issue, the court found that the Respondent’s conclusion was not supported by cogent evidence. The Inspector’s report expressed “potential concerns” and “reservations” without evidential foundation. The Applicant had presented technical data showing the proposed private treatment plant would provide a high-quality discharge, arguably superior to the municipal plant. The Inspector’s simultaneous conclusion that there would be no significant environmental effects but a risk to public health was contradictory. The court held that a finding of adverse public health impact requires evidential support, which was lacking here, rendering the decision irrational on this ground as well.

Holding and Implications

The court SET ASIDE the Respondent’s decision dated 23rd October 2018 refusing planning permission for the proposed development.

The matter is to be remitted to the Respondent for fresh consideration in light of the correct facts concerning Irish Water’s planning permission and with proper evidential assessment of public health risks.

No new precedent was established by this decision; its effect is confined to quashing the impugned decision and requiring reconsideration consistent with the court’s findings.